Country Director for the ILO Country Office for China and Mongolia Promotion of Collective Bargaining & Settlement of Collective Interest Disputes – International Labour Standards & Laws Tim De Meyer Country Director for the ILO Country Office for China and Mongolia

A Functional Presentation of relevant standards on Collective Bargaining & Settlement of Collective Interest Disputes

Collective Bargaining Most fundamental social dialogue mechanism, ensuring that terms and conditions of employment (wages, working time, leave etc) are negotiated (and periodically re-negotiated) in line with an evolving economic environment One of three main instruments of wealth redistribution to keep inequality in check in market economies collective bargaining ~ private social security (insurance) ~ private/public taxation ~ public

What does it take to achieve effective collective bargaining ? Most fundamentally: a formal recognition that employers have private property over productive assets & profits and workers have private property over their labour (see Article 13 of the Constitution of China) that amongst private parties, negotiation is the only proper vehicle for transferring property (not force, not fraud) that E & W workers have unequal bargaining power that is corrected by giving collective bargaining precedence over individual bargaining, if workers so wish that E must submit to fair sharing of wealth … but can negotiate productivity improvement measures in return

trade unions & employers’ organizations that have the trust of (and in return have a measure of control over) workers and employers understand the law (i.e. legal boundaries within which to conduct negotiations) understand the need to compromise ... hence the emphasis in C. 87 on “independence” of organizations on “networking” of organizations (right to join federations or confederations) on free “election” of officers

“good faith” of both E & W legal corollary ~ “unfair labour practices” consistent sharing of relevant business information (R. 129, R. 163) strikes must be possible … but only “usable” as a means of last resort (R. 92) govt’s offering professional conciliation / mediation services to prevent negotiations from “derailing” (R. 92 & R. 158 & R. 163) governments offering voluntary arbitration (R. 92 & R. 158 & R. 163) government promoting consultations at the industrial and national level to promote “mutual understanding and good relations” between G, E and W (R. 113) “mutual understanding and good relations between public authorities and employers' and workers' organisations, as well as between these organisations, with a view to developing the economy as a whole or individual branches thereof, improving conditions of work and raising standards of living”

Govts must resist the temptation of coming to the rescue of either party, and stay focused on the public interest dimension of what is essentially a private interest dispute protect against acts of violence no compulsory arbitration except where services affecting life and health of people are at stake protect against economic fall-out of excessively protracted strikes imposition of minimum operational requirements in public utilities (e.g. urban transport) imposition of (agreed) minimum safety services (to prevent disasters and destruction of property) respect “bargaining autonomy” (crisis ?) labour inspectors are recommended not to get involved with conciliation and mediation (R. 81) careful ~ every strike law affects the “bargaining balance” of the parties

determine the status of collective agreements in relation to individual employment contracts and in relation to the law (R. 91) governments organizing swift, inexpensive, professional and informed rights dispute settlement (R. 130) upholding law is a public function essential to prevent strikes over rights disputes comes generally in the form of labour inspection and labour courts

Relevant International Labour Standards on Social Dialogue and Industrial Relations (other than C. 87 & C. 98)

Relevant ILO Fundamental Principles & International Labour Standards Category Relevant ILO Fundamental Principles & International Labour Standards ILO Constitution 1919, Declaration 1944, [Declaration 1998, Declaration 2008] Fundamental C & R on FoA/CB C. 87; C. 98 Other C & R on FoA/CB C. 135 (R. 143); C. 141 (R. 149); C. 151 (R. 159); C. 154 (R. 163) C & R on industrial relations & consultations & dispute settlement C. 144 (R. 152); C. 158 (R. 166); C. 150 (R. 158); R. 91; R. 92; R. 94; R. 113; R. 129; R. 130 C & R with key provisions on IR & C C. 122 (employment policy), R. 81 (labour inspection) Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy International Labour Conference Resolutions Civil Liberties Independence of the trade union movement

Conventions (+ R.) on Industrial Relations and Consultations Workers' Representatives Convention, 1971 (No. 135) and R. (No. 143) Rural Workers' Organizations Convention, 1975 (No. 141) and R. (No. 149) Tripartite Consultations (International Labour Standards) C. (No. 144) and R (No. 152), 1976 Labour Administration C. (No. 150) and R. (No. 158), 1978 Labour Relations (Public Service) Convention, 1978 (No. 151) and R. (No. 159) Collective Bargaining C. (No. 154) and R. (No. 163), 1981 Termination of Employment C. (No. 158) and R. (No. 166), 1982

Recommendations on Industrial Relations and Consultations Collective Agreements Recommendation, 1951 (No. 91) Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92) Co-operation at the Level of the Undertaking R., 1952 (No. 94) Consultation (Industrial and National Levels) R., 1960 (No. 113) Communications within the Undertaking Recommendation, 1967 (No. 129) Examination of Grievances Recommendation, 1967 (No. 130)

“Building blocks” of a typical Legislative Framework on Collective Labour Relations

1. General Principles commonly expressing the purpose of collective labour relations protection of human dignity & freedom, social justice harmonious labour relations fair sharing of wealth promoting workplace democracy balancing labour market flexibility and security … commonly expressing legal guarantees that organizations of workers and employers can properly represent their members, i.e. operate on the basis of instructions of their members and in function of each other’s positions (which tend to fluctuate with market conditions)

2. Trade Unions & Employers Organizations Establishment of organizations of workers (“trade unions”) and organizations of employers (“business associations” or “employers’ associations”) procedure for registration of organizations with the authorities submission of constitutions (“by-laws”) to the Registrar (guarantee of democratic functioning) limited rules on financial transparency towards organization members (not necessarily authorities or employers)

3. Collective Agreements to confirm their legal status as the binding outcome of collective bargaining the binding outcome of a collective interest dispute procedure some rules on validity and scope legally binding character of collective agreements in-between (public) laws and regulations and (private) individual employment contracts

4. Workplace Cooperation Mechanisms providing for regular sharing of information between employer and union providing for settlement of disputes over rights arising from enterprise-level collective agreements (“grievance procedures”) NO authority to engage in collective bargaining nor conclude collective agreements

5. Collective Bargaining choice for enterprise-level bargaining: rules for determining (exclusive) bargaining rights choice for sector-level or “multi-employer” bargaining: institutional framework (e.g. sectoral bargaining councils) obligation of “good faith” bargaining some definition of “unfair labour practices”, typically involving discriminatory or interference behaviour by the employer

6. Strike action collective bargaining – right to strike = collective begging peaceful strike action should be legitimized beyond collective bargaining (e.g. protest strikes against changes to the minimum wage in systems where the MW is exclusively determined by the public authorities; work stoppages in situations of manifest, serious and imminent danger to safety and health …)

strike action may be subject to procedures that give conciliation and arbitration a chance strike action may be subject to certain limitations that directly aim to protect life, safety and health of the population at large essential services minimum safety operations in public and private sector minimum operational requirements in public utilities not considered essential services (e.g. public transport)

Labour Relations Legislation in other Asian countries

Thailand Labour Relations Act, 1975 (under review for the last 15 years) for the private sector State Enterprise Labour Relations Act, 2000 for state enterprises (severe restrictions and penalties on the right to strike) Constitution provides for FoA for civil servants, but no legal framework for registration or collective bargaining Malaysia Trade Union Act, 1959 (dealing with registration of unions; definition of labour disputes; and right to strike) Industrial Relations Act, 1967 (dealing with protection against anti-union discrimination and recognition for the purpose of collective bargaining)

Cambodia Labour Law, 1997 – Various chapters Trade Union Law under preparation under pressure from employers keen to reduce excessive multiplicity of unions and improve representativity to curb “illegal strikes” ILO initiated the establishment of an Arbitration Council to settle rights disputes through voluntary arbitration

Republic of Korea - Trade Union and Labour Relations Adjustment Act, governing principles of freedom of association and collective bargaining trade union formation in the private sector (establishment, bylaws, management of trade union, dissolution …) collective bargaining and collective agreements industrial action (strikes) mediation and arbitration of labour disputes unfair labour practices penal sanctions - Labor Commission Act, laying down a framework for a public labour dispute settlement body (private labour dispute settlement is also available) - Act on the Establishment, Operation, etc., of Public Officials' Trade Unions (“trade union rights” for civil servants) - Act on the Establishment, Operation, etc., of Teachers' Trade Unions (“trade union rights” for teachers)

Indonesia Trade Union Law (21/2001); union formation membership protection against anti-union discrimination by employers protection of assets dissolution sanctions Manpower Law (13/2003), which is the equivalent of the VN Labour Code, but has an extensive Chapter (XI) on “Industrial Relations” stipulating purpose and principles of industrial relations establishment of unions establishment of employers’ organizations bipartite cooperation institutions; tripartite cooperation institutions; enterprise rules and regulations; collective work agreements; industrial relation dispute settlement agencies Industrial Disputes Settlement Law (4/2004), which regulates procedures for the resolution of rights disputes interest disputes disputes of over termination of employment disputes between unions at the same undertaking

Philippines Book Six of the Labour Code deals with “Industrial Relations” in 9 Titles, including Policy Statement of principles National Labor Relations Commission and Bureau of Labour Relations are dispute settlement bodies Trade unions (registration, conditions of membership, scope of membership) Unfair labour practices by the employer by the trade unions Collective Bargaining and Collective Agreements Grievance machinery and voluntary arbitration Strikes and Lockouts and Foreign Involvement in TU Activities Penalties for violation Study of Labour-Management Relations

Global Ratification Status of ILO Fundamental & Governance Conventions

1948 87 Freedom of Association and Protection Fundamental Conventions as of 1 February 2012 / ILO:183 Member States Year No. Official Title Ratifications 1930 29 Forced labour (175) 1948 87 Freedom of Association and Protection of the Right to Organise (150) 1949 98 Right to Organise and Collective Bargaining (160) 1951 100 Equal Remuneration (168) 1957 105 Abolition of Forced Labour (171) 1958 111 Discrimination (Employment (169) & Occupation) 1973 138 Minimum Age (161) 1999 182 Worst Forms of Child Labour (174)

29 87 98 100 111 105 138 182 (C. /in force) Brunei (2/1) 2011 2008 Cambodia (13/13) 1969 1999 2006 Indonesia (18/18) 1950 1998 1957 1958 2000 Lao PDR (9/8) 1964 2005 Malaysia (15/14) 1961 1997 x Myanmar (21/19) 1955 Philippines (34/32) 1953 1960 Singapore (26/20) 1965 2002 2001 Thailand (15/14) 2004 Viet Nam (18/17) 2007 2003 Years in red are > 1995, i.e. after the start of the universal ratification campaign

29 87 98 100 111 105 138 182 China (1919 / 25) 1990 2006 1999 2002 RoKorea (1991 / 24) 1997 1998 2001 Japan (1919 / 48) 1932 1965 1953 1967 2000 United States (1934 / 14) 1991 India (1919 / 43) 1954 1958 1960 Brazil (1919 / 96) 1957 1952 Russia (‘34&’54 / 66) 1956 1961 1979 2003 South Africa (‘19&’94 / 23) 1996 Canada (1919 / 31) 2011 1972 1964 1959

122 81 129 144 Brunei Cambodia Indonesia Lao PDR Malaysia Myanmar 1971 Indonesia 2004 1990 Lao PDR 2010 Malaysia 1963 2002 Myanmar Philippines 1976 1991 Singapore 1965 Thailand 1969 Viet Nam 1994 2008

122 81 129 144 China RoKorea Japan U.S. Canada 1997 1990 1992 1999 1986 1953 2002 U.S. 1988 Canada 1966 2011