Freedom Of Association Research Articles

Some legal issues for Vietnam on workers' right to organize in the new generation of free trade agreements

In recent years, Vietnam has achieved many significant achievements ineconomic development through promoting openness, integration into the global economy,and actively participating in the new generation of free trade agreements. Vietnam hasparticipated in negotiations and signed 16 Free Trade Agreements (FTA), among which theComprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and theEuropean Union-Vietnam Free Trade Agreement (EVFTA) are two "new generation" freetrade agreements with many new commitments on labor, including the right to freedom ofassociation of workers in enterprises. This article focuses on clarifying the provisions onthe right to establish representative organizations of workers in the CPTPP and EVFTA, aswell as the challenges that Vietnam must face in amending and supplementing the legalprovisions to implement these agreements effectively.

Military Unionism from the Perspective of International Law: Between National Security and Freedom of Association

This article conducts a critical analysis of the issue of the access of military personnel to the legal guarantees of the freedom to associate in trade unions from the perspective of international legal standards. Despite the consistently freedom-oriented evolution of international standards which have become applicable to union freedoms in recent decades, many states still uphold sweeping statutory bans on the unionization of military personnel. The potential engagement of members of the armed forces in any union activity is a contentious issue suspended between the requirement to protect the very essence of the freedom of association (FoA), the practices and traditions established in many states, and the need to maintain the effective security of the state against external threats. The analysis considers the evolution of perspectives presented by competent international supervisory and interpretative bodies which have substantially revised their views in recent years on the extent of necessary legal guarantees and acceptable restrictions on freedom of association with respect to military personnel. The analysis leads to the conclusion that a complete and absolute statutory ban on the unionization of military personnel may be incompatible with current international standards. The absolute requirement to respect the fundamental essence of freedom of association as an unquestionable and universal standard of human rights means that national legislators should guarantee military personnel at least the minimum level of freedom to associate in trade unions. Military Unionism, Freedom of Association, National Security, International Law, Human Rights, Members Of Armed Forces, Trade Union Freedoms, International law

MTE22.01 Integration of Cessation and Lung Cancer Screening

Lung cancer screening with low dose computed tomography (LDCT) has been studied extensively and is recommended for individuals who are deemed to be at increased risk, typically with a smoking history of 30 pack-years or more. The National Lung Screening Trial (NLST) demonstrated that with a screening program, there was a 20% reduction in lung cancer mortality. The overall incidence of lung cancer in the NLST was around 2%. Unfortunately, an often overlooked, yet treatable condition in any lung cancer screening program is continued tobacco use. In the NLST, 48% of participants were actively smoking at the time of the screening, and in our institutional program 71% are actively smoking. Cessation in this group may be seen as a challenge, as many of these patients have a much greater than 30 pack-year history and have not quit despite being advised by their primary physician. However, the lung cancer screening program may interact with the patient in a 'teachable moment' and these patients receiving screening may have increased motivation and willingness to quit if given the right resources. External resources such as quitlines or referrals to external tobacco cessation programs require action and increased motivation on the aprt of the patient, while integrating resources in the workflow of the screening program deliver the resources to the patient as a standard part of practice. Furthermore, the lung cancer screening program may be able to interact with the patient over time (through annual follow up at least) and may be an optimal way to deliver cessation resources to these patients. This session will explore different programmatic strategies to deliver cessation resources to patients in the construct of a LDCT Lung Cancer screening program. The coordinator of our screening program is a Advance Practice Registered Nurse (APRN) who sought out training and certification as a certified Tobacco Treatment Specialist (TTS). Referrals to the LDCT screening program are initially contacted by phone for a scheduling phone call, which also includes the initial elements of counseling these patients regarding tobacco cessation. An initial intake phone call determines appropriateness for screening and also can include elements of the 5A framework: ASK, ADVISE, ASSESS, ASSIST, ARRANGE. Then on the day of the scan, the APRN coordinator meets with the patient face-to-face at the point of the scan, and has already established rapport by telephone prior to the visit. The day of the scan, the patient receives in person counseling as part of their visit, and a cessation strategy or "Quit Plan” is made which may include medications such as nicotine patches and/or gum. After the scan, telephone follow up is conducted to both discuss cessation and discuss scan results with a plan for follow up. Additionally, patients can be enrolled in a state Quitline program as a standard part of the workflow which provides them with ongoing support. Another option for patients is for the screening program to refer them to group counseling sessions. The American Lung Association's Freedom From Smoking is one such structured program. Patients may not independently seek these programs out, but as a lung screening program, developing ties to programs in the community with integrated referrals to group counseling programs can be another way to further the delivery of resources to these patients. As patients return for repeat scans to follow up indeterminate nodules, or return the following year for routine scans, further cessation support is delivered, and if they have quit, abstinence support is provided. Quitlines, group counseling, and nicotine replacement therapy have been shown to be cost effective strategies to help people who smoke to increase chances of quitting. A lung screening program may identify 2% of its participants with lung cancer, but if half (or in our case 71%) are smoking, and integrated cessation resources help those patients to reduce or quit smoking, the benefit of the lung screening program is greatly amplified, and patients can reduce risk for future cancers as well as cardiovascular and non-oncologic respiratory diseases. Smoking Cessation, Screening, tobacco

Neural stress reactivity relates to smoking outcomes and differentiates between mindfulness and cognitive-behavioral treatments

Stress and negative affect are known contributors to drug use and relapse, and several known treatments for addictions include strategies for managing them. In the current study, we administered a well-established stress provocation during functional magnetic resonance imaging (fMRI) to 23 participants who completed either mindfulness training (MT; N=11) or the American Lung Association's Freedom From Smoking (FFS; N=12), which is a cognitive-behavioral treatment (CBT) for smoking cessation. Across the entire sample, we found that stress reactivity in several brain regions including the amygdala and anterior/mid insula was related to reductions in smoking after treatment, as well as at 3-month post-treatment follow-up. Moreover, conjunction analysis revealed that these same regions also differentiated between treatment groups such that the MT group showed lower stress-reactivity compared to the FFS/CBT group. This suggests that reduction in stress reactivity may be one of the mechanisms that underlie the efficacy of MT in reducing smoking over time. The findings have important implications for our understanding of stress, the neural and psychological mechanisms that underlie mindfulness-based treatments, and for smoking cessation treatments more broadly.

Randomized trial comparing mindfulness training for smokers to a matched control

Smoking continues to take an enormous toll on society, and although most smokers would like to quit, most are unsuccessful using existing therapies. These findings call on researchers to develop and test therapies that provide higher rates of long-term smoking abstinence. We report results of a randomized controlled trial comparing a novel smoking cessation treatment using mindfulness training to a matched control based on the American Lung Association's Freedom From Smoking program. Data were collected on 175 low socioeconomic status smokers in 2011–2012 in a medium sized midwestern city. A significant difference was not found in the primary outcome; intent-to-treat biochemically confirmed 6-month smoking abstinence rates were mindfulness=25.0%, control=17.9% (p=0.35). Differences favoring the mindfulness condition were found on measures of urges and changes in mindfulness, perceived stress, and experiential avoidance. While no significant differences were found in quit rates, the mindfulness intervention resulted in positive outcomes.

The Committee of Experts and the Right to Strike: a historical perspective

REPORT□ EMPLOYERCHALLENGE TO ILO PRINCIPLES The Committee of Experts and the Right to Strike: a historical perspective I increasing, the the changed stance right the the At strength employers the lobby employer Cold to end on strike their War, was and the of of the ColdWar, the strength of the employer lobbywas increasing,and the employers changed their stance on the right to strike TONIA NOVITZ isProfessor of Labour Law atthe University of Bristol. During challenge Conference, the the a 2012 serious jurisprudence International attempt was regarding made Labour to Conference, a seriousattempt was madeto challenge the jurisprudenceregarding industrial action established by the ILO Committee of Expertson the Applicationof Conventionsand Recommendations (CEACR). The challengeto theCEACR'sjurisprudence and rolewas putforward bytheemployers' groupin theConference Committee on theApplication of Standards (CCAS). Therearevariousstrands totheemployer position ,buttheessenceofthechallengeis thatthe Committee ofExperts hassomehowexceededits mandateby interpreting ILO Convention 87 on Freedomof Associationand Protection of the Right to Organise(1948) as encompassing protection oftheright to strike. Froma historical perspective, itis arguedhere thattheemployers' grouphas madecertain fundamental errors. Inthisarticle, I explainthework of the Committee of Experts, its function, and howthebodycameintobeing.I also lookatthe evolutionof recognition of the rightto strike through ILO supervisory systems, and howithas gradually come to be acceptedthroughout the ILO. The CommitteeofExperts The experttechnicalCEACR was established alongsidetheCCASon an initial trialbasisbya Resolutionof the 1926 International Labour Conference1. Thattrial turned outtobe extremely successful, so much so thatthissystemof supervision was retained andhassincebeenimitatedby drafters of otherinternational instruments , suchas theEuropeanSocialCharter 1961 and the International Covenanton Economic, Socialand Cultural Rights 1996.Yet,as in these systems, authoritative findings arenottobe confused with thosethat arelegally binding. Itiswell established thatthe ILO Committee of Experts does nothave 'judicialcapacity', norhas ithad anypretence to thisrole. The intention was onlythata quasi-independentpaneloflegally qualified experts wouldprovide technicaladvice on compliancewithILO Conventions andRecommendations. Thatadvice, taking theform of'observations' on formal compliance ,is thenconsideredby a tripartite body (theCCAS)representing employers, workers, and governments, which takes a more pragmatic, politically orientated view of theapparentlegal violations and makesitsown recommendations. Itis ultimately fortheannualILO Conference as a wholeto reacha viewon violations highlighted inrespect ofthecountries concerned2. Neither thereports oftheCEACRnortheconclusionsoftheCCAShaveeverbeenexpectedto havelegaleffect; thisis solelytheprerogative of theInternational CourtofJustice3. Nevertheless, sincethecollective expertise oftheCommittee of Experts is suchthatthisbodyproduceswell-reasoned assessments ofthemeaning ofprovisions contained inILO instruments, they havecometo be regarded as compelling in CCASdebatesand inthebroaderConference atlarge,regardless of theirlegal status.Additionally, as the CEACR reports are publishedby theILO, theymaybe referred toinother supervisory proceedings4, and even prompt remedialactionby theStateconcernedso as to avoid further embarrassment5. Theemployers' groupobjectstosuchpublication (Report oftheCCAS,Part1/13), butitmight also be notedthatthe views of the CCAS are also made publiclyavailable and rarely(if ever) inducesucha response. The Committee of Experts'jurisprudence on matters offreedom ofassociation is designedto reflect thatadoptedin thedecisionsand principles of an entirely tripartite consensualprocess, the Freedomof AssociationCommittee of the GoverningBody of the ILO (CFA). The CFA decides cases on thebasis of theguarantee of freedom of association under the ILO Constitution. It does so regardless ofratification ofeither Convention 87 orany other ILO instrument 6. Itsjurisprudence relating to theright to strike hasbeendevelopedbyconsensus overthe pastsixty yearsbetweenthetenmembers ofthe CFA (threeemployer, threeworkerand three government representatives, alongsidean independent chair). TheCFAwas established in1951, and began hearingcomplaints relating to freedomofassociation thefollowing year. Recognitionofthe right to strike By 1956, in cases concerning Poland and the USSR,theCFAindicated 'theimportance of the right to strike' (Case 148 (Poland)) such thatit constituted 'anintegral partofthegeneral right of workers and theirorganisations to defendtheir economicinterests' (Case 111 (USSR)).By 1958, theCommittee was making theveryclearassertionthat 'allegations relating to prohibitions of theright tostrike arenotoutsideitscompetence whenthequestionof freedom of association is involved (Case 163 (Burma) and Case 169 (Turkey)). By I960, thetripartite committee was determined toassessthemerits ofanyrestrictions on industrial action,regardless of whether this was otherwise consideredlawfulin a Member State.I have arguedelsewherethatthiswas an approachwhichis defensible in thelight ofthe 'ordinary meaning'of 'freedomof association' (under Articles31 and 32 of the Vienna Convention on the Law of Treaties1969),the context in whichthetermis used and thepurpose ofILO Convention 877. INTERNATIONAL union rights Page 20Volume 19Issue 22012 ILO Convention 87 does notexplicitly refer to a right to strike. Thispointwas thesubjectof controversy at the 1948Conference at whichit was adopted.Nevertheless, it would be rather peculiar toassert that thisentitlement arisesonly byvirtue of theILO Constitution and bearsno relation to Article 3 of Convention 87, which makesprovision (amongotherentitlements) for workers' organisations to 'organise their administration and activities and formulate theirprogrammes...

Attack on the Belgian social dialogue system

FOCUS O WORKERS'RIGHTSINFORMALANDINFORMAL MINING Attack on the Belgian social dialogue system In Belgium. choose May who 2012 Every will social four represent elections years them workers were inthe held get workto in Belgium.Everyfouryears workersget to choosewhowillrepresent themintheworkerscouncilsand thecommittees forsafety and healthat work.The results are also decisivefor theweightof thedifferent tradeunionson the sectoral and national level.Apart from that, they are- almosttraditionally - used bythefarright as an occasionto criticise and attack thesystem ofsocialdialogue. Basics ofBelgian social dialogue The cause ofthoseattacks is thelaw of 29 May 1952 establishing the NationalLabourCouncil, whichforms a cornerstone ofthesocialdialogue inBelgium. Onlythe'mostrepresentative' unions sitintheNational LabourCouncil, andonlythose unionsare allowedto submit candidates forthe socialelections.1 A unionis one ofthe'mostrepresentative unions' ifitfulfils thefollowing criteria: beingestablished on thenational leveland operating acrossthedifferent sectors (i.e. inter-professional) representing theabsolutemajority ofsectors andcategories ofworkers intheprivate as wellas thepublicsector, on thecondition that thetrade unionalso encompasses themajority ofworkers during thefour years preceding the appointment ofmembers (inlinewith the quadrennial heldsocialelections), thetrade unioninquestion hastocountatleast125,000 contributing members, including themembers oftheaffiliated orassociated organisations, and thetrade unionmust haveas a statutory goal thedefence oftheinterests ofworkers. Thisis perfectly inlinewiththeILO guidelines (objective,pre-established and precisecriteria) and theneed ofhavinga functioning, adequate andstablesocialdialogue. Vlaamse solidairevakbond (Flemish SolidaryTrade Union) Attheoccasionof thesocial electionsin 2008, members oftheextreme right party Vlaams Belang, attacked thelaworganising theelections before the constitutional court, stating that itinfringed (among others) their freedom ofassociation andtheir politicalrights . The constitutional courtcountered all arguments (Judgement 9/2009, 15January 2009). Since thelawremained thesamethey hadtocome up withsomething newin2012. On 11July 2011(theFlemish national holiday) some members of theVlaamsBelang founded their own Flemish nationalist'trade union' VlaamseSolidaire VakbondCVSV). A couple of weekslater, theVSVwas adoptedbytheBritish nationalist tradeunionSolidarity ('STU'). A contract was madestating thattheVSVwouldpaya monthly feeofeuro25 'inreturn fortheservices offered by STU to thecandidatesforthesocial elections inBelgium'. In twocompaniestheVSVsubmitted a listof candidates(each listwithone candidate).Both wererefused bytheemployer, according to the law. Solidarity, theVSVand thecandidates subsequently wentto courtand demandedthatthe listswould be accepted.Theyused an urgent procedurebeforethe presidentof the labour court, based on theanti-discrimination law (Law of 10 May2007,B.S.30May2007). Theystated that thelaworganising thesocialelections should notbe applied,sinceitdiscriminates on grounds oftradeunionaffiliation. Apart from that, they askedthepresident ofthe courtto questionthe Courtof Justiceof the European Union as to the conformity of the national legislation with EU law.TheCourt would have to considerwhether the condition thata tradeunionmustbe represented in theNational LabourCouncil tosubmit candidates for thesocial elections, iscontrary tothefree movement ofservicesintheEuropean Union(Directive 2006/123). TheVSVarguedthat advicegivenbytrade unions in legaland taxation matters, are services in the scope of the directive and thusnationallimitationstoEU trade unionsoffering theseservices in Belgium arecontrary totheEU law. The president of the labourcourtin Bruges stressed theparticular character oftheprocedure: an urgent procedure tostopan ongoingdiscrimination . To makea longstory short, thepresident ofthecourtpointedoutthattherealaimofthe VSVwas to attack thelegislation, and thatthere are properproceduresforthis,whichhad not been followedin thiscase. As a consequence there was no need toponderaboutthequestion whether thelegislation would be in accordance withEU law.In Ghentthepresident ofthecourt made a slightly different reasoning, butcame to thesameconclusion. In bothcases theVSVand Solidarity werecondemned toa fineforfrivolous andvexatious proceedings. The VSVand Solidarity filedan appeal against bothdecisions.Theyinsist on an intervention of theEuropeanCourtto decide whether thediscrimination law and thelaw on social elections contain illegallimitations tothefree movement of services intheEU. The cases arestill pending. Conclusion It is stilluncertain whether theEuropeanCourt willhave to handlethiscase. However,in our opinionitseemsclearthat theBelgianlegislation is inlinewiththeILO principles. Minority orfor- ...continued onPage13 ASTRID THIENP0NT and LANDER VANDER LINDEN are Advisers with the ABW-FGTB trade union centre in Belgium. Page 19Volume 19Issue 32012 INTERNATIONAL union rights ...

A crisis yet to unfold

FOCUS □ AUSTERITY ANDTRADEUNIONRIGHTSINEUROPE A crisis yet to unfold I eventually confronted, The the day the obligations Greek gulf will in treatment of the EU reckoning no the between be and people courts with doubt legal fully its of of a the legal obligationsof the EUand its treatmentof the Greekpeople willno doubt eventuallybe fully confronted, witha day ofreckoning inthe courts KEITH EWING isProfessor of Public Law atKings College, London and Vice President of ICTUR This is an edited version of atalk given at University College London on 19 May 201 2.An earlier version of this article was published in the Morning Star on 29 May 201 2. As ever ever the more more European intense acute,there political and the is a economic crisis third becomes crisis crisis yet evermoreintense and theeconomiccrisis evermoreacute,thereis a third crisisyet tounfold. Thisisthecrisis oflegality nowengulfingtheEU ,an entity thatseemstobe freetodo whatitlikesand to ignorethelegalfoundations on whichitis supposedtobe built. The EU, itsinstitutions and itsrepresentatives arerequired toactwithlegalauthority andwithin thescope of legal powers.To thisend, the post-Lisbon treatyis fullof clearlyexpressed principlesand obligations, the EU apparently foundedon thevalues of 'humandignity, freedom ,democracy, equality, the ruleof law and respect forhumanrights'. Thetreaty otherwise provides notonlythat the EU willworkforsustainable development based on economicgrowth, butthat itwilldo so topromote 'a highly competitive socialmarket economyaimingat fullemployment'. Thiswillall be done whilealso advancingsolidarity and social justice,as well as 'equalitybetweenmen and women', So whatis theproblem? The answeris Greece, and thattheterms of thebailoutnegotiated by theTroika(inwhichEU institutions playeda big part)do notappearto complywiththeseprovisions , leading to serious questionsabout the legality oftheterms ofsettlement, theobligations imposed, and theresponseoftheGreekgovernments . Evidenceistobe foundintheReport ofa High LevelMissionthatvisitedGreece in September 2011, on behalf of the International Labour Organisation (ILO), a UN agencyresponsible for setting andmonitoring labourstandards throughout the world.Usuallythe ILO is preoccupied with developingcountries;now to the great shameoftheEU itis concerned withausterity. The ILO has reported on the'exponential' rise intheuse ofpart-time and 'rotation' contracts, as well as theemergence oflargenumbers of 'discouraged 'workers, who itseemshavejustgiven up. These new contractual arrangements have seen wages fallby up to 38 percent, accompaniedbyan increase intaxandsocialsecurity contributions and reducedpensions. Thisis beingdriven through whilealso weakeningworkers ' rights to tradeunionrepresentation ,casting aside guarantees in theGreekconstitution . According totheILO,theindustrial relationssystem builtup overmanyyearsto reflect 'Greekrealities' is now 'vulnerable to collapse', these developments having a 'destabilising impact' on thehumanright tofreedom ofassociation . Theconcern is notonlythat wagesestablished by collectiveagreementshave been slashed. Also,employers have now won theright notto pay collectively agreedwage rates,iftheycan securethe'agreement' ofworkers toacceptless. Thisis theultimate form ofneo-liberal flexibility, with unprotected workersbeing 'liberated'to sign away minimum termsand conditionsof employment. Yetfarfrom ensuring thatthepainis endured equallybetweenmenand women,crucially the burdenis falling disproportionately on thelatter. Thisis trueespeciallyin terms oftheimpact of growing levelsofunemployment, and themove to part-time and rotation contracts, withwomen suffering additional problems ofdiscrimination in trying toenforce maternity rights. Butitisnotonlythedisproportionate impact of thelawon womenthat hasbeenrevealedbythe ILO. Thereis also concernabout law enforcement ,the ILO highlighting the inability of the labourinspectorate to addressequality issues,as well as thedelaysin thejusticesystem thatdiscouragewomenfrom usingthecourts. So much fortheright to equal treatment, once a cornerstoneofEU socialpolicy. The gulfbetweenthelegalobligations of the EU and itstreatment oftheGreekpeoplewillno doubteventually be fully confronted, witha day ofreckoning inthecourts. Ifwhatis happening inGreece(and perhapselsewhere)is notutterly illegal, we needtoknowwhy,andwhytheclear wordsof the EU treaty and the accompanying Charter ofFundamental Rights do notmeanwhat theysay. UndertheCharter, EU citizens havea right to freedomof association,includingthe rightto form and jointradeunionsfortheprotection of their interests, a right whichfor reasonsthat need notbe explored hereincludes theright tobargain collectively. What we see in Greece is the destruction notthepromotion of collective bargaining , as providedforin international labour conventions. The Charteralso provides that 'equality betweenmenandwomenmust be ensured inall areas,including employment, workand pay'.It also feigns toguarantee theright of'every worker 'to 'working conditions thatrespect hisorher health,safetyand dignity'. What we see in Greeceis theviolation oftheprinciple ofequalityand thedegradation ofworker dignity. The recent election inGreecegaveworkers an opportunity topassjudgment onthebailout measuresthathavebeen imposedon their countries. By a clear majority theyvoted to rejectthese measures.Democracyhavingfailed,it is now time to combine popular protestwith legal action,to challengethearrogance ofinstitutions that appear blissfully indifferent to the legal obligations bywhichtheyarebound. INTERNATIONAL union rights Page 12Volume 19Issue 22012 ...

Mindfulness training for smoking cessation: Results from a randomized controlled trial

BackgroundCigarette smoking is the leading cause of preventable death in the world, and long-term abstinence rates remain modest. Mindfulness training (MT) has begun to show benefits in a number of psychiatric disorders, including depression, anxiety and more recently, in addictions. However, MT has not been evaluated for smoking cessation through randomized clinical trials. Methods88 treatment-seeking, nicotine-dependent adults who were smoking an average of 20cigarettes/day were randomly assigned to receive MT or the American Lung Association's freedom from smoking (FFS) treatment. Both treatments were delivered twice weekly over 4 weeks (eight sessions total) in a group format. The primary outcomes were expired-air carbon monoxide-confirmed 7-day point prevalence abstinence and number of cigarettes/day at the end of the 4-week treatment and at a follow-up interview at week 17. Results88% of individuals received MT and 84% of individuals received FFS completed treatment. Compared to those randomized to the FFS intervention, individuals who received MT showed a greater rate of reduction in cigarette use during treatment and maintained these gains during follow-up (F=11.11, p=.001). They also exhibited a trend toward greater point prevalence abstinence rate at the end of treatment (36% vs. 15%, p=.063), which was significant at the 17-week follow-up (31% vs. 6%, p=.012). ConclusionsThis initial trial of mindfulness training may confer benefits greater than those associated with current standard treatments for smoking cessation.

Pakistan: labour legislation and fundamental rights

REPORT□ PAKISTAN LABOURRIGHTS Pakistan: labour legislation and fundamental rights The 18th Constitutional Amendment... has created a paradoxical situationdenying the right of freedomof association to the national industry-wide tradeunionsand federations Secretary of the Pakistan ■ ■ r«JnwMnw«ranún imm mimi Labour cordial topromote legislation labour the management welfare inPakistan ofthe relations aims workers, to in ensure order raise Labour cordial labourmanagement relations inorder topromote thewelfare oftheworkers, raise productivity andensuresocialjustice insociety. It isalsomeant topromote industrial peace through mutual consultation anddialogue between therepresentatives oftheemployers andworkers. Unfortunately, the18th Constitutional Amendment introduced bytheGovernment has deleteditem No.27oftheConcurrent List, namely 'trade unions and industrial labourdispute'and devolvedthis subject totheProvincial List. Thisamendment hascreated a paradoxical situationdenying theright offreedom ofassociation tothenational industry-wide trade unions andfederations and nationalemployers federation from getting theirorganisation registered and obtain legalstatus. Theeffect ofthis amendment isthat trade unions that promote national unity andharmony anddefeat divisive forces based upon ethnic, parochial and religioussectarian forces, might be confined to workonlyattheProvincial level. Thisamendment isnotonlyinviolation offundamental rights enshrined inArticle 17/Aofthe PakistanConstitution pertaining to Freedomof Association andCollective Bargaining, butalso of international obligations undertaken bythegovernment ofPakistan, including ILO Conventions No. 87 & 98. Various provincial governments including Punjab, Sindh, Khyber Pakhunkhwa, Balochistan hadadopted Provincial Industrial Relations Legislation' in recentmonths.The ProvincialGovernment of Punjab initslegislation, namely "Industrial Relations Act2010',has debarred 'theworkers engagedin establishments having lessthan50workers. Ithas done so on thegroundthatthemajority ofthe workers areengagedinsmallandmedium enterprises . Thegovernment claimsthat theseworkers havenoright either toform trade unions ortohave a collective voice to attain socialjusticethrough exercising their fundamental right offreedom of association andcollective bargaining inconformitywithILO Conventions 87 and98. Had thelegislators takenthetrouble toconsult theessentialstakeholders priorto bringing the Constitutional Amendment on labourissues,this legalvacuumwouldnothaveoccurred. TheILO hasrecommended totheGovernment ofPakistan toreview thislegislation andconstitutionalamendment tobring itintoconformity with international obligations. The ProvincialGovernment should honour nationalconstitutional obligations by removing restrictions formembership oftradeunionsfrom workers inenterprises with fewer than50employees , something whichis notonlyanti-democratic butalso inviolation ofthefundamental rights of workers. ...Continuedfrom Page 25 ersconstitutes an impediment toone oftheprincipal objectivesoftheguaranteeoffreedom of association - theforming ofindependent organisations explicitly capableofconcluding collective agreements." TheFraser decisiondoes notbode wellfor the future ofcollective bargaining rights inCanadaand leavesagricultural workers in a precarious position .SeveralSupremeCourtjudgeswillbe retiringinthenextfour yearsandtherecently elected right-wing Conservative federal government will makethenewappointments. The fearis thatthe newappointments willcontinue rolling backcollective bargaining rights. On May30,2011,theCanadianFoundation for Labour Rights helda seminar inToronto todiscuss theimplications oftheFraser decision. Participants includedprominent tradeunionlawyers, academicsandunionleaders . Therewasconsensus that thetradeunionmovement willhaveto takethis dance outside of the courtsand concentrate resources in political mobilisation. Therewillbe anelection inOntario this fall andtheUFCW intends tomakeagricultural workers' bargaining rights an election issue.Wewillhavetowaitandsee ifany ofthepolitical parties or thefuture government willcomeon thedancefloor. INTERNATIONAL union rights Page 28Volume 18Issue 2201 1 ...

Play Fair: A sporting chance for workers

FOCUS □ ORGANISING ANDSUPPLYCHAINS Play Fair: A sporting chance for workers I the to general In suppression join the human widespread trade industry or garment there form union right of in is a industry in generalthereis widespread suppression of the humanright tojoin orforma trade union ASHLING SEELY, Policy Assistant to the General Secretary, ITGLWF With Games opening little preparations over of the ten 2012 months are London well to go underway. Olympic until the openingof the 2012 LondonOlympic Gamespreparations arewellunderway. Athletes arehoning their skills, 3.5million tickets havebeensoldandthetourism andtransport industry isgetting ready toservethe5.3million people who willflockto LondonfortheGames.In the excitement surrounding suchmegasports events theverypeople who allowtheseGamesto take place - theworkers - are often overlooked. Far fromthe glamourof the games,the men and women whomanufacture theclothing andfootwear wornbytheathletes and themascotsand merchandisepublicising theeventsworklonghours for lowwages,often inhazardous conditions and underprecarious working arrangements. Themajority oftheworld'ssportswear productiontakesplace in Southand SouthEastAsia. Workers inthesefactories receiveextremely low wages,sometimes evenlessthanlocalminimum wageswhichthemselves areinadequateto meet basicneeds.Asa result workers producing sports goodsfrequently liveon lessthantheUNpovertythreshold . Recent research bytheglobalunion for textile workers, theITGLWF, revealed that workers in sportswearproducingfactoriesin the Philippines are resorting to pawningtheir ATM cardsin exchangeforadvances.On paydaythe loan amountplusinterest is deductedfrom their accounts bythelender andonlythenareworkers' bankcardsreturned. Ofthe83 factories covered intheITGLWF research notone was reported to paya living wage;that is,a wagesufficient tomeet basic needs and providea smallamountofdiscretionary income.A numberof workerstold researchers howtheir wagesarelinked tounrealistically high, unilaterally imposedproduction targets .Workers whofailtomeetproduction targets earneven less and are oftensubjectto psychological and physicalabuse. In one factory in Indonesia, workers toldresearchers howforty of themhad been lockedin an unventilated room without accesstodrinking waterandtoilet facilitates for three hours as punishment for falling short oftheir targets. Excessive andforced overtime iswidespread in theindustry. Sportswear brands andretailers share responsibility for thisas they often neglect totake account offactory capacity whenplacing orders and impose production deadlines which takemore concern ofconsumer demand than working conditions. Inthegarment industry ingeneral there iswidespreadsuppression ofthehumanright tojoinor form a tradeunion.Unionisation is avoided by meansofharassment, bribes, thefailure torenew short-term contracts, dismissals and evenfactory closure.In Indonesiathemajority oftradeunion officials inthesportswear factories surveyed reportedthat they weredenied thebasicfacilities toenable them toadequately perform their duties. InSri Lanka the Board of Investment promotestheuse of Employee Councils as a form ofworker representation , buttheworkers inthefactories toldITGLWF researchers thattheyhad no wayofraising concerns attheseCouncils andunions expressed frustration that they areusedtoundermine true freedom ofassociation. In Sialkot, thePakistani city whereabout30 percent of2010FIFAWorld Cup footballs wereproduced, "pocket unions"setup with theinvolvement ofmanagement arecommon. PlairFairCampaign In 2003,in therunup to theAthens Olympics, national andinternational trade unionsandNGOs joinedforces to campaignagainst practices such as these.AtthetimethePlayFairCampaign was one ofthebiggestanti-sweatshop mobilisations ever,with500 local campaigneventsorganised across35countries, andcollecting morethanhalf a millionsignatures of support.The Campaign madeitcleartothesportswear industry that consumers andworkers share thesameconcerns about theabuseandexploitation that liebehind thepublicfaceofmanysportswear brands. The PlayFairCampaignis coordinated bythe International TradeUnion Confederation, theClean Clothes Campaign,the International Textile, Garment andLeather Worker's Federation andmore recently also bytheBuilding and Woodworkers International. PlayFair aimstopromote better workingconditions and respect forworkers' rights in themanufacturing ofsports goodsandeventlogo merchandise, andintheconstruction ofthestadia inwhichsports events takeplace. The International OlympicCommittee (IOC) defines itsroleas "Toencourage andsupport the promotion ofethics insport" andclaims that respect anddignity areatthecoreoftheir organisational priorities. Principle 1oftheOlympic charter states "Olympism seekstocreatea wayoflife basedon ... respect foruniversal fundamental ethical principles ."The charter's secondprinciple states that "Thegoal ofOlympism is ... Promoting a peacefulsocietyconcernedwiththepreservation of humandignity". ThePlayFaircampaign haslong demandedthattheIOC liveup to itsrhetoric by making respect for workers' rights anintegral part oftheorganisations' basicprinciples andcode of ethics, andmaking compliance withcoreinternationallabourstandards a contractual condition in all licensing, sponsorship and marketing agreements . The IOC haverefused tomakesignificant movestomeetthesedemands, although they have incorporated a question onethical sourcing inthe candidate city questionnaire for theOlympic Games, effective from 2016 onwards,whichasks "With regard tothesourcing oflicensed products, please INTERNATIONAL union rights Page 8Volume 18Issue 3201 1 FOCUS □ ORGANISING ANDSUPPLYCHAINS demonstrate thestepsthat willbe takentoensure that socialandenvironmental factors (specifically withregardto labourstandards) are takeninto account inmaking selection decisions. Outline the criteria thatwillbe used to assesshow potential licenseesare adhering to standards and specify whatstandards willbe applied- national and/or international". By and large,theIOC refuses to acknowledge itsresponsibilities to thehundreds ofthousands offactory andconstruction workers who contribute to theGames,claiming thatthe bulkofresponsibility lieswith theindividual national organising committees. The London OrganisingCommitteeof the Olympicand ParalympicGames (LOCOG) is responsible forpreparing and stagingthe2012 Games.Under thePlayFairumbrella theTUCand LabourbehindtheLabelarecoordinating a campaign - Playfair 2012- toensurethat theLondon Gamesarenottainted bytheexploitation ofworkers .As...

A Strange Case

REPORIG EUROPEANCOMPANIESANDLABOURRIGHTSINTHE US A Strange Case When cised equipment workers their right factory atRobert to strike in Bosch's Wisconsin against packaging compaexer equipmentfactory in Wisconsinexercisedtheir right to strike against company demands for wage and benefitcuts in December2004,management sentletters threateningto hirepermanent replacements to take theirjobs. Alone in the world, permanent replacements tobreakstrikes arelegalunderUS labourlaw.Facedwiththis'nuclear option'available to American bosses, workersreturned to their jobson management's terms. Based in Germany, Robert Bosch GmBhis a multinational firm with270,000 employees worldwide .Itiswidely regarded as a socially responsible company. Last year, the Robert Bosch Foundation donated$100 millionto non-profit organisations serving humanneeds aroundthe world.In keepingwithits sociallyresponsible profile, Boschhas publicly declareditscommitmentto ILO corelabourstandards. Butcontrary to itscommitment, Boschviolatedan important ILOstandard whichsaysthat threatening orusing permanent replacements to breakstrikes violates workers' freedom ofassociation. Thedisconnect reflected inBosch'saction atthe Wisconsin plantbetweenpromiseand performanceisthetheme ofa newHumanRights Watch report titled A Strange Case:Violations ofWorkers' FreedomofAssociation in the UnitedStatesby European Multinational Corporations. The report details waysinwhich European firms haveexploited weak US labourlaws to carry out aggressive campaigns againstworkers' organising and bargainingin the UnitedStates."A Strange Case" comesfrom Robert LouisStevenson's famousThe Strange CaseofDr.fekyll andMr.Hyde. Companies cited include Germany-based Deutsche Telekom's T-Mobile USAand Deutsche Post's DHL, UK-based Tesco's Fresh & Easy Neighborhood Markets andG4SWackenhut security , France-based Sodexofoodservices andSaintGobain industrialequipment,Norway-based KongsbergAutomotive, and the Dutch firm Gamma Holding. Ineachcasethecompanies' tacticsand actionsviolatedinternational standards while remaining in compliancewithweak US laws.Overand above that, management actions violatedUS labourlaws, makingthe disparity between wordsanddeedsevenmoredramatic. TheHumanRights Watch report was based on workerinterviews and workers'testimony in legalproceedings, findings and decisionsof US labourlaw authorities, company documents, and written exchangeswithcompanymanagement. The reportnotedthatall the companiescited endorsesome combination of the core labour standards of the International Labour Organisation, theindustrial relations guidelines of theOrganisation forEconomicCooperation and Development, and the freedomof association normsof the Universal Declarationof Human Rights and theUnitedNationsGlobalCompact, andother international humanrights instruments. Herearesomemoreexamplesfrom thereport: ■ DeutscheTelekomhas a SocialCharter based on ILO standards andtheOECD Guidelines statements on freedom ofassociation, butTMobileUSAmanagement spiedon workers engagedinorganising and defined 'employees engaging ingroupbehaviour' and 'talking aboutrights' as dangerous activity tobe immediately reported tomanagement. ■ Deutsche Posthasa code ofconduct basedon theUniversal Declaration ofHumanRights, ILO conventions, andtheUNGlobalCompact, but itsDHL management threatened anddiscriminatedagainst workers whosought toexercise therights setforth intheseinstruments. ■ Saint-Gobain proclaims 'Principles ofConduct respecting thephilosophy and spirit ofthe GlobalCompact', butUS management refused tobargain withworkers' chosenunionabout keyterms ofemployment. ■ Sodexosays,'Sinceitscreation, Sodexohas alwaysrecognised and respected trade unions', butitthreatened, interrogated, and fired workers who tried toform tradeunions intheUnitedStates. ■ Teseo saysit'is committed toupholding basic HumanRights and supports infulltheUnited Nations Universal Declaration ofHuman Rights and theInternational Labour Organisation CoreConventions', butitsUS Fresh& Easymanagement seta priority of 'maintaining non-union status' and stifled workers' organisational activity. ■ Group4Securicor holdsup a 'Business Ethics Policy'committed totheUniversal Declaration ofHumanRights, butitsUS Wackenhut management threatened, spiedon,andfired workersexercising rights established intheUDHR. ■ Kongsberg Automotive citestheUN Global Compact, ILO corelabourstandards, and OECD guidelines initscorporate social responsibility pledges,butUS management in VanWert, Ohio offensively lockedoutunion members whilenegotiations werestill ongoingand brought inreplacement workers. ■ GammaHoldingsigneda code ofconduct thatembraces theright toorganise underILO Conventions 87 and 98,butitsmanagement atNational WireFabricinStarCity, Arkansas, hiredpermanent replacements, incontraventionofILO standards, totakethejobs of workers who exercised theright tostrike. ■ A Dutchfirm, GammaHolding, wentahead and hiredpermanent replacements forUnited Steelworkers unionmembers who exercised theright to strike atan Arkansas factory. The HRWreportconcludedwithrecommendationsforstronger 'due diligence'by European headquarters overAmerican managers to ensure application ofcompany commitments to international labour standards.It also called for a strengthened complaint mechanism underOECD guidelines and stronger oversight bygovernment and EuropeanUnionofficials ofEuropeanmultinationalsin theirUS and otherforeign operations .Finally, thereport recommended reforms in US labourlaw to come intocompliance with international labournorms. A new report details ways in which European firmshave carried out aggressive campaigns against workers' organisingand bargainingin the US LANCE C0MPA teaches labour law and International labour rights atCornell University's School off Industrial and Labor Relations In Ithaca, New York. He Isauthor off the Human Rights Watch report summarised here Page 5Volume 17Issue 3201 0 INTERNATIONAL union rights ...

Still restricted: basic rights in the public sector

REPORT□ JAPAN Still restricted: basic rights in the public sector Justafterthewar, Japanese public servantshad the right to organise, to bargain collectivelyand to strike, except for the police, althoughwithina veryshort timeframe these rightswere repealed YOSHIKAZU ODAGAWA isSecretary General of Zenroren trade union confederation in Tokyo Japan 98) Collective in ratified October Bargaining the 1953 ILO Convention, Right and the to Organise Freedom 1949(No. and of Japan Collective Bargaining Convention, 1949(No. 98) in October 1953 and the Freedomof Associationand Protectionof the Rightto Organise Convention, 1948(No. 87) inJune1965. The report of theILO fact-finding and conciliationcommission on freedom of association, the so-calledDreyerreport, builta momentum for theratification of theConvention 87 inJanuary 1965. The Dreyermissionoriginated in thewake of allegations from Japanesepublicsector unionsin the railwayand postalserviceagainstthegovernment following therepression of strikes and concerning respect fortheright tostrike inthose sectors.The issue of basic labourrights in the publicsectorin Japanhas been the subjectof harsh confrontation between thegovernment and tradeunions.Thisconfrontation hasnotchanged inthehalfcentury sincetheratification. It has been 10 yearssince the government announced that itwouldtacklefundamental publicservice reform. One ofthereasonsofstagnant processofthereform has been thefailure ofthe government to set the scope and contentof a proposaltosecurebasiclabourrights. Historicalbackground Japanesebureaucratic publicservice system originatedfrom thatofancientChina.Fromtheend of the 18thCentury it was strengthened as a strongbureaucratic systemunderthe absolute emperorsystem,which has characteristics of strong loyalty to theemperor and whichdenied thebasic rights of publicservants. Thisbecame the driving forceto mobiliseJapanesepeople intothewarofaggression against Asiannations during theSecondWorld War. The demolition of thatold system whichhad thisnegative history was one ofthemajorissues in the process of Japanese démocratisation. Another vitalitemwas to organiseand foster tradeunions.Just after thewar,Japanesepublic servants hadtheright toorganise, tobargain collectively and to strike, except forthe police, although theserights wererespected onlyfora veryshort period. On 31 July1948, the Japanesegovernment partly suspendedthepublicservicelaw thathad justbeen implemented inJulythatyear,taking theletter'from thegeneralheadquarters ofthe occupationarmy. Thisactionrepealedtheright to strike from all publicservants and established criminal punishments forstrikers. It put restrictionson the rightto collectivebargaining for publicservants engagedin clericalworkand in theeducation sector. In place oftheserights, the National Personnel Agency('NPA')and itswage recommendation system were established. This restriction alloweda privileged top-level bureaucratsystem toremain, whichgivesdifference for promotion speed byclassification whenthey are hired. Thoughthegovernment ratified Convention 87 it has not changedthe policyto restrict basic labourrights inthepublicsector on thepretence oftheNPArecommendation system. Theirnegativeattitude and policycan be foundattheofficialcomment ofreservation attheUNwhenthey ratified the International Covenantsof Human Rights in 1978/9, bysaying'inJapan, firefighters areregarded as policeforces. Thustheir right to strike shouldbe restricted'. I wanttopointoutthat theparticular character of theJapanesejudiciary supportsthe government position. TheSupreme Court handeddown theopinionthattotalprohibition oftheright to strike for publicservants without exception isnot againsttheConstitution ofJapanin April1973. TheCourt alsogaveanother opinioninMay1977 thatthelegislative bodyhas discretion to permit or denytheright to concludea collective bargainingin publicservice.These decisionshave notbeen modified. Pointsforcurrentreform discussion The current PublicServiceReform, whichbegan in 2001,has severalmajortopics; 1)strengthening political control overhuman resource management ofhigh-rank bureaucrats, 2)to reform publicservice system andtomake thissystem morecompetitive, and 3)to determine thefuture ofbasiclabourrights. The government rapidly putthelastitemon ice, andonlyworked withthefirst twoissues.Thatis whyZenroren and itsaffiliates submitted a complaintto the ILO Committee of Freedomof Association ('CFA') concerningviolationsof Conventions 87 and 98 inFebruary 2002. The CFA made a recommendationin November 2002,whichinvited thegovernment 1)togrant theright toorganise forfirefighters and prisonofficers, 2)to abolishthesystem ofregistration for employees' organisations attheNPA, 3)to removetherestriction on duration offulltimeunionofficials , and 4) togrant therights to collectively bargain and to strike forpublicemployees who arenot exercising authority inthenameoftheState. continued onpage19... INTERNATIONAL union rights Page 16Volume 17Issue 4201 0 DECENT WORK AND RIGHTS FOR DOMESTIC WORKERS Demanding an ILO Convention in 2011 "Ourwork frees upothers for their economic, educational and socialactivities. We are the 'oilinthewheels'and,without us,many societies and economieswouldnotfunction" worldwide abouttheILO,andtaking their representatives totheILCin2009,toprepare them for thetechnical andpolitical proceedings ahead. So,whereasonlyfour yearsago,thisnew ILO convention seemedonlya distant prospect, today we are months away. Now is the timeto put pressure on governments, toensurethat as many as possiblevotefortheconvention, withstrong, protective wording, alongwithitsaccompanying recommendation. One ofthemainpointsofcontention orresistance includesthe 'sanctity' of the household which,in somecultures, is heldto be so inviolablethat labourinspection isunimaginable. This seemsa major reasonfor theheavyopposition in theArabcountries, forexample.Yet,other methods ofmonitoring and enforcement arepossible before sending ininspectors. Within theEuropean Union, governments seem reluctant to interfere withthefreemovement of labour, andtherefore toregulate labouragencies even though,globally,this only encourages abuseofmigrant women. So, the coalitionof organisations supporting the convention has issued a 'Global Call...

Editorial: Focus on collective bargaining

ICTUR □ EDITORIAL Editorial: Focus on collective bargaining This bilities CIUR') edition journal and challenges of is International concerned facing with collective Union the Rights possibar CIUR ')journalis concerned withthepossibilities and challenges facing collective bargaining .The idea forthisstudystemsfroma debate thatopened up betweenJamesClancy, leaderof the NUPGEpublicworkers' unionin Canada, and Canadian academic Roy Adams, who sitson theIUREditorial Board.Clancyand Adams took different views on the potential threat / benefit presented by a Canadiancourt decisionconcerning the institutional protection of a majority bargaining system. WhileClancy believesthatthemajority bargaining system is a bedrockofCanadianindustrial relations andprovides the solidityand negotiating power that makesCanadianunionseffective workers' advocatesAdamssaw a potential clashwiththepositionoutlinedby theCommittee on Freedomof Association('CFA') of the International Labour Organisation ('ILO'). CFA jurisprudence seems clearly to requirethatminority unionism should be possible,atleastincertain circumstances. Astheparties exchanged emailswith theICTUR office, and we agreedto setup a loose dialogue ordebatethat wouldexaminearguments forand against,it became apparentthatthe two sides werenotas farapartas originally seemedto be thecase. Bothrecognised thatCanadianmajority bargaining rights providean important pillarof strength forthetrade unionmovement there, and bothrecognised thatminority unionism can also, in some cases, play a usefulrole. Withthe Canadianpositions inmind, IURapproached Judy Atkins and David Cohen,theauthors ofa recent LaborNotes articleon minority unionism in the US. Both Adams and Clancyagreed thatIUR shouldpublishthatarticlealongsidetheirown contributions. An additional perspectiveon minorityunionism was then provided by Fernando Gapasinwho writes on itssignificance forworkers in right-to-work statesin theUS. As Gapasinillustrates, inthiscontext minority unionismmayservetwopurposes . Firstly, itmaybe the onlygameintown.Secondly, itmayhavestrong disadvantages butithas advantages also andcan transform unionorganising intoa muchstronger, community-based project. Sticking withthe generalthemeof collective bargaining IURwas fortunate tosecurecontributionsfrom twoofICTUR'sVicePresidents, Helen Kelly, President oftheNew Zealandtradeunion centreNZCTU,and law professor KeithEwing. Kellyexplainshow collectivebargaining rights were recently unravelled foractorsunderNew Zealandlabourlaw bythegovernment re-definingtheir default employment status from employee tocontractor. Whatis really concerning about theNewZealandreforms isthat there isnoambiguity aboutthefactthatthey wereintroduced at thebehestofa multinational corporation which sought to and succeeded in changingNew Zealand industrial law. Back in theUK dissatisfaction at British Airways ('BA') rumbles on for cabin crew who remain frustrated by and opposedtoattacks on their terms andconditions. Rather thanresolvethematter through collective bargaining BA has allowedthesituation to escalatetoa seriesofstrikes. BAhasresponded with an aggressive union-busting approachto dealing withitsworkers. Elsewherein thiseditionwe take in a wide rangeof developments in the worldof trade unionrights, including a perspective on howthe current Japanesetradeunionframework evolved since the 1940s and a view of how unionsin Europearechallenging theviewthat thefinancial crisisshouldbe metby austerity measures. We also examinetwo keylegal cases from Turkey, theKESKcase, whereactivists continue to face seriouscriminal charges,and the SinterMetal case, wherea victory was securedin thiscivil case,albeittwoyearsafter theworkers weredismissed ,followednineearlierhearings, each of whichwas adjourneddue to employer intransigenceand stalling tactics. DanielBlackburn, Editor Next issue of IUR Articles between 850and1,900words should besentbyemail (mail@ictur.org) andaccompanied bya photograph andshort biographical note oftheauthor. Photographs illustrating thetheme ofarticles arealways welcome. Allitems must bewith usby10March 2011 if they are tobeconsidered for publication inthenext issueofIUR. Subscribe toJIM; tosubscribe, complete theboxbelow. I/we would like tosubscribe toInternational Union Rights andenclose£20/US$30/€25. Name/Organisation Address PostCode Four issues£20/US$30/€25. Cheques should bemadepayable to"IUR' andsentto:ICTUR, 177Abbeville Road, London SW49RL, UK INTERNATIONAL union rights Page 2Volume 17Issue 42010 ICTURIN ACTION□ ITALY, UNISONREPORT, TRADEAGREEMENTS, COMPLAINTSPROCEDURES Italy InNovember ICTURDirector DanielBlackburn visited the offices oftheCGILinItaly on behalf ofICTURVice President Keith Ewingto participate inthefirst ofa seriesofmeetings examining theright tostrike inEurope. Theevent brought together trade unionists and academics from across Europeinorder tomapthe terms ofreference forthe mainproject. Participants helpedtoidentify appropriate topicsofenquiry that wouldcoverboththose aspectsoflawandindustrial relations intheir countries whicharesharedwithother countries andthosewhich areunusualorunique. UNISON report OverthepastyearICTUR hasbeenassisting UNISON with theproduction ofa report examining ILO Conventions 87,98 and 151, looking athowtheserights applytoworkers inpublic services around theworld, whattypes ofviolations of unionrights occurfor these workers around theworld, andhowtheILO framework helpstoprotect theserights. The report tacklesthe complexinteraction betweenConventions 98 and 151as wellas the complexruleson theright to strike invariousaspects ofthepublic,essential, and fundamental services. The report is scheduledfor publication shortly after this editionofIURgoes to press inbothsummary and full versions. Page 3Volume 17Issue 42010 frade agreements and human rights ICTUR's MiguelPuerto was invited toparticipate inan international seminar to discusstrade agreements and humanrights. Theevent was heldduring thelastweekof November inthecity of OviedoinSpain,atthe headquarters ofthe'Colegio de Abogados'(lawyers organisation) ofOviedo.The seminar was organised by Justicia porColombia ' a Spanish coalition ofsocial andhumanrights organisation, withthe support oftheSpanish Agency forInternational development cooperation (AECI)andtheregional government ofAsturias (.Principado deAsturias...

Applying the Ruggie Framework in Canada

FOCUS H BUSINESSAND HUMANRIGHTS Applying the Ruggie Framework in Canada In2009 1 contacted JohnRuggie and suggested we worktogether to operationalise Freedomof Association in Canada ROY J. ADAMS is Ariel F.Sallows Chair of Human Rights (2009-2010) with the College of Law atthe University of Saskatchewan At Ruggie is present attempting is in UN a to phase Special operationalise of Representative hiswork his where 'Protect John he Ruggieis ina phaseofhisworkwherehe is attempting tooperationalise his 'Protect , Respect,Remedy' Framework.Developed in responseto businessreactionagainstdemands for thelegalregulation ofcorporate humanrights responsibilities, theRuggieframework saysthat although governments have primeresponsibility to promoteand protect humanrights, corporationsmusttake responsibility forhumanrights within their sphereofcontrol and influence. Eventhough he didnotrecommend legalcompulsionatthis point, Ruggie's effort hasgotten the attention ofthelegalcommunity. Ata recent conference onfreedom ofassociation that I organised in Saskatoon,Saskatchewan in February 2010, KevinCoon,a partner intheprominent management -sidelaw firmof Baker and McKenzie, reported to theaudiencethathisfirm was now advisingclientsto put compliancewithhuman rights standards highon their agendas. In its 2007 BC Health Services Case the CanadianSupremeCourtgrantedconstitutional protection tocollective bargaining andtheimpact of thatdecisionwas the centralfocus of the Saskatoonconference. Coon, however, told the audiencethat, inthelongrun, Ruggie's framework was likelyto have thebiggerimpact.His comments areonlineathttp://foa2010.blogspot.com. Sincetheend ofWorldWarII an increasingly strong globalhumanrights consensushas come intoexistence. Amongitsmostsacrednormsis thathumanrights are rights thatare held by human beings simplyas a function of their humanity. Theyare rights thatare universal and indivisible. Thereis no legitimate humanrights hierarchy. Each humanrightis equally sacred and deservesequal respect. Theexplication ofhumanrights is a complicated processthat occursviaa congeries ofinternationaland national organisations. Withregard to workers' humanrights, however,one organisationstandsoutas theprimesourceofstandards - theInternational LabourOrganisation. Sinceits founding in 1919ithasdevelopeda richbodyof principlesthat provide a relativelyexplicit roadmapto nationsand to corporations looking forguidanceregarding compliance withworkers' humanrights. In thespring of2009I contacted JohnRuggie and suggested thatwe worktogether to operationalise one human right, Freedom of Association, inone venue,Canada.Theobjective was to determine what Canadiangovernments hadtodo tofulfil their international obligation to promote and protect the right,and what Canadiancorporations had to do to respectthe rights oftheir workers toorganise andtobargain collectively. He declined,pleadinginsufficient resources tobother withconditions insucha rich and politically democratic country as Canada. The result, in myopinion,is to place injeopardythecredibility ofhisentire effort. Although human rightsare supposed to be universal, Ruggiehas focusedalmostentirely on human rights issuesindeveloping countries. Thatis not surprising since the recentsurgeof interest in business and human rightshas been led by NGOs demanding thatglobalisation benefit not onlycorporations, mostofwhichhave rootsin therichNorth, butalsothepeopleandnations of thepoorersouthern halfoftheplanet. Fairenough However, manydeveloping country leaderssuspect that recent concern for human rights expressedbyvoices based in highly developed countries is a ploytoimposeconditions that will hindertheirdevelopment. By refusing to apply hisframework universally to bothrichand poor nations;by,in effect, givingrichcountries and corporations operating from thema pass,Ruggie adds credencetothatsuspicion. The strategy offocusing exclusively on developingcountries also leavesunexamined thestatus of workers'rightsin advanced countries. Ruggie'sdismissalof myoffer was almostcertainly based on theunexamined assumption that Canada is largely freeofhumanrights problems or thatthosethatexist(such as lingering discrimination )are recognised and are being addressed. Ifso,with regard totheright toorganise and bargain collectively, thatassumption is,I submit, unfounded. Approximately 70 percent ofCanadianworkers have theirtermsof employment unilaterally imposedby theiremployers. Theycannotindividuallynegotiatethose termsbecause of an imbalanceof powerand because conditions in firms ofanysize are standardised and require a collectiveprocessto get at them.Questioning employer authority intheunorganised workplace is insubordination. Workers mustdo as theyare toldor facesummary dismissal. Atan unorganisedworkplace theemployer maychangeconditionsat will,putting workers in thepositionof abjectresignation to their fateorquitting. In the unorganised firm, there is no objective, independent workplace justice system.Discipline is metedoutaccording tothewilloftheboss. As theCanadianSupremeCourtstatedin BC Health Services,collectivebargaining deserves constitutional protection because it affirms and supports theCanadianCharter valuesofdemocracy , dignity, equality, and worker autonomy. In theunorganised Canadianfirm, thereis a deficit ofthosevalues. INTERNATIONAL union rights Page 14Volume 17Issue 22010 FOCUS □ BUSINESSAND HUMANRIGHTS As a member of theILO, Canada is constitutionally committed notonlyto permit butrather topromote collective bargaining - tofoster itand makeitsexercise easyandthenorm. Itsresponse tothat obligation istoprovide mostworkers with laws underwhichtheymay acquire collective bargaining rights iftheyareable to form unions and state-certify themas exclusivebargaining agents. But certifying a bargainingagent in Canada is noteasy.The pathto certification is strewn withobstacles. Despite Ruggie'sinjunction thattheyavoid infringing therights ofothers, Canadianemployers commonlydiscourage their unorganised workersfrommakinguse of the certification process. The prevailingnorm (fosteredby employers and condonedby the state)is that workers shouldacceptemployer authority unless subjected to extraordinary abuses ofthatunilateralpower .To unionisein Canada is, moreor less,understood tobe...

The right to know and the right to health

REPORT□ HEALTH ANDSAFETY The right to know and the right to health Thereare no unionsat Samsung, but thereare 100 workerswho representa 'cluster' ofcancer cases at the company's plants After a brief memorialfora 23-year old worker, seven demonstrators were arrested CHARLES LEVENSTEIN (above) isProfessor Emeritus of Work Environment atUniversity of Massachusetts Lowell. Dominick Tuminaro isaretired workers compensation attorney aswell asadjunct professor atthe Brooklyn College Graduate Center for Worker Education and aformer board member of NYCOSH. Charles Levenstein wasrecently inSeoul for a conference onhealth andhuman rights atthe Seoul National University's School ofPublic Health. Healsomet with representatives ofSHARP, as well as two health care workers' unions, a teachers' union, a shoe-workers' union, andSolidarity for Workers' Health, a coalition of occupational health activists and trade unionists. On former South 2 April Korea, worker 2010, was Ji-Yeon at buried, a Samsung Park, the a victim 23 factory year of old in a former workerat a Samsungfactory in SouthKorea,was buried,thevictim of a blood cancer.She is one of approximately 100 workers who represent a 'cluster' ofcancercases atSamsung plants. Fellowworkers and members ofSupporters forHealthAndRights ofPeople in Semiconductor Industry ('SHARP')wereprevented bypolicefrom marching from thefuneral to theSamsung plant, butre-convened outsidecompany headquartersto picket with signs that memorialised her death. Seven demonstrators werearrested after a brief memorial. Thereare no unionsat Samsung."Recognise trade unions over my dead body!" said Lee Byungchul, the late founderof Samsung.One occupationalphysician, a faculty memberat a medical school near Seoul, recentlytold us: "Samsunghas establishedfake unions ... in SamsungAffiliates. I knowmanyworkers have struggled to makean enterprise union,buttheir efforts failed. ... they have been fired by Samsung.For example,Jong-tae Park,was a worker of Samsungelectronics... [He] has been fired due to[hisefforts] toaddress[the] necessity oftradeunionbythatcompany fivedaysago". Anotherworkers'health advocate told us: "therehave been manyefforts of workersto organise themselves. But,every attempt hasbeen completely blocked by Samsung.Maybe,dismissalis themost'tender' wayoftheirs". At Samsung,workerstrying to exercisetheir mostbasicrights toorganise andtoprotect themselvesfrom hazardous conditions imposedbythe company,do not have the protection of the South Korean government. But when South Koreaentered theUnited Nations in1991,ittook on alltheobligations ofmember states, including thedutyto respecttheUniversal Declaration of HumanRights. In fact, SouthKoreastateson the United Nations website: In thearea ofeconomic, social,and cultural rights, theGovernment strives toenhancethe quality ofthelivesofindividuals by providing a widerangeofopportunities toenjoyeducation ,culture, health services, etc.Itisalso exerting every possible effort toguarantee labourrights, theright toa decentlifeand the right tohealth ofthelow-income orthevulnerablebysecuring thesocialsafety net'. ButtheRepublic ofKoreahasnotratified important conventionsof the International Labour Organisation: the Freedomof Associationand Protection oftheRight to OrganiseConvention, 1948 (No. 87), or the Rightto Organiseand Collective Bargaining Convention, 1949(No. 98). And,inthelasttenyears, complaints havebeen lodged withthe ILO againstthe SouthKorean Government byunionsrepresenting hotelworkers ,teachers, 'precarious' workersin themetal industry, othercasualworkers, and collegeprofessors . In reviewing one complaint, the ILO Committee on Freedomof Association('CFA') requested that theGovernment conduct an investigation into'...allegations ofviolencebyprivate security guardsagainst tradeunionists during rallies at HMC Ulsan and Asan and Kiryung Electronics and,iftheyareconfirmed, totakeall necessary measuresto punishthoseresponsible andcompensate thevictims foranydamagessuffered '. The CFAwarnedtheGovernment that'... violence, criminal sanctions ordisproportionately heavypecuniary penalties arenotconducive toa constructive industrial relations climate, especiallyintheabsenceofaffirmative measures topromote dialogue and collectivebargaining'. In a case brought by the Metalworkers' Unionconcernedaboutthetreatment of migrant workers, theILO warnedSouthKoreaagainst jailing, beatingand deporting unionleadersand members. The failure to protect workers' rights to form unionshasparticularly direconsequences for the Samsung workers. Theydo notappeartohavea Government-protected 'right to know'aboutthe hazardoussubstances withwhichthey areworking ,andthey havenounionthat canfight for that right. The ILO is nottheonlyinternational agency interested in workers' health.The WorldHealth Organisation is also concernedwith ensuring standards ofworker health. Humanrights instruments establishing stateobligations inhealthare included in the InternationalCovenant on Economic, SocialandCultural Rights. Freedom of information is guaranteed by the International Covenant on CivilandPolitical Rights, as wellas the rightsto associationand to life.As one humanrights activist noted,"ILOConvention 187 and earlierconventions takea focuson OSH- ... Koreawas amongthefirst countries to ratify it,in2008,and itentered intoforcein2009". Whenasked,theactivists at SHARPsaid that theyare notat thepresent focusing on internationalhumanrights violations. Asone ofthekey activists hassaid,"Imustconcentrate on thelawINTERNATI0NAL union rights Page 20Volume 17Issue 4201 0 REPORT□ HEALTH ANDSAFETY suitagainstgovernment's decisionnot to compensate five leukemia/lymphoma victimsin Samsung in one hand,and in otherhand,must makethisissueintobroaderagendaofnational workers' compensation insurance as a socialwelfaresystem . In myhumbleopinion,thosetwo worksarevery important toorganise victims and unions, and nottobe isolated". The...

The right to bargain in a non-majority situation

FOCUS □ COLLECTIVE BARGAINING The right to bargain in a non-majority situation Workers majority pursue have their unions a interests human and right if through they to form choose them nonto to majority unions and throughthemto pursuetheirinterests iftheychoose to do that. Thisis notincompatible withan industrial relations system that makesuse ofmajoritarian exclusivity. In factthe ILO's Committee on Freedomof Association ('CFA') whose jurisprudenceon workers' humanrights is cherished by trade unionistsaround the globe, recognises majoritarian exclusivity as an option. Unfortunately, ChiefJusticeWinklerin the Fraserdecisionreferred to by Clancyordered Ontario tointroduce legislation that would"eradicate the possibility of irreconcilable demands from multiple employee representatives, purportingtosimultaneously represent employees inthe sameworkplace withsimilar job functions." My concernis thatthe Winklerdecision,if it is allowedtostandbytheCanadianSupreme Court, wouldcreatea legalstandard requiring governments tosuppress therights ofworkers toorganise in anyformat otherthanmajoritarian exclusivity . ThatwouldplaceCanadasquarely against theinternational humanrights consensusregardingworker rights. In itsmostrecent DigestofDecisions,theCFA hadthistosayaboutmajoritarianism: Withregardtoa provision thatstipulates thata collective agreement maybe negotiated onlybya tradeunionrepresenting an absolutemajority oftheworkers in an enterprise , theCommittee considered thatthe provisiondoesnotpromote collective bargaining in thesenseofArticle 4 ofConvention No. 9821 and itinvited thegovernment totake steps, in consultation withtheorganisations concerned, toamendthe provision in questionso as toensurethatwhenno trade unionrepresents theabsolutemajority ofthe workers, theorganisations mayjointlynegotiatea collective agreement applicabletothe enterprise orthebargainingunit,orat least concludea collective agreement on behalf of their members'. (FreedomofAssociation: Digestofdecisions and principles oftheFreedom ofAssociation Committee oftheGoverning BodyoftheILO, Fifth (revised)edition (Geneva:International LabourOffice, 2006),atpara.978.) As thingsnow standin Canada, the statutory rights of unionswithmajority supportare clear whiletheconstitutional rights of'mostrepresentative 'and 'members only'unionsare currently beingworkedoutbythecourts. Certified exclusive agentunionshave a right to bargainand their employers have a dutyto bargainin good faith withthem. Shouldnegotiations fail, certified exclusiveagentunionshave a right to strike or, forcertain publicsectorunions, a right tosubmit thedisputeto independent binding arbitration. Unionswithless thanmajority support havea right to existbut theirrights to bargainand to strike are unsettled. Should the Canadian SupremeCourtcontinue to relyon international lawtointerpret theFreedom ofAssociation clause intheCharter ofRights and Freedoms, therights of workersto bargainand to strikein a nonmajority format willbe established and governmentswillfulfil their responsibility to effectively protect thoserights. Shouldthat happenI suspect thatlikeJudyAtkinsand David Cohen,many tradeunionists willwelcomethat development. RoyAdams responds to James Clancy's concerns around his supportfor minority union rights PROFESSOR ROY ADAMS is an author, columnist, human rights activist and academic based in Hamilton Page 15Volume 17Issue 42010 INTERNATIONAL union rights Thebenefits ofcertification InCanada, certification asanexclusive agent provides trade unionists with strong legal supports that arethe envy of their brothers andsisters inmany nations. Itmakes good and obvious sense for James Clancy and other Canadian labour leaders tofully support the continued availability of those supports. ...

Imprisoning employers in Indonesia

FOCUS □ BUSINESSAND HUMANRIGHTS Imprisoning employers in Indonesia The Trade Union Actis generally a paper tiger, withno implementation inpractice SURYA TJANDRA isalaw lecturer atAtma Jaya Catholic University, Jakarta, and Director of the Trade Union Rights Centre, Indonesia Although under tothe the three the authoritarian situation decadesof cannot New union Order be suppression compared regime, Although tothethree decadesofunionsuppression undertheauthoritarian NewOrderregime, stories aboutworkers who formed unions,were deniedtheir rights tocollective bargaining bythe employer, and ended up withthe dismissalof unionleadersand further intimidation on their members, arenotrareintoday'sIndonesia. Despitetheenactment oftheTradeUnionAct No. 21/2000as a special law on tradeunions, whichsupposedlyprotects tradeunionofficials from dismissal due toanti-union conduct, sucha practice is still frequent. One rootcause ofthisis theunions'bargaining position insociety, which remains generally weak. The state'srecognition of unions,at leastformally , following theReformasi in 1998,has not necessarily been followedby employers' acceptanceforunions 'involvement in arranging the dailyissuesintheworkplaces. Sincethereform and relaxation of unionformation regulations in 1998unionshavegrownin numbers from onlyone in early1998to around 100 nationalfederations registered in late 2009, including four national confederations. Indonesia has also become the first country in the Asia Pacific region that ratified allofthecoreconventionsoftheILO ,including Conventions 87 and98 on therights to freedom ofassociation and collective bargaining. However, thelevelofunionisation is relatively lowwithonlysixtosevenpercent uniondensity intheformal sector, whichnumbers areactually decreasingevery year. Fragmentation among unionsand the lack of a strongcentralbody might also contribute to theunfavourable positionofunions . Rightson paper: onlya paper tiger? Nonetheless, on paper,Indonesiantradeunions have some legal basis to meettheirtraditional objectives to improve thepay and conditions of workers. TheTradeUnionAct,forexample,providesthatanygroupoftenworkers mayform a new tradeunion,and workers ofone enterprise mayassociatewithotherworkers in supporting industrial action.A worker mayalso be a memberofmorethanone tradeunion. Now,theActdoes notuse theword'registration 'but 'recording', whichrefers to the legal requirement fora tradeunionto getregistered. Moreover, theAct,byarticle 28,clearly prohibits anti-unionbehavioursuch as termination of employment, demotion, wage repression, intimidationoranti -union campaigns. Indeed,theActconsiders suchconduct toconstitute a 'gravecriminal offence', whichis subject tocriminal sanction ofbetweenone tofiveyears imprisonment, and / or a fineofRp 100million to Rp 500million (approx.9000to 45,000euro). Butitis generally a papertiger, withno implementation inpractice. Generalmanager sent to prison A courtdecisiona yearago to sentence a general manager forviolating tradeunionrights under thelawwas notonlyunprecedented, butforthe workersinvolvedit also signalledthatjustice might workina realsense. On 12January 2009,theBangilDistrict Court in Pasuruan, EastJava,sentenced to 18 months in prison thegeneral manager ofa private company who had signed the dismissallettersof four union leaders.The crimewas violatingtrade union rights. It was the first ever case of an employer beingjailedforviolating thelaw. The SurabayaHighCourtupheldtheverdict, as did theSupreme Court inJune2009According tothecurrent system, inlabourdisputes workers should normallygo to the Manpower and Transmigration Ministry, orto its regional offices, and/or totheIndustrial Relations Court. Butthetwoinstitutions havelittle credibility amongworkers. Labourers regard theMinistry and theCourtas sidingwiththeinterests ofthe employers rather thantheworkers. District courts arean alternative forthem. Yet,thisnewdevelopment mayalsobring new dilemmas.The criminal justicesystem through thecriminal courtcouldnotgivesolutions related to theissuesof dismissal of thefourunion leadersandthecollective bargaining rights ofthe union.Thesepowersbelongtotheother system oflabourdisputesettlement withtheManpower regionalofficesand the PHI as the two main institutions, whichhave been regarded as problematic byworkers. Indeed,it is actually thefailure of thesetwo institutions thathas led theworkers to bring the case to thecriminal processes.Moreover, sucha decisionmayalso enlargethealreadylargedistrustbetween workersand employerswithin industrial relations practice inIndonesia. In a statement to thepressin responseto the Court'sdecision,the employers' associationin the PasuruanIndustrial EstateRembang(PIER) reportedly expressed deep concern: 'Sucha problem shouldhavebeensolved through theindustrial relations law[and not thecriminal law]',theassociation stated, as reported bya localnewspaper inJanuary last year(Duta Masyarakat, January 21,2009). The employers'association also complained about'weak law enforcement' in Pasuruan, and INTERNATIONAL union rights Page 8Volume 17Issue 22010 FOCUS □ BUSINESSAND HUMANRIGHTS calledforthegovernment, and thePresident in particular, toprovidelegal certainty' fortherisks and prospects ofdoingbusinessin Indonesia.It expressedconcernthatthe case mighthave a bad impacton the investment climatein the region. Ina statement justafter thedecisionwas handed downbythejudges,a unionleadersaid: 'Weacceptthedecisionand willmonitor this case wherever itgoes . Wedon'twantthecase tobea boomerang forworkers. We,as workers' representatives, are quite happy with it,and wehopeitwillnothappen again in the future, as thisisa lesson for [labour] law violators'. This indicatesthe unionistshoped the case woulddiscourage anymorerepression ofunion activists. The wish was not to imprisonthe employer, butsimply to gettheemployer's genuinerespect fortheworkers andtheir union. In TheBehaviorofLaw (1976), Donald Black identifies threestylesof social control:'penal style','compensatory style',and 'conciliatory style'. In thecontext ofa disputebetweenworkersandtheir employers, somepeoplemayargue thatthe 'conciliatory style'is perhapsoffering better solution thanthe'penalstyle'. After thedispute...

Freedom of Association in Canadian and European Human Rights law

REPORTS □ LAWCOURTS,LABOURRIGHTSANDHUMANRIGHTS Freedom of Association in Canadian and European Human Rights law PeterBarnacle examines a commontheme emergingin Canadian and European human rightslaw PETER BARNACLE isa labour lawyer atWoloshyn &Company in Saskatoon, Canada InGovernment decision 2001,the in Supreme of which Ontario Court it violated of found Canada the that constituissued the a decision in which it found that the Government of Ontarioviolatedtheconstitutional protection offreedom ofassociation setout undersection2(d) of the Canadian Charter of Rightsand Freedomsthroughthe failureto includeagricultural workersin the labourrelationslegislative framework thatprovidedrecognition and collective bargaining rights. The case, Dunmore v. Ontario (Attorney General)required theCourt todistinguish itsearliermorerestrictive case law thatlimited Charter protection totheright tojointrade unionsanddid not extendto associationalactivities of trade unionssuchas collective bargaining andtheright tostrike. TheCourt navigated itswayaroundthat case law byfinding thatthere weresomeassociationalactivities thatwere constitutionally protectedeven ifthatprotection did notextendto collective bargaining itself. In 2002,theEuropeanCourtofHumanRights issued a decision in which it found the Government oftheUnitedKingdom inviolation ofthefreedom ofassociation protections setout underArticle 11 oftheEuropeanConvention of Human Rights by failing to provideprotection against detrimental action for workerswho chose to retainunion representation in their workplace. The case, Wilson and Palmeretal. v. United Kingdom , requiredthe Courtto distinguish its earlierrestrictive decisionswithrespectto freedom of associationprinciples. Thus,the Court hadpreviously heldthat, although collective bargaining was one methoda statecould utiliseto protect a tradeunion'sright to be heard,Article 11didnotguarantee anyparticular method (see: National Union of BelgiumPolice v. Belgium (1975); Swedish EngineDrivers' Unionv.Sweden (1975); and Schettini and Others v.Italy(2000)). The 'voice'protection undertheConvention fell shortof a right of collectivebargaining and a right to strike, buttheabsence of protection of even the minimalist formunderUK legislation was inconsistent with the state's obligations under Article 11.TheCourt inWilsonandPalmer found that 'theunionanditsmembers must howeverbe free,in one way or another, to seek or persuadetheemployer tolisten towhatithas to sayon behalfofitsmembers' [para.44]. In Dunmore , the Supreme Court ruled in favour oftheworkers as theycould notbenefit froma collectivevoice in the absence of any rights forcollectivebargaining foragricultural workersunder Ontario law. In Wilsonand Palmer ;theviolation arosebecausetheEuropean CourtfoundthatUK law allowedforemployers totreat lessfavourably employees whorefused to renouncetheir unionmembership. The workers forced togiveup their tradeunionrights lostthe collective voicebenefits. Therearemanysimilarities betweenthesetwo cases. First, despitethefavourable outcomesin both thesecases, the ability of bothcourtsto addresstheissuesbeforethemwas constrained by thepreviousrestrictive case law. Thus,both courtsstruggled to addresstheobviousinjustice before them arising from thefailure oftherespectivegovernments toprotect associational activities of tradeunions,notsimply theright to hold a unioncard.Bothfound a waytodo so inthecircumstances before them byfinding a wayaround that earlier case law,butwithout actually rejecting thatlaw. Second,in doingso bothcourtsalso relieduponinternational law,including ILO conventions and recommendations and decisionsof the Committeeon Freedom of Association. Finally, interms ofremedy, bothcourts required positive actionbygovernment toaddress theviolationfound . Forexample, inDunmore: 'if..thiscourtisimposing positive obligations on thestate, thatisonlybecausesuchimpositionisjustifiable in thecircumstances' [para. 29],whilein Wilson and Palmer, the EuropeanCourt foundthat:Ht istheroleof thestatetoensurethattradeunionmembers are notprevented orrestrained fromusing their uniontorepresent them inattempts to regulate their relations with their employers' [para.67]. Thissimilarity in processand approachwithout reference to one anothersuggesteda developmentof commondomestic freedom of associationprinciples informed by,butindependent of, international law.Thisdevelopment is nowreinforced bymorerecent decisionsofthesecourts. First, inthe2007BCHealth Services theSupreme Courtof Canada foundthattheGovernment of British Columbia violated thefreedom ofassociation protection set out in section2(d) of the Charter bysubstantially interfering inthecollective bargaining rights ofhealth caretradeunionsand their members through legislation voiding collective agreementprovisionswith health care employers that limited orrestricted contracting out ofworktoprivate employers. TheCourt heldthat freedom ofassociation included protection against government interference infundamental collective bargaining rights. Notethat indoingso,that unlike intheearlier Dunmore case,theCourt wasunable toavoidordistinguish itsearlier caselawinwhich ithadheldthat collective bargaining was an associational activity outsidethescope offreedom of associationprotection under the Charter. The Court reviewed that law,notedthebeginnings of thechangeinpathinDunmore ,andstated: INTERNATIONAL union rights Pa9e 20 Volume 16Issue 3 2009 In earlier decisions, themajority viewofthe Supreme Court ofCanada wasthattheguaranteeoffreedom ofassociation did notextend tocollective bargaining. ..Weconcludethe grounds advancedin those earlier decisions fortheexclusion ofcollective bargaining from theCharter's protection offreedom ofassociationdo notwithstand principled scrutiny and shouldberejected '. [para.22] In itsanalysis thatled to a finding ofviolations, the Courtreliedon a historical reviewof the importance and recognition in Canadianlaw of trade unionassociation and collective bargaining and theapplication of Charter valuesprotecting collectivebargaining.However, of particular interest hereisthat theCourt also againreviewed and appliedinternational freedom ofassociation principles tosupport itsconclusion [para.69-791. Moving backto Europe,ina 2008case,Demir v. Turkey , theEuropeanCourtof HumanRights Grand Chamber upheldan earlier decisionofthe Courtin whichtheGovernment of Turkey was found tohaveviolated thefreedom...

It may be dawn, intensify the struggle

LASTTARABUKU is Capacity Building Project Coordinator with the Zimbabwe Congress of Trade Unions in Harare It may be dawn, intensify the struggle September after Agreement Zimbabwe the signing 1 African 5, (GPA) 2009 of between National the marked Global the Union one Political year after the signing of the Global Political Agreement (GPA) between the Zimbabwe African National Union - (Patriotic Front) ZANU (PF) and the two formations of the Movement for Democratic Change (MDC). The agreement ledtothe formation ofa Government ofNational Unity (GNU) orassome would callit, the Inclusive Government on11February 2009. There were serious disagreements onsharing ofMinisterial posts andother portfolios and this ledtothe agreement not being fully consummated for close tosixmonths from the time ofsigning. With the MDC being part ofthe government, andalsoconsidering that the formation of the party wasfacilitated by the Zimbabwe Congress of Trade Unions (ZCTU), itwas expected that the new government would work towards improving trade union rights. Six months after the formation of the new government, there arefew signs inthat direction. Draconian legislation What isastounding with the GPA isthe tone of the language used as itappears as if itwas written by Zanu PF, without any contributions from the MDC. One of the agreements struck by the parties inthe GPA wasthe need toreform institutions ofoppression that hadbeen entrenched by President Robert Mugabe's regime. These institutions were widely used, not only against the opposition, but alsotrade unionists, the civil society andmembers ofthe public who were perceived tobeagainst the policies of the ruling Zanu PFgovernment. The ruling party hadput inplace a host ofdraconian laws toprotect Itself andonewould have expected that the new government would move faster tomake amendments todraconian laws that hindered people's freedoms. Smokescreen attempts were made during negotiations to amend lawslike the Public Order andSecurity Act (POSA) before the signing of the GPA. Enacted inJanuary 2002, POSA isanAct that hasbeen widely usedby the Mugabe government tosuppress andobstruct trade union activities andalsoharass trade unionists. Itisjust like the notorious LawandOrder Maintenance Act usedby the colonial regime of former Prime Minister ofRhodesia, IanSmith, tosuppress uprising against hisrule. Despite a new government, there arestill a number ofproblems with POSA. First and foremost, the police perceive trade union meetings as political meetings andtherefore ban these meetings orinsist onattending these meetings uninvited. Thepolice alsorequire trade unions toapply for permission tohold meetings although nosection ofPOSA provides for such requirements. They deliberately misinterpret a courtesy notification by trade unions ofpending meetings tobeapplications for permission tohold meetings. Even if they grant permission tohold the meeting, there are conditions like the meeting should goahead provided itdoesnot discuss 'polities'; No definition ofwhat constitutes politics is provided, thereby rendering every meeting potentially political. Thepolice alsogive time limits for holding oftrade union meetings and they caninterfere with the booking ofvenues for meetings by trade unions. Police continue threatening toarrest trade union leaders for breaching the POSA while some police officers deliberately misinterpret POSA tovictimise workers. One would have expected the new government tohave moved inquickly toamend this piece of legislation. Once they realised that POSA wasfailing dismally tosecure convictions incourts, the previous Robert Mugabe government promulgated another piece oflegislation, the Criminal Law(Codification andReform Act). This isthe lawthat hasbeen invogue for the past two years andextensively used ontrade unionists. Ithaswide areasofcoverage and canbeused toseekconvictions onboth political andlabour cases.Itcriminalises strike action by unions, prohibits publishing or communicating what may beviewed asfalse statements prejudicial tothe State. The same lawdoesnot allow criticism of the President or hisoffice andalsoprohibits gatherings as long asthe State believes the gatherings may promote public violence andbreach the peace. There isa whole schedule ofoffences that are termed 'criminal nuisance' where even distributing campaign flyers isa crime. Most provisions ofthis Act areincompatible with freedom ofassociation, assembly and expression. Anumber of trade unionists have been charged under this notorious lawandit seems there arenomoves yet toeither repeal oramend this piece oflegislation. TheLabour Act itself isonepiece oflegislation that doesnot protect workers rights. The Act is the supreme lawonlabour issues inZimbabwe asfar asworkers inthe private sector are concerned. Soon after independence, when Zanu PFwasstill pursuing socialist policies, particularly in1985, Zimbabwe washailed the world over for enacting a law, the Labour Relations Act, which wasvery progressive. However, this wassoon tochange Inthe early 1990sasthe government embraced the economic structural reform programmes bankrolled by...