Wednesday 5 December 2018
The International Bar Association Global Employment Institute (IBA GEI) and the International Organisation of Employers (IOE) have pooled their expertise to provide companies with further guidance and clarity on an area of increasing importance to business: International Labour Standards (ILS). The ILS are legal instruments, set by the International Labour Organization (ILO) and agreed by ILO tripartite constituents, which protect basic worker rights, taking into account, inter alia, the need for sustainable enterprises to create jobs. They are either conventions, which are legally binding international treaties upon ratification, or recommendations, which serve as non-binding guidelines.
In a jointly published report, the two organisations outline the purpose of the ILO’s ILS; how they are implemented, supervised and interpreted; and how they affect companies that refer to them in their codes of conduct, international framework agreements (IFAs) and/or other corporate social responsibility instruments. Further, the report provides examples of legal challenges companies may face when references are made to ILS in national law, IFAs or codes of conduct (Section 6). In particular, it examines whether ILO Convention No 87 on the Freedom of Association and Protection of the Right to Organise contains a right to strike (Section 4).
Els de Wind, IBA GEI Senior Vice Chair and joint report editor, commented that ‘[i]n the last year, corporate social responsibility has moved up companies’ agendas, particularly those of multinationals, leading to the progressive referencing of ILO Conventions in instruments like IFAs and codes of conduct. However, the references are not always clear and there is not full comprehension as to the legal consequences of such inclusion. Bringing greater awareness to global business is the prime reason the IBA GEI has teamed with the IOE, the widest network of business and employer organisations, acting as secretariat of the employers in the ILO.’
As ILO Conventions are directed to governments, and only those Member States that have ratified the Conventions are bound by them, ILO Conventions cannot create direct obligations for individuals or companies. However, there are instances where references have been made to ILO Conventions in companies’ IFAs, codes of conduct and other instruments. The 60-page report, International Labour Standards in the Contemporary Global Economy examines some such scenarios in the context of the references potentially being considered as contractual obligations.
In addition, Convention No 87 is analysed, with the report concluding that the purported right to strike is not contained within it, nor in any other subsequent ILS adopted at the International Labour Conference by ILO tripartite constituents – government, employer and worker representatives. Additionally, the report states that ‘the preparatory works on and the circumstances of the conclusion of the Convention clearly establish the intention to exclude the issue of strike from the standard setting’. This conclusion is drawn despite assessment to the contrary by the ILO Committee of Experts on the Application of Conventions and Recommendations, a supervisory body of the ILO set up to provide technical non-binding assessment of the state of application of ratified ILO Conventions.
Roberto Suárez Santos, IOE Secretary-General and joint report editor, said that ‘being able to provide some guidance on what the purpose is of ILS and how they interact with national regulation is an important part of the IOE's work, as is explaining how the complex ILO supervisory system works and to what extent, in practice, it can affect companies that refer to ILO Conventions. Collaborating with the IBA GEI complemented our efforts. Together, we adopted a considered and cautious approach, looking at all aspects in the widest possible context of national and cross-border business.’
He concluded that ‘[t]he trend to include ILS references in IFAs and companies’ manuals calls on the importance of human resources departments, business managers and others responsible for concluding IFAs and companies’ manuals understanding its implications. The publication of today’s report will go some way to providing insight.’
Notes to the Editor
International Labour Standards in the Contemporary Global Economy can be downloaded without charge from the IBA website at: tinyurl.com/International-Labour-Standards.
The report was written by:
From the IBA GEI:
Els de Wind, Senior Vice Chair, IBA GEI; Partner, Van Doorne, Amsterdam, the Netherlands,
with contributions by:
Christian Arnold, Partner, Gleiss Lutz, Stuttgart, Germany;
Raymond Jeffers, Member, IBA GEI Advisory Board, London, United Kingdom;
Peter Talibart, Partner, Seyfarth Shaw, London, United Kingdom; and
Thomas Winzer, Partner, Gleiss Lutz, Frankfurt, Germany.
From the IOE:
Roberto Suárez Santos, Secretary-General, Geneva, Switzerland; and
Maria Paz Anzorreguy, Senior Advisor, Geneva, Switzerland.
The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership, it influences the development of international law reform and shapes the future of the legal profession throughout the world.
The International Bar Association Global Employment Institute (IBA GEI) was formed in early 2010 for the purpose of developing a global and strategic approach to the main legal issues in the human resources and human capital fields for multinationals and worldwide institutions.
The International Organisation of Employers (IOE) is the largest network of the private sector in the world, with more than 150 business and employer organisation members. For almost 100 years, in social and employment policy debate taking place in the ILO, to which the IOE is the sole representative of business, and across the UN, G20 and other emerging forums, the IOE is recognised for its unique expertise, advocacy and influence as a powerful and balanced voice for business at the international level.
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