July 15, 1998
The ILO's Strange Use of Words
by
Charles W. Baird
Emeritus Professor of Economics and Former Director of the Smith Center
California State University, East Bay
On June 18 The International Labor Organization put forth its "Declaration on Fundamental Principles and Rights at Work." U.S. Secretary of Labor, Alexis Herman, asserted that the Declaration is, "a big step forward for the ILO and its members as we enter the 21st century." John Sweeney, president of the AFL-CIO, called it, "an historic breakthrough that dramatically underscores the importance of basic rights for workers in the global economy."
The core of the Declaration requires the governments of all ILO member countries, "to promote and to realize, in good faith" four basic principles: "(a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation." Forty-three developing countries refused to support the Declaration because they saw it as an attempt by industrialized countries to eliminate their competitive advantage in labor costs and as a pretext for the imposition of protectionist trade restrictions. They were right. That, I submit, is what makes Herman and Sweeney tingle all over.
While all classical liberals can enthusiastically agree to item (b) in the Declaration, item (c) is problematic. Today's industrialized countries abolished child labor by statute only after labor productivity had risen to the point that markets had abolished it by choice. Item (d) is also problematic because of the wide variety of meanings attached to the word "discrimination." In the U.S., for example, most so-called civil rights leaders say that it is discriminatory not to discriminate. Moreover, in practice elimination of discrimination in employment by law often means legal mandates to pay equal wages for labor services of unequal value.
However, the most problematic of all is item (a). What does it mean? If freedom of association means that government is forbidden to interfere with willing individuals who wish to affiliate with each other for legal purposes, or to interfere with other individuals who choose not to enter into such affiliations, then I concur. If collective bargaining means voluntary bargaining involving individuals who have each chosen to be represented in bargaining by the same bargaining agent, then I concur. But that is not what the ILO means.
Its definitions of these terms are made clear in the 1994 report of its Committee of Experts, "Freedom of Association and Collective Bargaining," and in how its Committee on Freedom of Association applied these principles in its 1994 evaluation of New Zealand's Employment Contracts Act (ECA).
On p. 15 the Experts write, " trade union rights violations may ... result by reason of legislation ... which favour individual rights to the detriment of collective rights." This distinction between individual rights and collective rights is curious. Human rights reside in individuals. They are prior to government, and it is government's duty to protect them for all individuals. Individuals can voluntarily associate with each other in the pursuit of legal ends, but the association or the collective is nothing more than the sum of its individual constituents. It can have no rights other than the rights that its individual constituents bring into it, and its individual constituents have exactly those rights that all individuals have, no more and no less.
The ILO endorses trade union association rights that are distinct from, and contradictory to, individual association rights. It asserts that those who wish to join trade unions must be free to do so, but it does not say that those who choose not to join trade unions, or be represented by them, or pay dues to them should be free to abstain. In 1947 the ILO rejected an amendment to its Convention No. 87, "Freedom of Association," that would "grant workers the right not to join an organization" (Experts, p. 45). But, correctly understood, freedom of association means that all individuals have the right not to join an organization notwithstanding any privilege the ILO or any government chooses to grant to any collective. On pp. 45-46 the Experts endorse the principle of exclusive representation under which unions are granted the legal privilege of representing workers other than their voluntary members, as well as the principle of union security under which individual workers can be forced to join unions or at least to pay union dues.
Article 4 of Convention No. 98, "Right to Organize and Collective Bargaining," states , "Measures ... shall be taken ... to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations." This sounds good but they don't really mean it. First, note that individual employers can bargain with workers' organizations, but there is no provision for individual workers to bargain with employers. The word "voluntary" doesn't apply to workers who choose to bargain for themselves. Furthermore, on p.110 the Experts approve mandatory good faith bargaining between trade unions and employers. Under this principle employers are forced to bargain with unions and to make concessions to unions. The word "voluntary" in Article 4 is meaningless.
New Zealand's ECA became law in 1991. It eliminated almost all forms of compulsory unionism. Individual workers are free, on an individual basis, to decide whether to represent themselves or to authorize an agent to represent them. Authorized agents can be unions, individuals, or nonunion organizations. While employers must recognize agents chosen by individual workers as representatives, they do not have to bargain with them. Unions may represent only their voluntary members. There can be no forced membership or forced dues. Employers and workers are free to choose whether to enter individual or collective contracts. Needless to say, the New Zealand Council of Trade Unions was, and is, opposed to the ECA. In 1993 the Council complained to the ILO that the ECA violated ILO Conventions 87 and 98 on freedom of association and the right to collective bargaining. The 1994 "Report of the Committee on Freedom of Association" that evaluated the complaint speaks for itself:
Paragraph 254. On the whole, taking into account the provisions of the Act [the ECA] and the information contained in the mission report, the Committee considers that problems of incompatibility between ILO principles on collective bargaining and the Act stem in large part from the latter's underlying philosophy, which puts on the same footing (a) individual and collective employment contracts, and (b) individual and collective representation.
Paragraph 255. As regards employment contracts, the Committee finds it difficult to reconcile the equal status given in the Act to individual and collective contracts with the ILO principles on collective bargaining according to which the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations should be encouraged and promoted, with a view to the regulation of terms and conditions of employment by means of collective agreements. In effect, it seems that the Act allows collective bargaining by means of collective agreements, along with other alternatives, rather than promoting and encouraging it [emphasis in original].
Imagine that! The ECA "allows" workers freely to choose to negotiate employment contracts individually or collectively. The ILO doesn't approve. It prefers "promoting and encouraging" (read "coercing") mandatory good faith collective bargaining through trade unions vested with collective rights that trample on individual worker rights.
This is Secretary Herman's "big step forward into the 21st century" and John Sweeney's view of "basic rights for workers in the global economy." In reality the ILO's views are based on the 19th century idea of class struggle and the 20th century illusion that the working class needs compulsory trade unionism to defend itself against predatory employers. In my view the ECA really is a giant step forward into the 21st century precisely because it is based on genuine basic rights for workers.