International labour law

International labour law (also called "labour standards") is the body of rules spanning public and private international law which concern the rights and duties of employees, employers, trade unions and governments in regulating the workplace. The International Labour Organization and the World Trade Organization have been the main international bodies involved in reform labour markets. The International Monetary Fund and the World Bank have indirectly driven changes in labour policy by demanding structural adjustment conditions for receiving loans or grants. Conflict of laws issues arise, determined by national courts, when people work in more than one country, and supra-national bodies, particularly in the law of the European Union, has a growing body of rules regarding labour rights.

History

Since the industrial revolution the labour movement has been concerned how economic globalisation would weaken the bargaining power of workers, as their employers could move to hire workers abroad without the protection of the labour standards at home. In the Fourth Annual International Congress in 1869, the following was resolved:^[1]

“

the extension of the principle of free trade, which induces between nations such a competition that the interest of the workman is liable to be lost sight of and sacrificed in the fierce international race between capitalists, demands that such [unions] should be still further extended and made international.

”

International Labour Organization

Following World War I, the Treaty of Versailles contained the first constitution of a new International Labour Organization founded on the principle that "labour is not a commodity", and for the reason that "peace can be established only if it is based upon social justice".^[2] The primary role of the ILO has been to coordinate principles of international labour law by issuing Conventions, which codify labour laws on all matters. Members of the ILO can voluntarily adopt and ratify the conventions by enacting the rules in their domestic law. For instance, the first Hours of Work (Industry) Convention, 1919 requires a maximum of a 48-hour week, and has been ratified by 52 out of 185 member states. The UK ultimately refused to ratify the Convention, as did many current EU members states, although the Working Time Directive adopts its principles, subject to the individual opt-out.^[3] The present constitution of the ILO comes from the Declaration of Philadelphia 1944, and under the Declaration on Fundamental Principles and Rights at Work 1998 classified eight conventions^[4] as core. Together these require freedom to join a union, bargain collectively and take action (Conventions Nos 87 and 98) abolition of forced labour (29 and 105) abolition labour by children before the end of compulsory school (138 and 182) and no discrimination at work (Nos 100 and 111). Compliance with the core Conventions is obligatory from the fact of membership, even if the country has not ratified the Convention in question. To ensure compliance, the ILO is limited to gathering evidence and reporting on member states' progress, so that publicity will put public and international pressure to reform the laws. Global reports on core standards are produced yearly, while individual reports on countries who have ratified other Conventions are compiled on a bi-annual or perhaps less frequent basis.

World Trade Organization

As one of the only international organisations with real enforcement power through trade sanctions, the WTO has been the target for calls by labour lawyers to incorporate global standards of the International Labour Organisation.

Because the ILOs enforcement and sanction mechanisms are weak, there has been significant discussion about incorporating labour standards in the World Trade Organisation's operation, since its formation in 1994. The WTO oversees, primarily, the General Agreement on Tariffs and Trade which is a treaty aimed at reducing customs, tariffs and other barriers to free import and export of goods, services and capital between its 157-member countries. Unlike for the ILO, if the WTO rules on trade are contravened, member states who secure a judgment by the Dispute Settlement procedures (effective a judicial process) may retaliate through trade sanctions. This could include reimposition of targeted tariffs against the non-compliant country. Proponents of an integrated approach have called for a "social clause" to be inserted into the GATT agreements, for example by amending article XX, which gives an exception to the general trade barrier reduction rules allowing imposition of sanctions for breaches of human rights. An explicit reference to core labour standards could allow action where a WTO member state is found to be in breach of ILO standards. Opponents argue that such an approach could backfire and undermine labour rights, as a country's industries, and therefore its workforce, are necessarily harmed but without any guarantee that labour reform would take place. Furthermore, it was argued in the Singapore Ministerial Declaration 1996 that "the comparative advantage of countries, particularly low-age developing countries, must in no way be put into question."^[5] Accordingly, it is argued that countries ought to be able to take advantage of low wages and poor conditions at work as a comparative advantage in order to boost their exports. Similarly it is disputed that business will relocate production to low wage countries from higher wage countries such as the UK, because that choice depends mostly on productivity of workers. The view of many labour lawyers and economists remains that more trade, in the context of weaker bargaining power and mobility for workers, still allows for business to opportunistically take advantage of workers by moving production, and that a coordinated multilateral approach with targeted measures against specific exports is preferable.^[6] While the WTO has yet to incorporate labour rights into its procedures for dispute settlements, many countries began to make bilateral agreements that protected core labour standards instead.^[7] Moreover, in domestic tariff regulations not yet touched by the WTO agreements, countries have given preference to other countries who do respect core labour rights, for example under the EU Tariff Preference Regulation, articles 7 and 8.^[8]

Workers in multiple countries

While the debate over labour standards applied by the ILO and the WTO seeks to balance standards with free movement of capital globally, conflicts of laws (or private international law) issues arise where workers move from home to go abroad. If a worker from America performs part of her job in Brazil, China and Denmark (a "peripatetic" worker) or if a worker is engaged in Ecuador to work as an expatriate abroad in France, an employer may seek to characterise the contract of employment as being governed by the law of the country where labour rights are least favourable to the worker, or seek to argue that the most favourable system of labour rights does not apply. For example, in a UK labour law case, Ravat v Halliburton Manufacturing and Services Ltd^[9] Mr Ravat was from the UK but was employed in Libya by a German company that was part of the American multinational oil conglomerate, Halliburton. He was dismissed by a supervisor based in Egypt. He was told he would be hired under UK law terms and conditions, and this was arranged by a staffing department in Aberdeen. Under the UK Employment Rights Act 1996 he would have a right to unfair dismissal, but the Act left open what the territorial scope of the statute was. The UK Supreme Court held that the principle would be that for an expatriate worker, although the general rule is that they will not have UK labour law rights, there would be an exception if the worker could show a "close connection" to the UK, and this was established through the contractual assurances given to Mr Rabat.^[10]

This fits within the general framework in the EU. Under the EU Rome I Regulation article 8,^[11] workers will have employment rights of the country where they habitually work. But exceptionally they may have a claim in another country if they can establish a close connection to it. The Regulation emphasises that the rules should be applied with the purpose of protecting the worker.^[12]

It is also necessary that a court has jurisdiction to hear a claim. Under the Brussels I Regulation article 19,^[13] this requires the worker habitually works in the place where the claim is brought, or is engaged there.

European Union law

The European Union, unlike most international organisations, has an extensive system of labour laws, but officially excluding (according to the Treaty on the Functioning of the European Union) matters around direct wage regulation (e.g. setting a minimum wage), fairness of dismissals (e.g. a requirement for elected workers to approve dismissals) and collective bargaining. A series of Directives regulate almost all other issues, for instance the Working Time Directive guarantees 28 days of paid holiday, the Equality Framework Directive prohibits all forms of discrimination for people performing work, and the Collective Redundancies Directive requires that proper notice is given and consultation takes place before any decisions about economic dismissals are finalised.

However, the European Court of Justice has recently expanded upon the Treaties through its case law. As well as having legal protection for workers rights, an objective of trade unions has been to organise their members across borders in the same way that multinational corporations have organised their production globally. In order to meet the balance of power that comes from ability of businesses to dismiss workers or relocate, unions have sought to take collective action and strikes internationally. However, this kind of coordination was recently challenged in the European Union in two controversial decisions. In Laval Ltd v Swedish Builders Union^[14] a group of Latvian workers were sent to a construction site in Sweden on low pay. The local Swedish Union took industrial action to make Laval Ltd sign up to the local collective agreement. Under the Posted Workers Directive, article 3 lays down minimum standards for workers being posted away from home so that workers always receive at least the minimum rights that they would have at home in case their place of work has lower minimum rights. Article 3(7) goes on to say that this "shall not prevent application of terms and conditions of employment which are more favourable to workers". Most people thought this meant that more favourable conditions could be given than the minimum (e.g. in Latvian law) by the host state's legislation or a collective agreement. However, in an interpretation seen as astonishing by many, the ECJ said that only the posting state could raise standards beyond its minimum for posted workers, and any attempt by the host state, or a collective agreement (unless the collective agreement is declared universal under article 3(8)) would be an infringement of the business' freedom to provide services under TFEU article 56. This decision was implicitly reversed by the European Union legislature in the Rome I Regulation, which makes clear in recital 34 that the host state may allow more favourable standards. However, in The Rosella, the ECJ also held that a blockade by the International Transport Workers Federation against a business that was using an Estonian flag of convenience (i.e. saying it was operating under Estonian law to avoid labour standards of Finland) infringed the business' right of free establishment under TFEU article 49. The ECJ said that it recognised the workers' "right to strike" in accordance with ILO Convention 87, but said that its use must be proportionately to the right of the business' establishment. The result is that the European Court of Justice's recent decisions create a significant imbalance between the international freedom of business, and that of labour, to bargain and take action to defend their interests.

See also

• UK labour law

Notes

1. K Marx, Report of the General Council to the Fourth Annual Congress (1869)
2. Treaty of Versailles 1919, Part XIII, Section I and art 427
3. See generally, KD Ewing, Britain and the ILO (2nd edn IER 1994) 16. Two further general working time conventions are the Forty-Hour Week Convention, 1935 No 51 and the Holidays with Pay Convention, 1936 No 52
4. There are 189 Conventions, however some have been superseded by others. For instance, Conventions Nos 2, 34, 96 and 181 all concern private employment agencies, but only Convention 181 is in force.
5. Singapore Ministerial Declaration (13 December 1996)
6. See KA Elliott and RB Freeman, Can Labor Standards Improve under Globalization? (Institute for International Economics 2003)
7. e.g. EU-South Korea Free Trade Agreement (14 May 2011) OJ 2011 L127, article 13
8. Tariff Preference Regulation (EC) No 732/2008 arts 7, 8, 15 and Annex II and III
9. [2012] UKSC 1
10. See also Lawson v Serco Ltd [2006] UKHL 3 and Duncombe v Secretary of State for Children, Schools and Families [2011] UKSC 36
11. Rome I Regulation (Regulation (EC) No 593/2008
12. See Rome I, recital 23 and Brussels I, recital 13
13. Brussels I Regulation (EC) No 44/2001
14. (2008) C-319/05

References

External links