19. FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING

CHEA Sophal, RADU Mares

Introduction

Freedom of association of workers means the right to form or join a labour union; it includes also the right to collective bargaining to determine working conditions, and the right to strike to apply pressure most effectively for the interests of workers. The ILO considers freedom of association a fundamental right and its unique tripartite structure – workers, employers and states – presupposes independent labour unions. Therefore ILO expects member states to respect freedom of association simply because they are members of the organization, even if they did not ratify the relevant conventions. This right is considered an ‘enabling right’ because all other rights at work (chapter 15-23) can be promoted through organized labour or, on the contrary, those rights can be undermined if the collective voice of workers is repressed. At one extreme, worker unions can create highly adversarial relations that can lead to work stoppages, while at the other end of the spectrum worker unions are a factor of stability in ‘mature’ industrial relation systems. Leading companies seeking sustainable improvements of working conditions in supplier factories increasingly recognize that worker representatives and labour unions are indispensable: they are the best monitors as they are permanently on the factory floor and understand better than any external auditor the actual situation. Therefore leading companies see respect for union activities as part of the solution in a package of measures containing also social audits, support for productivity offered to the supplier’s managers, and responsible purchasing practices (chapter 11). Such responsible companies refrain from intimidation and any anti-union activity while remaining careful to not interfere and actively support such unions; that would risk compromising the autonomy of the worker unions. In countries where unions are restricted by law, companies have promoted alternative ways to ensure worker representation, for example through worker representatives or consultative worker-management committees. Most credible multistakeholder partnerships focused on worker issues cannot exclude labour unions (chapter 5). There has been some tension between NGOs promoting better worker conditions and labour unions claiming to be the sole legitimate representatives of labour interests; this however is a minor conflict, easily solvable through collaboration. Worker unionization has been on the decline globally, even in developed countries with previously higher rates of unionization. A further complicating factor has been the outsourcing of production to low wage countries, which made it impossible for workers in supplier factories to bargain with company representatives that made the key decisions (i.e. the brands in industrialized countries). In other words, the trasnationalisation of business operations through globalization (chapter 3) has not been matched sufficiently by internationalization of industrial relations. To counteract this trend international labour federations have approached transnational companies to conclude new agreements, the so-called ‘global framework agreements’. These are meant to guarantee freedom of association throughout the supply chain and get the transnational company to persuade suppliers to work in good faith with local labour unions.

Cambodia has ratified all (eight) core international labour conventions as identified by the ILO, including the Convention no. 87 on freedom of association and Convention 98 on collective bargaining. Both conventions and national laws namely Cambodian Labour Law and Law on Trade Union recognize the right of all workers to pursue their rights and interests regarding employment collectively. Freedom of association applies to workers but also to employers. 

Main Aspects

• Freedom of association
• Collective bargaining
• Right to strike
• Restrictions on the right to strike
• Strikes in essential services
• Labour market
• Coverage of workers
• Trade unions and civil liberties
• Political strikes
• Sympathy strikes and internationalization of production
• Rights of enterprises (conflict with trade union rights)
• Export processing zones
• Use of force (against striking workers)
• Anti-union discrimination
• Collective agreements (with non-union workers)
• Workers’ representatives (relation to freedom of association)
• Alternative channels of worker representation (where law prohibits freedom of association)
• Employment relationship (as foundation for collective bargaining)

Background

ITUC, The UNGPs and the Right to Form or Join Trade Unions^[1]

Active violations by employers

• Interrogation or surveillance of workers concerning their support for trade unions;
• Surveillance of trade union activities;
• Intimidation of workers by threatening the loss of their livelihood;
• Intimidation of vulnerable workers such as migrant workers;
• Physical intimidation of trade union supporters;
• Screening for trade union supporters during recruitment;
• Creating, circulating or using “blacklists” of trade union supporters
• Dismissal of trade union supporters;
• Discrimination against trade union supporters through demotions, less favourable assignments, less favourable conditions of work, reduction of wages, benefits, opportunities for training, transfers, and relocation;
• Non-extension of employment contracts to trade union supporters on fixed term and temporary employment;
• Interference in the decision process by which workers choose whether to be represented by a trade union or by which they choose among different trade union organisations;
• Anti-union campaigns and “union avoidance” activities, including by engaging professional consultants;
• Actively pursuing legal and administrative delays in the process by which trade unions obtain recognition;
• Isolation of workers from trade union organisers/ representatives, including where workers live on premises owned by the company or where work is performed in places where access is restricted such as private business complexes or export processing zones (EPZs); (…)

In addition to the above list there is a range of activities that involve the employer establishing or promoting alternatives to trade unions.

Sometimes employers create joint labour management committees, employee councils or other structures that require worker representatives. The danger is that these structures and the “worker representatives” serving on them become substitutes for independent and representative trade union structures. They can also become obstacles for workers seeking to form or join their own organisations.

Sometimes these practices are not intended to discourage workers from forming or joining trade unions. They can also be part of an effort to show that freedom of association is respected in countries where the government does not protect this right. (…)

Where there is reason to believe that the business enterprise is misusing worker representative structures to avoid or hinder trade unions, the business enterprise should make a clear written and verbal statement to workers that they have the right to join the trade union, and that the worker representative structure in question does not replace this.

Avoiding the legal obligations of the employer

Despite a range of different legal systems, the employment relationship is a universal concept which recognises that workers, in a position of subordination and dependency to the person or enterprises for whom they perform work, are in an inherently unequal power relationship. For this reason a distinct form of law (employment law or labour law) based on the recognition of an employment relationship, seeks to balance this unequal power by creating a range of rights and obligations intended to protect the worker while recognising the mutual obligations of both employers and employees. The employment relationship remains one of the most important means by which society protects its interest in fairness and in the stability of economic relationships as well as in the respect for human rights at work. (…)

An increasing amount of work is now being performed outside of a direct, ongoing employment relationship that protects these rights. This work is, instead, being performed in triangular relationships where an intermediary, such as an agency or labour broker, supplies workers, recognised as employees of the intermediary, to a user enterprise where they work alongside employees of the “user enterprise”. In these situations, the introduction of multiple employers at the same workplace can effectively deny genuine collective bargaining. Changes in business operations can also be used by business enterprises to end collective bargaining structures and relationships. Sub-contracting arrangements are used to increase the distance between workers and the legal entity which controls their wages and working conditions so that meaningful collective bargaining is not possible.

Sometimes employers seek to evade the obligations that the law places on employers by disguising the existence of an employment relationship such as by treating the worker as being self-employed. Temporary work, including casual work and seasonal work, as well as work performed under fixed term or short term contracts, is often based on relationships that make it practically impossible for the workers concerned to exercise their rights to join or form trade unions and to bargain collectively.

The duty to bargain

Business enterprises cannot respect the right to collective bargaining by merely refraining from doing harm. Respecting the rights of workers to bargain collectively means accepting that there is a duty to bargain where workers want to exercise this right. Although collective bargaining must be voluntary if it is to be genuine, this does not mean that business enterprises can refuse to collectively bargain because they “voluntarily” chose not to do so. It is only necessary that the outcome be voluntarily agreed by the parties. Legally mandated bargaining by independent parties is not a violation of a human right.

The right to collective bargaining applies to workers not enterprises. If a business enterprise is to respect the right of workers to bargain collectively, then it must accept that it has a duty to bargain. This is the essence of what it means to bargain in good faith. Accepting the duty to bargain means that the business enterprise must accept reasonable times and venue for bargaining, participate in meetings, give serious consideration and a response to proposals, and provide reasons for its responses. Moreover, the business enterprises should make every reasonable attempt to reach agreement.

Instruments

The Universal Declaration of Human Rights^[2]

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

2. No one may be compelled to belong to an association.

Article 23

4. Everyone has the right to form and to join trade unions for the protection of his interests.

International Covenant on Economic, Social and Cultural Rights^[3]

 

Article 8 [Right to form and join trade unions without restriction]

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State. (…)

International Covenant on Civil and Political Rights^[4]

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. (…)

ILO, Freedom of Association and Protection of the Right to Organise Convention^[5]

Preamble

Considering that the Preamble to the Constitution of the International Labour Organisation declares “recognition of the principle of freedom of association” to be a means of improving conditions of labour and of establishing peace;

Considering that the Declaration of Philadelphia reaffirms that “freedom of expression and of association are essential to sustained progress”;

Article 2

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

Article 3

1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

Article 10

In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.

ILO, Right to Organise and Collective Bargaining Convention^[6]

Article 1

1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

2. Such protection shall apply more particularly in respect of acts calculated to–

(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.

Article 4

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.

ILO, Declaration on Fundamental Principles and Rights at Work^[7]

The International Labour Conference (…)

2. Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: 

(a) Freedom of association and the effective recognition of the right to collective bargaining; (…)

ILO, Declaration on Social Justice for a Fair Globalization^[8]

I. (…) the four equally important strategic objectives of the ILO, through which the Decent Work Agenda is expressed (…):

(iv) respecting, promoting and realizing the fundamental principles and rights at work, which are of particular significance, as both rights and enabling conditions that are necessary for the full realization of all of the strategic objectives, noting:

– that freedom of association and the effective recognition of the right to collective bargaining are particularly important to enable the attainment of the four strategic objectives; and

– that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes.

UN Global Compact, Ten Principles^[9]

Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining;

ILO, General Survey on the Fundamental Conventions^[10]

51. Freedom of association and collective bargaining, which are now set out in most of the constitutions of member States, are of vital importance for the social partners, as they enable them to establish rules in the field of working conditions, including wages, to pursue more general claims and to reconcile their respective interests with a view to ensuring lasting economic and social development. In the Committee’s opinion, strong and independent workers‟ organizations are essential to compensate the legal and economic inferiority of workers. Furthermore, employers’ organizations are particularly important for the protection of interests of small enterprises. Workers’ and employers’ organizations are major tools for labour market governance and for the development of industrial relations systems that are vectors of stability, progress and economic and social prosperity. They also make it possible to ensure the effective application of labour legislation through the denunciation of violations of the law wherever necessary. In addition, these organizations participate in consultation machinery for the definition of economic and social policy and the formulation of draft labour legislation. It is therefore essential to ensure their independence in relation to the public authorities and political parties, as recalled by the resolution adopted by the Conference in 1952 concerning the independence of the trade union movement.

[Committee of Experts and Committee on Freedom of Association]

52. Conventions Nos 87 and 98 are among those which have received the most ratifications. As additional proof of their importance, all member States, even if they have not ratified the Conventions in question have, on the one hand, an obligation arising from the very fact of membership in the ILO to respect, to promote and to realize the principles concerning fundamental rights which are the subject of these Conventions and, on the other hand, can be called upon to provide explanations to the Committee on Freedom of Association which, as a tripartite body of the Governing Body, has had the mandate since 1951 to examine complaints alleging violations of the principles of freedom of association presented by workers‟ or employers‟ organizations against a member State. The Committee of Experts attaches particular importance to the decisions of the Committee on Freedom of Association. As a tripartite body, the legitimacy of the recommendations and principles of the Committee on Freedom of Association is accentuated by the consensus that prevails in its work and the expertise in industrial relations provided by the Government, Employer and Worker members who sit on the Committee in their individual capacity. (…)

Main difficulties concerning the scope of application

58. The principal difficulties relating to the scope of application of Convention No. 87 concern the interpretation given by the legislation in certain countries to the exceptions authorized by Article 9, paragraph 1, of the Convention, namely the armed forces and the police and, more generally, the application of the Convention to public servants and to certain other categories of workers. The application of the Convention to fire service personnel, prison staff, magistrates and teachers has also been the subject of special attention by the Committee. It is the same for the application of the Convention to workers in the informal economy, migrant workers, domestic workers, workers in export processing zones, as well as workers engaged under a disguised labour relationship (in the form of service contracts, for example). The Committee has also noted that a number of the sectors and groups of workers excluded from the right to organize and related rights are often predominantly female. The Committee therefore considers that it is important to examine the gender implications of the application of the Conventions to ensure that there is no direct or indirect discrimination against women. In the view of the Committee, all of these categories of workers should benefit from the rights and guarantees set forth in the Convention.

Trade union rights and civil liberties

59. (…) the fundamental rights that are necessary for the exercise of freedom of association, with particular reference to: (i) the right to freedom and security of person and freedom from arbitrary arrest and detention; (ii) freedom of opinion and expression, and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (iii) freedom of assembly; (iv) the right to a fair trial by an independent and impartial tribunal; and (v) the right to protection of the property of trade union organizations. The ILO supervisory bodies have since unceasingly stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations.

Recognition of the most representative trade unions

96. In an attempt to establish a proper balance between imposed trade union unity, which is incompatible with the Convention, and the excessive multiplication of trade unions, the legislation in some countries establishes the concept of the “most representative trade unions”, which are granted a variety of rights and advantages. There are different methods to determine the most representative trade unions and the manner in which they jointly or separately engage in collective bargaining. In the view of the Committee, this concept is not in itself contrary to the principle of freedom of association, but must be accompanied by certain conditions, namely: (i) the determination of the most representative organizations must be based on objective, pre-established and precise criteria, so as to avoid any possibility of bias or abuse;  and (ii) the distinction should be limited to the recognition of certain preferential rights (for example, for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations).

The right to strike

117. Strikes are essential means available to workers and their organizations to protect their interests, but there is a variety of opinions in relation to the right to strike. While it is true that strike action is a basic right, it is not an end in itself, but the last resort for workers‟ organizations, as its consequences are serious, not only for employers, but also for workers, their families and organizations and in some circumstances for third parties. In the absence of an express provision in Convention No. 87, it was mainly on the basis of Article 3 of the Convention, which sets out the right of workers‟ organizations to organize their activities and to formulate their programmes, and

Article 10, under which the objective of these organizations is to further and defend the interests of workers, that a number of principles relating to the right to strike were progressively developed (…). This position of the supervisory bodies in favour of the recognition and protection of the right to strike has, however, been subject to a number of criticisms from the Employers‟ group in the Committee on the Application of Standards of the International Labour Conference.

Employers’ group

The Employers‟ group in the Conference Committee considers that neither the preparatory work for Convention No. 87, nor an interpretation based on the Vienna Convention on the Law of Treaties, offers a basis for developing, starting from the Convention, principles regulating in detail the right to strike.

According to the Employer members, the right to strike has no legal basis in the freedom of association Conventions. In their view, Convention No. 87 at most contains a general right to strike, which nonetheless cannot be regulated in detail under the Convention. They consider that when the Committee of Experts expresses its views in detail on strike policies, especially on essential services, it applies a “one-size-fits-all” approach that fails to recognize differences in economic or industrial development and current economic circumstances. They add that the approach of the Committee of Experts undermines tripartism and ask it to reconsider its interpretation of the matter. In 2011, the Employer members reiterated their position, considering that the observations of the Committee of Experts on the right to strike and essential services are not in conformity with the text, the preparatory work and the history of the negotiation of Convention No. 87. (…)

Workers’ group

The Worker members of the Conference Committee (…) stated that the right to strike is an indispensable corollary of the right to organize protected by Convention No. 87 and by the principles enunciated in the ILO Constitution. In their view, without the right to strike, freedom of association would be deprived of its substance. They added that strike objectives could not be limited only to the conflicts linked to the workplace or the enterprise, particularly given the phenomena of enterprise fragmentation and internationalization. This was the logical consequence of the fact that trade union activities should not be limited to strictly occupational questions. This was the reason why sympathy strikes should be possible, as well as strikes at the sectoral level, the

national and the international level. Finally, they considered that by considerably limiting the scope of action of trade unions, by legal or administrative restrictions, governments and employers might find themselves increasingly faced with spontaneous actions. (…)

Finally, they indicated that the Committee of Experts had developed its views on this question in a very cautious, gradual and balanced manner, and that it would be preferable that the general consensus established in this regard was not shaken up.

119-122. (…) the Committee of Experts has never considered the right to strike to be an absolute and unlimited right, and that it has sought to establish limits to the right to strike in order to be able to determine any cases of abuse and the sanctions that may be imposed. (…) elements concerning the peaceful exercise of the right to strike, its objectives and the conditions for its legitimate exercise, which may be summarized as follows: (i) the right to strike is a right which must be enjoyed by workers‟ organizations (trade unions, federations and confederations); (ii) as an essential means of defending the interests of workers through their organizations, only limited categories of workers may be denied this right and only limited restrictions may be imposed by law on its exercise; (iii) the objectives of strikes must be to further and defend the economic and social

interests of workers and; (iv) the legitimate exercise of the right to strike may not result in sanctions of any sort, which would be tantamount to acts of anti-union discrimination. Accordingly, subject to the restrictions authorized, a general prohibition of strikes is incompatible with the Convention, although the supervisory bodies accept the prohibition of wildcat strikes. Furthermore, strikes are often called by federations and confederations which, in the view of the Committee, should be recognized as having the right to strike. Consequently, legislation which denies them this right is incompatible with the Convention.

[“political strikes”]

124. In the legislation of several countries, “political strikes” are explicitly or tacitly deemed unlawful. 268 The Committee considers that strikes relating to the Government’s economic and social policies, including general strikes, are legitimate and therefore should not be regarded as purely political strikes, which are not covered by the principles of the Convention. In its view, trade unions and employers’ organizations responsible for defending socio-economic and occupational interests should be able to use, respectively, strike action or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members. Moreover, noting that a democratic system is fundamental for the free exercise of trade union rights, the Committee considers that, in a situation in which they deem that they do not enjoy the fundamental liberties necessary to fulfil their mission, trade unions and employers’ organizations would be justified in calling for the recognition and exercise of these liberties and that such peaceful claims should be considered as lying within the framework of legitimate trade union activities,  including in cases when such organizations have recourse to strikes.

[“sympathy” strikes]

125. With regard to so-called “sympathy” strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of globalization characterized by increasing interdependence and the internationalization of production, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful. (…)

128. In this context, the Committee has noted with concern the potential impact of the recent case law of the Court of Justice of the European Communities (CJEC) concerning the exercise of the right to strike, and particularly the fact that in recent rulings the Court has found that the right to strike could be subject to restrictions where its effects may disproportionately impede an employer’s freedom of establishment or freedom to provide services. (…) the European Trade Union Confederation (ETUC) drew the Committee’s attention to its particular concerns with respect to the impact of recent decisions of the Court of Justice of the European Union (Viking, Laval, Ruffert and Luxembourg) on freedom of association rights and the effective recognition of collective bargaining. (…)

143. EPZs. A number of countries establish a special system of industrial relations in EPZs which specifically or indirectly prohibits strikes in such zones. 332 In the view of the Committee, such prohibitions are incompatible with the principles of non-discrimination which must prevail in the implementation of the Convention. (…)

167. (…) Collective bargaining is one of the principal and most useful institutions developed since the end of the nineteenth century. As a powerful instrument of dialogue between workers‟ and employers‟ organizations, collective bargaining contributes to the establishment of just and equitable working conditions and other benefits, thereby contributing to social peace. It also provides a basis for preventing labour disputes and determining procedures for the settlement of certain specific problems, particularly in the context of adjustment processes in the event of economic crisis or cases of force majeure, as well as worker mobility programmes. Collective bargaining is therefore an effective instrument which facilitates adaptation to economic, socio-political and technological change. The principal elements of Convention No. 98, with which most national law and practice is now aligned, are the following: (i) the principle of the independence and autonomy of the parties and of free and voluntary bargaining; (ii) the effort made, in the context of the various bargaining systems, to reduce to a minimum any possible interference by the public authorities in bipartite negotiations; and (iii) the primacy accorded to employers and their organizations and to trade unions as the parties to negotiations.

[burden of proof and anti-union discrimination]

192. One of the main difficulties in relation to allegations of discrimination in general, and of anti-union discrimination in particular, relates to the burden of proof. In practice, placing on workers the burden of proving that the act in question occurred as a result of anti-union discrimination may constitute an insurmountable obstacle to establishing liability and ensuring an appropriate remedy. In response, certain States have decided to strengthen the protection of workers by requiring the employer, under certain conditions, to prove that the act of alleged anti-union discrimination was caused by factors other than trade union activity or membership. (…)

199. (…) two [restrictive] trends to which the Committee draws attention. The first is the tendency for the legislature in several countries to give precedence to individual rights over collective rights in employment matters. This tendency runs counter to ILO principles, and particularly the Collective Agreements Recommendation, 1951 (No. 91), which recalls the principle of the binding effects of collective agreements and their primacy over individual contracts of employment (with the exception of provisions in the latter which are more favourable to the workers covered by the collective agreement). Secondly, in certain countries, direct agreements between employers and groups of non-unionized workers are much more numerous than the collective agreements concluded with the representative organizations of workers. This shows that the obligation to promote collective bargaining within the meaning of Article 4 is not yet fully respected.

Negotiation in good faith

208. The principle of negotiation in good faith, which is derived from Article 4 of the Convention, takes the form, in practice, of various obligations on the parties involved, namely: (i) recognizing representative organizations; (ii) endeavouring to reach agreement; (iii) engaging in real and constructive negotiations; (iv) avoiding unjustified delays in negotiation; and (v) mutually respecting the commitments made and the results achieved through bargaining. (…)

Content of collective bargaining

215. Conventions Nos 98, 151 and 154 and Recommendation No. 91 focus the content of collective bargaining on terms and conditions of work and employment, and on the regulation of relations between employers and workers and their respective organizations. The concept of “conditions of work” covers not only traditional working conditions (the working day, additional hours, rest periods, wages, etc.), but also subjects that the parties decide freely to address, including those that are normally included in the field of terms and conditions of employment in the strict sense (promotion, transfer, dismissal without notice, etc.). In practice, although conditions of work remain essential issues addressed by most collective agreements, the range of the subjects addressed has progressively broadened to reflect the evolution of industrial relations. Agreements

increasingly frequently cover issues related, for example, to recruitment levels, safety and health, restructuring processes, training, discrimination and supplementary social security benefits. Agreements are also sometimes used to institutionalize procedures on dispute settlement machinery, and to prevent strikes. Finally, they may also be used, where appropriate, to obtain arrangements for the benefit of workers, particularly with regard to their welfare (enterprise doctors, works stores, loan agreements, housing assistance, etc.). Whatever the content, the Committee considers that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are generally incompatible with the Convention; and that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties.

[Collective agreements with non-unionized workers]

240. In practice, the Committee has recalled on several occasions that, where there exists a representative trade union and it is active within the enterprise or branch of activity concerned, the authorization for other workers‟ representatives to bargain collectively not only weakens the position of the trade union, but also undermines ILO rights and principles on collective bargaining. Despite this principle, several States continue to promote or allow non-unionized workers’ representatives to conclude collective agreements, even where there exists in the sector or enterprise concerned a trade union that is more able to guarantee the independence of its positions in relation to the employer. Recalling the principle that the use of machinery for voluntary negotiation has to be encouraged, the Committee considers that if, in the course of collective bargaining with the trade union, the enterprise offers better working conditions to nonunionized workers, there would be a serious risk of undermining the negotiating capacity of the trade union and giving rise to discriminatory situations in favour of the nonunionized staff; furthermore, it might encourage unionized workers to withdraw from the union. Emphasizing that collective bargaining is a fundamental right recognized in many national constitutions, and therefore accorded a high legal ranking, the Committee calls on governments to take measures to prevent direct agreements with non-unionized workers being used for anti-union purposes (…),

Machinery and procedures to facilitate and promote collective bargaining

241. The Collective Bargaining Recommendation, 1981 (No. 163), proposes a series of means to facilitate and promote collective bargaining, in accordance with Article 4 of Convention No. 98. These include measures with a view to: (i) facilitating the establishment and growth, on a voluntary basis, of free, independent and representative employers‟ and workers‟ organizations; (ii) establishing procedures for the recognition of the most representative organizations; (iii) ensuring that collective bargaining is possible at any level whatsoever; (iv) enabling negotiators to obtain appropriate training and the parties to have access to the information required for meaningful negotiations (such as information on the economic situation of the enterprise, on condition, however, that the objectivity and confidentiality of such financial data is subject to reasonable guarantees); and (v) taking measures adapted to national conditions so that procedures for the settlement of labour disputes assist the parties to find a solution to the dispute themselves. Moreover, the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), encourages the development of voluntary conciliation and arbitration machinery, one of the principal characteristics of which should be the joint nature of the machinery, voluntary recourse to the procedures, which should be expeditious and free of charge; and calls on the parties to abstain from strikes and lockouts while voluntary conciliation and arbitration procedures are in progress.

Extension of collective agreements

245. The Collective Agreements Recommendation, 1951 (No. 91), indicates that, where appropriate, having regard to established collective bargaining practice, “measures, to be determined by national laws or regulations and suited to the conditions of each country, should be taken to extend the application of all or certain stipulations of a collective agreement to all the employers and workers included within the industrial and territorial scope of the agreement.” 595 National laws or regulations may make the extension of the collective agreement subject to the following, among other, conditions: (i) that the collective agreement already covers a number of the employers and workers concerned which is, in the opinion of the competent authority, sufficiently representative; (ii) that, as a general rule, the request for extension of the agreement shall be made by one or more organizations of workers or employers who are parties to the agreement; and (iii) that the employers and workers to whom the agreement would be made applicable should be given an opportunity to submit their observations. 596 The Committee considers that the extension of collective agreements is not contrary to the principle of voluntary collective bargaining and is not in violation of Convention No. 98.

[Compulsory arbitration]

247. Compulsory arbitration in the case that the parties have not reached agreement is generally contrary to the principles of collective bargaining. In the Committee’s opinion, compulsory arbitration is only acceptable in certain specific circumstances, namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis. However, arbitration accepted by both parties (voluntary) is always legitimate. In all cases, the Committee considers that, before imposing arbitration, it is highly advisable that the parties be given every opportunity to bargain collectively, during a sufficient period, with the help of independent mediation

Inditex-IndustriAll, Global Framework Agreement^[11]

The main purpose of the Agreement remains ensuring respect of Human Rights within the labor and social environment, by promoting decent work throughout Inditex’s Supply Chain. (…)

The terms and conditions of the Agreement shall apply throughout the Inditex supply chain including in workplaces not represented by IndustriALL Global Union affiliated trade unions . IndustriALL Global Union and Inditex undertake to inform other trade unions in these latter places of the terms and conditions hereunder agreed.

IndustriALL Global Union will work with Inditex to help secure full compliance with the following standards (…):

1. No Forced Labour.
2. No Child Labour.
3. No Discrimination.
4. Respect for Freedom of Association and Collective Bargaining.
5. No Harsh or Inhumane Treatment.
6. Safe and Hygienic Working Conditions.
7. Wages are paid.
8. Working Hours are Not Excessive.
9. Regular Employment
10. Traceability of production
11. Health and Safety of products
12. Environmental Awareness
13. Confidentiality of information
14. Code implementation
    1. Transparency
    1. Reference to national legislation, Conventions and Agreements
    1. Verification of compliance
    1. Ethics Committee and Whistleblowing Channel

Inditex and IndustriALL Global Union agree to an annual review of the application of the Agreement and accordingly will  create  a  committee  comprised  of  three representatives from Inditex and three representatives from IndustriALL  Global Union to undertake that annual review.

To facilitate the on-going review of Freedom of Association and the Right to Bargain Collectively and the annual review of the Agreement, Inditex undertakes to provide reasonable information on its supply chain to the IndustriALL Global Union.

Inditex and IndustriALL Global Union undertake to inform each other of any breach of the Agreement, as soon as the breach is discovered, to enable the earliest possible implementation of a remediation action plan.

Annex 1 – Code Of Conduct For Manufacturers And Suppliers Inditex Group

4. Respect for freedom of association and collective bargaining

Manufacturers and suppliers shall ensure that their employees, without distinction, have the right of association, union membership and collective bargaining. No retaliation may arise from the exercise of such right and no remuneration or payment whatsoever may be offered to the employees in order to hinder the exercise of such a right. Likewise, they shall adopt an open and collaborative attitude towards the activities of Trade Unions.

Workers’ representatives shall be protected from any type of discrimination and shall be free to carry out their representative functions in their workplace.

Where the rights to Freedom of Association and Collective Bargaining are restricted under law, the appropriate channels to ensure a reasonable and independent exercise of such rights must be designed.

10. Traceability of production

Manufacturers and suppliers shall not assign any work to third parties without the prior written authorization of Inditex. Those who outsource any work shall be responsible for the enforcement of the Code by these third parties and their employees.

Likewise, manufacturers and suppliers shall apply the principles of this Code to any homeworker involved in their supply chain, and shall give transparency to the locations and working conditions of said homeworkers.

14. Code implementation

14.3 Verification of compliance

Manufacturers and suppliers shall authorize Inditex and/or any third parties the former might appoint, to monitor the appropriate enforcement of the Code. For these purposes, they shall provide the required means and the appropriate access to the facilities and documentation required to ensure this verification.

14.4 Committee of Ethics and Whistleblowing Channel

This Code is aligned with the principles and values that are included in the Inditex Code of Conduct and Responsible Practices, which regulates a Committee of Ethics and Whistleblowing Channel to ensure its enforcement.

In this sense, and in order to ensure the enforcement of the Code of Conduct for Manufacturers and Suppliers, the Committee of Ethics can act at its own initiative or following a formal complaint made in good faith by a manufacturer, supplier or other interested third party that might have any direct relationship or commercial or professional interest with Inditex.

IndustriALL, Agreement with H&M Proves Instrumental in Resolving Conflicts^[12]

A global framework agreement (GFA) signed between IndustriALL Global Union and Swedish clothing company H&M has been an accelerator in reinstating sacked workers at garment factories in both Myanmar and Pakistan just a couple of months after it came into force.

The GFA, which was signed in November 2015, serves to protect the labour rights of 1.6 million workers in H&M’s global supply chain.

In Myanmar, the GFA was key to getting trade unionists back to work, as well as achieving trade union recognition at the Jiale Fashion factory in Yangon.

Eight union leaders were sacked at the garment factory in October 2015, leading to a month-long strike. The Confederation of Trade Unions in Myanmar (CTUM) reported the dispute to IndustriALL’s South East Asia regional office, which invoked the GFA with the H&M Sustainability offices in Yangon and Sweden, especially as the case raised issues on freedom of association.

H&M Sustainability then pushed for dialogue through both their local office in Yangon and Jiale Fashion’s owners in Hong Kong.  H&M Sustainability, IndustriALL and CTUM were involved throughout the process until an agreement was reached between workers and the factory.

As well as reinstating the dismissed workers, the factory agreed to recognize the factory trade union, the Jiale Basic Labour Organization, which is affiliated to CTUM and IndustriALL through the Industrial Workers Federation of Myanmar (IWFM).

Khaing Zar, assistant general secretary of IWFM said: “Building trust between workers and management is the key to industrial peace. The formation of the Workers’ Coordinating Committee at the factory will improve workplace cooperation and, of course, the biggest achievement is the recognition of the trade union at Jiale Fashion.”

IndustriALL textile director Christina Hajagos-Clausen said: “The GFA is founded upon a shared belief that well-structured industrial relations are essential to a stable and sustainable production model. This type of collaboration is crucial for lasting improvements for the garment workers in H&M’s supply chain.”

In November 2015, 88 workers at the Denim Clothing Company (DCC) factory in Pakistan were sacked for demanding their rights. The dispute began when five worker representatives were sacked on the spot for asking to discuss issues such as a lack of social security, insurance, and salaries below the minimum wage that often were paid late. When 83 of their colleagues stood up for them, they also lost their jobs.

As part of the newly signed GFA with H&M, both parties worked to bring the 88 workers back to work through joint negotiations with IndustriALL Pakistani affiliate NTUF and the local management at Denim Clothing. All workers were reinstated with full pay from 26 November, the date they had been fired. (…)

Indonesia, Freedom of Association Protocol^[13]

Article 1

a. The parties are those who sign this protocol. They comprise of Unions, Brands and Suppliers.

b. Workers are all those who carry out waged work.

c. Suppliers are companies that provide goods or services to the brands.

d. Brands are legal persons or entities that are registered as owning trademark rights.

e. Unions are organisations formed from, by and for workers, whether within or outside of companies, with the aim to promote, defend and protect workers’ rights and interests as well as to increase the welfare of workers and their families. (…)

Article 4

Suppliers (…) are obliged to implement freedom of association including, inter alia:

1. Give workers freedom to form unions within the company premises.

2. Acknowledge the existence of the various unions in the company without discrimination.

3. Not interfere in any way with unions carrying out their organisational activities provided that these activities do not contravene protocol determinations, the CBA or other applicable laws and regulations.

4. Release union representatives or members from their work duties for the purpose of undertaking union organisational activities, with continued provision of all rights to which the particular worker is normally entitled. (…)

10. There must be no intimidation in any form whatsoever, including demotions, transfers, wage reductions, criminalisation, provision of a work load outside of the worker’s capabilities, suspension or sacking of members and/or union organisers, perpetrated against union members or representatives undertaking organisational activities throughout the period of their leadership.

Article 5

(1) Suppliers shall facilitate the implementation of union activities within the company in such ways as:

a. Unions may make use of company meeting space if requested at least 3 days in advance provided that such a meeting space is available. For urgent needs, companies are obliged to provide a meeting room as long as such a room is available (and not in current use).

b. Unions may make use of communication facilities such as telephones, fax and internet within the company as long as such facilities are available and in accordance with regulations and procedures as applies to other users within the company.

c. Unions may make use of company vehicles if requested 3 days in advance provided that such a vehicle is available. For urgent needs, the company loan out a vehicle if such a vehicle is available on that day and not in current use. (…)

g. The company must assist in deducting union fees from the wages of union members every month and within a period of time jointly agreed upon or at the latest within 10 work days the amount must be given to the relevant union leader depending on the administration processes within the company.

(2)

a. Suppliers are obliged to provide a space or room that is appropriate, hygienic and strategic within the company premises to be used as a union secretariat together with furnishings to support the union’s activities, including two sets of desks and desk chairs, filing cabinets or cupboards and a table and chairs for guests.

b. In the case that the company is limited in its ability to provide for the above facilities and fittings, then the company is obligated to make a refurbishment plan with the union’s agreement within a timeframe of 6 months.

(3) Suppliers have the obligation to support and facilitate union activities during working hours including:

a. Routine scheduled meetings, such as meetings between union representatives as well as between union representatives and members.

b. Ad hoc meetings as may be required, both between union representatives and between union representatives and members, providing three days’ prior notice to the company.

c. Union educational activities, both scheduled and unscheduled, providing two days’ prior notice to the company.

Article 6

(1) The parties have the obligation to produce a Collective Bargaining Agreement (CBA) within a time frame of not more than six months after the formation of a union in accordance with applicable legal requirements.

(2) In negotiating a CBA, Unions and Companies shall adhere to the following:

a. Companies shall not reject an invitation from unions to negotiate to produce or renew an agreement.

b. Companies shall not undertake any form of intimidation against the union delegates in the CBA negotiating team.

c. During CBA negotiations, union delegates in the negotiation team are to be relieved of their daily work load in accordance with a jointly agreed upon schedule.

d. During CBA negotiations, union delegates in the negotiating team are to be given freedom to carry out surveys so as to gather data to support the negotiations.

e. The negotiating team must be given access to information concerning company conditions so as to obtain supportive data, as far as that access does not breach confidentiality provisions as provided by law or by contract with a third party.

Article 8

(1)To supervise implementation of this FOA Protocol, the parties are obligated to form an FOA Protocol Supervision and Dispute Settlement Committee no later than 90 working days after the signing of this Protocol.

(2)FOA Protocol Supervision and Dispute Settlement Committees will be established at company and national levels. (…)

ACT (Action, Collaboration, Transformation)^[14]

Background

ACT (Action, Collaboration, Transformation) is a ground-breaking agreement between global brands and retailers and trade unions to transform the garment and textile industry and achieve living wages for workers through collective bargaining at industry level linked to purchasing practices.

Collective bargaining at industry level means that workers in the garment and textile industry within a country can negotiate their wages under the same conditions, regardless of the factory they work in, and the retailers and brands they produce for. Linking it to purchasing practices means that payment of the negotiated wage is supported and enabled by the terms of contracts with global brands and retailers.

ACT is the first global commitment on living wages in the sector that provides a framework through which all relevant actors, including brands and retailers, trade unions, manufacturers, and governments, can exercise their responsibility and role in achieving living wages.

ACT members have agreed the following the principles:

• A joint approach is needed where all participants in global supply chains assume their respective responsibilities in achieving freedom of association, collective bargaining and living wages.
• Agreement on a living wage should be reached through collective bargaining between employers and workers and their representatives, at industry level.
• Workers must be free and able to exercise their right to organize and bargain collectively in accordance with ILO Conventions.

Memorandum of understanding between ACT corporate signatories and INDUSTRIALL Global Union on establishing within global supply chains freedom of association, collective bargaining and living wages

Goals and Purpose

This Memorandum of Understanding (MoU) aims at creating a cooperation between IndustriALL Global Union and ACT (Action Collaboration Transformation) corporate signatories (“We”) in order to achieve living wages for workers in the global textile and garment industry supply chains through mature industrial relations, freedom of association and collective bargaining. (…)

There are two sustainable mechanisms that we consider have the capacity to deliver freedom of association, collective bargaining and living wages to any scale, while setting a level playing field:

• Industrywide collective agreements

• National minimum wage fixing enforcement mechanisms

Framework for Action

We recognise that business security and commitment to production countries and suppliers are a key enabler for paying living wages in conjunction with all other pillars of our joint approach. (…)

8) The corporate signatories will work with their supplier factories and IndustriALL will work with its affiliated unions in target countries to bring them together to negotiate towards a living wage.

9) We will provide capacity building to both groups in support of this process, including training of managers and workers on freedom of association and collective bargaining.

Negotiating solutions^[15]

Bangladesh Accord, Transition to the RMG Sustainability Council^[1]

The Accord on Fire and Building Safety in Bangladesh (Bangladesh Accord) is an independent, legally binding agreement between brands and trade unions to work towards a safe and healthy garment and textile industry in Bangladesh. The Accord covers factories producing Ready-Made Garments (RMG) and at the option of signatory companies, home textiles and fabric & knit accessories.

The Rana Plaza factory building collapsed on 24 April 2013, killing 1,133 people and critically injuring thousands more; in the years prior to the Rana Plaza building collapse, numerous fatal factory fires occurred in Bangladesh. The Accord was created to enable a working environment in which no worker needs to fear fires, building collapses, or other accidents that could be prevented with reasonable health and safety measures.^[2]

*

The functions of the local office of the Accord on Fire and Building Safety in Bangladesh have transitioned to the RMG Sustainability Council (RSC). RSC is a newly established not-for-profit company in Bangladesh created and governed by global apparel companies, trade unions, and manufacturers. The RSC was officially registered in Bangladesh on May 20, 2020 to be a permanent safety monitoring and compliance body in the RMG sector in Bangladesh.

The Accord signatory companies and unions and the Bangladesh Garment Manufacturers and Exporters Association (BGMEA) agreed to establish the RSC through a Memorandum of Understanding (MoU) signed on May 8, 2019. To ensure that the safety progress achieved by the Accord since 2013 is sustained and potentially expanded, the MoU prescribes that the RSC inherits all operations, staff and infrastructure of the local Bangladesh Accord office.

The RSC will continue with factory inspections, remediation monitoring, safety training, and a safety & health complaints mechanism at the RMG factories supplying to Accord signatory companies. These programs will be implemented in accordance with the protocols and procedures developed by the Accord, which have also been inherited by the RSC. (…)

The independence of the existing safety & health complaints mechanism that is available to workers in factories supplying to Accord signatory companies shall also be safeguarded under the RSC. (…)

The Accord company and union signatories are confident that the global companies, trade unions, and manufacturers governance model of the RSC will prove effective to ensure they collectively take responsibility for workplace safety in Bangladeshi RMG exporting factories. The Accord signatories additionally recognize that to achieve and maintain safe workplaces requires the full participation of the workforce, sustainable purchasing practices, and strong accountability instruments. Accordingly, the Accord company and union representatives on the RSC Board are committed to safeguard the key characteristics of the Accord program including: that workers play an active role in advancing workplace safety and their right to freedom of association is protected; brands and retailers negotiate commercial terms to make remediation financially feasible; all inspection results and remediation activities are publicly disclosed; and the escalation protocol is effectively implemented to ensure that suppliers comply with the safety requirements.

Bangladesh Accord, The Launch of the Sustainability Council^[3]

Today the functions of the Bangladesh offices of the Accord on Fire and Building Safety in Bangladesh have transitioned to the RMG Sustainability Council (RSC), a permanent national organisation with equal representation from RMG manufacturers, global apparel companies, and trade unions representing garment workers.

The RSC will initially conduct it’s workplace safety programs at the 1600+ RMG factories covered under the Accord, but is envisaged to eventually cover all RMG exporting garment factories. The RSC aspires to also encompass industrial relations, skills development and environmental standards.

Since mid-2013, Bangladeshi RMG factories have made significant improvements in workplace safety. More than 1200 Accord covered factories have completed more than 90% of the remediation of their Corrective Actions Plans. Through the work of the RSC, covered factories will be able to complete their CAPs and ensure that all outstanding safety issues are remediated and verified as correctly fixed, and that the labour-management Safety Committees in the factories are equipped and empowered to monitor and address workplace safety on a daily basis.

Rubana Huq, President of the BGMEA and industry representative on the RSC Board of Directors, said: “The RSC is an unprecedented national initiative and through our collective efforts with the brands and trade unions we will make sure that Bangladesh remains one of the safest countries to source RMG products from.”

China Rahman, General Secretary of the IndustriALL Bangladesh Council and trade unions representative on the RSC Board of Directors, said: “Together with our Bangladeshi trade union affiliates we will help ensure workers in RMG factories have safe workplaces and have access to remedy to address safety concerns and exercise the right to safe workplaces. We will work to ensure that workers to have trust in the newly established RSC”

Roger Hubert, H&M and brand representative on the RSC Board of Directors, said:  “With the establishment of the RSC, brands can continue to honour their supply chain responsibilities that they have committed to through the Accord signed with the trade unions. The RSC will provide the assurance that workplace safety will continue to be addressed throughout out Bangladeshi RMG supply chain.”

Know the Chain, Forced Labour Action: Findings from Three Sectors^[4]

Good Practice Examples: Addressing Restriction to Freedom of Association

In cases where freedom of association is restricted by law, such as China and Vietnam, H&M addresses this issue directly with its supplier factories as well as on industry and government levels. The company further works to empower workers with awareness about their labor rights and helps its suppliers establish functioning and democratically elected workplace representation.

Adidas encourages suppliers to maintain a “non-interference” environment where trade union activities are not only allowed, but also stimulated through effective systems of worker-management communication and collective bargaining. The company recognizes the challenges that workers might face in forming trade unions, particularly in countries such as China and Vietnam, where the creation of independent trade unions is prohibited by law.

Since these are major sourcing countries for the company, it has engaged with workers directly in order to identify parallel means for worker representation through direct worker-led elections, as well as to track the emergence of more representative state unions and the role of sectoral level collective agreements.

Further, Adidas has designed training modules to address freedom of association practices. Examples range from worker representative training in China in partnership with labor NGOs (these allow for the free election of worker representatives to welfare committees) to the development and dissemination of materials on strike management in Vietnam with the ILO.

The company also requires suppliers to issue “Right to Organize guarantees” to workers declaring their freedom to form and join unions of their own choosing in order to prevent direct infringement of rights or the workers’ freedom to exercise them. They have done this especially in situations when they discover direct infringement of rights (namely Indonesia, Sri Lanka, the Philippines, El Salvador, and Honduras).

Johnston & Land-Kazlauskas, Collective Bargaining in the Gig Economy^[5]

‘Gig’ or platform-based work represents one of the most recent, highly-publicized labour market trends. Attributed to the increased demand for flexibility on the part of employers, better labour market efficiency and, in some cases the desire for greater flexibility on the part of workers, gig and platform-based work is one type of non-standard work facilitated through technology and digital markets, on-demand. Despite its relatively small size the gig economy has the potential to rapidly change the way work is organized and performed, to alter the content and quality of jobs, and to reshape industries. This paper examines challenges to freedom of association and the effective recognition of the right to collective bargaining for workers in the gig economy, and explores the broad range of strategies that gig-economy workers are using to build collective agency, and to promote effective regulation of gig work.

The benefits and costs of gig and platform work for employers, workers, and society remain highly contested. Advocates contend that digital labour platforms can economically benefit socially marginalized groups including the unemployed, geographically isolated, and refugees. For firms, gig work combines technological innovation with various contractual relationships that can reduce transaction and labour costs, provide ‘numerical flexibility’ in the face of fluctuating demand, and increase competitiveness. However, like non-standard employment more broadly, work content and work arrangements in the gig economy are diverse. Despite the possible benefits, jobs in the gig economy can also be structured in ways that can negatively impact workers (unpredictable scheduling, inconsistent earnings, unreliable long-term employment prospects) and firms (unfair competition, lower productivity and absenteeism).

We begin with an overview of gig and platform work and the structural and institutional challenges that gig- and platform-based workers in building collective, group agency. (…) The four organizational structures we explore (union renewal strategies and new organizing initiatives, worker forums, worker centres, and cooperatives) represent a comprehensive list of organizations that are actively organizing and supporting gig economy workers. Given the rapid turnover of the on-demand workforce, we view the tenacity and adaptive strategies of workers’ organizations as vital to developing a sustainable and dynamic labour movement. (…)

We maintain that technological innovation (including through the 4th industrial revolution) and collective bargaining are not mutually exclusive; an inability to conceive of their coexistence is nothing more than a failure of the imagination. (…)

Hayter, Industrial Relations in Emerging Economies^[6]

Theoretical Perspectives on the Institutionalization of Industrial Relations

Theoretical perspectives of industrial relations have their origins in the response to the ‘labour problem’ that emerged in industrializing countries in the late nineteenth and early twentieth centuries. Faced with child labour, low wages, long working hours and hazardous working conditions, early trade unions used the ‘method’ of collective bargaining to improve working conditions. The gradual and incremental structuring of production relations through processes such as collective bargaining was seen as a means of ‘re-balancing the institutions of capitalism in order to bring about more stability, efficiency, justice and human values to the employment relationship’. (…)

Fox (1974) identified three ‘frames of reference’ in industrial relations that held very different assumptions about the nature of work, employment relations and conflict, resulting in different theoretical and explanatory approaches: unitarism, pluralism and Marxism (also known as the radical approach).

The unitarist perspective assumes that there is no difference in interests between an employer and employee. All actors and organizations share the same goals. Industrial relations is thus characterized by the ordering of common interests, the outcome of which is harmonious employment relations. This view is typical of human resource management according to which it is possible for employment policies and practices to align the interests of employees and employers (Lewin, 2001).

A pluralistic approach accepts conflict as an innate characteristic of employment relations and seeks pragmatic means to contain it (see, e.g., Fox, 1966; Clegg, 1979). According to this perspective, workers and employers with different interests require processes that help identify both common ground and potential trade-offs. Collective bargaining is seen as a principal means for keeping conflict within tolerable bounds. The incremental structuring of employment relations occurs as the result of an ongoing compromise between employers and employees, and their representative organizations. Employment relations is embedded in a stable system within which the interests of employers and workers can be reconciled. This institutionalization of employment relations also constitutes part of the broader corporatist social contract and is seen as the ‘ideal’ form for managing industrial conflict in the course of a country’s economic development. From this perspective, a rise in unofficial ‘wildcat’ strike action or social disorder is simply an indicator of an institutional lag.

A radical perspective of industrial relations sees conflict as an inherent characteristic of employment relations, and inevitable given the nature of capitalist development. The focus is on the nature of the capitalist society and the fundamental division between capital and labour. Employment relations under capitalism involves the control and deployment of labour in order to generate profit so that firms can continue to accumulate capital.(…)

            Unlike the rich comparative literature that exists on developed economies, the study of the institutionalization of industrial relations in emerging economies is a less-developed subject of enquiry. Comparative studies on the role of trade unions in development from the 1950s and 1960s focused on the question of whether the growth of independent trade unions and collective bargaining contributed to, or impaired, development.

One view held that effective unions would secure a wage that was higher than the marginal product of labour and thus divert the scarce resources available for investment into consumption (Mehta, 1957). Moreover, the labour-intensive production on which these economies relied to generate economic growth would be frustrated if hours of work were too short and wages above internationally competitive levels. Unions would also make it difficult to fire unproductive workers. According to this view, collective bargaining was only appropriate after a sufficient level of industrialization had been achieved.

Galenson (1959, 1962), in comparative studies on the role of labour in developing countries, came to a very different view. Independent trade unions did not impair the investment function, instead they played an important role in securing a committed workforce (through improvements in working conditions and job security). The positive engagement of workers in production and change would offset any consumptionist pressure:

‘Independent trade unionism and satisfactory economic development are by no means antithetical. On the contrary, we believe that independent unions can make a major contribution to development by giving the individual worker a sense of personal dignity and a means of redressing his grievances. It is quite understandable for government leaders who are concentrating on the achievement of economic goals in the face of what must sometimes appear to be impossible odds to be impatient with intractable, ‘irresponsible’ representatives of workers. There is an ever-present temptation to silence them and to substitute paternalism for bargaining and conflict. But the price may be very high indeed: the loss to the nation of the creative energies of free men who feel themselves masters of their own fates rather than cogs in a vast, impersonal machine.’

            The liberalization of markets [in 1980sand 1990s] posed new demands for labour market flexibility, which in turn eroded employment security at the core (of labour markets). The economic reforms generated higher levels of unemployment and inequality and the context for organized labour became increasingly unfavourable. Unions were often portrayed as ‘privileged special-interest groups’ and market-distorting institutions’ that pushed up wages at the cost of all those excluded from the labour market and surviving at the periphery. This legitimized policies to remove and reduce union power (rather than expand labour protection to those excluded).

            Cambodian has ratified all core International Labour Standards including the two important conventions namely Convention No. 87 on Freedom of Association and Protection of the Right to Organize and Convention 98 on Right to Organize and Collective Bargaining. Freedom of association is defined as workers’ right to create organizations (trade unions) that represent them.  It also applies to the organizations of employers.  Collective bargaining is defined as the process of negotiation between employees and employers in particular on working conditions and terms of employments. Both conventions and national laws namely Cambodian Labour Law and Law on Trade Union recognize the right of all workers to form and join trade unions and bargain collectively. This collection covers the main aspects below.    

Background (Cambodia)

Hall, The ILO’s BFC Programme^[7]

III. Labor Rights in the Cambodian Constitution and the 1997 Labour Code

The Cambodian Constitution and Cambodia’s Labor Code articulate a range of labor rights.   Article 36 of the Cambodian Constitution states that “Khmer citizens of either sex shall have the right to form and to be members of trade unions. The organization and conduct of trade unions shall be determined by law.”  Article 41 of the Constitution establishes that “Khmer citizens shall have freedom of expression, press, publication, and assembly.”  Article 42 states that “Khmer citizens shall have the right to establish associations and political parties. These rights shall be determined by law. Khmer citizens may take part in mass organizations for mutual benefit to protect national achievements and social order.”  Chapter XI of the 1997 Labor Code deals in detail with the various legal rights of workers to organize,  the protections guaranteeing labor union freedom, and representation of workers in the workplace.  Article 266 states that “workers and employers, without distinction whatsoever, have the right, without previous authorization, to form professional organizations [labor unions and employer associations] of their choosing.”  Article 267 establishes the right “to draw up their own charter and administrative regulations, as long as they are not contrary to existing laws and public policy; to freely elect their representatives; to formulate their plan of action.”

The 1997 Labor Code is extremely comprehensive and detailed, and covers a wide range of labor standards, from wages and hours to health and safety issues, in addition to basic labor rights.

ETI, Freedom of Association in Company Supply Chains^[8]

Benefits of freedom of association

Freedom of association is good for people, good for society, good for business and good for morale.

Good for people: Workers who combine their interests by approaching their employer together as a group can help to balance the power inherent in any employment relationship.  This encourages people to speak their minds without fear of reprisal. The relative security of numbers allows individuals to express themselves more openly and adds to the value of information that is exchanged.

Good for society: Rights to freedom of association and collective bargaining are called ‘enabling rights’, because they enable citizens to organise in order to realise other human rights and they underpin the democratic process. Not only do these rights directly assist with the improvement of living and working conditions, they contribute more broadly to economic and social development. In developing countries, freedom of association and collective bargaining can help establish a stable foundation for growth.

Good for business: Extensive research stretching back to the 1930s has demonstrated that, at the individual company level, employee engagement and the feeling of being valued contribute to increased quality, productivity and performance… Good industrial relations are generally characterised by:

• Trust
• Mutual confidence between employees and their
• managers, and managers and their employees
• Good interpersonal relations
• Realistic working agreements and arrangements
• A willingness to work together

Good for morale: A dialogue-based workplace empowers and engages its workers, enhancing morale and leading to improvements in performance. By contrast, a subdued and disempowered workforce will tend towards low engagement and underperformance.

Ideas of dialogue and negotiation may run counter to crude management approaches based on unilateral decision-making and action. Problems often result from managers’ nervousness about losing authority. But authoritarian management leaves little or no space for workers to express their needs and aspirations or for dialogue. Typical results are unhappy workers, rapid employee turnover, poor motivation and low productivity. Where a company encounters these issues in its supply chain, the first place to look is at the workplace management style. Tackling such problems at the root can be very beneficial for all concerned.

Instruments (Cambodia)

Constitution of the Kingdom of Cambodia^[9]

Article 36:

(…) Khmer citizens of either sex shall have the right to form and to be member of trade unions.

The organization and conduct of trade unions shall be determined by law.

Article 37:

The right to strike and to non-violent demonstration shall be implemented in the framework of a law.

Article 42

Khmer Citizens have the rights to establish associations and political parties. These rights shall be determined by law.

            Khmer citizens may take part in mass organizations to work together to protect national achievement and social order.

Labour Law^[10]

Article 266:

Workers and employers have, without distinction whatsoever and prior authorization, the right to form professional organizations of their own choice for the exclusive purpose of studying, promoting the interests, and protecting the rights, as well as the moral and material interests, both collectively and individually, of the persons covered by the organization’s statutes.

Professional organizations of workers are called “workers’ unions”.

Professional organizations of employers are called “employers’ associations”.

Article 268

In order for their professional organization to enjoy the rights and benefits recognized by this law, the founders of those professional organizations must file their statutes and list of names of those responsible for management and administration, with the Ministry in Charge of Labor for registration. All requests for registration shall be appended with the statement of constitution of the organization.

If the Ministry in Charge of Labor does not reply within two months after receipt of the registration form, the professional organization is considered to be all ready registered.  A copy of the statutes and the list of names of those responsible for management and administration shall be sent to the Labor Inspector’s Office where the organization was established, as well as to the Office of the Council of Ministers, to the Ministry of Justice and to the Ministry of Interior.  The filing will be renewed when there are changes in the statutes or management.

Law on Trade Unions^[11]

Article 5: Rights to Establish and to Join a Union or an Employer Association

All workers and employers have, without any distinction whatsoever, the rights to form a union or an employer association of their own choice for the exclusive purpose of study, research, training, promotion of interests, and protection of the rights and the moral and material interests, both collectively and individually, of the persons covered by union or employer association statutes.

Workers have the right to:

• Take part in the formation of a union;
• Be a member of a union and under its rules;
• Participate in the legitimate activities of the union of which he or she is a member;
• Seek and hold an office in any union of which he or she is a member and under its rules;
• Take part in the election of representatives at the workplace where there is a regulation stipulating such election;
• Be elected or appointed and serve as a workplace representative when there is a regulation stipulating for such election or appointment; and
• May exercise any other rights provided for in this law.

Employers have the right to:

• Take part in the formation of an employer association;
• Be a member of any such association according to its rules;
• Participate in the legitimate activities of the association of which they are a member;
• Hold an office in that association according to its rules; and
• May exercise any other rights provided for in this law.

Any unions or employer associations that include both employers and workers are forbidden.

Arbitration Council, Naga World (Employer) vs. Union^[12]

Issues in dispute

(From the Non-Conciliation Report of the Ministry of Labour and Vocational Training)

1. The workers demand that the employer refrain from discriminating against staff members taking part in strike action organised by the union and respect the right of staff members dismissed based on strike participation, to join union activities. The employer claims they do not discriminate based on race, in promotion, wage increase or dismissal.

2. The workers demand that the employer comply with the internal work rules and the Labour Law on taking disciplinary action and clearly define misconduct. The employer claims it has complied with the internal work rules and Labour Law.

3. The workers demand that the employer reinstate 8 staff members (…) and provide all reinstated employees with back pay. The employer claims it does not dismiss the workers based on discrimination as alleged. The dismissals were each based on different misconduct of each individual.

Decision and order

Issue 2 & 3:

Order the employer to reinstate Um Phalla and provide back pay for wages and benefits from the date of dismissal to the date of reinstatement and order the employer to punish Um Phalla in accordance with the internal work rules. (…) – Order the employer to pay Mr Jesus M. Pingul termination compensation:

1. Compensation in lieu of the 3-month prior notice
2. Indemnity for dismissal which is equal to 6 months‟ worth of wages and perquisites
3. Payment in lieu of unused annual leave
4. Damages which is equal to the indemnity for dismissal
5. Outstanding wages

ILO CFA, Case of  Cambodian Alliance of Trade Unions (CATU)^[13]

Allegations: The complainant organization denounces the refusal to register a trade union at a garment factory; acts of anti–union discrimination following a strike, including dismissals, forced transfers, suppression of benefits and false criminal charges; the use of military force on striking workers; and alleges that section 269 of the Labour Act imposes excessive requirements for the determination and election of union leadership

B. The Government’s Reply

109. In its communication dated 30 May 2017, the Government indicates that it has never banned or delayed any trade union registration, that unions with properly completed and submitted applications containing all required documents are considered as having been registered and that, if there is a mistake in the application, the Registrar notifies the applicant of the need to make a rectification, which should not, however, be considered as a barrier for trade union registration. Furthermore, with the adoption of the 2016 Act on Trade Unions, the procedure for registration was reformed and simplified, in particular: (i) the registration period has been shortened from 60 to 30 days and a trade union will thus be considered as duly registered if the applicant does not receive any information from the Registrar within 30 days following the application; (ii) the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, issued on 27 June 2016, provides the details of the procedure, as well as a list of required documents and templates; and (iii) the authority to register trade unions has been delegated from the Ministry of Labour and Vocational Training (MLVT) in Phnom Penh to every Provincial Department of Labour and Vocational Training, which aims at saving the time and expenses of the applicants. The Government adds that the new Act on Trade Unions is aimed at protecting the legal rights of all interested persons covered by the Labour Act, including personnel working in the air and maritime transportation, ensuring the right to collective bargaining, promoting harmonious labour relations and contributing to the development of decent work and enhancement of productivity and investment. In order to ensure proper understanding of the law, a number of training courses for employers and workers have been conducted by the MLVT in collaboration with trade unions and employers’ associations. (…)

C. The Committee’s conclusions

113. With regard to the alleged obstacles to registration and the refusal to register a trade union at the factory level (recommendation (a)), the Committee notes the Government’s indication that the application for registration of CATU at the garment factory was received in March 2015 and the trade union was successfully registered in April 2015 within the time limit prescribed by law. The Committee welcomes this development and requests the Government to confirm that the concerned workers were duly informed of the union’s successful registration and that they can exercise legitimate union activities freely and without any interference. Further noting the Government’s statement that, with the adoption of the Act on Trade Unions, 2016 and the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, the registration procedure has been improved, simplified and made more accessible to the applicants, the Committee expects that this legislative reform will contribute to ensuring a simple, objective, transparent and rapid procedure for trade union registration in practice and will prevent the formulation of additional administrative obstacles. The Committee invites the Government to provide a copy of the Prakas No. 249 and refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.(…)

The Committee’s recommendations

118. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

• The Committee welcomes the registration of the factory trade union and requests the Government to confirm that the concerned workers were duly informed of the union’s successful registration and that they can exercise legitimate union activities freely and without any interference. The Committee expects that the adoption of the new Act on Trade Unions, 2016 and the Prakas No. 249 on Registration of Trade Unions and Employers’ Associations will contribute to ensuring a simple, objective, transparent and rapid procedure for trade union registration in practice and will prevent the formulation of additional administrative obstacles. The Committee invites the Government to provide a copy of the Prakas No. 249 and refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.
• The Committee urges the Government once again to take the necessary measures to review section 269 of the Labour Act and section 20 of the new Act on Trade Unions, in consultation with the social partners, in order to ensure that the law does not infringe workers’ right to elect their officers freely. The Committee requests the Government once again to take all necessary measures to ensure in the future that the notification requirement in section 3 of the Prakas No. 305 does not amount to a requirement for authorization by the employer to create a trade union or is not otherwise misused to halt trade union formation. The Committee refers the legislative aspects of this case to the Committee of Experts. (…)

ILO CFA, Effect Given to Recommendations^[14]

[re Case of Cambodian Alliance of Trade Unions]

26. In its communication dated 1 October 2018, the Government indicates that following the adoption of the 2016 Law on Trade Unions (LTU), the registration procedure has been simplified and reformed and that Prakas No. 249 on Registration of Trade Unions and Employers’ Associations, 2016, ensures a simple, objective, transparent and rapid procedure for trade union registration. In particular, it contains detailed information and assistance for newly established trade unions on how to obtain registration and provides a list of required documents and templates as samples and guidelines. The Government clarifies that the requirements listed in the Prakas should not be considered as additional administrative obstacles or a burden in the exercise of the right to freedom of association since by providing certain information, such as social security numbers and employment book numbers, the Ministry of Labour and Vocational Training (MLVT) can ensure that each worker is properly registered with the Ministry and the National Social Security Funds, so as to provide workers with full protection under the labour law. The Government also states that the simplification and reform under the LTU have resulted in an increase in the number of trade union registrations in 2017, both for local unions and for workers’ federations and confederations.

36. The Committee further notes that in a communication dated 5 April 2019, the Government informs that six trade union leaders who led the general strike in December 2013 were sentenced to a suspended two-and-a-half year imprisonment and ordered to jointly pay 35 million Cambodian Riels (US$8,661) as compensation to the plaintiffs for instigating intentional violence with aggravating circumstances, instigating acts of causing damage with threats and obstructing road traffic. The Government reiterates that in line with Convention No. 87, violent actions during strikes are not protected by national legislation and indicates that the cases of the six trade unionists are currently pending before the Court of Appeal. The Committee recalls in this regard that it had previously expressed concern at the acts of violence on both sides during the December 2013 and January 2014 demonstrations and emphasized that while the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Compilation, op. cit., para. 965], freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed [see Compilation, op. cit., para. 82]. The Committee requests the Government to provide information on the outcome of the appeal proceedings concerning the six trade unionists, including a copy of the judgment once rendered, and trusts that no trade unionist will be sanctioned for having exercised their trade union activities. (…)

GMAC, Legal Pointer: Collective Bargaining Agreement^[15]

7.1 Importance of CBA

CBA is made by the worker/employee party or professional organization of workers/employees and employer party or professional organization of employers in engaging in a new obligation. There are also some reasons that need to be found out and noted in creating a CBA whether what benefits the creation of the CBA have for the parties. According to its content it is to create obligation for the parties.

            Although the creation of the CBA is tied to a new obligation, we can also in principle show that it has some remarkable benefits such as:

1. Benefits for workers/employees in the enterprise/establishment: Generally, we can say that workers/employees will get better benefits than the law during the validity of the CBA because the points set out in the CBA is better than those set out in the law. For example: the employer and workers/employees can set out in the CBA an agreement to provide lunch allowance of 2000 Riels or free lunch during the validity of the CBA for 2 years while this is the benefit that the workers/employees get better than the law and it is an obligation of the employer.

2. Benefits for the employer: In principle, the employer also gets some benefits: sustainability of industrial relations and production of the enterprise/establishment. The reason why we can dare to claim this is because during the length of the CBA, the workers/employees cannot demand more benefits than those set out in this CBA. On the other hand, the employer can determine a CBA stipulating the procedure of resolving a dispute, negotiation and some procedures. For example: the employer can set out an agreement stating that during the validity of the CBA, the workers/employees cannot demand more benefits than those already set out.

Consequence: Although, in principle, we have observed that the creation of CBA in the enterprise/establishment can have a positive impact for both parties, we have also observed that there are not many factories/enterprises making a negotiation to create CBA because (1) union with the most representative status cannot prevent unregistered unions or minority unions from demanding more benefits, (2) unions cannot reach a consensus: popularity remain the major topic for the parties; (3) law enforcement is still limited when the union violates the CBA.

Nuon & Serrano, Building Union in Cambodia: History, Challenges, Strategies^[16]

Right to strike

The Labour Code also grants workers the right to strike and to participate in non-violent demonstrations5 but to the limit of minimum service guaranteed in all enterprise. The law also requires that for a strike to be legal it must first exhaust the process of conciliation, arbitration, and the strike vote. However, the process is frequently ignored by workers. The police are sometimes called to suppress the strike or demonstration and have been known to use violence.

Members’ motivations to join a union

Asked why they join unions, the reasons most frequently cited are: (a) the benefits derived from union membership; (b) improvement in working conditions; (c) enhanced job security; and (d) belief in the principles and objectives of unionism. (…)

When asked about the benefits they are getting from their union, at least half of the unionised respondents cite the following as the most common: (a) improved working conditions; (b) more benefits; (c) union education and training activities; (d) less intimidation and harassment from employer; and (e) grievances addressed at the workplace.(…)

Memorandum of Understanding on Industrial Relations in Garment Industry^[17]

In the interest of promoting harmonious industrial relations in Cambodia, we, the undersigned parties^[18] representing workers and employers in the garment industry, have committed today to improve industrial relations in the garment industry. This solemn agreement, referred to as the MoU, has been reach freely and in good faith, and commits the parties to respect and adhere to certain key principle, and to follow up these principles with a number of concrete steps and actions.  

This text specifies these principles and commitments.

1. Parties agree to adhere to national law;
2. Both parties support CBA in order to achieve certainty and predictability, and to protect rights and terms and conditions of work for both parties;
3. Both parties support the (Most Representative Status (MRS) as the exclusive bargaining agent on behalf of all workers in the enterprise.  Minority unions can participate in the process by choice but along with all employees must respect the authority of the MRS union, and have no right to initiate or disrupt bargaining or to object to any CBA reached by MRS union.
4. A CBA negotiated by MRS union applies to all employees in the enterprise and no strike or lockout should be permitted by any group during the term of the CBA.  No further claims shall be lodged by either party during the term of the agreement.

Collective Bargaining Agreement [Tourism and Airport Industries]^[19]

Article I: Union’s Recognition

1.1 The Employer recognizes the union, a legal representative of employees recognized by Ministry of Labor … as a sole collective negotiating body relating to general terms and conditions for all employees covered by this Agreement as defined under Article 4 of this Agreement.

1.2 Employees with the entitlement to recruit, to terminate and/or to enact any disciplinary measure are not allowed to join the Union and are not covered by this CBA.

Article 2: Efficiency of the Collective Bargaining Agreement

2.1 In case of change of management or shareholders, Employer shall always comply with this Collective Bargaining Agreement.

2.2 In case of change the Chief Executive Officer or shareholders, Employer shall inform the Union Leaders. (…)

Article 4: Union’s Rights

4.1 If required in writing by the concerned staff, maximum two CAMS employees are entitled in each case of conflict to attend the meeting before dismissal and other individual conflict. Employer will not deduct remuneration for the time spent at the meeting. In case that the conflict cannot be solved by the parties, both parties are entitled to request the presence of their lawyer in the meeting.

4.2 Employer shall not deduct remuneration of the 2 union leaders who participate in the meeting with the Employer or with the related institutions for the resolution of any labour conflict.

4.3 In case of conflict between employee and Employer and if required, the Union and the Employer will organize such meeting as soon as possible in order to minimize trouble to operations.

4.4 The Employer must not interfere in the Union’s internal affairs and gives to employees the free choice of union leaders.

4.5 Upon Union request and upon members written authorization, the Employer will deduct from the salary of employees Union members the Union fee and transfer it to Union bank account. The Union provides to the Employer the Union members name list and the list of Union members who authorize this deduction with their fingerprint and signature.

4.6 The Employer provides one table, six chairs and one board for the Union and worker representatives’ library. Union provides and files the national and international law books, health documents, and relevant books concerned with Union affairs in order that employees can read while out of their working hours. Employee can have access into this room. The union shall be responsible for the usage of this room.

4.7 Employer shall provide per year a total of 12 days of paid leave per year for training for each Union. The attribution of “Union training leave” to which ever Union leader is done between Union leaders; the Employer shall not interfere.

Article 5: Management Rights

5.1 Subject only to the limitations contained in this CBA and in compliance with the legal requirements, the Employer retains the exclusive rights to manage its business (but not limited to) the rights to determine the methods and means by which its operations are to be carried on, to assign direct the workforce and to conduct its operations in a safe and effective manner.

Rullo, Empowering Women’s Labor Mobilization in Cambodia^[20]

It is clear that global apparel brands are increasingly leveraging their unique positions of political, economic, and social influence to constitute active forces of transformative change. This study reveals that brands sourcing from Cambodia have taken important action in other politically volatile domestic contexts to create conditions that better support the meaningful labor organization of garment workers.

            Although women workers make up the majority of the global garment sector workforce—most of the brand initiatives explored here do not adequately respond to the particular needs of women workers, nor are they intentionally designed to target the very real gender-specific barriers to freedom of association that women garment workers regularly face.

            Drawing on and confirming the previously explored feminist arguments of Okin, MacKinnon, and Tsing, this work demonstrates that women garment workers are attempting to organize within political and economic contexts where patriarchal attitudes continue to negatively shape their experiences—contributing to grave barriers to their access to positions of leadership in labor organizing. Global apparel brand action that particularly empowers women’s agency by fostering their access to union leadership positions and space for labor mobilization would be a welcome and transformative component to help fill the political vacuum of justice that both Wettstein and Hsieh argue MNCs should play a more pronounced role to address.

            Additionally, if CEDAW and other instruments of international human rights law provide that governments should leverage positive special measures in political realms to combat the forces of structural and historical gender inequality, this study argues that special measures of a similar spirit—in the form of positive corporate-led action to protect FOA—should correspondingly be leveraged by actors of global enterprise within economic realms to fill the vacuum of government failure, especially when governments demonstrate oppressive and authoritarian behavior.

            Gone are the days when popular global brands can ignore the egregious repercussions of their choices to operate in politically challenging contexts. A unique alchemy of forces is needed to spark action among global apparel brands to intervene in politically charged issues to pressure governments to comply with their FOA rights obligations. This perfect storm of conditions is not only possible, but as proven here, is increasingly becoming a reality.

Lowenstein, Fixed-Duration Contracts Threaten Workers and Garment Industry^[21]

6. Labor Unions

Cambodia’s garment industry developed hand-in-hand with international monitoring of labor rights. This contributed to an explosion of union activity. Countless unions have sprung up, merged, split, and organized themselves into a variety of union federations. Their numbers, however, belie the difficulties they face in representing their membership.

Although freedom of association is protected by the Cambodian Constitution and Labor Law and is one of the key areas that the ILO-BFC evaluates, labor unions operate within a complex and treacherous terrain in Cambodia. Recent history has shown that those who speak out against labour conditions in Cambodia may do so at their own peril. Violence against union leaders, exemplified by the assassinations of Hy Vuthy on February 24, 2007, Chea Vichea on January 22, 2004, and others, has had a significant chilling effect on union activism.

There are independent unions in Cambodia that devote themselves to worker advocacy and that do so free from government or manufacturer influence, but there are also a number of “yellow unions,” unions that receive financial support from the government or employers for advocating positions that subordinate worker concerns to the desires of manufacturers. Despite these challenges, the independent unions have been surprisingly unified in speaking out against the widespread use of FDCs and the impact that FDCs have on freedom of association.

Questions

1. What is freedom of association and why is it important?
2. What are the challenges to freedom of association in Cambodia?
3. What can companies do to respect freedom of association at work? Can a company promote freedom of association of workers and what problems may this entail?
4. What are the obligations of the government regarding freedom of association?
5. Can civil society contribute to the promotion of freedom of association in Cambodia?
6. Why is worker membership in trade unions declining globally?
7. What have trade unions done in response the outsourcing of production and the ‘race to the bottom’ in the global economy?
8. Do trade unions in developed and developing countries have the same interests? Can they collaborate to match the power of transnational corporations? How?

Further Readings

• International Labour Organisation (ILO), Giving a Voice to Rural Workers,General Survey Concerning the Right of Association and Rural Workers’ Organizations Instruments (2016) www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_343023.pdf.
• International Labour Organisation (ILO), Collective Bargaining in the Public Service, General Survey Concerning Labour Relations and Collective Bargaining in the Public Service (2013) www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_205518.pdf.
• International Labour Organisation (ILO), Freedom of Association – Compilation of Decisions of the Committee on Freedom of Association (2018) www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/freedom-of-association/WCMS_632659/lang–en/index.htm (on-line version at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:70001:0::NO:::).
• Felix Hadwiger, Global Framework Agreements – Achieving Decent Work in Global Supply Chains, ILO Background paper (2015) www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—actrav/documents/meetingdocument/wcms_434248.pdf.
• Friedrich-Ebert-Stiftung, What Is a Global Framework Agreement? (2018) [video, 5.45 minutes] www.youtube.com/watch?v=UkKYp4Q6tTM.
• IndustriAll, Global Framework Agreements (database) www.industriall-union.org/issues/pages/global-framework-agreements-gfa.
• International Labour Organisation (ILO), Decent Work in Global Supply Chains, International Journal of Labour Research (2015) www.ilo.org/actrav/info/international-journal-labour-research/WCMS_433853/lang–en/index.htm.
• Renault & IndustriALL, Global Framework Agreement on Developing Life at Work (2019) www.industriall-union.org/sites/default/files/uploads/documents/GFAs/Renault/GFA2019/acm_du_9_juillet_en.pdf.
• Mark Anner, ‘CSR Participation Committees, Wildcat Strikes and the Sourcing Squeeze in Global Supply Chains’, British Journal of Industrial Relations, 56:1 (2018) https://www.researchgate.net/publication/320882051_CSR_Participation_Committees_Wildcat_Strikes_and_the_Sourcing_Squeeze_in_Global_Supply_Chains_CSR_Participation_Committees_Wildcat_Strikes.
• Felix Hadwiger, Global framework agreements – Achieving decent work in global supply chains, ILO Background paper (2015) www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—actrav/documents/meetingdocument/wcms_434248.pdf.
• CNV International, Supporting AGT Companies in Understanding and Promoting Freedom of Association – A Good Practice Video from Cambodia [video, 3:47 minutes] https://youtu.be/C1gBeGfX3M0.
• International Labour Organisation (ILO), The Global Legal Database on Industrial Relations (IRLex) (2020) https://www.ilo.org/asia/projects/WCMS_507552/lang–en/index.htm.
• Philippa Smales, The Right to Unite: A Handbook on Domestic Worker Rights across Asia (2010) http://apirnet.ilo.org/resources/the-right-to-unite-a-handbook-on-domestic-worker-rights-across-asia/at_download/file1.
• Alexander Ski, Trade Unions’ Freedom of Association in Cambodia: A Study on the Trade Union Law and its Possible Implications on Trade Unions in the Cambodia Garment Industry, (2017) Master Thesis in Labour Law, Lund University https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8912909&fileOId=8912916.
• Veasna Noun, Assessment of Freedom of Association of Workers at the E Garment Factory (Cambodia), (2013) https://www.fairlabor.org/sites/default/files/documents/reports/egarment_investigationreport_nuon_0.pdf.
• GMAC Bulletin 2018, 13 https://www.gmac-cambodia.org/public/pdf_file/1503973387.pdf.
• Fabiana Avelar Pereira, Global Collective Agreements: A Response to Urgent Global Labour Concerns, Lund University (doctoral dissertation) (forthcoming 2021).

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^[1] Bangladesh Accord, Transition to The RMG Sustainability Council (RSC) (2020) https://bangladeshaccord.org/updates/2020/06/01/transition-to-the-rmg-sustainability-council-rsc.

^[2] Accord on Fire and Building Safety in Bangladesh, Safe Workplaces, https://bangladeshaccord.org/.

^[3] Accord on Fire and Building Safety in Bangladesh, RMG Industry brands, manufacturers, and unions launch joint RMG Sustainability Council (RSC) in Bangladesh to sustain workplace safety (2020) www.business-humanrights.org/sites/default/files/documents/RSC%20press%20release%20FINAL%20%281%20June%202020%29.pdf-converted.pdf.

^[4] Know the Chain, Forced Labor Action Compared: Findings From Three Sectors (2017) https://knowthechain.org/wp-content/uploads/KTC_CrossSectoralFindings_Final.pdf.

^[5] Hannah Johnston and Chris Land-Kazlauskas, Organizing On-Demand: Representation, Voice, and Collective Bargaining in the Gig Economy, ILO Conditions of Work and Employment Series No. 94 (2019) www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—travail/documents/publication/wcms_624286.pdf.

^[6] Susan Hayter, Industrial relations in emerging economies (2015) www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_624902.pdf (references omitted).

^[7] John A. Hall, The ILO’s Better Factories Cambodia Programme: A Viable Blueprint for Promoting International Labour Rights? (2018) https://www-cdn.law.stanford.edu/wp-content/uploads/2018/03/hall.pdf.

^[8] Ethical Trading Initiative, Freedom of Association in Company Supply Chains: A Practical Guide (2013)  https://www.ethicaltrade.org/sites/default/files/shared_resources/foa_in_company_supply_chains.pdf.

^[9] Cambodia, Constitution of the Kingdom of Cambodia (1993) http://www.sithi.org/admin/upload/law/2008_02_19_Constitution(EN)_including%20Amendment%20(1).pdf.

^[10] Cambodia,Labour Law (1997)http://www.sithi.org/admin/upload/law/Labor%20Law%201997.%20ENG.pdf.

^[11] Cambodia, Law on Trade Unions(2016)http://www.sithi.org/admin/upload/law/trade_union_law_eng.pdf.

^[12] Arbitration Council, AC Award #028/14 Naga World Limited vs. Khmer Workers’ Labour Right Supports Union at Naga World (3 March 2014) https://www.arbitrationcouncil.org/download/028-14-naga-world/?wpdmdl=9211&refresh=5fafa04336edb1605345347.

^[13] ILO Committee on Freedom of Association^{, Case No. 3121 (Cambodia) – Cambodian Alliance of Trade Union (CATU) (}27 ^February ²⁰¹⁵⁾ https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:50001:0::NO::P50001_COMPLAINT_FILE_ID:3240014; ILO Committee on Freedom of Association, Report No 383, October 2017 Concerning Case No 3121 (Cambodia) – Complaint date: 27-FEB-15 – Follow-up, https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:3523597.  

^[14] International Labour Organisation (ILO), Effect given to the Recommendations of the Committee and the Governing Body-Report No. 389, June 2019, Case No. 3121 (Cambodia) – Complaint date 27 Feb. 2015 Follow Up,https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:3998885.

^[15] Garment Manufacturers Association in Cambodia (^GMAC)^{, Legal Pointer: Collective Bargaining Agreement (2017)} https://www.gmac-cambodia.org/public/pdf_file/1505141709.pdf.

^[16] Veasna Nuon & Melisa Serrano, Building Union in Cambodia: History, Challenges, Strategies (2010) http://library.fes.de/pdf-files/bueros/singapur/07907.pdf.

^[17] Memorandum of Understanding on Improving Industrial Relations in the Garment Industry, Sunway Hotel, Phnom Penh (28 September 2010) http://www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/—ilo-phnom_penh/documents/genericdocument/wcms_145234.pdf.

^[18] The parties to the MOU on Improving Industrial Relations in the Garment Industry include Garment Manufacturers’ Assocation in Cambodia (GMAC), Cambodian National Confederation (CNC), National Union Alliance Chamber of Cambodia (NACC), Cambodian Confederation of Trade Unions (CLC), Cambodian Confederation of Unions (CCU), and Khmer Youth Federation of Trade Union (KYFTU).  

^[19] Collective Bargaining Agreement between International Airport Independence Employees Union Siem Reap Airport Cambodia Tourism Industry Worker Trade Union and Cambodia Airport Management Services (2011) https://www.ilo.org/legacy/english/inwork/cb-policy-guide/cambodiacompanyagreementairtransport.pdf.

^[20] Mathew Rullo, Empowering Women’s Labour Mobilization in Cambodia: The Role of Global Enterprise (2017)https://academiccommons.columbia.edu/doi/10.7916/D8HX1QX5/download.

^[21] Allard K. Lowenstein, Tearing apart at the Seams: How Widespread Use of Fixed-Duration Contracts Threatens Cambodian Workers and the Cambodian Garment Industry (2011) https://law.yale.edu/sites/default/files/documents/pdf/Intellectual_Life/Cambodia_TearingApartattheSeams.pdf.   

^[1] International Trade Union Confederation (ITUC) et al., The UN Guiding Principles on Business and Human Rights and the Human Rights of Workers to Form or Join Trade Unions and to Bargain Collectively (2012) www.ituc-csi.org/IMG/pdf/12-11-22_ituc-industriall-ccc-uni_paper_on_due_diligence_and_foa.pdf.

^[2] Universal Declaration of Human Rights (1948) www.ohchr.org/en/udhr/pages/searchbylang.aspx.

^[3] International Covenant on Economic, Social and Cultural Rights (1966) www.ohchr.org/en/professionalinterest/pages/cescr.aspx.

^[4] International Covenant on Civil and Political Rights (1966) www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

^[5] International Labour Organisation (ILO), Freedom of Association and Protection of the Right to Organise Convention (No. 87) (1948) www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C087.

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^[8] International Labour Organisation (ILO), ILO Declaration on Social Justice for a Fair Globalization (2008) www.ilo.org/wcmsp5/groups/public/—dgreports/—cabinet/documents/genericdocument/wcms_371208.pdf.

^[9] United Nations Global Compact, Ten Principles (2004) https://www.unglobalcompact.org/what-is-gc/mission/principles.

^[10] International Labour Organisation (ILO), General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice for a Fair Globalization (2012) www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_174846.pdf.

^[11] Inditex-IndustriAll, Global Framework Agreement (2014) www.industriall-union.org/sites/default/files/uploads/documents/GFAs/signed_gfa_inditex_-_english.pdf.

^[12] IndustriALL Global Union, Agreement with H&M Proves Instrumental in Resolving Conflicts (2016) www.industriall-union.org/agreement-with-hm-proves-instrumental-in-resolving-conflicts-0.

^[13] Indonesia, Freedom of Association Protocol (2011) https://cleanclothes.org/resources/recommended-reading/freedom-of-association-protocol-indonesia/at_download/file.

^[14] ACT (Action, Collaboration, Transformation), What is ACT? (2018) https://actonlivingwages.com/fact-sheet.

^[15] ACT, Negotiating Solutions, https://actonlivingwages.com/country-activities.