Международные трудовые стандарты
The article deals with the complexity of the International Labour Organisation (ILO) Conventions and Recommendations and of the control procedures for their application as a factor that has a serious negative impact on their effectiveness. An analysis of the Conventions and Recommendations and other measures taken by the ILO is offered with a view to optimizing this system. The prospects for codification of the ILO standards are considered. A conclusion is reached concerning the possibility of gradual codification of the Conventions and Recommendations according to broad thematic classifications with further prospects for the creation of a unified international labour code. Some possible directions for such thematic classifications are proposed. A separate analysis is made of ILO control procedures, and a judgment is made that these procedures are lacking sufficient coordination and systematization. Proposals are made for simplifying the procedures, for the abrogation of rarely used and secondary procedures, and for a higher level of coherence of the existing procedures in order to make the application of the international labour standards more effective.
Workers’ Representation in Central and Eastern Europe
Challenges and Opportunities for the Works Councils System
Editor: Roger Blanpain, Guest Editor: Nikita Lyutov
Works council, as a participatory means of regulating the employer–employee relation, is long established in Western European countries, but has failed to take significant root in other parts of the world where it has been tried. This book is the first in-depth exploration of the legal, political, and cultural forces that complicate this transposition. Focusing on Eastern and Central Europe, where the works council system has been most extensively applied and where the evident reasons for its lack of purchase are most telling, the contributors examine the relevant experience, both negative and positive, in twelve countries, with a particular focus on non-union representation of workers.
Many important issues pertinent to workers’ representation in general in a globalized world are covered, including the following:cooperation and confrontation between trade unions and works councils; insufficient division of competences between the two representative bodies; legal norms concerning both trade union and works councils independence from employers’ interference; need for serious and dissuasive sanctions against creation of employer-controlled (‘yellow’) unions; need for extension to non-union workers of protection from anti-union discrimination; real vs. formal implementation of EU norms in Eastern European Member States; unnecessarily complicated regulation of institutions of representation; lack of protection against dismissal of non-union representatives; responsibility for breach of employers’ obligation to consult and inform; and employers’ lack of legitimacy in the eyes of workers.
There is general agreement among these authors that, as long as human beings spend a serious part of their lives at the workplace, they must be allowed not merely to express opinions about the job but have a real influence on it. Fully aware of the sensitivity of these issues in market economies, the authors’ careful research and call for public discussion open the path to real changes in the existing system, clearly in Eastern Europe but to be much desired elsewhere also. For labour law scholars, practitioners, and policymakers who know that such changes are needed, this book offers directions that, though debatable, are sure to be welcomed.
The article contains analysis of flexibility as an important factor of the international labour standards’ effectiveness. This factor is explored in terms of substantive, form and implementation flexibility. Substantive flexibility is defined as a vague language or special «flexibility clauses» of the international treaties aimed at facilitation of their further ratification. The author suggests that ILO policy in this respect is excessively flexible, without reasonable justification by the higher probability of the Conventions’ ratification. The form flexibility is understood as the adoption of the international labour standards in form of either international treaties or as «soft-law» instruments. The experience of drafting of the ILO Maritime Labour Convention of 2006 (MLC) is treated as rather successful one in respect of combination of elements of a binding treaty and a soft-law act in the single instrument. The mechanism of amendment of the Maritime Labour Convention is also interesting in respect of the possibility to apply the amended Convention towards the state that ratified its earlier text — in the «semi-automatic» manner. The implementation flexibility follows from the politics of the international organizations concerning the control over the adopted international labour standards. Despite the fact that ILO possibilities to control the application of its instruments are rather limited, the Organization doesn’t make a full use of even the available means of control. The ILO is significantly more flexible in application of its standards than the European regional organizations — the Council of Europe and the European Union.
The article provides an account of how international labour law, which had previously been promulgated mostly by the International Labour Organization, has been confronted by a new type of “global” labour law that has arisen from recent changes in the structure of employment brought about by the advent of globalization and multinational corporations. These rival influences on the regulation of labour have not yet reached a stable and productive accommodation to each other, and the author identifies several points of contact and conflict between them, as well as some of the background forces that bear on those conflicts. The article also evaluates several suggestions for the way the relationship between them should be managed. Separate attention is devoted to the possibility of linkage between the application of international labour standards and international trade. To date, the negotiations on inclusion of the “social clause” in the agreements on international trade within the WTO framework have been unsuccessful. However, the author considers that the current infrequent and weak linkage of international trade agreements with labour issues is inadequate, and concludes that significant limitation of the free flow of capital from one country to another is needed in order to avoid the “race to the bottom” between developing countries that leads to the degradation of the labour rights regime worldwide.