1. 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

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

3. 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

4. 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

5. 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

6. “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”

7. 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

8. 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

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

10. 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

11. 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

12. 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)

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

14. 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)

15. 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)

16. 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

17. 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

18. 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

19. 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 …)

20. 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)

21. Labour Relations Legislation in other Asian countries

22. 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)

23. 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

24. 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)

25. 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

26. 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

27. Global Ratification Status of ILO Fundamental & Governance Conventions

28. 1948 87 Freedom of Association and Protection
Fundamental Conventions as of 1 February 2012 / ILO:183 Member States
Year No. Official Title Ratifications
Forced labour (175)
Freedom of Association and Protection
of the Right to Organise (150)
Right to Organise and Collective
Bargaining (160)
Equal Remuneration (168)
Abolition of Forced Labour (171)
Discrimination (Employment (169)
& Occupation)
Minimum Age (161)
Worst Forms of Child Labour (174)

29. 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

30. 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

31. 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

32. 122 81 129 144 China RoKorea Japan U.S. Canada 1997 1990 1992 1999
1986
1953
2002
U.S.
1988
Canada
1966
2011