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Case Study: Navigating Labor Unrest

• Jorge Tamayo

A factory manager considers whether to accept or resist union demands.

Paulo Ferreira, the president of Luna Brazil, has an ambitious plan to turn around the dismal performance of the plant he oversees in Campinas. The wrinkle is, he needs the buy-in of the powerful local union, which is still smarting from a 10-year-old labor conflict and lately has begun to step up its demands and picket outside the factory. Headquarters, running out of patience with the dispute, wants Paulo to consider converting the plant to a distribution center. But that would mean hundreds of layoffs, which would decimate the local community that Paolo loves.

In the corner office at the Campinas plant of Luna Motors, the dim light of a desk lamp illuminated a series of charts. Paulo Ferreira, the president of Luna Brazil, had been so deep in thought he hadn’t even noticed that it was now dark outside. Each line, curve, and number on the papers in front of him painted a disheartening picture of the plant’s performance: rising defects, increasing absenteeism, and a record high in vehicles lost to labor issues. The plant was no longer competitive within the larger Luna network.

• JT Jorge Tamayo is an assistant professor in the Strategy Unit at Harvard Business School.

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The top 7 recent employment law cases you should know

By David I. Brody

Jul. 31, 2020

When March began this year, nobody had any idea what was just around the corner – a global pandemic, a fiscal meltdown, unprecedented unemployment and a national reckoning with the terrible consequences of centuries of racial violence and inequity. Then we all witnessed a historic decision from the Supreme Court, affirming, at long last, that our family and friends in the LBGTQ community are protected from discrimination in employment under federal law. 

In this ever-changing landscape, it is increasingly important to keep up to speed on the latest employment legal cases and developments. Below is a brief summary of the seven most significant employment legal cases.

1. U.S. Supreme Court Issues Landmark Civil Rights Decision

Bostock v. Clayton County, 590 U.S. (2020)

The Supreme Court has issued a landmark decision in Bostock v. Clayton County , holding that Title VII prohibits discrimination against employees based upon sexual orientation and transgender status. 

In the 6-3 Opinion of the Court, written by Justice Gorsuch — who, along with Chief Justice Roberts, sided with the four “liberal” members of the Court — the majority held that a “straightforward” rule emerges from the ordinary meaning and application of Title VII’s prohibition against sex discrimination: 

“[F]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex . That has always been prohibited by Title VII’s plain terms — and that should be the end of the analysis.’” 

Such discrimination has long been a violation of Massachusetts law, Chapter 151B, but with the Bostock decision, it is now clearly unlawful to discriminate in employment on the basis of sexual orientation or gender identity.

2. Unlawful Employment Practices During the COVID-19 Pandemic

During these uncertain times, employers and employees alike are struggling to understand their legal rights and obligations. To that end, there has been a great deal of COVID-specific guidance provided by state and federal agencies, including the U.S. Equal Employment Commission , Massachusetts Commission Against Discrimination , and Office of the Attorney General .

It is important to remember that neither a global pandemic nor an economic recession can be used as a shield by employers to carry out unlawful employment practices. 

Indeed, as the Massachusetts Supreme Judicial Court has noted, just because an employer may be required to “reduce its workforce does not mean that it is free to make its employment decisions on impermissible grounds: ‘even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.’” See Sullivan v. Liberty Mut. Ins. Co. , 444 Mass. 34, 41–42 (2005).

If you think that you may have been illegally targeted, seek legal counsel as soon as possible and prior to waiving any legal rights.

Hlatky v. Steward Health Care System, Inc., 484 Mass. 566 (2020)

Following a jury trial, Dr. Hlatky, an experienced cancer researcher, was awarded $10 million in damages in a breach of contract action against her former employer, Steward Health. The $10 million damage award represented the cost of reestablishing her research laboratory, which she lost as a result of Defendant’s unlawful conduct. 

On appeal, the Massachusetts Supreme Judicial Court unanimously agreed the damages awarded were not too speculative, noting that the harm suffered by Dr. Hlatky, including the loss of her research laboratory, equipment, and cell samples, constituted her “life’s work.”

The Court was, however, divided regarding whether restrictions should be imposed on how Dr. Hlatky could use the $10 million award. In the six Justice decision, three Justices were concerned that, since the laboratory had not actually belonged to Dr. Hlatky, an unrestricted award might put Dr. Hlatky in a better position than she would have been had there been no breach, e.g., “[n]othing would prevent Hlatky from spending the $10 million on a house or a yacht rather than on the re-establishment of a cancer research laboratory.”

The other three Justice were not persuaded, “Whether she wishes to start again, whether she even could start again after so much time has passed and her faculty position has been lost, whether she wishes to use the money to fund different research or others; research in the same field, or whether she wants to hike the Appalachian trail — these matters simply are not our concern.”

These Justices pointed out that imposing restrictions on such a damage award would open a “Pandora’s box of unknown future harm to the predictability of contract law upon which contracting parties have relied for hundreds of years.”

As the Court was equally divided, the trial court’s award of monetary damages – without restrictions – was affirmed.

4. Non-Competition Agreements and the “Material Change” Doctrine

Now Bus. Intel., Inc. v. Donahue, C.A. No. 17-3732 (Middlesex Sup Ct. Apr. 1, 2020)

A non-competition agreement may become unenforceable if, after execution, the terms and conditions of employment are modified to the point where the parties have effectively abandoned the original employment agreement and entered into a new employment agreement. This is known as the “material change” doctrine which was delineated in F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585 (1968). The application of the material change doctrine is a highly fact-specific inquiry and will focus on factors, such as promotions, changes in job duties and titles, changes in remuneration, changes to sales area, as well as the associated time periods for such changes.

In the recent case of Now Bus. Intel. Inc. V. Donahue , the Superior Court rejected an employee’s material change defense to the enforceability of his non-compete. In granting Summary Judgment in favor of the former employer, the Court ultimately held that the temporary and short-term changes to the employee’s job duties, without more, did not amount to a material change sufficient to render otherwise reasonable and valid post-employment restriction unenforceable.

5. Anti-SLAPP Motion Revived

Rosario v. Caring Bees Healthcare, Inc., C.A. No. 19-P-1223 (Mass. App. Ct. June 5, 2020)

Retaliatory lawsuits designed to silence one from speaking out are referred to as strategic lawsuits against public participation, or “SLAPP Suits,” and are expressly forbidden in Massachusetts. See the Anti-SLAPP Statute, M.G.L. c. 231, § 59H (the “Statute”). The Statute provides a quick mechanism to dispose of SLAPP suits, and it allows the victim of a SLAPP suit to recover attorney’s fees.

Here, Ms. Rosario had complained (to co-workers, her mother, the MCAD, and, finally, in court) of sexual harassment by her supervisor, Jean Paul Karangwa. In response, Mr. Karangwa counter-sued Ms. Rosario for defamation and intentional infliction of emotional distress. Relying on the Statute, Ms. Rosario moved to dismiss Mr. Karangwa’s counter-claims. The lower court denied her motion, indicating that there was a colorable basis to believe that Ms. Rosario’s statements were defamatory, i.e ., false and causing damage to Mr. Karangwa.

However, the Massachusetts Appeals Court reversed and remanded. The Court reiterated that the legal issue was not solely whether Mr. Karangwa’s claims were “colorable” but also, if so, whether or not they were retaliatory, i.e. , “primarily brought to chill [Ms. Rosario’s] legitimate petitioning activities.” 

In considering whether or not Mr. Karangwa’s counterclaims were retaliatory, the lower court should consider, among other things, (1) whether the claims are ‘typical’ SLAPP claims, e.g., claims that one would not likely bring on their own, (2) the temporal proximity of when the counter-claims were brought to when Ms. Rosario engaged in escalated protected activity, e.g., when Ms. Rosario filed her claims to court, and (3) the chilling impact on such activity by, for example, increasing the cost to Ms. Rosario of complaining about sexual harassment.

The case was remanded to the lower court for a sequential application of the correct anti-SLAPP standard.

6. Enforcement of Arbitration Agreements

Theodore v. Uber Technologies, Inc., C.A. No. 18-cv-12147 (D. Mass. Mar. 3, 2020)

Many executives (and employees generally) are subject to arbitration clauses of which they are unaware until a dispute arises. The enforceability of such clauses is often hotly disputed. This is particularly true in civil rights cases, pitting two established principles against each other ( i.e. , the preference for arbitration under federal law against a strong public policy against discrimination). Enforceability is often fact-specific, such as whether the agreement to arbitrate and the waiver of judicial remedy are sufficiently obvious and clear.

Although Theodore is not an employment case, its analysis may be useful, especially regarding on-line forms that invite a user to follow one or more links which can be easily bypassed. The US District Court’s analysis involved not only a review of the text itself but also a discussion of the font size, layout, and background color on the page. The Court went so far as to include screen-shots in the decision.

Ultimately, the Court refused to compel arbitration where Uber invited a customer to click to “CREATE ACCOUNT” without “reasonably communicating” the impact of doing so.

7. The Process – and Not Just the Final Decision – Matters

Comcast Corp. v. Nat’l Assoc. of African American-Owned Media, 140 S.Ct. 1009 (2020)

In Comcast , the Supreme Court of the United States unanimously held that the but-for causation standard applies to claims of racial discrimination raised under 42 U.S.C. § 1981, a statute which guarantees all persons the same right “to make and enforce contracts . . . as is enjoyed by white citizens.” However, the Court expressly declined to decide an issue raised by Comcast, i.e , whether § 1981(a) guarantees only the right to equivalent contractual outcomes, as Comcast argued, or if it also guarantees the right to an equivalent contracting process, as the law has been interpreted for years.

In her concurrence, Justice Ginsburg addressed Comcast’s argument directly:

“I write separately to resist Comcast’s attempt to cabin a ‘sweeping’ law designed to ‘break down all discrimination between black men and white men” … Under Comcast’s view, § 1981 countenances racial discrimination so long as it occurs in advance of the final contract-formation decision. Thus, a lender would not violate § 1981by requiring prospective borrowers to provide one reference letter if they are white and five if they black. Nor would an employer violate § 1981 by reimbursing expenses for white interviewees but requiring black applicants to pay their own way … That view cannot be squared with the statute. An equal ‘right … to make… contracts’ … is an empty promise without equal opportunities to present or receive offers and negotiate over terms … It is implausible that a law ‘intended to secure … practical freedom’ … would condone discriminatory barriers to contract formation.”

As Justice Ginsburg recognized, and recent events have made abundantly clear, we must remain vigilant to protect and expand, not erode, our civil rights laws.

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21. Labour Relations and Human Resources Management

Chapter Editor:  Anne Trebilcock

Table of Contents

Figures and tables.

Labour Relations and Human Resources Management: An Overview Anne Trebilcock

Rights of Association and Representation Breen Creighton

Collective Bargaining and Safety and Health Michael J. Wright

     Case Study: The Labour Agreement between the Bethlehem Steel Corporation and the United Steelworkers of America

National Level Tripartite and Bipartite Cooperation on Health and Safety Robert Husbands

Forms of Workers’ Participation Muneto Ozaki and Anne Trebilcock

     Case Study : Denmark: Worker Participation in Health and Safety      Anne Trebilcock

Consultation and Information on Health and Safety Marco Biagi

Labour Relations Aspects of Training Mel Doyle

Labour Relations Aspects of Labour Inspection María Luz Vega Ruiz

Collective Disputes over Health and Safety Issues Shauna L. Olney

Individual Disputes over Health and Safety Issues Anne Trebilcock

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1. Practical activities-health & safety training

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Labor Relations And Human Resources Management: An Overview

Labour or Industrial Relations

The term labour relations, also known as industrial relations, refers to the system in which employers, workers and their representatives and, directly or indirectly, the government interact to set the ground rules for the governance of work relationships. It also describes a field of study dedicated to examining such relationships. The field is an outgrowth of the industrial revolution, whose excesses led to the emergence of trade unions to represent workers and to the development of collective labour relations. A labour or industrial relations system reflects the interaction between the main actors in it: the state, the employer (or employers or an employers’ association), trade unions and employees (who may participate or not in unions and other bodies affording workers’ representation). The phrases “labour relations” and “industrial relations” are also used in connection with various forms of workers’ participation; they can also encompass individual employment relationships between an employer and a worker under a written or implied contract of employment, although these are usually referred to as “employment relations”. There is considerable variation in the use of the terms, partly reflecting the evolving nature of the field over time and place. There is general agreement, however, that the field embraces collective bargaining, various forms of workers’ participation (such as works councils and joint health and safety committees) and mechanisms for resolving collective and individual disputes. The wide variety of labour relations systems throughout the world has meant that comparative studies and identification of types are accompanied by caveats about the limitations of over-generalization and false analogies. Traditionally, four distinct types of workplace governance have been described: dictatorial, paternalistic, institutional and worker-participative; this chapter examines primarily the latter two types.

Both private and public interests are at stake in any labour relations system. The state is an actor in the system as well, although its role varies from active to passive in different countries. The nature of the relationships among organized labour, employers and the government with respect to health and safety are indicative of the overall status of industrial relations in a country or an industry and the obverse is equally the case. An underdeveloped labour relations system tends to be authoritarian, with rules dictated by an employer without direct or indirect employee involvement except at the point of accepting employment on the terms offered.

A labour relations system incorporates both societal values (e.g., freedom of association, a sense of group solidarity, search for maximized profits) and techniques (e.g., methods of negotiation, work organization, consultation and dispute resolution). Traditionally, labour relations systems have been categorized along national lines, but the validity of this is waning in the face of increasingly varied practices within countries and the rise of a more global economy driven by international competition. Some countries have been characterized as having cooperative labour relations models (e.g., Belgium, Germany), whereas others are known as being conflictual (e.g., Bangladesh, Canada, United States). Different systems have also been distinguished on the basis of having centralized collective bargaining (e.g., those in Nordic countries, although there is a move away from this, as illustrated by Sweden), bargaining at the sectoral or industrial level (e.g., Germany), or bargaining at the enterprise or plant level (e.g., Japan, the United States). In countries having moved from planned to free-market economies, labour relations systems are in transition. There is also increasing analytical work being done on the typologies of individual employment relationships as indic- ators of types of labour relations systems.

Even the more classic portrayals of labour relations systems are not by any means static characterizations, since any such system changes to meet new circumstances, whether economic or political. The globalization of the market economy, the weakening of the state as an effective force and the ebbing of trade union power in many industrialized countries pose serious challenges to traditional labour relations systems. Technological development has brought changes in the content and organization of work that also have a crucial impact on the extent to which collective labour relations can develop and the direction they take. Employees’ traditionally shared work schedule and common workplace have increasingly given way to more varied working hours and to the performance of work at varied locations, including home, with less direct employer supervision. What have been termed “atypical” employment relationships are becoming less so, as the contingent workforce continues to expand. This in turn places pressure on established labour relations systems.

Newer forms of employee representation and participation are adding an additional dimension to the labour relations picture in a number of countries. A labour relations system sets the formal or informal ground rules for determining the nature of collective industrial relations as well as the framework for individual employment relationships between a worker and his or her employer. Complicating the scene at the management end are additional players such as temporary employment agencies, labour contractors and job contractors who may have responsibilities towards workers without having control over the physical environment in which the work is carried out or the opportunity to provide safety training. In addition, public sector and private sector employers are governed by separate legislation in most countries, with the rights and protections of employees in these two sectors often differing significantly. Moreover, the private sector is influenced by forces of international competition that do not directly touch public-sector labour relations.

Finally, neoliberal ideology favouring the conclusion of indi-vidualized employment contracts to the detriment of collectively bargained arrangements poses another threat to traditional labour relations systems. Those systems have developed as a result of the emergence of collective representation for workers, based on past experience that an individual worker’s power is weak when compared to that of the employer. Abandoning all collective representation would risk returning to a nineteenth century concept in which acceptance of hazardous work was largely regarded as a matter of individual free choice. The increasingly globalized economy, the accelerated pace of technological change and the resultant call for greater flexibility on the part of industrial relations institutions, however, pose new challenges for their survival and prosperity. Depending upon their existing traditions and institutions, the parties involved in a labour relations system may react quite differently to the same pressures, just as management may choose a cost-based or a value-added strategy for confronting increased competition (Locke, Kochan and Piore, 1995). The extent to which workers’ participation and/or collective bargaining are regular features of a labour relations system will most certainly have an impact on how management confronts health and safety problems.

Moreover, there is another constant: the economic dependence of an individual worker on an employer remains the underlying fact of their relationship–one that has serious potential consequences when it comes to safety and health. The employer is seen as having a general duty to provide a safe and healthful workplace and to train and equip workers to do their jobs safely. The worker has a reciprocal duty to follow safety and health instructions and to refrain from harming himself/herself or others while at work. Failure to live up to these or other duties can lead to disputes, which depend on the labour relations system for their resolution. Dispute resolution mechanisms include rules governing not only work stoppages (strikes, slowdowns or go-slows, work to rule, etc.) and lockouts, but the discipline and dismissal of employees as well. Additionally, in many countries employers are required to participate in various institutions dealing with safety and health, perform safety and health monitoring, report on-the-job accidents and diseases and, indirectly, to compensate workers who are found to be suffering from an occupational injury or disease.

Human Resources Management

Human resources management has been defined as “the science and the practice that deals with the nature of the employment relationship and all of the decisions, actions and issues that relate to that relationship” (Ferris, Rosen and Barnum 1995; see figure 1). It encapsulates employer-formulated policies and practices that see the utilization and management of employees as a business resource in the context of a firm’s overall strategy to enhance productivity and competitiveness. It is a term most often used to describe an employer’s approach to personnel administration that emphasizes employee involvement, normally but not always in a union-free setting, with the goal of motivating workers to enhance their productivity. The field was formed from a merger of scientific management theories, welfare work and industrial psychology around the time of the First World War and has undergone considerable evolution since. Today, it stresses work organization techniques, recruitment and selection, performance appraisal, training, upgrading of skills and career development, along with direct employee participation and communication. Human resources management has been put forth as an alternative to “Fordism”, the traditional assembly-line type of production in which engineers are responsible for work organization and workers’ assigned tasks are divided up and narrowly circumscribed. Common forms of employee involvement include suggestion schemes, attitude surveys, job enrichment schemes, teamworking and similar forms of empowerment schemes, quality of working-life programmes, quality circles and task forces. Another feature of human resources management may be linking pay, individually or collectively, to performance. It is noteworthy that one of the three objectives of occupational health has been identified by the Joint ILO/WHO Committee on Occupational Health as “development of work organizations and working cultures in a direction which supports health and safety at work and in doing so also promotes a positive social climate and smooth operation and may enhance productivity of the undertakings...” (ILO 1995b). This is known as developing a “safety culture.”

Figure 1. The role of human resources management in adding value to people and to organizations

The example of a safety performance management programme illustrates some human resource management theories in the context of occupational safety and health. As described by Reber, Wallin and Duhon (1993), this approach has had considerable success in reducing lost time on account of accidents. It relies on specifying safe and unsafe behaviours, teaching employees how to recognize safe behaviour and motivating them to follow the safety rules with goal setting and feedback. The programme relies heavily on a training technique whereby employees are shown safe, correct methods via videotapes or live models. They then have a chance to practice new behaviours and are provided with frequent performance feedback. In addition, some companies offer tangible prizes and rewards for engaging in safe behaviour (rather than simply for having fewer accidents). Employee consultation is an important feature of the programme as well.

The implications of human resources management for industrial relations practices remain a source of some controversy. This is particularly the case for types of workers’ participation schemes that are perceived by trade unions as a threat. In some instances human resources management strategies are pursued alongside collective bargaining; in other cases the human resources management approach seeks to supplant or prevent the activities of independent organizations of workers in defence of their interests. Proponents of human resources management maintain that since the 1970s, the personnel management side of human resources management has evolved from being a maintenance function, secondary to the industrial relations function, to being one of critical importance to the effectiveness of an organization (Ferris, Rosen and Barnum 1995). Since human resources management is a tool for management to employ as part of its personnel policy rather than a relationship between an employer and workers’ chosen representatives, it is not the focus of this chapter.

The articles which follow describe the main parties in a labour relations system and the basic principles underpinning their interaction: rights to freedom of association and representation. A natural corollary to freedom of association is the right to engage in collective bargaining, a phenomenon which must be distinguished from consultative and non-union worker participation arrangements. Collective bargaining takes place as negotiations between representatives chosen by the workers and those acting on behalf of the employer; it leads to a mutually accepted, binding agreement that can cover a wide range of subjects. Other forms of workers’ participation, national-level consultative bodies, works councils and enterprise-level health and safety representatives are also important features of some labour relations systems and are thus examined in this chapter. Consultation can take various forms and occur at different levels, with national-, regional- and/or industrial- and enterprise-level arrangements. Worker representatives in consultative bodies may or may not have been selected by the workers and there is no obligation for the state or the employer to follow the wishes of those representatives or to abide by the results of the consultative process. In some countries, collective bargaining and consultative arrangements exist side by side and, to work properly, must be carefully intermeshed. For both, rights to information about health and safety and training are crucial. Finally, this chapter takes into account that in any labour relations system, disputes may arise, whether they are individual or collective. Safety and health issues can lead to labour relations strife, producing work stoppages. The chapter thus concludes with descriptions of how labour relations disputes are resolved, including by arbitration, mediation or resort to the regular or labour courts, preceded by a discussion of the role of the labour inspectorate in the context of labour relations.

The Actors in the Labour Relations System

Classically, three actors have been identified as parties to the labour relations system: the state, employers and workers’ representatives. To this picture must now be added the forces that transcend these categories: regional and other multilateral economic integration arrangements among states and multinational corporations as employers which do not have a national identity but which also can be seen as labour market institutions. Since the impact of these phenomena on labour relations remains unclear in many respects, however, discussion will focus on the more classic actors despite this caveat of the limitation of such an analysis in an increasingly global community. In addition, greater emphasis is needed on analysing the role of the individual employment relationship in labour relations systems and on the impact of the emerging alternative forms of work.

The state always has at least an indirect effect on all labour relations. As the source of legislation, the state exerts an inevitable influence on the emergence and development of a labour relations system. Laws can hinder or foster, directly or indirectly, the establishment of organizations representing workers and employers. Legislation also sets a minimum level of worker protection and lays down “the rules of the game”. To take an example, it can provide lesser or greater protection for a worker who refuses to perform work he or she reasonably considers to be too hazardous, or for one who acts as a health and safety representative.

Through the development of its labour administration, the state also has an impact on how a labour relations system may function. If effective enforcement of the law is afforded through a labour inspectorate, collective bargaining can pick up where the law leaves off. If, however, the state infrastructure for having rights vindicated or for assisting in the resolution of disputes that emerge between employers and workers is weak, they will be left more to their own devices to develop alternative institutions or arrangements.

The extent to which the state has built up a well-functioning court or other dispute resolution system may also have an influence on the course of labour relations. The ease with which workers, employers and their respective organizations may enforce their legal rights can be as important as the rights themselves. Thus the decision by a government to set up special tribunals or administrative bodies to deal with labour disputes and/or disagreements over individual employment problems can be an expression of the priority given to such issues in that society.

In many countries, the state has a direct role to play in labour relations. In countries that do not respect freedom of association principles, this may involve outright control of employers’ and workers’ organizations or interference with their activities. The state may attempt to invalidate collective bargaining agreements that it perceives as interfering with its economic policy goals. Generally speaking, however, the role of the state in industrialized countries has tended to promote orderly industrial relations by providing the necessary legislative framework, including minimum levels of worker protection and offering parties information, advice and dispute settlement services. This could take the form of mere toleration of labour relations institutions and the actors in them; it could move beyond to actively encourage such institutions. In a few countries, the state is a more active participant in the industrial relations system, which includes national level tripartite negotiations. For decades in Belgium and more recently in Ireland, for instance, government representatives have been sitting down alongside those from employer and trade union circles to hammer out a national level agreement or pact on a wide range of labour and social issues. Tripartite machinery to fix minimum wages has long been a feature of labour relations in Argentina and Mexico, for example. The interest of the state in doing so derives from its desires to move the national economy in a certain direction and to maintain social peace for the duration of the pact; such bipartite or tripartite arrangements create what has been called a “social dialogue”, as it has developed in Australia (until 1994), Austria, Belgium, Ireland and the Netherlands, for instance. The pros and cons of what have been termed “corporatist” or “neocorporatist” approaches to labour relations have been extensively debated over the years. With its tripartite structure, the International Labour Organization has long been a proponent of strong tripartite cooperation in which the “social partners” play a significant role in shaping government policy on a wide range of issues.

In some countries, the very idea of the state becoming involved as a negotiator in private sector bargaining is unthinkable, as in Germany or the United States. In such systems, the role of the state is, aside from its legislative function, generally restricted to providing assistance to the parties in reaching an agreement, such as in offering voluntary mediation services. Whether active or passive, however, the state is a constant partner in any labour relations system. In addition, where the state is itself the employer, or an enterprise is publicly owned, it is of course directly involved in labour relations with the employees and their representatives. In this context, the state is motivated by its role as provider of public services and/or as an economic actor.

Finally, the impact of regional economic integration arrangements on state policy is also felt in the labour relations field. Within the European Union, practice in member countries has changed to reflect directives dealing with consultation of workers and their representatives, including those on health and safety matters in particular. Multilateral trade agreements, such as the labour side agreement to the North American Free Trade Agreement (Canada, Mexico, United States) or the agreements implementing the Mercosur Common Market (Argentina, Brazil, Chile, Paraguay, thought soon to be joined by Bolivia and Chile) also sometimes contain workers’ rights provisions or mechanisms that over time may have an indirect impact on labour relations systems of the participating states.

Employers–that is, providers of work–are usually differentiated in industrial relations systems depending upon whether they are in the private or the public sector. Historically, trade unionism and collective bargaining developed first in the private sector, but in recent years these phenomena have spread to many public sector settings as well. The position of state-owned enterprises—which in any event are dwindling in number around the world—as employers, varies depending upon the country. (They still play a key role in China, India, Viet Nam and in many African countries.) In Eastern and Central Europe, one of the major challenges of the post-Communist era has been the establishment of independent organizations of employers.

International Employers’ Organizations

Based in Geneva, Switzerland, the International Organization of Employers (IOE) in 1996 grouped 118 central national organizations of employers in 116 countries. The exact form of each member organization may differ from country to country, but in order to qualify for membership in the IOE an employers’ organization must meet certain conditions: it must be the most representative organization of employers - exclusively of employers - in the country; it must be voluntary and independent, free from outside interference; and it must stand for and defend the principles of free enterprise. Members include employer federations and confederations, chambers of commerce and industry, councils and associations. Regional or sectoral organizations cannot become members; nor can enterprises, regardless of their size or importance, affiliate themselves directly with the IOE - a factor that has served to ensure that its voice is representative of the employer community at large, and not of the particular interests of individual enterprises or sectors.

The IOE’s main activity, however, is to organize employers whenever they have to deal with social and labour matters at the global level. In practice, most of this takes place in the ILO, which has responsibility for these questions in the United Nations system. The IOE also has Category I consultative status with the Economic and Social Council of the United Nations, where it intervenes whenever matters of interest or consequence to employers arise.

The IOE is one of only two organizations that the employer community has set up to represent the interests of enterprise globally. The other is the International Chamber of Commerce, with its headquarters in Paris, which concerns itself principally with economic matters. While structurally quite different, the two organizations complement each other. They cooperate on the basis of an agreement which defines their areas of responsibility as well as through good personal relations between their representatives and, to a degree, on a common membership base. Many subjects cut across their mandates, of course, but are dealt with pragmatically without friction. On certain issues, such as multinational enterprises, the two organizations even act in unison.

by Chapter Editor (excerpted from: ILO 1994)

In the private sector, the situation has been summed up as follows:

Employers have common interests to defend and precise causes to advance. In organizing themselves, they pursue several aims which in turn determine the character of their organizations. These can be chambers of commerce, economic federations and employers’ organizations (for social and labour matters) ... Where issues centre essentially on social matters and industrial relations, including collective bargaining, occupational health and safety, human resource development, labour law and wages, the desire for co-ordinated action has led to the creation of employers’ organizations, which are always voluntary in nature ... (ILO 1994a).

Some employers’ organizations were initially established in response to pressure from the trade unions to negotiate, but others may be traced to medieval guilds or other groups founded to defend particular market interests. Employers’ organizations have been described as formal groups of employers set up to defend, represent and advise affiliated employers and to strengthen their position in society at large with respect to labour matters as distinct from economic matters ... Unlike trade unions, which are composed of individual persons, employers’ organizations are composed of enterprises (Oechslin 1995).

As identified by Oechslin, there tend to be three main functions (to some extent overlapping) common to all employers’ organizations: defence and promotion of their members’ interests, representation in the political structure and provision of services to their members. The first function is reflected largely in lobbying government to adopt policies that are friendly to employers’ interests and in influencing public opinion, chiefly through media campaigns. The representative function may occur in the political structure or in industrial relations institutions. Political representation is found in systems where consultation of interested economic groups is foreseen by law (e.g., Switzerland), where economic and social councils provide for employer representation (e.g., France, French-speaking African countries and the Netherlands) and where there is participation in tripartite forums such as the International Labour Conference and other aspects of ILO activity. In addition, employers’ organizations can exercise considerable influence at the regional level (especially within the European Union).

The way in which the representative function in the industrial relations system occurs depends very much on the level at which collective bargaining takes place in a particular country. This factor also largely determines the structure of an employers’ organization. If bargaining is centralized at the national level, the employers’ organization will reflect that in its internal structure and operations (central economic and statistical data bank, creation of a mutual strike insurance system, strong sense of member discipline, etc.). Even in countries where bargaining takes place at the enterprise level (such as Japan or the United States), the employers’ organization can offer its members information, guidelines and advice. Bargaining that takes place at the industrial level (as in Germany, where, however, some employers have recently broken ranks with their associations) or at multiple levels (as in France or Italy) of course also influences the structure of employers’ organizations.

As for the third function, Oechslin notes, “it is not always easy to draw a line between activities supporting the functions described above and those undertaken for the members in their interest” (p. 42). Research is the prime example, since it can be used for multiple purposes. Safety and health is an area in which data and information can be usefully shared by employers across sectors. Often, new concepts or reactions to novel developments in the world of work have been the product of broad reflection within employers’ organizations. These groups also provide training to members on a wide range of management issues and have undertaken social affairs action, such as in the development of workers’ housing or support for community activities. In some countries, employers’ organizations provide assistance to their members in labour court cases.

The structure of employers’ organizations will depend not only on the level at which bargaining is done, but also on the country’s size, political system and sometimes religious traditions. In developing countries, the main challenge has been the integration of a very heterogeneous membership that may include small and medium-sized businesses, state enterprises and subsidiaries of multinational corporations. The strength of an employers’ organi-zation is reflected in the resources its members are willing to devote to it, whether in the form of dues and contributions or in terms of their expertise and time.

The size of an enterprise is a major determinant in its approach to labour relations, with the employer of a small workforce being more likely to rely on informal means for dealing with its workers. Small and medium-sized enterprises, which are variously defined, sometimes fall under the threshold for legally mandated workers’ participation schemes. Where collective bargaining occurs at the enterprise level, it is much more likely to exist in large firms; where it takes place at the industry or national level, it is more likely to have an effect in areas where large firms have historically dominated the private sector market.

As interest organizations, employers’ organizations—like trade unions—have their own problems in the areas of leadership, internal decision-making and member participation. Since employers tend to be individualists, however, the challenge of marshalling discipline among the membership is even greater for employers’ organizations. As van Waarden notes (1995), “employers’ associations generally have high density ratios ... However, employers find it a much greater sacrifice to comply with the decisions and regulations of their associations, as these reduce their much cherished freedom of enterprise.” Trends in the structure of employers’ organizations very much reflect those of the labour market– towards or against centralization, in favour of or opposed to regulation of competition. Van Waarden continues: “even if the pressure to become more flexible in the ‘post-Fordist’ era continues, it does not necessarily make employers’ associations redundant or less influential ... [They] would still play an important role, namely as a forum for the coordination of labour market policies behind the scenes and as an advisor for firms or branch associations engaged in collective bargaining” (ibid., p. 104). They can also perform a solidarity function; through employers’ associations, small employers may have access to legal or advisory services they otherwise could not afford.

Public employers have come to see themselves as such only relatively recently. Initially, the government took the position that a worker’s involvement in trade union activity was incompatible with service to the sovereign state. They later resisted calls to engage in collective bargaining with the argument that the legislature, not the public administration, was the paymaster and that it was thus impossible for the administration to enter into an agreement. These arguments, however, did not prevent (often unlawful) public sector strikes in many countries and they have fallen by the wayside. In 1978, the International Labour Conference adopted the Labour Relations (Public Service) Convention (No. 151) and Recommendation (No. 159) on public employees’ right to organize and on procedures for determining their terms and conditions of employment. Collective bargaining in the public sector is now a way of life in many developed countries (e.g., Australia, France, United Kingdom) as well as in some developing countries (e.g., many francophone African countries and many countries in Latin America).

The level of employer representation in the public sector depends largely upon the political system of the country. In some this is a centralized function (as in France) whereas in others it reflects the various divisions of government (as in the United States, where bargaining can take place at the federal, state and municipal levels). Germany presents an interesting case in which the thousands of local communities have banded together to have a single bargaining agent deal with the unions in the public sector throughout the country.

Because public sector employers are already part of the state, they do not fall under laws requiring registration of employers’ organizations. The designation of the bargaining agent in the public sector varies considerably by country; it may be the Public Service Commission, the Ministry of Labour, the Ministry of Finance or another entity altogether. The positions taken by a public employer in dealing with employees in this sector tend to follow the political orientation of the ruling political party. This may range from taking a particular stance in bargaining to a flat-out denial of the right of public employees to organize into trade unions. However, while as an employer the public service is shrinking in many countries, there is an increasing readiness on its part to engage in bargaining and consultations with employee representatives.

International Labour Federations

The international labour movement on a global, as opposed to a regional or national level, consists of international associations of national federations of labour unions. There are currently three such internationals, reflecting different ideological tendencies: the International Confederation of Free Trade Unions (ICFTU), the World Federation of Trade Unions (WFTU) and the relatively small, originally Christian, World Congress of Labour (WCL). The ICFTU is the largest, with 174 affiliated unions from 124 countries in 1995, representing 116 million trade union members. These groups lobby intergovernmental organizations on overall economic and social policy and press for worldwide protection of basic trade union rights. They can be thought of as the political force behind the international labour movement.

The industrial force of the international labour movement lies in the international associations of specific labour unions, usually drawn from one trade, industry or economic sector. Known as International Trade Secretariats (ITSs) or Trade Union Internationals (TUIs), they may be independent, affiliated to, or controlled by the internationals. Coverage has traditionally been by sector, but also in some cases is by employee category (such as white-collar workers), or by employer (public or private). For example, in 1995 there were 13 operative ITSs aligned with the ICFTU, distributed as follows: building and woodworking; chemical and mining, energy; commercial, clerical, professional and technical; education; entertainment; food, agriculture, restaurant and catering; graphic arts; journalism; metalworking; postal and telecommunications; public service; textile, garment and leather work; transport. The ITSs concentrate mainly on industry-specific issues, such as industrial disputes and pay rates, but also the application of health and safety provisions in a specific sector. They provide information, education, training and other services to affiliated unions. They also help coordinate international solidarity between unions in different countries, and represent the interests of workers in various international and regional forums.

Such action is illustrated by the international trade union response to the incident at Bhopal, India, involving the leak of methyl isocyanate, which claimed thousands of victims on 3 December 1984. At the request of their Indian national trade union affiliates, the ICFTU and the International Federation of Chemical, Energy, Mine and General Workers’ Unions (ICEM) sent a mission to Bhopal to study the causes and effects of the gas leak. The report contained recommendations for preventing similar disasters and endorsed a list of safety principles; this report has been used by trade unionists in both industrialized and developing countries as a basis of programmes for improving health and safety at work.

Source: Rice 1995.

Trade Unions

The classic definition of a trade union is “a continuous association of wage earners for the purpose of maintaining or improving the conditions of their employment” (Webb and Webb 1920). The origins of trade unions go back as far as the first attempts to organize collective action at the beginning of the industrial revolution. In the modern sense, however, trade unions arose in the later part of the nineteenth century, when governments first began to concede the unions’ legal right to exist (previously, they had been seen as illegal combinations interfering with freedom of commerce, or as outlawed political groups). Trade unions reflect the conviction that only by banding together can workers improve their situation. Trade union rights were born out of economic and political struggle which saw short-term individual sacrifice in the cause of longer-term collective gain. They have often played an important role in national politics and have influenced developments in the world of work at the regional and international levels. Having suffered membership losses, however, in recent years in a number of countries (in North America and some parts of Europe), their role is under challenge in many quarters (see figure 2). The pattern is mixed with areas of membership growth in the public service in many countries around the world and with a new lease on life in places where trade unions were previously non-existent or active only under severe restrictions (e.g., Korea, the Philippines, some countries of Central and Eastern Europe). The flourishing of democratic institutions goes hand in hand with the exercise of trade union freedoms, as the cases of Chile and Poland in the 1980s and 1990s best illustrate. A process of internal reform and reorientation to attract greater and more diverse membership, particularly more women, can also be seen within trade union circles in a number of countries. Only time will tell if these and other factors will be sufficient to deflect the counterweighing tendencies towards the “de-collectivization”, also referred to as “atomization”, of labour relations that has accompanied increased economic globalization and ideological individualism.

Figure 2.  Membership rates in trade unions, 1980-1990

In contemporary industrial relations systems, the functions fulfilled by trade unions are, like employers’ organizations, basically the following: defence and promotion of the members’ interests; political representation; and provision of services to members. The flip side of trade unions’ representative function is their control function: their legitimacy depends in part upon the ability to exert discipline over the membership, as for example in calling or ending a strike. The trade unions’ constant challenge is to increase their density, that is, the number of members as a percentage of the formal sector workforce. The members of trade unions are individuals; their dues, called contributions in some systems, support the union’s activities. (Trade unions financed by employers, called “company unions”, or by governments as in formerly Communist countries, are not considered here, since only independent organizations of workers are true trade unions.) Affiliation is generally a matter of an individual’s voluntary decision, although some unions that have been able to win closed shop or union security arrangements are considered to be the representatives of all workers covered by a particular collective bargaining agreement (i.e., in countries where trade unions are recognized as representatives of workers in a circumscribed bargaining unit). Trade unions may be affiliated to umbrella organizations at the industrial, national, regional and international levels.

Trade unions are structured along various lines: by craft or occupation, by branch of industry, by whether they group white- or blue-collar workers and sometimes even by enterprise. There are also general unions, which include workers from various occupations and industries. Even in countries where mergers of industrial unions and general unions are the trend, the situation of agricultural or rural workers has often favoured the development of special structures for that sector. On top of this breakdown there is often a territorial division, with regional and sometimes local subunits, within a union. In some countries there have been splits in the labour movement around ideological (party politics) and even religious lines which then come to be reflected in trade union structure and membership. Public sector employees tend to be represented by unions separate from those representing employees in the private sector, although there are exceptions to this as well.

The legal status of a trade union may be that of any other association, or it may be subject to special rules. A great number of countries require trade unions to register and to divulge certain basic information to the authorities (name, address, identity of officials, etc.). In some countries this goes beyond mere record-keeping to interference; in extreme cases of disregard for freedom of association principles, trade unions will need government authorization to operate. As representatives of workers, trade unions are empowered to enter into engagements on their behalf. Some countries (such as the United States) require employer recognition of trade unions as an initial prerequisite to engaging in collective bargaining.

Trade union density varies widely between and within countries. In some countries in Western Europe, for instance, it is very high in the public sector but tends to be low in the private sector and especially in its white-collar employment. The figures for blue-collar employment in that region are mixed, from a high in Austria and Sweden to a low in France, where, however, trade union political power far exceeds what membership figures would suggest. There is some positive correlation between centralization of bargaining and trade union density, but exceptions to this also exist.

As voluntary associations, trade unions draw up their own rules, usually in the form of a constitution and by-laws. In democratic trade union structures, members select trade union officers either by direct vote or through delegates to a general conference. Internal union government in a small, highly decentralized union of workers in a particular occupational group is likely to differ significantly from that found in a large, centralized general or industrial union. There are tasks to allocate among union officers, between paid and unpaid union representatives and coordination work to be done. The financial resources available to a union will also vary depending upon its size and the ease with which it can collect dues. Institution of a dues check-off system (whereby dues are deducted from a worker’s wages and paid directly to the union) alleviates this task greatly. In most of Central and Eastern Europe, trade unions that were dominated and funded by the state are being transformed and/or joined by new independent organizations; all are struggling to find a place and operate successfully in the new economic structure. Extremely low wages (and thus dues) there and in developing countries with government-supported unions make it difficult to build a strong independent union movement.

In addition to the important function of collective bargaining, one of the main activities of trade unions in many countries is their political work. This may take the form of direct representation, with trade unions being given reserved seats in some parliaments (e.g., Senegal) and on tripartite bodies that have a role in determining national economic and social policy (e.g., Austria, France, the Netherlands), or on tripartite advisory bodies in the fields of labour and social affairs (e.g., in many Latin American and some African and Asian countries). In the European Union, trade union federations have had an important impact on the development of social policy. More typically, trade unions have an influence through the exercise of power (backed up by a threat of industrial action) and lobbying political decision makers at the national level. It is certainly true that trade unions have successfully fought for greater legislative protection for all workers around the world; some believe that this has been a bittersweet victory, in the long run undermining their own justification to exist. The objectives and issues of union political action have often extended well beyond narrower interests; a prime example of this was the struggle against apartheid within South Africa and the international solidarity expressed by unions around the world in words and in deeds (e.g., organizing dockworker boycotts of imported South African coal). Whether trade union political activity is on the offence or the defence will of course depend largely on whether the government in power tends to be pro- or anti-labour. It will also depend upon the union’s relationship to political parties; some unions, particularly in Africa, were part of their countries’ struggles for independence and maintain very close ties with ruling political parties. In other countries there is a traditional interdependence between the labour movement and a political party (e.g., Australia, United Kingdom), whereas in others alliances may shift over time. In any event, the power of trade unions often exceeds what would be expected from their numerical strength, particularly where they represent workers in a key economic or public service sector, such as transport or mining.

Aside from trade unions, many other types of workers’ participation have sprung up to provide indirect or direct representation of employees. In some instances they exist alongside trade unions; in others they are the only type of participation available to workers. The functions and powers of workers’ representatives that exist under such arrangements are described in the article “Forms of workers’ participation’’.

The third type of function of trade unions, providing services to members, focuses first and foremost on the workplace. A shop steward at the enterprise level is there to ensure that workers’ rights under the collective bargaining agreement and the law are being respected–and, if not, to take action. The union officer’s job is to defend the interests of workers vis-à-vis management, thereby legitimizing his or her own representative role. This may involve taking up an individual grievance over discipline or dismissal, or cooperating with management on a joint health and safety committee. Outside the workplace, many unions provide other types of benefit, such as preferential access to credit and participation in welfare schemes. The union hall can also serve as a centre for cultural events or even large family ceremonies. The range of services a union can offer to its members is vast and reflects the creativity and resources of the union itself as well as the cultural milieu in which it operates.

As Visser observes:

The power of trade unions depends on various internal and external factors. We can distinguish between organizational power (how many internal sources of power can unions mobilize?), institutional power (which external sources of support can unions depend on?) and economic power (which market forces play into the hands of unions?) (Visser in van Ruysseveldt et al. 1995).

Among the factors he identifies for a strong trade union structure are the mobilization of a large, stable, dues-paying and well-trained membership (to this could be added a membership that reflects the composition of the labour market), avoidance of organizational fragmentation and political or ideological rifts and development of an organizational structure that provides a presence at the company level while having central control of funds and decision making. Whether such a model for success, which to date has been national in character, can evolve in the face of an increasingly internationalized economy, is the great challenge facing trade unions at this juncture.

Rights of Association and Representation

Relationship between Rights of Association and Representation and Occupational Safety and Health

Joint consultation and participation can be effective only in an environment where there is adequate recognition of and respect for the right of employers and workers to associate freely and for their organizations to be able to represent their interests effectively. In a very real sense, therefore, respect for the right to organize can be seen to be an essential precondition of an effective occupational safety and health strategy at both the national and international level and at the workplace. That being the case, it is necessary and appropriate to look more closely at ILO standards relating to freedom of association, bearing in mind their application in the context of the prevention of work-related injury and disease and the compensation and rehabilitation of those who have incurred such injury or disease. Freedom of association standards require that there be proper recognition in law and practice of the right of workers and employers to form and to join the organizations of their choice and of the right of those organizations, once established, to formulate and to implement freely their programmes.

Rights of association and representation also underpin tripartite (governments, employers and workers) cooperation in the field of occupational health and safety. Such cooperation is promoted in the context of ILO standard-setting, for example, by:

• enjoining governments to consult with representative organizations of employers and workers in relation to the formulation and implementation of policy on occupational health and safety at the national or regional level (e.g., Asbestos Convention, 1986 (No. 162), Article 4 and Occupational Safety and Health Convention, 1981 (No. 155), Articles 1 and 8)
• encouraging joint consultation and cooperation on occupational safety and health matters at the level of the workplace (e.g., Prevention of Major Industrial Accidents Convention, 1993 (No. 174), Article 9(f) and (g))
• requiring the joint participation of employers and workers in the formulation and implementation of occupational safety and health policy in the workplace (see especially Occupational Safety and Health Convention, 1981 (No. 155), Articles 19 and 20 and Occupational Safety and Health Recommendation, 1981 (No. 164), para 12).

ILO and Rights of Association and Representation

The “right of association for all lawful purposes by the employed as well as by the employers” was one of the methods and principles set out in Article 41 of the original Constitution of the ILO. This principle now finds express recognition in the Preamble to the Constitution as one of the essential preconditions of the establishment of social justice, which is itself seen as the essential precondition of universal and lasting peace. Together with the principle of tripartism, it is also accorded express recognition in Article I of the Declaration of Philadelphia, which was appended to the Constitution in 1946. This Constitutional endorsement of the importance of respect for the principles of freedom of association helps provide one of the juridical bases for the capacity of the Fact-Finding and Conciliation Commission on Freedom of Association and the Governing Body’s Committee on Freedom of Association to inquire into alleged breaches of the principles of freedom of association.

As early as 1921 the International Labour Conference adopted the Right of Association (Agriculture) Convention (No. 11), which requires ratifying States to “secure to all those engaged in agriculture the same rights of association and combination as to industrial workers”. It does not, however, say anything about the rights which are to be accorded to the industrial workers with whom those engaged in agriculture are to enjoy parity! Attempts to adopt a more general instrument dealing with freedom of association in the 1920s foundered upon the rocks of employer and government insistence that the right to form and join trade unions must be accompanied by a correlative right not to join. The matter was re-opened in the period immediately after the Second World War. This duly resulted in the adoption of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Conventions Nos. 87 and 98 are among the most important and the most widely ratified of all ILO Conventions: as of 31 December 1996, Convention No. 87 had attracted 119 ratifications, while No. 98 had attracted 133. Between them they embody what can properly be regarded as the four key elements in the notion of freedom of association. They are regarded as the benchmark for the international protection of freedom of association for trade union purposes, as reflected, for example, in Article 8 of the International Covenant on Economic, Social and Cultural Rights and Article 22 of the International Covenant on Civil and Political Rights. Within the ILO structure, they form the basis for the principles of freedom of association as developed and applied by the Governing Body’s Committee on Freedom of Association and the Fact-Finding and Conciliation Commission on Freedom of Association, even though in technical terms those bodies derive their jurisdiction from the Constitution of the Organization rather than the Conventions. They also constitute a major focus for the deliberations of the Committee of Experts on the Application of Conventions and Recommendations and of the Conference Committee on the Application of Conventions and Recommendations.

Despite the pivotal role of Conventions Nos. 87 and 98, it should be appreciated that they are by no means the only formal standard-setting instruments which have been adopted under the auspices of the ILO in the field of freedom of association. On the contrary, since 1970 the Conference has adopted further four Conventions and four Recommendations dealing in greater detail with various aspects of the principles of freedom of association, or with their application in certain specific contexts:

• the Workers’ Representatives Convention (No. 135) and Recommendation (No. 143), 1971
• the Rural Workers’ Organizations Convention (No. 141) and Recommendation (No. 149), 1975
• the Labour Relations (Public Service) Convention (No. 151) and Recommendation (No. 158), 1978
• the Collective Bargaining Convention (No. 154) and Recommendation (No. 163), 1981

Principles of Freedom of Association

The core elements

The core elements of the principles of freedom of association as embodied in Conventions Nos. 87 and 98 are:

• that “workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization” (Article 2 of Convention No. 87)
• that organizations of employers and workers, once established, should have the right “to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes” (Article 3(1) of Convention No. 87). Furthermore, the public authorities must “refrain from any interference which would restrict this right or impede the lawful exercise thereof” (Article 3(2))
• that workers are to enjoy “adequate protection against acts of anti-union discrimination in respect of their employment” (Article 1(1) of Convention No. 98)
• that “measures appropriate to national conditions shall be taken, where necessary, to encourage and to promote the full development and utilization of machinery for voluntary negotiation between employers and employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements” (Article 4 of Convention No. 98)

All of the guarantees provided by Convention No. 87 are subject to the proviso set out in Article 8(1): “in exercising the rights provided for in this Convention workers and employers and their respective organizations... shall respect the law of the land”. This in turn is subject to the further proviso that the “law of the land shall not be such as to impair, nor shall it be applied so as to impair, the guarantees provided for in this Convention.”

It should also be noted that by virtue of Article 9(1) of Convention No. 87 it is permissible, but not necessary, to qualify the application of the guarantees set out in that Convention to members of the police and of the armed forces. Article 5(1) of Convention No. 98 is to the same effect, while Article 6 of that instrument stipulates that the Convention “does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.”

The right to join

The right of workers and employers to form and to join the organizations of their choice is the pivot of all of the other guarantees provided by Conventions Nos. 87 and 98 and by the principles of freedom of association. It is subject only to the qualification set out in Article 9(1) of the Convention. This means that it is not permissible to deny any group of workers other than members of the police or the armed forces the right to form or join the trade unions of their choice. It follows that denial or restriction of the right of public servants, agricultural workers, school teachers and so on to form or join the organizations of their choice would not be consistent with the requirements of Article 2.

It is, however, permissible for the rules of a trade union or an employer organization to restrict the categories of workers or employers who may join the organization. The point is that any such restriction must be the result of the free choice of the members of the organization – it must not be imposed from outside.

The right to associate set out in Article 2 is not accompanied by any correlative right not to associate. It will be recalled that earlier attempts to adopt a general freedom of association convention failed because of the insistence by employer and some government delegates that the positive right to associate must carry with it a negative right not to associate. This issue was again raised in the context of the debates on Conventions Nos. 87 and 98. However on this occasion a compromise was effected whereby the Conference adopted a resolution to the effect that the extent to which trade union security devices (such as the “closed” or “agency” shop and check-off arrangements for trade union dues) were permissible or otherwise was a matter to be determined by national law and practice. In other words, the Conventions are considered neither to condone nor to condemn the closed shop and other forms of union security device, although such measures are not regarded as acceptable if they are imposed by law rather than adopted by agreement of the parties (ILO 1994b; ILO 1995a).

Perhaps the most difficult issue which has arisen in the context of Article 2 relates to the extent to which it can be said to endorse the notion of trade union pluralism. In other words, is it consistent with Article 2 for the law to limit, directly or indirectly, the right of workers (or employers) to form or join the organization of their choice through the application of administrative or legislative criteria?

There are two sets of competing interests in this context. On the one hand, Article 2 is clearly meant to protect the right of workers and employers to choose the organization to which they wish to belong and to choose not to belong to organizations with which they are out of sympathy on political, denominational or other grounds. On the other hand, governments (and indeed trade unions) may argue that the excessive proliferation of trade unions and employer organizations which may be an incident of unrestricted freedom of choice is not conducive to the development of free and effective organizations or the establishment and maintenance of orderly industrial relations processes. This was an issue of particular difficulty in the Cold War era, when governments often sought to restrict the range of unions to which workers could belong on ideological grounds. It remains a highly sensitive issue in many developing countries where governments, for good reason or ill, wish to prevent what they see as the excessive proliferation of trade unions by placing restrictions on the number and/or size of unions which can operate in a given workplace or sector of the economy. The ILO’s supervisory bodies have tended to adopt a fairly restrictive approach to this issue, permitting trade union monopolies where they are the result of the free choice of the workers in the country concerned and permitting the adoption of “reasonable” registration criteria, but taking exception to legally imposed monopolies and “unreasonable” registration criteria. In doing so, they have attracted considerable criticism, especially from governments in developing countries which accuse them of adopting a Eurocentric approach to the application of the Convention – the point being that the characteristically European concern with the rights of the individual is said to be inconsistent with the collectivist traditions of many non-European cultures.

Organizational autonomy and the right to strike

If Article 2 of Convention No. 87 protects the fundamental right of employers and workers to form and to join the organization of their choice, then Article 3 can be seen to provide its logical corollary by protecting the organizational autonomy of organizations once established.

As the wording of Article 3(1) clearly indicates, this would include the drafting, adoption and implementation of the constitutions and rules of organizations and the conduct of elections. However, the supervisory bodies have accepted that it is permissible for the public authorities to impose minimum conditions upon the content or administration of rules for the purpose of “ensuring a sound administration and preventing legal complications arising as a result of constitutions and rules being drawn up in insufficient detail” (ILO 1994b). However, if such conditions are excessively detailed or onerous in application then they are likely to be adjudged to be inconsistent with the requirements of Article 3.

Over the years the supervisory bodies have consistently taken the view that “the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87” (ILO 1994b):

The Committee [of Experts] considers that the right to strike is one of the essential means available to workers and their organizations for the protection of their economic and social interests. These interests not only have to do with obtaining better working conditions and pursuing collective demands of an occupational nature, but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are of direct concern to the workers.

This is one of the most controversial aspects of the entire jurisprudence relating to freedom of association and in recent years in particular it has come in for vigorous criticism from employer and government members of the Conference Committee on the Application of Conventions and Recommendations. (See, for example, International Labour Conference, 80th Session (1993), Record of Proceedings, 25/10-12 and 25/58-64 and International Labour Conference, 81st Session (1994), Record of Proceedings, 25/92-94 and 25/179-180.) It is, however, a firmly entrenched feature of the jurisprudence on freedom of association. It finds clear recognition in Article 8(1) (d) of the International Covenant on Economic, Social and Cultural Rights and was endorsed by the Committee of Experts in its 1994 General Survey on Freedom of Association and Collective Bargaining (ILO 1994b).

It is important to appreciate, however, that the right to strike as recognized by the supervisory bodies is not an unqualified one. In the first place, it does not extend to those groups of workers in relation to whom it is permissible to attenuate the guarantees set out in Convention No. 87, namely members of the police and armed forces. Furthermore, it has also been determined that the right to strike may legitimately be denied to “public servants acting as agents of the public authority” and to workers engaged in essential services in the sense of “services whose interruption would endanger the life, personal safety or health of the whole or part of the population.” However, any restrictions upon the right to strike of workers in these latter categories must be offset by compensatory guarantees, such as “conciliation and mediation procedures leading, in the event of a deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedure, which should furthermore provide sufficient guarantees of impartiality and rapidity: arbitration awards should be binding on both parties and once issued should be implemented rapidly and completely” (ILO 1994b).

It is also permissible to impose temporary restrictions upon the right to strike in times of “acute national emergency”. More generally, it is permissible to impose preconditions such as balloting requirements, exhaustion of conciliation procedures and so on, upon the exercise of the right to strike. However, all such restrictions must “be reasonable and... not such as to place a substantial limitation on the means of action open to trade union organizations”.

The right to strike is often described as the weapon of last resort in collective bargaining. If Article 3 is interpreted so as to protect the weapon of last resort, it seems reasonable to suppose that it must also protect the process of collective bargaining itself. The supervisory bodies have indeed taken this view on a number of occasions, but in general they have preferred to base their jurisprudence on collective bargaining upon Article 4 of Convention No. 98. (For more detailed discussion of the ILO jurisprudence on the right to strike, see Hodges-Aeberhard and Odero de Dios 1987; Ben-Israel 1988).

The autonomy of organizations of employers and workers is also addressed in Articles 4 to 7 of Convention No. 87 and in Article 2 of Convention No. 98. Article 4 provides that such organizations must not be “liable to be dissolved or suspended by administrative authority”. This does not mean that trade unions or employers’ organizations cannot be deregistered or dissolved where they have, for example, engaged in gross industrial misconduct or have not been run in accordance with their rules. But it does mean that any such sanction must be imposed through a duly constituted court or other appropriate body, rather than by administrative diktat.

Article 5 protects the rights of organizations to form and join federations and confederations and also the right of organizations, federations and confederations to affiliate with international organizations of employers and workers. Furthermore, according to Article 6, the guarantees set out in Articles 2, 3 and 4 apply to federations and confederations in the same way as to first level organizations, while Article 7 stipulates that the acquisition of legal personality by organizations of employers or workers must not be made subject to “conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4.”

Finally, Article 2(1) of Convention No. 98 requires that organizations of employers and workers are to enjoy “adequate protection against acts of interference by each other or each other’s agents or members in their establishment, functioning or administration”. In practical terms, it seems somewhat unlikely that trade unions would or could effectively interfere with the internal functioning of employer organizations. It is quite conceivable, however, that in certain circumstances employers or their organizations would seek to interfere with the internal affairs of workers’ organizations – for example, by providing some or all of their funds. This possibility finds express recognition in Article 2(2):

In particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations, shall be deemed to constitute acts of interference within the meaning of this Article.

Protection against victimization

For the guarantees set out in Conventions Nos. 87 and 98 to be meaningful in practice, it is clearly necessary that individuals who exercise their right to form or join organizations of workers be protected against victimization on account of having done so. This logic finds recognition in Article 1(1) of Convention No. 98, which, as indicated, requires that “workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.” Article 1(2) takes the matter further:

Such protection shall apply more particularly in respect of acts calculated to:

(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.

Anti-union discrimination for these purposes would include refusal to employ, dismissal and other measures such as “transfer, relocation, demotion, deprivation or restrictions of all kinds (remuneration, social benefits, vocational training)” which may cause serious prejudice to the worker concerned (see also Termination of Employment Convention, 1982 (No. 158), Article 5(a), (b) and (c), as well as ILO 1994b, para.212).

Not only must there be comprehensive protection against anti-union discrimination as defined, but by virtue of Article 3 of Convention No. 98, there must also be effective means of enforcing those protections:

Legal standards are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive penal sanctions to ensure their application ... The onus placed on the employer to prove the alleged anti-union discriminatory measures are connected with questions other than trade union matters, or presumptions established in the worker’s favour are additional means of ensuring effective protection of the right to organize guaranteed by the Convention. Legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in any case of unjustified dismissal... is inadequate under the terms of Article 1 of the Convention. Legislation should also provide effective means for implementing means of compensation, with the reinstatement of the dismissed worker, including retroactive compensation, being the most appropriate remedy in such cases of anti-union discrimination (ILO 1994b).

Collective bargaining

The guarantee set out in Article 4 of Convention No. 98 has been interpreted so as to protect both the right to engage in collective bargaining and the autonomy of the bargaining process . In other words it is not consistent with Article 4 for employers and workers to be denied the right to engage in collective bargaining if they wish to do so—bearing in mind that it is not inconsistent with the Convention to deny these rights to members of the police or the armed forces and that “the Convention does not deal with the position of public servants engaged in the administration of the State”. Not only must the parties be free to engage in collective bargaining if they so choose, but they must be permitted to reach their own agreement on their own terms without interference by the public authorities – subject to certain qualifications for “compelling reasons of national economic interest” (ILO 1994) and to reasonable requirements as to form, registration and so on.

Article 4 has not, however, been interpreted as protecting the right to recognition for purposes of collective bargaining. The supervisory bodies have repeatedly emphasized the desirability of such recognition, but have not been prepared to take the further step of determining that refusal to recognize and/or the absence of a mechanism whereby employers can be obliged to recognize the unions to which their employees belong constitutes a breach of Article 4 (ILO 1994b; ILO 1995a). They have justified this interpretation on the basis that compulsory recognition would deprive collective bargaining of its voluntary character as envisaged by Article 4 (ILO 1995a). As against that, it might be argued that the ostensible right to engage in collective bargaining must inevitably be compromised if employers are to be free to refuse to engage in such bargaining notwithstanding that they have the right so to bargain if they wish. Furthermore, permitting employers to refuse to recognize the unions to which their employees belong seems to sit somewhat uneasily with the duty to “promote” collective bargaining, which appears to be the principal purpose of Article 4 (Creighton 1994).

Application of Freedom of Association Principles in the Context of Occupational Safety and Health

It was suggested earlier that ILO standards relating to occupational safety and health endorse the concept of bipartite or tripartite involvement in three principal contexts: (1) the formulation and implementation of policy at national and regional level; (2) consultation between employers and workers at the level of the workplace; and (3) joint participation between employers and workers in the formulation and implementation of policy at the level of the workplace. It should be clear from the foregoing that the effective involvement of employers and (especially) workers in all three contexts is crucially dependent upon adequate recognition of their rights of association and representation.

Respect for the right to form and to join organizations is clearly an essential precondition of all three forms of joint involvement. Consultation and participation at the governmental level is feasible only where there are strong and effective organizations which can be seen to be representative of the interests of their constituencies. This is necessary both for ease of communication and so that government will feel constrained to take seriously the views expressed by the representatives of employers and workers. A fortiori , consultation and participation at the level of the workplace is a realistic proposition only if workers have the capacity to form and to join organizations which can represent their interests in discussions with employers and their organizations, provide back-up resources for worker representatives, assist in dealings with public inspectorates and so on. Theoretically, worker representatives could operate at the level of the workplace without having any necessary connection with a more broadly based organization, but the reality of power relations in most workplaces is such that they are unlikely to be able to do so in an effective manner without the support of an industrial organization. At the very least, workers must have the right to have their interests represented in this manner if they so choose.

The organizational autonomy of employer and worker organizations is also an essential precondition of meaningful participation at all levels. It is necessary, for example, that worker organizations should have the right to formulate and to implement their policies on occupational safety and health issues without outside interference, for purposes of consultation with government in relation to: (1) issues such as the legal regulation of hazardous processes or substances; or (2) the formulation of legislative policy relating to compensation for work-related injury or the rehabilitation of injured workers. Such autonomy is even more important at the level of the workplace, where worker organizations need to develop and maintain a capacity to represent the interests of their members in discussion with employers on occupational safety and health issues. This might include having rights of access to workplaces for union officials and/or health and safety specialists; invoking the assistance of the public authorities in relation to hazardous situations; and in certain circumstances organizing industrial action in order to protect the health and safety of their members.

To be effective, organizational autonomy also requires that trade union members and officials be accorded adequate protection against victimization on grounds of their trade union membership or activities, or on account of their having initiated or participated in legal proceedings relating to occupational safety and health matters. In other words, the guarantees against discrimination set out in Article 1 of Convention No. 98 are as relevant to trade union activity relating to occupational safety and health as to other forms of union activity such as collective bargaining, membership recruitment and so on.

The right to engage in autonomous collective bargaining is also a crucial element in effective worker participation in relation to occupational safety and health. The guarantees set out in Article 4 of Convention No. 98 are important in this context. However, as indicated, those guarantees do not extend to the right to be recognized for purposes of such bargaining. On the other hand provisions such as Article 19 of the Occupational Safety and Health Convention, 1981 (No. 155) may be seen as coming very close to requiring trade union recognition in the context of occupational safety and health:

There shall be arrangements at the level of the undertaking under which:

• representatives of workers in an undertaking are given adequate information on measures taken by the employer to secure occupational safety and health and may consult their representative organizations about such information provided they do not disclose commercial secrets;
• workers and their representatives in the undertaking are given appropriate training in occupational safety and health;
• workers or their representatives and, as the case may be, their representative organizations in an undertaking, in accordance with national law and practice, are enabled to inquire into, and are consulted by the employer on, all aspects of occupational safety and health associated with their work...

In practical terms it would be very difficult to give effect to these provisions without according some kind of formal recognition to the role of workers’ organizations. This in turn serves to emphasize yet again the importance of adequate recognition of rights of association and representation as a precondition of the development and implementation of effective occupational safety and health strategies at both the national and enterprise level.

Collective Bargaining and Safety and Health

Collective bargaining is the process through which workers negotiate, as a group, with their employer; this can occur at various levels (enterprise, industry/sector, national). Traditionally, the subjects of the negotiation are wages, benefits, working conditions and fair treatment. However, collective bargaining can also address issues that do not directly affect the workers employed in the enterprise, such as increased old-age pensions for workers already retired. Less often, collective bargaining addresses issues that reach well beyond the workplace, such as protection of the external environment.

In a very small enterprise, it is possible for all the workers to negotiate as a body with their employer. This kind of informal collective bargaining has existed for centuries. Today, however, most collective bargaining is carried out by workers’ organizations, or unions.

The definition used in the ILO Convention concerning the promotion of collective bargaining, 1981 (No.154), Article 2, is broad:

...the term... extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more workers’ organizations, on the other, for –

(a) determining working conditions and terms of employment; and/or

(b) regulating relations between employers and workers; and/or

(c) regulating relations between employers or their organizations and a workers’ organization or workers’ organizations.

Collective bargaining is an important tool for raising living standards and improving working conditions. Even though safety and health is addressed in the national law of almost all countries, collective bargaining often provides the mechanism through which the law is implemented in the workplace. For example, the law may mandate joint safety and health committees or works councils, but leave the details to be negotiated between the employer and the workers’ organization.

Unfortunately, collective bargaining is under attack by authoritarian employers and repressive governments, both in developed and developing countries. It rarely exists in the informal sector or in small, traditional enterprises. As a result, the majority of the world’s workers do not yet enjoy the benefits of effective collective bargaining under a framework of worker rights guaranteed by law.

History of Union Action for Safety and Health

There is a long history of workers’ organizations taking collective action for safety and health. In 1775, Percival Pott, an English surgeon, made the first known report of occupational cancer – skin cancer in London chimney sweeps (Lehman 1977). Two years later the Danish Chimney Sweepers Guild, in what was the first known response by a workers’ organization to the threat of occupational cancer, ordered that apprentices be given the means for a daily bath.

The Labour Agreement between the Bethlehem Steel Corporation and the United Steelworkers of America

The agreement between Bethlehem Steel and the United Steelworkers of America is typical of company-wide agreements in large unionized manufacturing enterprises in the United States. Steel industry labour agreements have contained safety and health articles for more than 50 years. Many provisions negotiated in the past gave workers and the union rights that were later guaranteed by law. Despite this redundancy, the provisions still appear in the contract as a hedge against changes in the law, and to allow the union the option of taking violations to impartial arbitration rather than the courts.

The Bethlehem agreement runs from 1 August 1993 to 1 August 1999. It covers 17,000 workers in six plants. The full agreement is 275 pages long; 17 pages are devoted to safety and health.

Section 1 of the safety and health article pledges the company and the union to cooperate in the objective of eliminating accidents and health hazards. It obligates the company to provide safe and healthful workplaces, obey federal and state law, provide employees with the necessary protective equipment free of charge, provide chemical safety information to the union and inform workers of the hazards and controls for toxic substances. It grants the union’s central safety and health department the right to any information in the company’s possession that is “relevant and material” to an understanding of potential hazards. It requires the company to make air sampling tests and environmental investigations at the request of the union co-chairperson of the plant’s safety and health committee.

Section 2 sets up joint union-management safety and health committees at the plant and national levels, prescribes the rules under which they operate, mandates training for committee members, gives members of the committee access to all parts of the plant to facilitate the committee’s work and specifies the applicable rates of pay for committee members on committee business. The section also specifies how disputes over protective equipment are to be resolved, requires the company to notify the union of all potentially disabling accidents, sets up a system of joint accident investigation, requires the company to gather and supply to the union certain safety and health statistics, and establishes an extensive safety and health training programme for all employees.

Section 3 gives workers the right to remove themselves from work involving hazards beyond those “inherent in the operation” and provides an arbitration mechanism through which disputes over such work refusals can be resolved. Under this provision, a worker cannot be disciplined for acting in good faith and on the basis of objective evidence, even if a subsequent investigation shows that the hazard did not in fact exist.

Section 4 specifies that the committee’s role is advisory, and that committee members and officers of the union acting in their official capacity are not to be held liable for injuries or illnesses.

Section 5 states that alcoholism and drug abuse are treatable conditions, and sets up a programme of rehabilitation.

Section 6 establishes an extensive programme for controlling carbon monoxide, a serious hazard in primary steel production.

Section 7 provides workers with vouchers for the purchase of safety shoes.

Section 8 requires the company to keep individual medical records confidential except in certain limited circumstances. However, workers have access to their own medical records, and may release them to the union or to a personal physician. In addition, physicians for the company are required to notify workers of adverse medical findings.

Section 9 establishes a medical surveillance programme.

Section 10 establishes a programme for investigating and controlling the hazards of video display terminals.

Section 11 establishes full-time safety representatives in each plant, chosen by the union but paid by the company.

In addition, an appendix to the agreement commits the company and the union to review each plant’s safety programme for mobile equipment operating on rails. (Fixed rail equipment is the leading cause of death by traumatic injury in the American steel industry.)

However, safety and health seldom was an explicit issue in early labour struggles. Workers in dangerous jobs were overwhelmed by more pressing problems, such as low wages, crushing hours of work and the arbitrary power of factory and mine owners. Safety hazards were obvious in the daily toll of injury and death, but occupational health was not well understood. Workers’ organizations were weak and under constant attack by owners and governments. Simple survival was the primary goal of workers’ organizations. As a result, the grievances of nineteenth-century workers rarely manifested themselves in campaigns for safer conditions (Corn 1978).

However, safety and health sometimes joined other issues in early labour struggles. In the late 1820s, workers in the textile industry in the United States began to agitate for shorter working hours. Many of the workers were women, as were the leaders of such rudimentary unions as the female labour reform associations of New England. The proposed 10-hour day was seen mostly as an issue of general welfare. But in testimony before the Massachusetts legislature, workers also decried the effects of 12- and 14-hour days in badly ventilated mills, describing a “wasting sickness” they attributed to cotton dust and bad ventilation, in what are now recognized as some of the first reports of byssinosis. They had little success in winning recognition from the mill owners, or action from the legislature (Foner 1977).

Other union actions dealt more with the effects of occupational hazards than with their prevention. Many nineteenth-century unions adopted welfare programmes for their members, including disability payments to the injured and benefits for survivors. US and Canadian mining unions went one step further, establishing hospitals, clinics and even cemeteries for their members (Derickson 1988). While unions attempted to negotiate better conditions with employers, most agitation for safety and health in North America was in mines aimed at state and provincial legislatures (Fox 1990).

In Europe, the situation began to change around the turn of the century with the rise of stronger workers’ organizations. In 1903, the German and French painters’ unions began a campaign against the hazards of lead paint. The Factory Workers Union of Germany had an active industrial hygiene programme by 1911, published education materials on chemical hazards and began a campaign for safeguards against chromate-induced lung cancer, ultimately leading to a change in the production method. Trade unions in the United Kingdom represented their members in workers’ compensation cases and fought for better laws and regulations. Their work showed the interplay between collective bargaining for safety and health and the factory inspection system. In 1905, for example, trade unions filed 268 complaints with the British factory inspectorate (Teleky 1948). As early as 1942, the Swedish Employers’ Confederation and the Swedish Confederation of Trade Unions reached a nationwide Working Environment Agreement regarding local safety and health services. The agreement has been revised and extended several times; in 1976 the original parties were joined by the Federation of Salaried Employees (Joint Industrial Safety Council of Sweden 1988).

North America lagged behind. Formal corporate safety programmes were instituted by some large employers around the turn of the century (for a description of such programmes in the steel industry see Brody (1960), or the self-congratulatory Year Book of the American Iron and Steel Institute for 1914 (AISI 1915)). The programmes were highly paternalistic, relied more on discipline than education and often were based on the premise that workers themselves were largely to blame for industrial accidents. Major disasters such as New York’s 1911 Triangle Shirtwaist Fire, which killed 146 workers, led to union campaigns for improvement and ultimately to improved fire safety laws. However, safety and health as a widespread labour issue came only with the rise of strong unions in the 1930s and 1940s. In 1942, for example, the founding Constitution of the United Steelworkers of America required every local union to establish a safety and health committee. By the mid-1950s, joint labour-management safety and health committees had been established in most unionized mines and manufacturing plants and in many other workplaces in the construction and service sector; most union contracts included a section on safety and health.

Process of Collective Bargaining

It is common to think of collective bargaining as a formal process that occurs at regular intervals and which results in a written agreement between the workers’ organization and the employer or employers. This kind of bargaining presupposes a succession of demands or proposals, counterproposals and extended deliberations. The process can produce a variety of results: a collective bargaining contract, letters of understanding, joint declarations or mutually agreed codes of practice.

However, collective bargaining can also be understood as a continuous process for solving problems as they arise. This kind of collective bargaining occurs every time a shop steward meets with an area supervisor to settle a dispute or grievance, every time a joint safety and health committee meets to discuss problems in the plant, every time a joint union-management team considers a new company programme.

It is this flexibility of collective bargaining which helps ensure its continued viability. There is, however, one precondition for formal or informal bargaining: for negotiations to be a success, the representatives of both sides must have the authority to bargain and to strike a deal that is meant to be honoured.

Collective bargaining is sometimes seen as a test of strength, in which a gain for one side is a loss for the other. A wage increase, for example, is seen as a threat to profits. A no-layoff agreement is seen as limiting management’s flexibility. If bargaining is seen as a contest, it follows that the most important determinant of the final outcome is the relative power of the parties. For the workers’ organization, this means the ability to halt production through a strike, organize a boycott of the employer’s product or service or bring some other form of pressure to bear, while maintaining the loyalty of the organization’s members. For an employer, power means the ability to resist such pressures, replace the striking workers in countries where this is permitted or hold out until hardship forces workers back to the job under management’s conditions.

Of course, the vast majority of labour negotiations end successfully, without a work stoppage. Nevertheless, it is the threat of one that leads both sides to seek a settlement. This kind of negotiation is sometimes called positional bargaining, because it begins with each side taking a position, after which both sides move by increments until a compromise is reached, based on their relative strengths.

A second model of collective bargaining describes it as a mutual search for an optimum solution (Fisher and Ury 1981). This kind of bargaining assumes that a proper agreement can lead to gains for both parties. A wage increase, for example, can be offset by greater productivity. A no-layoff agreement can encourage workers to improve efficiency, since their jobs will not be threatened as a result. Such bargaining is sometimes called “mutual gains” or “win-win” bargaining. What is most important is the ability of each side to understand the interests of the other and to find solutions that maximize both. Occupational safety and health is frequently seen as an ideal subject for mutual gains bargaining, since both sides are interested in avoiding occupational accidents and disease.

In practice, these models of bargaining are not mutually exclusive and both are important. Skilled bargainers will always seek to understand their counterparts and search for areas where both sides can benefit from a wise agreement. However, it is unlikely that a party without power will accomplish its objectives. There will always remain areas where the parties perceive their interests to be different. Good faith negotiation works best when both sides fear the alternative.

Power is important even in negotiations over safety and health. An enterprise may be less interested in reducing the accident rate if it can externalize the cost of the accidents. If injured workers can be replaced easily and cheaply, without substantial compensation, management may be tempted to avoid expensive safety improvements. This is especially true in the case of occupational diseases with long latency periods, where cost of controls is paid when the controls are installed, while the benefits may not accrue for many years. As a result, a workers’ organization is more likely to succeed if workers have the power to stop production or to call a government inspector if the parties fail to negotiate a solution.

Legal Framework

ILO Conventions on freedom of association, on protection of the rights to organize and to engage in collective bargaining and the ILO Conventions and Recommendations on occupational safety and health recognize the role of workers’ organizations. While these instruments provide an international framework, workers’ rights can be assured only through national law and regulation.

Of course, the legal basis for collective bargaining, the level at which bargaining occurs and even the process of bargaining all vary by country. The legislation of most industrialized countries includes a system for regulating collective bargaining. Even within Europe, the degree of regulation can differ widely, from a minimal approach in Germany to a much more developed one in France. The legal effect of a collective agreement also varies. In most countries an agreement is legally enforceable; in the United Kingdom, however, agreements are seen as informal, to be applied by virtue of the parties’ good faith backed up by the threat of a work stoppage. It is expected that this variability within Europe will diminish as a result of greater European unification.

The level of bargaining also varies. The United States, Japan and most Latin American countries feature bargaining at the level of the individual enterprise, although unions often attempt to negotiate “pattern” agreements with all the major employers in a given sector. At the other extreme, Austria, Belgium and the Nordic countries tend to have highly centralized bargaining in which most workplaces are subject to a framework agreement negotiated between national federations representing unions and employers. Sectoral agreements covering particular industries or occupations are common in some countries such as Germany and France.

French-speaking African countries tend to follow the example of France and bargain by industry. Some English-speaking developing countries also bargain by industry. In others, multiple trade unions bargain on behalf of different groups of workers in a single enterprise.

The level of bargaining partially determines the coverage of collective agreements. In France and Germany, for example, collective agreements are usually extended to cover everyone coming within the scope of the occupation or industry to which the agreement applies. On the other hand, in the United States and other countries with enterprise-level bargaining, collective agreements cover only those workplaces where the union has been recognized as the bargaining agent.

An even more important factor in determining the coverage of collective bargaining is whether national law facilitates or impedes unionization and collective bargaining. For example, public sector employees are not permitted to bargain collectively in some countries. In others, public sector unions are growing rapidly. As a result of such factors, the percentage of workers covered by collective agreements varies from a high of almost 90 per cent in Germany and the Nordic countries to under 10 per cent in many developing countries.

The legal framework also affects how collective bargaining applies to occupational safety and health. For example, the United States Occupational Safety and Health Act gives workers’ organizations the right to information on dangerous chemicals and other hazards in the plant, the right to accompany a workplace inspector and a limited right to participate in legal cases brought by the Government against an employer for a violation of standards.

Many countries go further. Most industrialized countries require most enterprises to establish joint safety and health committees. The Canadian Province of Ontario requires that certified safety and health representatives be chosen by the workers in most workplaces and given a standard course of training at employer expense. The Swedish Work Environment Act requires the appointment of safety delegates by the local trade union organization. Swedish safety delegates have broad rights to information and consultation. Most important, they have the power to suspend dangerous work pending a review by the Swedish Labour Inspectorate.

These laws strengthen the collective bargaining process on issues of safety and health. Mandatory joint safety committees provide a routine mechanism for negotiation. Training gives union representatives the knowledge they need to participate effectively. The right to suspend dangerous work helps keep both parties focused on eliminating the source of danger.

Contract and Labour Law Enforcement

Of course, labour agreements are of limited value without an enforcement mechanism. A strike is one method by which a workers’ organization can respond to an alleged violation by the employer; conversely, the employer can engage in a lockout, denying employment to members of the workers’ organization until the dispute is resolved. However, most labour agreements in developed countries rely on less disruptive methods of enforcement. In fact, many labour agreements bar strikes or lockouts during the life of the agreement (no-strike clauses or peace obligations). Some restrict them to a limited set of circumstances; for example, the contracts negotiated in the United States between the United Automobile Workers and the major auto companies allow strikes over unsafe working conditions, but not over wages or benefits during the term of the agreement.

A common enforcement mechanism in developed countries is a system of arbitration, in which disputes are referred to an impartial referee chosen jointly by the employer and the workers’ organization. In some cases, disputes may be resolved by the judicial system, either in the regular courts or in special labour courts or boards. In the United States, for example, a dispute over contract interpretation usually will go to arbitration. However, if the losing side refuses to abide by the arbitrator’s decision, the winning side can seek to have the decision enforced by the courts. A quasi-judicial body in the United States, the National Labor Relations Board, hears complaints concerning unfair labour practices, such as the failure of one side to bargain in good faith. In many other countries, labour courts fulfil this role.

Collective Bargaining Today

Collective bargaining is a dynamic process in all industrial relations systems where it is practised. The situation in Europe is changing rapidly. The Nordic countries are characterized by comprehensive working environment agreements negotiated on a national basis, integrated with highly developed national laws. Unionization is very high; labour agreements and the law establish joint committees and worker safety representatives in most workplaces. Collective bargaining mechanisms for safety and health and unionization rates, are less extensive in other European countries. Member States of the European Union face the task of harmonizing national laws under the Single European Act and the Framework Directive on safety and health (Hecker 1993). European trade unions are seeking to coordinate their efforts, primarily through the European Trade Union Confederation. There are some signs that national bargaining ultimately will be replaced or, more likely, supplemented by agreements at the European level, although employer resistance to this is high. The first example of such Europe-wide bargaining was over parental leave. In the area of safety and health, the GMB union in the United Kingdom has proposed an ambitious Europe-wide Work Environment Fund, based on similar funds in the Nordic Countries.

Central and Eastern Europe and the countries of the former Soviet Union, are changing even more rapidly. Safety and health regulations were extensive under Communism, but rarely enforced. Trade unions existed, but only under the control of the Communist Party. At the enterprise level, unions functioned as workplace labour relations departments, under the control of management, without any sort of bipartite negotiation. Newly formed independent unions helped precipitate the fall of Communism; sometimes their issues concerned working conditions or such basic sanitary measures as the provision of soap in coal mine wash houses. Today, the old unions are gone or are struggling to reconstitute themselves. The new independent unions are attempting to change from political organizations confronting the government, to collective bargaining organizations representing their members in the workplace. Bad and often deteriorating working conditions will continue to be an important issue.

The Japanese system of worker participation, continuous improvement and extensive training effectively promotes safety and health, but only where safety and health are explicit goals of the enterprise. Most Japanese unions exist only at the enterprise level; negotiations take place through a system of continuous joint consultation (Inohara 1990). Joint safety and health committees are established by the Labour Safety and Sanitation Law of 1972, as amended.

Labour agreements in the United States contain relatively extensive safety and health articles for two reasons. First, safety and health is an important issue for North American unions, as it is for workers’ organizations in all industrialized countries. However, safety and health laws in the United States lack many of the provisions found in the laws of other countries, forcing unions to bargain for rights and protections guaranteed elsewhere by law. For example, joint union-management safety and health committees are generally recognized as an important mechanism for day-to-day cooperation and negotiation between workers and employers. However, there is no requirement in the US Occupational Safety and Health Act for such committees. As a result, unions must bargain for them. And since the rate of unionization is low in the United States, most workers do not have access to joint committees. Many unions in the United States also have negotiated contract clauses barring retaliation against workers who refuse to work under abnormally hazardous conditions, since legal protections are weak and uncertain.

Canadian law varies from province to province, although it is generally stronger than in the United States. For example, unions in Canada do not need to negotiate for the existence of safety and health committees, although they may negotiate for larger ones, with more powers. Safety and health committees are also required under Mexican law.

The situation in developing countries is mixed. Workers’ organizations in developing countries like India, Brazil and Zimbabwe place a growing emphasis on safety and health through agitation for improved laws and through collective bargaining. For example, the Zimbabwe Congress of Trade Unions has fought to extend the national labour code, including its safety and health provisions, to the country’s export processing zones (see box). But trade unions are severely restricted or suppressed in many parts of the world and the vast majority of workers in developing countries do not belong to any workers’ organization or benefit from collective bargaining.

Trade Union Action in Zimbabwe

The Zimbabwe Congress of Trade Unions (ZCTU), has launched a National Campaign for the Rights of Injured Workers, which combines national level and shop floor action to seek amended laws and improved collective agreements.

Zimbabwean law has since 1990 provided for safety committees, health and safety representatives and health and safety supervisors at all workplaces. The Zimbabwe Congress of Trade Unions has insisted that worker health and safety representatives must be elected by workers. Its National Campaign covers these demands:

• Safe work. This involves identification of workplace hazards through surveys and accident investigation, as well as negotiating to improve conditions.
• Worker and union participation in workers’ health issues. This includes the rights of workers to elect their own health and safety representatives, to obtain information such as safety data sheets and factory inspector’s reports, and jointly to investigate and report accidents and injuries (as in Sweden).
• Adequate compensation and care for injured workers. This extends to a review of compensation levels.
• Job security for injured workers. Trade union representatives have negotiated a right to return to work and be assisted in placement.

For the ZCTU, a key step in accident prevention has been its training programme to increase effective worker participation in health and safety at the shop floor level. The training for worker representatives has been in carrying out walk-through surveys at workplaces and in reporting on any hazards identified - first to workers and then to management for discussion. Once in operation, union health and safety representatives have been involved in inspections and in ensuring that injuries are reported. This is particularly important in sectors that would otherwise be inaccessible, such as agriculture.

The ZCTU has also demanded an increase in penalties that may be imposed on employers found to have infringed health and safety laws. 

by Chapter Editor (excerpted from Loewenson 1992).

The Future of Collective Bargaining

Workers’ organizations and collective bargaining face difficult challenges in the years ahead. Virtually all collective bargaining takes place at the enterprise, industry or national level. In contrast, the economy is increasingly global. Apart from Europe, however, workers’ organizations have yet to develop effective mechanisms for bargaining across national boundaries. Such bargaining is a top priority for international labour federations. It can best be promoted through stronger and more effective international union structures, strong social clauses in world trade agreements and appropriate international instruments, such as those of the International Labour Organization. For example, the ILO Tripartite Declaration on Multinational Enterprises refers specifically to both collective bargaining and occupational safety and health. Many unions are developing direct links with their counterparts in other countries in order to coordinate their bargaining and provide mutual assistance. One example is the relationship between mining unions in the United States and Colombia (Zinn 1995).

Rapid changes in technology and work organization can overwhelm existing labour agreements. Workers’ organizations are attempting to develop a form of continuous bargaining to respond to workplace change. Workers’ organizations have long recognized the links between the working environment and the external environment. Some unions have begun to address issues of the external environment in their collective bargaining agreements and in their membership education programmes. An example is the Model Environment Agreement proposed by the Manufacturing-Science-Finance (MSF) Union in the United Kingdom.

A fundamental purpose of trade unions is to take human rights and human welfare out of economic competition – to prevent an enterprise or a nation from seeking a competitive advantage by impoverishing its workers and forcing them to work under dangerous conditions. Collective bargaining is vital to safety and health. However, workers’ organizations are essential to collective bargaining and workers’ organizations are under attack in many developed and developing countries. The survival and growth of workers’ organizations will largely determine whether most workers enjoy rising living standards and improved working conditions, or face a deteriorating cycle of poverty, injury and disease.

National Level Tripartite and Bipartite Cooperation on Health and Safety

Cooperation between workers, employers and government in the elaboration and implementation of occupational health and safety measures at the national or regional level is common in a significant number of countries. It is not unusual for interest groups and technical experts also to be involved in this process. Such cooperation is highly developed and has been institutionalized in a number of countries by the establishment of consultative and collaborative organizations. These organizations have normally been widely accepted by all labour market participants as there appears to be a general consensus that health and safety at work is a subject of common concern where dialogue between the social partners, the government and other interested parties is extremely important.

The institutions which have been established to facilitate this cooperation vary significantly in form. One approach is to establish consultative organizations either on an ad hoc or a permanent basis to give advice to the government on questions of occupational safety and health policy. The government is normally not obligated to follow the recommendations offered, but in practice they are difficult to ignore and are frequently taken into consideration in the elaboration of government policy.

The other approach is to have the social partners and other interested parties actively cooperate with the government in public institutions which have been established to implement occupational safety and health policy. Participation by non-governmental actors in public institutions with responsibility for health and safety questions at work is normally undertaken through the representation of employers’ and workers’ organizations and, in some cases, other parties, on the board of directors of the public institution concerned, although sometimes participation extends to the management and even the project level. In most cases these persons are nominated by the government on recommendation of the parties to be represented, although in some cases workers’ and employers’ organizations have the right to directly nominate their representatives to these collaborative institutions. Bodies at the national level (or regional, state or provincial level) are normally complemented by structures or arrangements at the industry, enterprise and plant level.

Advice on Policy and Standard Setting

Probably the most common form of cooperation involves the establishment of consultative organizations to give advice on policy and standard setting. Examples of this can vary between a modest approach, which involves the expenditure of relatively few resources, to more institutionalized approaches, which involve more significant amounts of resources. The United States is an example of a country where a more limited approach has been adopted. At the federal level, the National Advisory Committee on Occupational Safety and Health, established pursuant to the Occupational Safety and Health Act of 1970, is the principal permanent advisory committee. This committee, according to the Act, is to be composed of representatives of management, labor, occupational safety and health professionals and the public, with a member of the public acting as the chairperson. The committee makes recommendations to the Secretary of Labor and the Secretary of Health and Human Services. In practice, however, this committee has not met frequently. The members of the committee are not compensated and the Secretary of Labor has provided from its budget an executive secretary and other support services as needed. The costs of maintaining this committee in existence are therefore very low, although budgetary constraints now call even this support into question. A permanent committee of a similar character, the Federal Advisory Council on Occupational Safety and Health, was established in July 1971 pursuant to Executive Order 11612 to advise the Secretary of Labour on matters relating to the safety and health of federal workers.

The Occupational Safety and Health Act of 1970 also provides for the establishment of ad hoc advisory committees to assist in standard-setting functions. These advisory committees are appointed by the Secretary of Labor and are to consist of no more than 15 members, including one or more persons who are designated by the Secretary of Health and Human Services. Each standard-setting committee is to include an equal number of representatives of workers’ and employers’ organizations. The Secretary of Labor may also appoint one or more representatives of state health and safety agencies, as well as technical experts who could be, for example, representatives of professional organizations of technicians or professionals specializing in occupational health or safety, or of nationally recognized standards-producing organizations. Extensive use has been made of such standard-setting committees, which are sometimes in existence several years to accomplish the work that has been assigned to them. Meetings can be frequent, depending on the nature of the tasks to be performed. Although committee members are normally not paid, they are normally reimbursed for reasonable travel expenses and support services for the activity of these committees have been paid for by the Department of Labor as well in the past. Committees have been constituted to recommend standards with respect to agriculture, asbestos dust, carcinogens, coke oven emissions, cutaneous hazards, hazardous materials labelling, heat stress, marine terminal facilities, noise, longshoring safety and health, shipyard employment standards and steel erection rules, among other things.

Other ad hoc advisory committees of a similar character have been established pursuant to similar legislation which falls under the authority of the Secretary of Labor. For example, a number of standard-setting committees have been established pursuant to the Federal Mine Safety and Health Act of 1977. The costs involved in the establishment of such standard-setting committees, however, are relatively modest and are characterized by relatively low administrative costs, little infrastructure, voluntary participation by outside parties without compensation and dissolution of the committees upon completion of their tasks.

More elaborate institutionalized forms of consultation are, however, found in other countries. In the Netherlands, for example, the pre-eminent organization is the Working Environment Council, which was established pursuant to the Working Environmental Council Act 1990. The Council gives its views to the Ministry of Social Affairs and Employment, either when asked or on its own initiative, comments on proposed new acts and decrees and can bring forward its own proposals for new policy or legislation. The Council also gives its views about the advisability of making grants-in-aid for research on working environment issues, about the issuance of exemptions, the formulation of government guidance and the policy of the Labour Inspectorate. The Council is comprised of eight representatives from central employers’ organizations, eight from central workers’ organizations and seven from governmental bodies. Only the representatives of workers’ and employers’ organizations have the right to vote, however, and the chairperson of the Council is independent. The Council meets every month. In addition, the Council has approximately 15 different working committees for specific issues and, in addition, ad hoc working groups are established for detailed subjects when the subject matter justifies it. Within the working committees and working groups, external experts play an important role and these working organizations prepare reports and papers which are discussed at Council meetings and often form the basis for positions which are subsequently taken. The recommendations of the Council are comprehensive and are published. Although normally the parties try to achieve a consensus position, separate views can be expressed to the Minister of Social Affairs and Employment when employers’ and workers’ representatives cannot find common ground. More than 100 persons are involved in the work of the Council and its subsidiary organizations and thus it is supported by significant financial and administrative resources.

Other less prominent consultative organizations exist in the Netherlands for more specific occupational safety and health issues. These include the Foundation for the Working Environment in Building Construction, the Foundation for Health Care in Agriculture, the Commission for the Prevention of Disasters by Dangerous Substances and the Commission for the Labour Inspectorate and Enforcement Policy.

Examples of other countries which have consultative organizations of a bipartite, tripartite or multipartite character to give recommendations on occupational safety and health policy and standards include: Canada (ad hoc committees on legislative reform and standard setting – federal level; Forum for Action on Workplace Health and Safety – Alberta; Joint Steering Committee on Hazardous Substances in the Workplace – Ontario; Back Injury Prevention Advisory Committee – Newfoundland; Occupational Health and Safety Council – Prince Edward Island; Advisory Council on Workplace Safety and Health – Manitoba; Occupational Health and Safety Council – Saskatchewan; Logging Safety Forum – British Columbia); Denmark (Working Environment Council); France (the Central Council for the Prevention of Occupational Risks and the National Commission of Occupational Health and Safety in Agriculture); Italy (Permanent Consultative Commission for the Prevention of Work Accidents and Occupational Health); Germany (Advisory Board to the Federal Institute for Occupational Safety and Health); and Spain (General Council of the National Institute for Occupational Safety and Health).

Policy Implementation

A number of countries have bipartite, tripartite or multipartite organizations which are also active in policy implementation. These collaborative organizations normally are public establishments which incorporate representatives of employers’ and workers’ organizations and in some cases other persons or interest groups, in both policy making and policy implementation. Normally far larger than advisory committees, councils or commissions, these collaborative organizations have responsibility for implementing government policy, frequently manage large budgetary resources and often have significant numbers of personnel.

An example of such an organization is the Health and Safety Commission in Great Britain. The Commission was established pursuant to the provisions of the Health and Safety Act 1974. It has as its mandate to ensure that adequate measures are taken to secure the health, safety and welfare of persons at work; to protect the public against risks to health and safety arising out of work; to control storage and use of explosives, highly flammable materials and other dangerous substances; and to control the emission of noxious or offensive substances from the workplace. It is responsible to the Secretary of State for Education and Employment, but also to other Secretaries of State, including those of Trade and Industry, Transport, Environment and Agriculture. The Commission has nine persons, all of whom are appointed by the Secretary of State for Education and Employment. It consists of a chairperson, three members appointed after consultation with the principal central employers’ organization, three members appointed after consultation with the principal central workers’ organization and two members appointed after consultation with local authority associations.

The Commission is assisted by a number of subsidiary organizations (figure 1). The most important of these is the Health and Safety Executive, a distinct statutory body which consists of a governing body of three persons appointed by the Commission with the approval of the Secretary of State for Education and Employment. The Health and Safety Executive is responsible for carrying out the substantive work of the Commission, including the enforcement of health and safety standards under the Health and Safety Act 1974 and other functions delegated to it by the Commission. Local authorities also perform enforcement functions with respect to certain health and safety legislation as well. In addition, the Commission is assisted in its work by a number of advisory committees which are, depending on the committee, bipartite, tripartite or multipartite in character. These advisory committees are organized both by subject matter and industry. There are advisory committees for each of the following subjects: toxic substances, dangerous pathogens, dangerous substances, genetic modifications, occupational health, releases to the environment, nuclear installations and ionizing radiation. There are also advisory committees for the following industries: agriculture, ceramics, construction, education, foundries, health, petroleum, paper and board, printing, railways, rubber, cotton and textiles. Subject matter committees tend to have between 12 and 18 members plus a chairperson and are multipartite in character, frequently including technical experts as well as representatives of central workers’ and employers’ organizations, government and other interest groups. Industry committees, however, tend to be bipartite, with approximately 12 members drawn in equal numbers from central workers’ and employers’ organizations and with the chairperson being from the government. The resources at the disposition of the Commission and the Health and Safety Executive are substantial. For example, in 1993 these organizations together had approximately 4,538 staff members and a budget of £ 211.8 million.

Figure 1. Health & safety in Great Britain: the main institutions

Other examples of collaborative organizations in this field can be found in Canada. At the federal level, the Canadian Centre for Occupational Health and Safety is Canada’s main resource for information on this topic. The Centre also promotes health and safety in the workplace, facilitates the establishment of high standards of occupational health and safety and assists in the development of programmes and policies to reduce or eliminate occupational hazards. The Centre, created by an act of parliament in 1978, was given a tripartite governing body to ensure its impartiality in occupational health and safety matters, including being an unbiased source of information. Its governing council consists of a chairperson and 12 governors – four representing the federal, provincial and territorial governments; four representing labour; and four representing employers. The Centre manages significant human and financial resources and its total expenditures in 1993 were approximately C$8.3 million.

In some provinces there are also collaborative organizations. In Quebec, two prominent organizations are the Commission for Occupational Health and Safety and the Institute of Occupational Health and Safety Research. The Commission has two functions. The first is to develop and implement occupational health and safety policy, including the establishment of standards and their enforcement; the provision of support for the implementation of prevention programmes, participation mechanisms and health services; and the provision of training, information and research services. The second is to provide payment to workers injured on the job and to manage an insurance fund for this purpose to which employers must contribute. The Commission, which was established by law in 1981 and which succeeded the Commission of Occupational Accidents founded in 1931, has a bipartite board of directors which is composed of seven workers’ representatives, seven representatives of employers and a chairperson. The representatives of workers’ and employers’ organizations are chosen from lists supplied by the most representative labour and employer organizations. The Commission manages large human and financial resources and at the end of 1992 had expenditures of C$2,151.7 million and employed 3,013 persons as permanent staff and 652 as casual employees.

Quebec’s Institute of Occupational Health and Safety Research, founded in 1980, has as its mandate to contribute, through scientific research, to the identification and the elimination of sources of workplace hazards, as well as to the readaptation of workers who have suffered workplace injuries. The board of directors of the Institute is the same as that of the Commission for Occupational Health and Safety, notwithstanding that it is an independent institution. The Institute also has a scientific council which has advisory functions and is composed of four representatives of workers’ organizations, four from employers’ organizations, six representatives of the scientific and technical community and the Institute’s Director General. In 1992, the Institute had expenditures of C$17.9 million and approximately 126 employees.

The Ontario Workplace Health and Safety Agency, established in 1990 by amendment of the Occupational Health and Safety Act, also has responsibility for developing and implementing policy and for managing occupational health and safety programmes in Ontario. The governing body of the organization consists of a bipartite board of 18 persons with nine representatives each from workers’ and employers’ organizations. Of these representatives, one representative of labour and one of management serve as joint chief executive officers. The resources of this organization are substantial – total expenditures amounted to C$64.9 million in 1992.

One country with a long tradition of collaborative organizations in the field of occupational safety and health, Sweden, decided to reject this form of organization in 1992 and has subsequently used advisory organizations instead. It should be added that this decision was not confined to occupational safety and health, but included all collaborative organizations of any kind in which representatives of workers’ and employers’ organizations played a decision-making role at the national level. The impetus for this change came from the principal employers’ organization, which decided unilaterally to withdraw from participation in collaborative public institutions. The central employers’ organization argued that interest groups should not have political responsibility in terms of managing public institutions, but that the government and parliament should have this political role and responsibility; that the role of the employers’ organization was to represent its members’ interests, and that this role could be in conflict with a duty to serve the interests of the public institutions if the employers’ organization was represented on the governing boards of such institutions; and that participation weakened democracy and the development of public institutions. Although workers’ organizations were not in agreement with the employers’ organizations on these points, the government concluded that collaborative bodies with no representation from the principal employers’ organization were impractical and decided to have representation by workers’ and employers’ organizations as well as other interest groups only on advisory bodies. Hence, organizations in the field of occupational safety and health such as the National Board of Occupational Safety and Health, the National Institute of Occupational Health and the Working Life Fund, which had formerly been collaborative in character in terms of a tripartite or multipartite governing board, were restructured.

Although collaborative organizations in most countries are more rare than advisory organizations, which are quite widespread, the case of Sweden’s rejection of collaborative institutions, at least in the field of occupational safety and health, appears to be an isolated one. Although some collaborative institutions, dealing notably with questions of economic policy, training and employment, were dismantled in Great Britain during the 1980s and 1990s by successive conservative governments, the Health and Safety Commission was not affected. Some have advanced that this is because occupational safety and health is a subject of common concern to employers’ and workers’ organizations as well as the government and other interested parties and therefore there is a strong interest by all parties in finding a consensus in both policy formulation and implementation. Also, in Canada such collaborative institutions have been created at both the federal level and in some provinces precisely because a collaborative approach was deemed more useful in finding a consensus between the labour market parties and because administration of the occupational safety and health laws would appear more impartial and fair to those affected by them.

On a broader level, however, there are two national consultative bodies which are also concerned with occupational safety and health issues as part of their more general mandate to address all important social and economic questions of national importance. In the Netherlands, the Labour Foundation, established in May 1945, is a bipartite organization jointly managed by equal numbers of representatives from central employers’ and workers’ organizations (including farmers) and has a significant role as an advisory body to the Government. Although historically its main function has concerned questions of wage policy, it also expresses its views on other conditions of work. The other national consultative body of importance is the Social and Economic Council, which was founded in 1950 pursuant to the Act on Statutory Trade Associations. The tripartite Council consists of 15 representatives of central employers’ organizations, 15 representatives of central workers’ organizations and 15 independent experts. The employers’ and workers’ representatives are appointed by their organizations and the independent experts are appointed by the Crown. In making its appointments, the Crown also tries to have a balance between the major political parties. The Council is independent of the government and is financed by a mandatory tax on employers. The Council has a multimillion dollar budget and its own Secretariat. The Council normally meets once a month and is assisted by a number of permanent and ad hoc committees, which are frequently also constituted on a tripartite basis. The government is required by law to submit all proposals for social and economic legislation to the Council for its advice and any labour legislation – which would include proposals concerning occupational safety and health – comes before the Council.

It should be added that a number of countries require that workplace health and safety committees should or may be established for enterprises which have more than a certain number of employees. These committees are bipartite in nature and include representatives of the employers and the workers. These committees normally have as their function to investigate and propose all ways and means of actively contributing to measures undertaken to ensure the best possible health and safety conditions in the establishment, a role which can include the promotion and monitoring of health and safety conditions in the enterprise to ensure, among other things, adherence to applicable law and regulations. These joint committees are normally advisory in character. Workplace health and safety committees, for example, are legally required in Belgium, Canada, France, Germany, the Netherlands and Spain.

Forms of Workers' Participation

The phrase workers’ participation is used loosely to encompass various forms of workers’ participation in decision making, usually at the enterprise level. They complement other forms that may exist at the industrial or sectoral level and the national level, such as bodies for tripartite cooperation. The types of workers’ participation arrangement differ widely with regard to their functions and powers, ranging from informal individual employee suggestion schemes to co-determination of certain matters by workers’ representatives together with management. The mechanisms used for encouraging employee participation vary so widely that it is impossible to review them fully here. The main forms that have attracted recent interest, particularly in the field of work organization, are reviewed below; to these could be added the historical example of self-management by workers in former Yugoslavia. As particularly relevant today, joint safety and health committees are examined as a special form of workers’ participation within the larger labour relations context.

The idea of workers’ participation arose in Europe, where collective bargaining has usually been at the branch or industry level; this often left a gap of employee representation at the enterprise or plant level, which became filled by bodies such as works councils, works committees, enterprise committees and so forth. Many developing countries have also adopted legislative initiatives with a view to having works councils or similar structures set up (e.g., Pakistan, Thailand, Zimbabwe) as a means of promoting labour-management cooperation. The relationship of these bodies to trade unions and collective bargaining has been the subject of considerable legislation and negotiation. This is reflected in a provision of the ILO Workers’ Representatives Convention, 1971 (No. 135), which states that where both trade union representatives and elected representatives exist in the same undertaking, measures shall be taken to ensure that the existence of those representatives is not used to undermine the position of the trade union (Article 5).

Direct Participation

Workers may participate in decision making either directly themselves or indirectly through their representatives – trade unions or elected employee representatives. Since the 1980s, there has been a spread of direct participation by workers, if the term participation is understood as the exercise of any influence on their work or how it is to be carried out. Thus workers may “participate” in work-related decisions not only when there is an institution, such as a quality circle, at the workplace. Accordingly, a simple exercise of work enrichment may be a form of promoting direct participation of workers.

Direct participation may be on an individual basis – for example, through suggestion schemes or “enriched” work. It may also be on a group basis – for example, in quality circles or similar small-group activities. Teamwork in itself constitutes a form of group-based direct participation. Direct participation may be integrated into decisions about daily work, or it may take place outside daily work, such as in a voluntary quality circle that cuts across the group structure habitually used. Direct participation may also be “consultative” or “deliberative”; research by the European Foundation for the Improvement of Living and Working Conditions has explored this particular aspect in some detail (Regalia and Gill 1996). With consultative participation, employees are encouraged and enabled, either as individuals or members of a group, to make their views known, but it is up to management to accept or reject their proposals. Deliberative participation, on the other hand, places some of traditional management responsibility in the employees’ hands, as in the case of teamworking or semi-autonomous work groups wherein some authority has been delegated to the workers.

Works Councils and Similar Structures; Co-determination

The term works councils describes arrangements for the represen-tation of employees, usually at the plant level although they also exist at higher levels (company, group of companies, industry, European Union). The relationship to trade unions is often delineated by legislation or clarified by collective agreement, but tensions between these institutions sometimes remain all the same. Extensive use of works councils, sometimes called workers’ committees, cooperation committees or otherwise, is well established in a number of European countries, such as Belgium, Denmark, France, Germany and the Netherlands and, under the impetus of Directive No. 94/45/EC of 1994 on European works councils, can be anticipated to spread in that region for large enterprises. Several Central and Eastern European countries, such as Hungary and Poland, have enacted legislation to encourage the emergence of works councils. They are found as well in some countries in Africa, Asia and Latin America; part of the post-apartheid labour law reform in South Africa, for instance, included establishing a form of works councils alongside trade union structures.

The possible powers of works councils are best illustrated by the example of Germany, although in some ways it is a unique case. Weiss (1992) describes the works council in that country as the form of institutionalized representation of interests for employees within an establishment. A works council enjoys certain rights to information, consultation (as in all countries) and co-determination (much more rare). As the most far-reaching form of participation, co-determination covers participation in arrangements on health and safety at work and the formal adoption of a reconciliation of interests and a “social plan” in the event of a substantial alteration in the establishment, such as a plant closure. Co-determination rights also extend to guidelines for staff selection and appraisal, in-service training and measures affecting individual workers such as grading, transfer and dismissal. The German works council is empowered to conclude works agreements at the enterprise level and can initiate complaints where it believes the agreement is not being honoured. Included in the areas of obligatory collective co-determination are accident prevention and health protection, works rules, working time, the fixing of performance-related pay rates, the manner of payment, general principles governing holidays and others. On these matters, the employer cannot take action without the works council’s agreement. The works council also has the right to take the initiative and can refer a matter to the establishment-level arbitration committee for enforcement. As Weiss (1992) characterizes it, the works council’s role is “participating in the ‘how’ after the employer has made a decision on the ‘whether’”. The right to consultation affords the works council a chance to play a part in the decisions made by the employer, but failure to consult will not invalidate the decision. The subjects on which consultation is required include protection against dismissal, protection against technical hazards, training and preparation of a social plan.

The works council must observe the principles of cooperation with the employer and the peace obligation (no work stoppages); it also must cooperate with trade unions present and with the appropriate employers’ organization. Works councils are bound to conduct their business impartially, without regard to race, religion or creed, nationality, origin, political or union activity, sex or age of the employees. The employer provides the facilities for the works council, funds it and is liable for its actions.

Works councils are elected separately for manual and non-manual workers in Germany. Special works council elections are held; while there is no legal connection between these representatives and trade union officers in fact, they often coincide. In Austria and Germany, special representation is ensured for disabled workers and young workers and trainees. Works council members receive no remuneration for this, but necessarily incurred expenses are reimbursed. Members are guaranteed retention of their pay level and job grading after the term of office has expired and enjoy special protection against dismissal. They are entitled to release from work to conduct works council business and attend training. Such protections are in line with the Workers’ Representatives Convention (No. 135), which calls for workers’ representatives in an undertaking to enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative (Article 1).

Many countries feature less ambitious works council schemes that provide for information and consultation rights. Especially where trade unions have little presence on the shop floor level, there is considerable interest in introducing works councils or workers’ committees as a means for workers to have a voice at the workplace level.

Quality Circles and Total Quality Management

Quality circles and other similar group activities were rapidly introduced in a large number of enterprises in some Western European countries (e.g., the United Kingdom and France) at the start of the 1980s and in the United States a little earlier. They built upon “Quality of Working Life” (QWL) or “Humanization of Work” programmes that began in the early 1970s. Their spread was considerably later in some other Western countries (e.g., Germany) and still seems to be very limited in countries where joint project groups are the predominant means of dealing with work organization, such as Sweden. They were stimulated by a belief that Japan’s ability to produce innovative and high-quality products at low cost had something to do with the way human resources were managed in that country; quality circles were the most visible and easily transplantable feature of Japanese human resource management. Quality circles are generally expected to produce two types of effect: one is the enhancement of quality and productivity and the other is the fostering of a sense of participation in work-related decisions among workers, leading to increased job satisfaction and better industrial relations. In Japan the emphasis has been placed more on the first aspect and in Europe and North America on the second. There are also structural differences: while circle leaders are normally appointed by management in Japan, they are often elected in Germany. Today, the emphasis of QWL programmes is more on enhancing productivity and competitiveness (Ozaki 1996).

In some of the countries where quality circles were experimented with widely in the 1980s, such as France and the United Kingdom, there has been a certain disenchantment with their relative ineffectiveness in producing the expected results. Many circles disappeared a few years after their creation; many others exist on paper, but are in fact moribund. The failure has been attributed to many factors – their tendency to create confusion in the normal lines of command, non-management control over membership, circles’ determining their own agenda without heed for management priorities, lack of enthusiasm or hostility on the part of middle management, absence of durable commitment on the part of top management and restriction of scope to minor work-related issues.

Realization of these shortcomings led to the formation of a theory of “Total Quality Management” (TQM). Certain principles of TQM have implications for employee participation: all employees are to participate in the process of improving the business, and responsibility for quality is to be assigned to people who in fact control the quality of what they do. Thus TQM encourages job enlargement and enrichment leading to semi-autonomous work groups. It also promotes horizontal coordination in a firm through, for example, the use of ad hoc, multi functional or interdepartmental project teams.

Joint Project Groups

The practice of establishing joint project groups to study the best ways of introducing technological or organizational changes through the joint efforts of managers and workers is a traditional feature of labour relations in some countries, such as Sweden. A joint project group is normally composed of managers, workplace union representatives and shop-floor workers and often assisted by outside experts. The management and the union concerned often establish joint project groups separately on four issues: new technology, work organization, training and work environment. The Swedish model of joint project groups presents a notable example of direct participation of shop-floor workers within a framework of established collective labour relations. The system is also found in other countries, such as Germany and Japan.

Semi-autonomous Group Work and Teamwork

Semi-autonomous group work and teamwork are both forms of on-line direct participation of shop-floor workers in work-related decisions, unlike the above-mentioned joint project group work, which is a form of off-line participation. The main difference between the two forms of participation lies in the degree of autonomy which the members of the team or group enjoy in organizing their work. Semi-autonomous group work was used extensively in Scandinavia, although recently there has been a move back to a more traditional approach; there have been experiments with it elsewhere in Europe as well.

While experiments with semi-autonomous group work are generally declining, teamwork is spreading fast throughout Western countries. The degree of autonomy which a team enjoys varies widely from one company to another. Team structure also differs. In many countries, team leaders are usually appointed by management, but in a few countries (e.g., Germany) they are often elected by co-workers. Frequently, the creation of teams is accompanied by significant changes in the role of first-line supervisors; they tend to take on greater responsibility for advising team members and for both vertical and horizontal communication, but lose their supervisory role. Employers have shown increasing interest in teamwork because it tends to facilitate the upgrading of workers’ skills and widens the range of workers’ tasks, thus allowing greater flexibility in production processes. However, it is sometimes criticized by workers as a means of inducing them to work harder “voluntarily” by substituting co-workers’ pressure for management control.

Employee Representation on Supervisory Boards; Employee Shareholding

Some commentators include forms of employee ownership or representation on company boards as expressions of workers’ participation. In Germany and the Scandinavian countries, among others, workers have indirect participation above the enterprise level by the inclusion of workers’ representatives on supervisory boards. This involves incorporating workers’ representatives in the traditional company board structure, where they are in a minority (although sometimes, as in Germany, a numerous one). It does not necessarily imply participation in the active management of the company and the workers’ representatives have the same status as other board members. This means they are to put the interests of the company first and foremost and are bound by the same duty of secrecy as other board members. Holding positions on the board may provide access to additional information, however, and a number of trade unions have sought the right to have workers’ representatives on boards. It is a phenomenon now seen in Eastern and Western Europe and North America, but remains rather rare elsewhere.

Another expression of workers’ participation is as owners of shares in limited liability companies or corporations. Sometimes workers are able to scrape enough capital together to purchase a firm that would otherwise be going out of business. The rationale behind these situations is that a worker who identifies financially with a company will work harder for its success. Important variables are the form of participation (return on investment rights or control rights), its degree (amount and timing of returns) and the reasons behind financial participation. In any event, these practices are largely reserved to Europe and North America. If cooperative ventures are considered part of this phenomenon, however, the notion of workers being stakeholders in their work is much more widespread throughout the world. It would be interesting to study whether and to what extent employee ownership of a firm or of shares in it has an effect on the workplace safety and health record.

Health and Safety Committees and Representatives

A specialized form of workers’ participation is seen in the development of health and safety committees and health and safety representatives (for worker participation in Denmark, see also "Case Study: Denmark" ). The legislation of a number of countries provides for the establishment of such committees and for such representatives (e.g., Belgium, several provinces of Canada, Denmark, France, the Netherlands, Sweden). Smaller companies, variously defined, are usually excluded from such mandatory measures, but they, like larger units, often set up health and safety committees on their own initiative. In addition, many collective bargaining agreements have led to the creation of such committees and to the designation of health and safety representatives (e.g., in Canada and the United States).

Often, collective bargaining agreements will strengthen the legislatively guaranteed powers afforded to workers’ safety and health representatives. The committees and representatives vary in regard to their relationship to trade unions and works councils, their election or appointment, their duties and functions and their impact. As a form of workers’ involvement in the specialized sphere of health and safety, such committees and representatives can be a contributing factor to improving both working conditions and the labour relations climate. They have been most successful when they form an integral part of management’s safety and health programme, have access to adequate information, involve rank-and-file workers in their activities to help ensure continuity and are backed up by effective government labour inspection. Where employers maintain occupational health services or have safety experts, a fruitful relationship with them can also promote the success of joint health and safety committees. A recent workplace survey in the United Kingdom, for instance, found that “joint consultative committees, with all employee representatives appointed by unions, significantly reduced workplace injuries relative to those establishments where the management alone determines health and safety arrangements” (Reilly, Paci and Holl 1995). They also reported an important role for joint consultative committees where employee representatives were appointed in other ways. However, some research also indicates that joint health and safety committees fall short of the expectations held out for them. The reasons suggested for this differ: insufficient support from management, participants who are not adequately informed or trained, workers not represented forcefully enough and so on.

Workers’ health and safety representatives may be appointed by management (as in many workplaces where no trade union is present), designated by the trade union (as in the United Kingdom) or elected directly by the workers at the enterprise or higher level (as in Denmark). A parallel system will be used for worker representatives on a joint labour-management health and safety committee which, while bipartite, will not always have equal representation from both sides. General institutions for workers’ representation are often complemented by special representative structures for health and safety (as in Spain). The mechanism chosen will often reflect the existence of other labour relations institutions in a country: in France, for instance, employee members of the joint health, safety and working conditions committees are appointed by a delegate elected from the works committee and staff representatives; in Germany, members designated by the works council will be among those serving on a joint health and safety committee. Works councils in the Netherlands may delegate their powers to a safety, health and welfare committee. A strong link, if not identity, between trade union representatives and health and safety representatives is usually seen as desirable (as in Quebec (Canada), Ireland, Norway and Sweden), but where trade union density is low this runs the risk of depriving large numbers of workers of representation rights in relation to health and safety. Speculation that joint health and safety committees might lead to extending greater workers’ participation to other fields has remained largely unfounded.

Workers’ health and safety representatives normally have the following rights: to have access to information on health and safety and the introduction of new technology, to be consulted on these matters, to be involved in monitoring workplace conditions, to accompany inspectors (sometimes called the “walkaround right”), to be involved in accident investigations and to make recommendations to management on the improvement of working conditions. In some countries their powers go beyond this to include the right to engage in co-decision making, to initiate inspections and accident investigations and to review management’s reports to government. Most importantly, some workers’ health and safety representatives are empowered to order the shut-down of an imminently hazardous operation (also called “red-tagging”, for the marker placed on the spot), as in Denmark, Finland, Norway and Sweden. They are in certain instances, such as in France and some provinces of Canada, directly involved in the enforcement of health and safety regulations. Prior consultation of the joint committee is sometimes necessary before an employer can make any significant change in health, safety or working conditions (as in France and the Netherlands). In Belgium intercompany health services are under the control of a joint committee. In Italy the committees’ role includes the promotion of prevention, and in Greece they can, with the employers’ agreement, call for expert opinions on health and safety questions.

Workers’ health and safety representatives necessarily enjoy protection from discrimination or retaliation in the exercise of their functions. They are entitled to at least some time off with pay, as well as to have the necessary means (the definition of which is often debated) to exercise their functions. In addition, while in office some are specially shielded from economic layoffs (redundancies) or given extra protection from dismissal (as in Belgium). Frequently, worker health and safety representatives have a right to receive specialized training (as in Denmark).

The effect that workers’ health and safety representatives and joint committees can have will of course depend not only on rights and duties set out in legislation or in a collective bargaining agreement, but on how they are exercised in practice. This is in turn influenced by factors that affect workers’ participation generally. Such representatives and joint committees are no substitute for the effective government enforcement of health and safety standards or for what may be achieved by means of collective bargaining. However, “most observers believe that [mandated joint health and safety] committees provide a more efficient regulatory regime for safety and health than inspectorate or civil liability schemes” (Kaufman and Kleiner 1993). In any event, the trend is definitely towards greater workers’ participation in health and safety matters, at least in terms of collective agreements covering larger enterprises and legislation. Where they operate as effective institutions, joint health and safety committees can be a valuable tool for identifying problems and raising awareness of hazards, thus potentially reducing the incidence of injury, disease and death on the job. The extent to which they are effective, however, depends on a large range of variables in the particular labour relations system and in the strategic approach taken to health and safety at the workplace.

Schregle (1994) has commented:

In practice, none of these workers’ participation schemes has produced the expected results. There are many reasons for this. One is that, in a general way, trade unions and employers do not have the same view of participation. While it is the workers’ desire to exert a tangible and concrete influence on employers’ decisions in the sense of power-sharing, employers insist on management rights or management prerogatives, derived from private ownership, to run the business according to their own criteria and decision-making power, affording to workers at most the right to express their views and positions without binding effect on management. The result of all this is confusion over such terms as consultation, workers’ participation, workers’ participation in management, co-determination, co-management, etc.

The fact remains that in most workplaces around the world, there is little effective employee participation at the enterprise level. The first level of participation and indeed a prerequisite for it, is the provision of information, followed by consultation. Within Europe, research has indicated a wide variation in the extent of implementation of the 1989 framework directive on health and safety, when it comes to workers’ participation; it may get a new lease on life with the impetus of the 1995 directive on European works councils. A high degree of non-participation also characterizes other regions. Nevertheless, high hopes continue to be held out for strengthening mechanisms for workers’ participation at the enterprise level.

The traditional approach to workers’ participation as promotional of greater worker-management cooperation falls short of being satisfactory in relation to health and safety issues, where the categorization of labour relations as conflictual or cooperative does not particularly advance the debate. As Vogel (1994) notes:

...the problem of worker participation is clearly not confined to the institutionalized forms of participation in or outside the undertaking. The basis of participation lies in the recognition that distinct interests are in play giving rise to specific rationales... The essential legitimacy of participation is to be found outside the firm in a democratic requirement which refuses to admit that the self-determination of individuals should be confined within the rules of political representation and in a view of health conceived as a purposeful, social process through which individuals and communities develop strategies for self-fulfilment and defence.

In the end, the differing functions of various workers’ participation schemes make it difficult to assess their comparative impact. As collective bargaining shrinks in coverage, however, greater use of management-led workers’ participation arrangements may be expected.

Consultation and Information on Health and Safety

Worker Participation in Health and Safety Matters

Worker participation in safety organization in plants can be planned in many ways, depending on national law and practice. This article refers only to consultation and information arrangements, not related forms of employee involvement. Additional coverage of specific aspects somewhat linked with consultation and information (e.g., participation in or initiation of inspections, participation in training activities) is offered elsewhere in this chapter.

The idea of employers and employees working jointly to improve health and safety at work is based on several principles:

• Workers can contribute to prevention of industrial accidents by spotting and warning about potential hazards and giving notice of imminent dangers.
• Involving employees educates and motivates them to cooperate in the promotion of safety.
• Ideas and experiences of workers are regarded as a useful contribution to safety improvement.
• People have a right to be involved in decisions that affect their working life, particularly their health and well-being.
• Cooperation between the two sides of industry, essential to improve working conditions, should be based on an equal partnership.

These principles have been laid down in the ILO Occupational Safety and Health Convention, 1981 (No. 155). Article 20 provides that “co-operation between management and workers and/or their representatives within the undertaking shall be an essential element of organizational and other measures” in the area of occupational health and safety. Also the ILO Communications within the Undertaking Recommendation, 1967 (No. 129), Paragraph 2(1), underlines that:

...employers and their organizations as well as workers and their organizations should, in their common interest, recognise the importance of a climate of mutual understanding and confidence within undertakings that is favourable both to the efficiency of the undertaking and to the aspirations of the workers.

The underlying philosophy is that employers and employees have a common interest in a self-regulating system in industrial accident prevention; actually they are more interested in occupational safety than in occupational health, since the occupational origin of accidents is more simple to establish and they are thus compensated more easily. Also for this reason safety representatives in many countries were historically the first employee representatives at the workplace to have their rights and duties determined by law or collective agreements. Today there is probably no subject in labour relations and human resources management on which the social partners are so ready to collaborate as in health and safety matters. But in some national contexts trade unions have not put sufficient resources into the safety and health effort to make it a major issue in either negotiations or contract administration.

Information and Consultation Rights in Legislation in ILO and European Union.

The general obligation for employers to disclose information in health and safety matters to workers and/or their representatives and seek their opinion via consultative arrangements is provided by Article 20 of the ILO Prevention of Major Industrial Accidents Convention, 1993 (No. 174). This norm prescribes that “the workers and their representatives at a major hazard installation shall be consulted through appropriate cooperative mechanisms in order to ensure a safe system of work”. More specifically workers and their representatives have the right to:

(a) be adequately and suitably informed of the hazards associated with the major hazard installation and their likely consequences; (b) be informed of any orders, instructions or recommendations made by the competent authority; (c) be consulted in the preparation of and have access to, the following documents: (i) safety reports, (ii) emergency plans and procedures, (iii) accident reports.

As a consequence of these information and consultation rights, workers are entitled “to discuss with the employer any potential hazards they consider capable of generating a major accident” (Article 20(f)).

More generally ILO Convention No. 155 lays down rules concerning occupational safety and health and the working environment, providing for effective arrangements at the level of the undertaking (be they regulated by law or collective bargaining or even left to local/domestic practices) under which “(c) representatives of workers... are given adequate information on measures taken by the employer to secure occupational safety and health and may consult their representative organizations about such information provided they do not disclose commercial secrets” (Article 19). The same norm adds that under these arrangements workers or their representatives must be “enabled to enquire into and are consulted by the employer, on all aspects of occupational safety and health associated with their work”. And for this purpose “technical advisers may, by mutual agreement, be brought in from outside the undertaking”.

ILO Recommendation No. 164 supplementing Convention No. 155 (Paragraph 12) clarifies that information and consultation rights on safety and health matters should be granted to a variety of participatory institutions: workers’ safety delegates, workers’ safety and health committees, joint safety and health committees and other workers’ representatives. This text also states important principles affecting the nature and the content of information/consultation. These practices should first of all enable the above-mentioned specialized forms of workers’ representation “to contribute in the decision-making process at the level of the undertaking regarding matters of safety and health” (Article 12(e)).

These are not simply rights to know and to be heard: workers and their representatives should “(a) be given adequate information on safety and health matters, enabled to examine factors affecting safety and health and encouraged to propose measures on the subject”. They should also “(b) be consulted when major new safety and health measures are envisaged and before they are carried out and seek to obtain the support of the workers for such measures” and “(c)... in planning alterations to work processes, work content or organization of work, which may have safety or health implications for the workers”.

The principle under which “representatives of the workers... should be informed and consulted in advance by the employer on projects, measures and decisions which are liable to have harmful consequences on the health of workers” (ILO Working Environment (Air Pollution, Noise and Vibration) Recommendation, 1977 (No. 156), Paragraph 21) reflects the idea of an “effective policy of communication” stated in general terms by Paragraph 3 of ILO Recommendation No. 129, which prescribes that “information is given and that consultation takes place between the parties concerned before decisions on matters of major interest are taken by management”. And in order to make these practices effective, “steps should be taken to train those concerned in the use of communications methods” (Para. 6).

The participative approach in labour relations in the area of health and safety is confirmed by other international legal texts. A meaningful example in this respect is offered by the Framework Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of people working in countries of the European Union. Article 10 provides for the employer an obligation to take appropriate measures so that workers and/or their representatives receive, in accordance with national law and/or practices, all necessary information” concerning safety and health risks, protective and preventive measures (also for first aid, fire-fighting and evacuation of workers and in case of serious and imminent danger). This information has to be “provided in a suitable form to temporary workers and hired workers present in the establishment or enterprise”. Additionally “workers with specific functions in protecting the safety and health of workers, or workers’ representatives with specific responsibility for the safety and health of workers” must have access to risk assessment and protective measures, reports on occupational accidents and illnesses suffered by workers and all information yielded by protective and preventive measures, inspection agencies and bodies responsible for safety and health.

Article 11 of the EC Directive links consultation and participation. In fact employers are under the obligation to “consult workers and/or their representatives and allow them to take part in discussions on all questions relating to safety and health at work”. That presupposes “the consultation of workers, the right of workers and/or their representatives to make proposals [and] balanced participation in accordance with national laws and/or practices”. The document continues, prescribing that:

workers with specific functions in protecting the safety and health of workers or workers’ representatives with specific responsibility for the safety and health of workers shall participate in a balanced way, in accordance with national laws and/or practices, or be consulted in advance and in due time by the employer...

The objective of these rights is to cover all measures which may substantially affect health and safety, including the designation of employees required to implement certain measures (first-aid, fire-fighting and evacuation of workers) and the planning and organization of adequate health and safety training throughout the employment relationship (upon hiring, job transfer, introduction of new working equipment, introduction of any new technology).

The choice is clear: no to conflict, yes to participation in health and safety labour relations. This is the meaning of the EC Framework Directive, which goes beyond the simple logic of the right to information. The system is based on a genuine form of consultation, since it must take place “in advance and in good time” – in other words, not only prior to decisions being adopted by the employer but also soon enough for proposals and comments to be made about them.

The Directive also uses the ambiguous expression “balanced participation”, a formula open to various interpretations. The notion is broader than (or, at least, different from) that of consultation, but not to the extent of constituting a form of joint decision making, which would prevent employers from taking measures which had not been approved by the workers or their representatives. It seems quite clearly to be a form of participation going beyond mere consultation (otherwise the article heading “consultation and participation” would be nonsense) but not necessarily as far as joint decision making. The concept is left somewhat vague: it embraces a range of multiple forms of worker participation which vary considerably between Member States of the European Union. And in any case the Directive does not place any obligation to provide a specific form of balanced participation.

In both the ILO and EC texts, information seems to be a concept whereby management informs the employees’ representatives body in writing or in a meeting. Consultation means that normally joint committees are set up in which employees’ representatives are not merely informed by management, but can also comment and expect justification from management in the event of differing opinions. Certainly these concepts differ from negotiation (when a contractually binding outcome is worked out in joint negotiating committees at company or inter-company level) and co-determination (where the employee has a right of veto and decisions require the agreement of both parties).

For Community-scale undertakings and groups thereof, EU Council Directive No. 94/45/EC of 22 September 1994 requires setting up European Works Council or an information and consultation procedure. The information relates “in particular to transnational questions which significantly affect workers’ interests” (Article 6(3)). Time will tell if this is used for safety and health purposes.

Role of Workers’ Representatives in Risk Assessment and Improvement of Work Environment: Record-keeping

The active nature of consultation is also stressed in Article 11(3) of the EC Framework Directive, which states that either workers with specific functions in this area or workers’ representatives in general “may call on the employer to take appropriate measures and submit to him relevant proposals by means of which all risks to workers may be reduced and/or sources of danger eliminated”.

The Framework Directive, with its provisions on risk management, while placing clear responsibilities on employers, also favours the greater involvement of workers and their representatives in consultations on management strategies in health and safety. Employers must assess risks and present their risk-control management systems in a plan or statement. In all cases they are expected to consult with and involve workers and/or their representatives in all the design, implementation and monitoring of these systems. But it is undeniable that this Directive, by conferring relevant participative rights to workers, has at the same time adopted an approach of “self-assessment”. Other EC Directives require, among other things, the recording of the results of measurements and examinations and lay down the employees’ rights of access to these records.

Also ILO Recommendation No. 164 (Para. 15(2)) provides that:

...employers should be required to keep such records relevant to occupational safety and health and the working environment as are considered necessary by the competent authority or authorities; these might include records of all notifiable occupational accidents and injuries to health which arise in the course of or in connection with work, records of authorisation and exemptions under laws or regulations in the field and any conditions to which they may be subject, certificates relating to supervision of the health of workers in the undertaking and data concerning exposure to specified substances and agents.

It is a general principle worldwide that employers are required to keep records, for instance of accidents and occupational diseases, or on the use or presence of biological and environmental monitoring.

National Laws and Practices

By comparison, labour relations systems exist (e.g., Italy) where statutory law provides no specific right to information and consultation in occupational safety and health for workers’ representatives, although such a right is often included in collective agreements. Italian legislation gives the workers themselves the right to control the implementation of standards relating to the prevention of accidents and occupational diseases, as well as the right to develop studies and adopt adequate measures in order to safeguard health and safety at work. In other systems (e.g., in the United Kingdom) in order to obtain disclosure of information on matters of health and safety as provided by law, it is necessary first to have safety representatives appointed; but this is possible only if there is a recognized trade union in existence at the undertaking. In situations where the employer refuses or withdraws the necessary status of a recognized trade union, information and consultation rights cannot be exercised.

These national experiences raise the question: To what extent is effective workers’ participation in health and safety conditional on the adoption of statutory arrangements? Certainly some legal backing seems to be helpful, the optimum amount of legislation being probably at a point where it provides for the election of workers’ representatives with sufficiently strong rights to allow them to function independently of management, while at the same time leaving room for a certain variety in the organizational arrangements for participation in different sectors and corporations.

In general labour relations systems provide by law that workers’ representatives are to be informed and consulted in health and safety matters. When joint committees composed of management and employee representatives are established, they enjoy considerable powers. For instance in France the committee for health, safety and working conditions may propose preventive measures: an employer declining to accept them must give detailed reasons. But empirical evidence demonstrates that sometimes safety representatives seem more efficient than joint committees since they are less dependent on the existence of a cooperative relationship.

Through various forms of representational participation, employees in general enjoy rights recognized by ILO Conventions and Recommendations (plus EC directives, when applicable) mentioned earlier with special reference to industrialized free-market economies. Safety representatives and/or works councillors have a right to be informed and consulted by the employer on all issues relating to the company’s operations and the improvement of working conditions, including health and safety matters. They have the right to see all relevant documents that the employer is statutorily obliged to keep and also to see any statements on the subject and the results of any research. They may also have copies of any of these documents if required.

Effectiveness of Information and Consultation Rights

Apart from specific aspects (such as use of experts, participation in or initiation of inspections, protection from victimization) which strongly affect the effectiveness of information and consultation rights in health and safety, there are general factors which have to be taken into account in this respect. First, the size of the undertaking: the effectiveness of controls is on the wane in small units, where trade unions and other forms of workers’ representation are almost absent. Small-sized establishments are also least likely to implement statutory requirements.

Secondly, where safety representatives are integrated into the formal trade union organization at the workplace, they are more likely to achieve the expected improvements in the working environment. Thirdly, consultation and information arrangements in health and safety reflect the more conflictual (e.g., UK, Italy) or cooperative (e.g., Germany, Scandinavian countries, Japan) nature of the surrounding labour relations system. And in general, collaboration between management and labour favours the disclosing of information and consultation.

Fourthly, the role of managerial initiative should not be underestimated. More than the existence of statutory rights, consultation and information are effective when there is the presence of a managerial culture which supports them. Employers—by their attitude towards training, their commitment to disclosing information and their speed in answering queries—are able to create an adversarial or cooperative climate. Legal backing is essential to guarantee full independence to worker representatives to act in this field, but then the success of information/consultation arrangements depends largely on the voluntary choice of both sides of industry.

Lastly it must be said that a precondition for successful worker representation in health and safety at the workplace is public awareness. It is fundamental for this specialized form of employee involvement that such a need is perceived and valued by people at work. There is empirical evidence that workers identify health and safety as one of the most significant concerns in their working life.

Highlights of the ILO Paid Educational Leave Convention, 1974 (No. 140)

Aim of the standard

Obligations

A ratifying State is to formulate and apply a policy designed to promote the granting of paid educational leave for training at any level; general, social and civic education; trade union education.

This policy is to take account of the stage of development and the particular needs of the country and shall be coordinated with general policies concerning employment, education and training, and hours of work.

Paid educational leave shall not be denied to workers on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin.

Financing shall be on a regular and adequate basis.

The period of paid educational leave shall be treated as a period of effective service for the purpose of establishing claims to social benefits and other rights deriving from the employment relationship.

by Chapter Editor (excerpted from ILO Convention No. 140, 1974).

Safeguards on Use of Information

Comparative experience demonstrates that in general safety representatives are considered to be in breach of confidence if they reveal any information relating to an employer’s production processes and other professional secrets. Furthermore, they are obliged to use discretion with regard to any information provided to them which the employer indicates is confidential. ILO Convention No. 155 recognizes this by providing that enterprise-level representatives may consult their representative organizations about occupational health and safety information “provided they do not disclose commercial secrets” (Article 19(c)).

In some systems (e.g., Greece) employee representatives on works councils are obliged not to communicate to third parties information acquired which is of fundamental importance to the enterprise and which, if disclosed, would harm the enterprise’s competitiveness. The employee representatives and the employer are supposed to decide jointly what information can be disclosed. Under other systems (e.g., Luxembourg), where if employee representatives disagree with an employer’s classification of information as confidential, they may refer the matter to the inspectorate for a decision.

In some countries the duty of confidentiality is only implicit (e.g., Italy). Also when there is no specific requirement in this respect (e.g., United Kingdom), employee representatives cannot receive from the employer information relating to the health of individuals (unless their consent is given), information that would damage national security or information that would damage the employer’s undertaking. Finally (e.g., Sweden) the duty to observe confidentiality may not prevent safety representatives from passing on the information received to the executive board of their trade union, which will also be bound to observe confidentiality.

Labour Relations Aspects of Training

A training system should be a constituent of an overall human resource development policy and programme. This may be at the enterprise, industry or national level. Its practical implementation will be greatly assisted if paid educational leave is available (see box). Where such arrangements are not incorporated into national legislation (as they are in the Labour Codes of France and Spain, for example), then leave entitlement to attend appropriate occupational safety and health training should be negotiated by representatives of employers and workers as part of the collective bargaining process.

To promote education and training during working hours, with financial entitlements.

Any negotiated arrangements for training would identify appropriate subject matter as well as administrative, financial and organizational arrangements. Training on occupational safety and health should embrace the following:

• health and safety laws and means of enforcement
• employers’ attitudes to health and safety
• workers’ attitudes to health and safety
• health and safety issues and the means of improving health and safety practices.

The two key components of any training approach are content and process . These will be determined by the objectives of the training activity and the aspirations of the participants and trainers. The overall objective here would be to contribute to the improvement of health and safety at the workplace and so content should be based on identifying practical means of achieving improvement. Such an approach would require an assessment of the health and safety problems faced by workers. In general terms these should include:

• safety hazards, such as lifting, carrying, machinery, falls, ladders
• health hazards and problems, such as eyestrain, chemicals, noise, dust, aches, pains
• welfare issues, such as washing facilities, first aid, housing.

This methodological approach would allow for the systematic treatment of issues by means of describing the problem and reviewing how it came to be known, who was involved, what action was taken and the result of the action.

An important outcome of this approach is the identification of “good” and “bad” occupational safety and health practices, which, theoretically at least, can provide the basis for common action by employers and workers. To sustain this methodology, important information requirements need to be addressed. These include securing documentation on health and safety laws, standards and technical information and identifying the further information required to resolve the hazard/problem, such as policies or agreements produced by other trade unions and employers and alternative solutions and strategies.

Successful training activity will require the use of active learning methods, which are developed by drawing on the experience, skills, knowledge, attitudes and objectives of participants. Experience and knowledge are reviewed, attitudes are analysed and skills are developed and improved through working collectively. As part of this process, participants are encouraged to apply the results of their training activity to their work environment. This focuses training activity on practical outcomes and relevant content.

Questions that the trainer and trainees need to ask of process and content are: What are we gaining that can be applied to our work environment? Is the training improving our skills and knowledge? Is it helping us to operate more effectively in our work environment?

The trainer should address these questions at the planning, implementation and evaluation stages of any training programme and the methodological process encourages participants to make the same demands during the process of training activity.

Such a method, often referred to as “learning through doing”, draws widely upon the participants’ experiences, attitudes, skills and knowledge. The objectives of training activity should always refer back to practical outcomes; therefore, training activities should integrate this method. In occupational safety and health programmes this could include the activities outlined in table 1.

Table 1. Practical activities-health and safety training

Occupational safety and health training has the potential to develop workers’ and employers’ awareness of issues and to provide a basis for common action and agreement on how problems can be overcome. In practical terms, good health and safety practice not only provides for improvement in the working environment and potential productivity gains, but also encourages a more positive attitude to labour relations on the part of the social partners.

Labour Relations Aspects of Labour Inspection

The key role played by labour inspection in the development of labour relations is indisputable; in fact, the history of labour law is the history of the labour inspection system. Before the establishment of the first labour inspectorates, labour laws were mere declarations of goals whose infringement resulted in no sanctions. True labour law arose when a specific body was charged with ensuring compliance with the rules, thereby giving effect to the law by means of legal sanctions.

The first national attempts to establish a system of labour inspection centred on the creation of voluntary bodies which acted without remuneration to protect women and children employed in industry and which were a response to the peculiar nature of economic liberalism. Experience soon imposed the necessity to create a body of a coercive nature that would really be able to protect the working population as a whole. The first law introducing an official factory inspectorate was passed in Great Britain in 1878 on the grounds that the requirements relating to the appointment of honorary enforcers had not been faithfully carried out and therefore the protection measures had not been applied. The law conferred on factory inspectors the following basic powers: unrestricted entry into factories, free questioning of workers and employers, requiring the production of documents and the capacity to settle disputes and ascertain infringements of the laws.

The evolution of the various regulations had the result in subsequent years of reaffirming the authority of factory inspectors as administrative officials, separating out and gradually eliminating their function as judges. The idea emerged of the inspector as a paid civil servant but also a participant in the labour relations system, an official of the state who ensures that the government shows its human side through his or her direct presence in the workplace. With this goal in mind, the inspectorate was converted into a basic organ for the development and application of legislation; it became, in fact, a fundamental pillar of social reform.

This dual concept of its activities (strict control and active observation of the facts) reveals the origins of inspectoral activity within legal institutions. On the one hand, the labour inspectorate works with clear, specific legal texts which have to be applied; and, on the other hand, the correct articulation and exercise of its functions lead it to interpret the letter of the law by means of direct action. The inspector has to know not only the letter of the law, but also the spirit behind it and he or she must therefore be sensitive to the world of work and have a profound knowledge not only of the rules but also of the technical and production procedures. Thus the inspectorate is an organ of labour policy, but also a creative institution of progress, progress that is fundamental to the very evolution of labour law and labour relations.

The evolution of the world of work has continued to deepen and reinforce the role of the inspectorate as an independent organ of control at the centre of the labour relations sphere. In a parallel way, modification and change in the world of work generate new aims and forms of internal relationships in the complex microcosm that is the workplace. The original concept of a paternalistic type of relationship between the inspector and those subject to inspection gave way early on to more participatory action by the representatives of employers and workers, with the inspector involving the interested parties in his or her activities. Hence the role of conciliator in collective disputes was assigned to labour inspectors right from the beginning in the legislation of many countries.

Together with the consolidation of the role of the state inspector, advances in the trade union movement and professional organizations aroused a greater interest on the part of the workers themselves in active participation in inspection. After various attempts by the workers to incorporate themselves in direct inspectorial action (e.g., attempts to establish worker-inspectors as existed in Communist countries), the independent and objective status of the inspectorate came to be favoured, with its definitive transformation into a state organ consisting of civil servants. However, the participatory attitude of the workers’ and employers’ representatives was not lost in their contacts with the new institution: the inspectorate, in addition to being an independent entity, was also converted into a participant holding a special place in the dialogue between those representatives.

From this perspective the inspectorate developed progressively and in parallel with social and economic evolution. For example, the protectionist tendency of the state during the first third of the twentieth century resulted in substantial modifications in labour law, adding a considerable number of graduates to those already enrolled as inspectors. One immediate consequence of these developments was the creation of a true labour administration. Similarly, the emergence of new forms of work organization and the pressure of market forces on the public service at the end of the twentieth century have of course also affected the labour inspectorate in many countries.

The inspectorate, originally conceived as a body of legal controllers, has modified its own activity over time and converted itself into a useful and integrated mechanism responsive to the technological needs of new forms of work. In this way labour law has also grown, adapting itself to the new needs of production/services and incorporating regulations of a technical nature. Hence the appearance of related sciences: the sociology of labour, ergonomics, occupational safety and health, labour economics and so on. With new emphases and perspectives going beyond the purely legal sphere, the inspector became an active element of the true application of rules in workplaces, not only by virtue of applying sanctions but also by advising employers’ and workers’ representatives.

Generalist versus Specialist

The national regulations themselves have adopted two different organizational approaches to inspection: the generalist inspectorate (which arose in continental Europe) and the specialist inspectorate (which originated in the United Kingdom). Without entering into the arguments concerning the advantages of one or the other system, the terminology of the titles reveals two quite different perspectives. On the one hand, the generalist (also called unitary) approach involves inspectorial action performed by a single person, assisted by various technical institutions, on the assumption that the general appreciation of a single inspector can provide a more logical and coherent basis for the solution of various labour problems. The generalist inspector is an arbiter (in the sense of the word used in ancient Rome) who, having consulted with the relevant specialized bodies, tries to respond to the difficulties and problems posed by the particular workplace. The generalist inspector handles labour relations disputes directly. The specialist inspectorate, on the other hand, takes direct action through the use of a pre-eminently technical inspector, who has to resolve specific problems within a more narrow scope. In a parallel manner, purely labour relations questions are dealt with by bipartite or sometimes tripartite mechanisms (employers, trade unions, other government agencies), which try to resolve conflicts through a dialogue among them.

Despite the differences between the two trends, the point of convergence lies in the fact that the inspector continues to be a living expression of the law. In the generalist inspection system, the inspector’s central position allows him or her to recognize immediate needs and make modifications accordingly. The Italian situation is particularly illustrative of this: the law empowers the inspector to issue executory rules to complement the general regulations, or to substitute more specific regulations. In the case of the specialist inspectorate, the inspector’s in-depth knowledge of the problem and of the technical standards allows him or her to assess possible non-compliance with reference to the legal requirements and prevention of hazards and also to propose alternative solutions for immediate application.

The Present Role of Inspection

The central role of the inspector means that, in addition to his or her supervisory function, the inspector frequently becomes a pillar of support for existing social institutions in the labour field. Apart from the function of general control as regards legal requirements concerning working conditions and workers’ protection, the inspectorate in many countries supervises the fulfilment of other requirements relating to social services, the employment of foreign workers, vocational training, social security and so on. To be effective, a labour inspectorate should have the characteristics embodied in the ILO’s Labour Inspection Convention, 1947 (No. 81): sufficient staffing levels, independence, adequate training and resources and the powers necessary to carry out inspections and to achieve solutions to the problems found.

In many countries the inspection services are also given responsibilities in the resolution of labour disputes, participation in the negotiation of collective agreements at the request of the parties, activities relating to the gathering and evaluation of socio-economic data, drafting memoranda and expert technical advice in their fields for the labour authorities and other functions of a purely administrative nature. This extension and multiplicity of tasks arises from the concept of the inspector as an expert in labour relations with specific technical knowledge. It also reflects a special vision of a framework for the operation of enterprises which sees the inspectorate as the ideal institution for evaluating and solving the difficulties of the world of work. However, this multidisciplinary character in some cases gives rise to a basic problem: dispersion. It may be asked whether labour inspectors, being obliged to assume multiple responsibilities, do not run the risk of having to favour activities of an economic or other nature to the detriment of those which should be the essence of their mission.

The major controversy over the determination of the typical and priority functions of the inspectorate relates to the function of conciliation of labour disputes. Although surveillance and supervision surely make up the daily activity of the inspector, it is no less certain that the workplace is the centre of labour conflict, whether individual or collective. The question thus arises as to whether all the control and evaluation activity of the inspectorate does not imply, in some measure, “palliative” action as regards conflict itself. Let us examine an example: the inspector who suggests the application of legal requirements concerning noise is in many cases responding to a complaint from the workers’ representatives, who consider that the high decibel level affects work performance. When advising the employer, the inspector is proposing a measure for resolving an individual conflict generated within day-to-day working relationships. The solution may or may not be adopted by the employer, without prejudice to the subsequent initiation of legal action in case of non-compliance. In a similar manner, an inspector’s visit to a workplace to examine whether an act of anti-union discrimination has occurred is aimed at diagnosing and if possible eliminating, internal differences that have arisen in that respect.

To what extent are the prevention and solution of conflicts different in the daily activity of the inspector? The answer is not clear. The close intermeshing of all the spheres that form part of the labour field means that the inspectorate is not only a living expression of the law but also a central institution in the labour relations system. An inspectorial body that examines the world of work as a whole will be able to assist in securing better conditions of work, a safe working environment and, as a result, improved labour relations.

Collective Disputes Over Health and Safety Issues

In recent years, legislation, international instruments and general literature on occupational health and safety have highlighted the importance of information, consultation and cooperation between workers and employers. The focus has been on averting disputes rather than their settlement. Some contend that in the area of occupational safety and health, the interests of workers and employers converge and thus disputes can be more easily avoided. Yet disputes still arise.

The employment relationship is subject to diverging interests and priorities as well as changing concerns, including with respect to health and safety considerations. The potential thus exists for disagreement or conflicts which may harden into labour disputes. Although there may be a consensus regarding the importance of health and safety issues in general, disagreement may arise regarding the need for specific measures or their implementation, particularly where extra time or money is involved or production will be decreased. When dealing with health and safety, there are few absolutes: what is an “acceptable” risk, for instance, is relative. Where to draw the line on a number of issues is open to debate, particularly since complicated situations may have to be addressed with limited technical assistance and a lack of conclusive scientific evidence. Also, perceptions in this area are continually shifting as a result of the use of new technology, medical and scientific research, changing societal attitudes and so on. The potential for diverging views and dispute in this area is, therefore, considerable.

In all areas of labour relations, but perhaps particularly with respect to health and safety concerns, the equitable and efficient resolution of disputes is essential. Disputes may be resolved at an early stage as a result of one side to the dispute making the other aware of relevant facts. This may be done formally or informally. Disputes may also be dealt with through internal complaints procedures, usually involving progressively higher levels of management. Conciliation or mediation may be needed to facilitate the resolution of the dispute, or a solution may be imposed by a court or an arbitrator. In the health and safety area, the labour inspector may also play an important role in dispute settlement. Some disputes may lead to work stoppages, which in the case of health and safety issues may or may not be considered a strike under the law.

Categories of Disputes

Within the purview of health and safety considerations, a variety of types of dispute may arise. Although the categories may not always be obvious, giving the dispute a particular definition is often important for determining the mechanisms for settlement that will be applied. Disputes in general can be classified as individual or collective, depending on who initiates, or has the authority to initiate, the dispute. Generally, an individual dispute is one involving an individual worker and a collective dispute involves a group of workers, usually represented by a trade union. A further distinction is often made between rights disputes and interest disputes. A rights dispute (also called a legal dispute) involves the application or interpretation of rights under law or an existing provision set out in a contract of employment or a collective agreement. An interest dispute, on the other hand, is a dispute regarding the creation of rights or obligations or the modification of those already in existence. Interest disputes primarily arise in relation to collective bargaining.

Sometimes defining a dispute as collective or individual will determine the resolution procedures; however, it is usually the interaction between the categories that is relevant – collective rights disputes, collective interest disputes and individual rights disputes are usually given distinct treatment. This article deals only with the first two categories, but it should be kept in mind that some stages in the process of collective disputes will coincide with those for individual claims.

Whether a dispute is considered to be collective or individual may depend on whether the law allows the trade union to raise a dispute on the issue in question. To obtain authority to negotiate over health and safety and other issues, in a number of countries a trade union needs to be registered with the public authorities or to be recognized as being representative of a given percentage of the employees concerned. In some countries, these prerequisites also apply with respect to the authority to raise rights disputes. In others, the employer must voluntarily agree to deal with the trade union before the trade union can act on behalf of the employees.

A trade union may be able to initiate procedures to settle a collective rights dispute where health and safety obligations affecting the workplace as a whole are at issue: for example, if there is a provision in the collective agreement or in legislation providing that noise levels are not to exceed a certain limit, particular precautions are to be taken with respect to machinery, or personal protective equipment is to be provided and the employer does not comply with these provisions. Collective rights disputes may also arise, for example, where the employer fails to consult with or provide information to the health and safety committee or representative as required by law or the collective agreement. Due to its inherently collective nature, an alleged breach of the collective agreement may in some countries be considered a collective dispute, particularly if it concerns the implementation of provisions of general applicability such as those on safety and health, even if in reality only one worker is immediately and directly affected by the employer’s breach. Breach of legal provisions may be considered collective where the trade union acts on behalf of all affected workers, where it is entitled to do so as a result of the breach.

Collective interest disputes over health and safety matters may also take many forms. Such disputes could arise out of negotiations between a trade union and an employer over the formation or responsibilities of a health and safety committee, the introduction of new technology, specific measures for dealing with hazardous materials, environmental control and so on. The negotiations may involve general statements of principle regarding health and safety or specific improvements or limits. Where the parties reach an impasse in the negotiations, dealing with the dispute is considered an extension of the freedom to bargain collectively. In the Collective Bargaining Convention, 1981 (No. 154), the ILO has noted the importance of setting up bodies and procedures for the settlement of labour disputes as part of the process of promoting collective bargaining (Article 5(2) (e)).

Grievance Procedures

The term grievance procedure is generally used to mean internal procedures set out in the collective agreement to resolve disputes regarding the application or interpretation of the collective agreement (rights disputes). Similar procedures are, however, often set up even in the absence of a union or collective agreement to address problems and complaints of workers, as they are seen to be a fairer and less costly means of dispute resolution than litigation (McCabe 1994). The collective agreement normally provides that the complaint is to be dealt with through a multi-stage procedure involving increasingly higher levels within the organization. For example, a dispute on a health and safety matter may go first to the immediate supervisor. If not resolved at the first stage, the supervisor and the health and safety representative may then undertake an investigation, the findings of which are submitted to a manager or perhaps the health and safety committee. If the dispute remains unresolved, a senior level of management may then intervene. There may be several stages which need to be exhausted before outside procedures are set in motion. The agreement may go on to provide for third party intervention in the form of inspection, conciliation and arbitration, which will be discussed in more detail below.

The Examination of Grievances Recommendation (No. 130), adopted by the ILO in 1967, underlines the importance of grievance procedures for rights disputes, whether individual or collective. It states that workers’ organizations or the representatives of workers in the undertaking should be associated with the employers in the establishment and implementation of the grievance procedures within the undertaking. Rapid, uncomplicated and informal procedures are urged. Where procedures within the undertaking are exhausted without a mutually acceptable resolution being reached, the Recommendation goes on to set out procedures for final settlement, including joint examination of the case by the employers’ and workers’ organizations, conciliation or arbitration and recourse to a labour court or other judicial authority.

Conciliation and Mediation

The collective agreement or law may require collective disputes to be submitted to conciliation or mediation before further dispute settlement procedures can be invoked. Even without being required to submit a dispute to conciliation, the parties may voluntarily ask a conciliator or mediator, an impartial third party, to assist them in reducing their differences and ultimately reaching an agreement. In some industrial relations systems, a distinction is made, at least in theory, between conciliation and mediation, though in practice the line is difficult to draw. The role of conciliators is to re-open the lines of communication, if they have been broken, to help the parties to find common ground so that an agreement can be reached and perhaps make findings of fact. The conciliator does not, however, present formal proposals to resolve the dispute (although in practice such a passive role is seldom adopted). A mediator, on the other hand, is expected to propose terms of settlement, though the parties remain free to accept or reject the proposals. In many countries there is no real distinction between conciliation and mediation, with both mediators and conciliators seeking to assist the parties to a dispute to find a solution, using the most appropriate tactics of the moment, sometimes remaining passive, sometimes putting forth proposals for settlement.

Conciliation is one of the most widely used and is considered to be one of the most effective procedures for the settlement of disputes over interests. In the process of collective bargaining, conciliation can be seen as the continuation of negotiations with the assistance of a neutral party. In a growing number of countries, conciliation is also used at the initial stages of settling rights disputes. The government may make conciliation services available or may set up an independent body to provide such services. In some countries, labour inspectors are involved in conciliation.

The ILO, through the adoption of the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), has advocated that free and expeditious voluntary conciliation machinery be “made available to assist in the prevention and settlement of industrial disputes between employers and workers” (Paras. 1 and 3). The role of conciliation in ensuring the effective exercise of the right to bargain collectively is reflected in the European Social Charter (10 October 1961, Article 6(3)).

Arbitration

Arbitration involves the intervention of a neutral third party who, though not a member of the established judiciary, is authorized to impose a decision. In several countries, virtually all rights disputes arising out of the application or interpretation of the collective agreement are dealt with through binding arbitration, sometimes following an obligatory and unsuccessful conciliation stage. Arbitration is available in many countries as a voluntary procedure, while in others it is compulsory. Where arbitration is imposed as a method of resolving disputes over interests it is usually limited to the public service or essential services. In some countries, however, particularly developing countries, arbitration of interest disputes is more generally applicable.

Arbitration is dealt with in the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92). As with conciliation, the Recommendation concerns itself with disputes that are voluntarily submitted to arbitration and provides that in such cases the parties should abstain during the proceedings from striking or locking out and should accept the arbitration award. The voluntary nature of submission to arbitration is also stressed in the European Social Charter (ibid.). If one of the parties or public authorities can initiate arbitration proceedings, arbitration is considered to be compulsory. The ILO’s Committee of Experts on the Application of Conventions and Recommendations has stated that, in the case of interest disputes, compulsory arbitration is generally contrary to the principles of the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), as it vitiates the autonomy of the bargaining parties (ILO 1994b). A final award binding on the parties concerned, if they have not voluntarily submitted a dispute to arbitration, may also be viewed as unreasonably limiting the right to strike. The Committee of Experts has stated that “such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of Convention No. 87 [the Freedom of Association and Protection of the Right to Organize Convention, 1948].” (ibid., para. 153.)

Labour Administration Authorities

The labour administration in most countries has a variety of responsibilities, of which one of the most important is inspecting work premises to ensure compliance with the laws on employment, in particular those on health and safety. Inspectors do not require a labour dispute in order to intervene. However, where a dispute alleges a violation of the law or agreement, they may play an important role in achieving its settlement.

In dispute settlement, labour administration authorities generally play a more active role in health and safety matters than in other areas. The role of the inspector in disputes may be defined in collective agreements or legislation involving health and safety, general labour law, workers’ compensation or a specific industry. In some countries, the health and safety representative or committee is entitled to lodge complaints with the labour inspector, or other public labour or health and safety officer, against the employer. The inspector may be requested to intervene where there is an allegation that health and safety regulations are not being observed. The labour administration authorities may also be required to intervene due to their competence under state workers’ compensation schemes.

The inspectors may have authority to issue improvement, prohibition or stop-work orders, levy fines or penalties or even initiate prosecutions. Civil or criminal proceedings may be available depending on the nature of the violation, the seriousness of the consequences, prior knowledge of the likely consequences and whether the violation has been repeated. An inspector’s decision can normally be reviewed on appeal to a higher public officer, a specialized labour or health and safety body or the court. Separate administrative and appeal mechanisms may exist for different industries (e.g., mining).

The Labour Inspection Recommendation (No. 81), adopted by the ILO in 1947, encourages collaboration between officials of the labour inspectorate and workers’ and employers’ representatives. European Union Framework Directive No. 89/391/EEC on Health and Safety adopted in 1989 provides that workers and their representatives are entitled to appeal to the authority responsible for health and safety protection at work if they are not satisfied that the measures taken by the employer will ensure safety and health at work. According to the Directive, workers’ representatives are to have the opportunity to submit their observations during inspection visits by the competent authority (Article 11(6)).

Regular and Labour Courts

Since rights disputes involve rights or obligations that are already in existence, the general principle underlying their settlement is that they are to be resolved ultimately by courts or arbitrators and not through industrial action, such as a strike. Some countries leave ordinary courts to deal with all disputes over rights, irrespective of their labour relations character. However, in many countries, labour courts (called in some countries “industrial courts”) or specialized tribunals will deal with rights disputes. They may deal with rights disputes generally or only certain types of disputes, such as claims of unjustified discipline or dismissal. The principal reason for having such specialized judicial bodies is the need for speedy, inexpensive and informal procedures and specialized capacity in labour matters. The delays and expenses involved in the ordinary court system are not considered acceptable when dealing with employment, which is an area of crucial importance to a person’s life and often involves a relationship that must continue even after the dispute is settled. Jurisdiction over collective rights disputes may be divided between the ordinary and the labour courts: for instance in some countries the only collective disputes that a labour court is competent to adjudicate are those arising out of an alleged breach of a collective agreement, leaving breaches of legal provisions to the regular courts.

Often representatives of workers and employers as well as an independent judge sit on labour courts or tribunals. Labour courts consisting of only workers’ and employers’ representatives also exist. This bipartite or tripartite composition is aimed at ensuring that the members have expertise in industrial relations matters and, therefore, that relevant issues will be canvassed and dealt with in light of practical realities. Such composition also assists in giving credibility and persuasiveness to the decision. The workers’ and employers’ representatives may have an equal voice in determining the outcome of the dispute or they may be entitled to act only in an advisory capacity. In other countries, judges unaffiliated to either side of industry resolve collective rights disputes.

In a few countries, labour courts deal both with collective rights disputes and interest disputes. As discussed above with respect to arbitration, where adjudication is compulsory for interest disputes, the voluntary nature of collective bargaining is undermined.

Work Stoppages

A concerted work stoppage may take place for a variety of reasons. Most commonly it is understood as a form of pressure on the employer to agree to terms and conditions once an impasse has been reached in the collective bargaining process. This is considered to be a strike in most countries and is normally viewed as a legitimate means of workers and their organizations to promote and protect their interests.

The right to strike is expressly recognized as a general right under the International Covenant on Economic, Social and Cultural Rights (16 December 1966, Article 8(1) (d)). The European Social Charter ( supra , Article 6(4)) links the right to strike to the right to bargain collectively and states that workers and employers are to have the right to collective action in cases of conflicts of interest, subject to obligations arising out of the collective agreement. The Charter of the Organization of American States (30 April 1948, Article 43(c)) defines the right to strike as an integral element of freedom of association, along with the right to collective bargaining. The ILO’s Committee of Experts on the Application of Conventions and Recommendations and Governing Body Committee on Freedom of Association have recognized the right to strike as arising out of the general principles of freedom of association set out in the Freedom of Association and Right to Organize Convention, 1948 (No. 87), though the right to strike is not mentioned specifically in the text of the Convention. The Committee of Experts has stated that “a general prohibition of strikes constitutes a considerable restriction of the opportunities opened to trade unions for furthering and defending the interests of their members... and of the right of trade unions to organize their activities” (ILO 1994b, para. 147).

In some countries the right to strike is a right of a trade union and thus strikes not organized or authorized by the trade union are considered “unofficial” and unlawful. In other countries, however, the right to strike is a right of the individual, even though it is normally exercised by a group, in which case the distinction between “official” and “unofficial” strikes is of little significance.

Even where the right to strike is recognized in principle, certain categories of workers may be excluded from enjoying the right, such as members of the police or armed forces, or senior public servants. The right may also be subject to certain procedural limitations, such as requiring prior notice to be given or a ballot to be taken in support of the strike. In a number of countries, the parties are obliged to refrain from striking or locking out, either absolutely or on issues regulated in the agreement, while the collective agreement is in force. This “peace obligation” is often set out specifically in legislation or collective agreements, or may be implied through judicial interpretation. The right to strike in many countries is severely restricted, or even prohibited, in essential services. This restriction is permitted under ILO principles if the services to which it applies are limited to those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. (ILO 1994b, para. 159.)

In the field of disputes over health and safety issues, a distinction must be made between those relating to negotiating for certain rights (for instance, determining the precise functions of a safety representative in the implementation of a general health and safety policy) and those relating to situations of imminent danger. Where a dangerous situation exists, or is believed to exist, legislation or collective agreements generally give workers the right to stop work. This is often expressed as an individual right of the worker or workers who are directly at risk. A variety of formulas exist for justifying a work stoppage. An honest belief that a danger exists may suffice, or an objective danger may need to be shown. Regarding who is in danger, workers may cease working if they are immediately threatened, or the right may be broader and include causing danger to others. Collective work stoppages in solidarity (sympathy strikes) are not generally envisaged by the provisions (and therefore may be considered unlawful), but in fact they do take place. Authority to stop work may also be vested in the workplace health and safety representatives. Work may then be suspended pending a final decision by labour administration authorities.

The Occupational Safety and Health Convention, 1981 (No. 155), provides that workers shall not suffer undue consequences from having removed themselves from a work situation which they believe presents an imminent and serious danger to their life or health (Article 13). A similar provision can be found in Article 8(4) of the European Union’s 1989 Framework Directive, which refers to “serious, imminent and unavoidable danger”. Often the right to stop work due to imminent danger is contained in health and safety legislation. In some countries, the right is embodied in labour legislation and conceived as a work stoppage that does not constitute a strike; therefore, the procedural prerequisites for a strike do not need to be met and the peace obligation is not breached. Similarly, where an employer closes the workplace in compliance with a stop-work order or because of a reasonable belief that a dangerous situation exists, it is generally not considered to give rise to a lockout.

Individual Disputes over Health and Safety Issues

Types of Disputes

An individual dispute arises from a disagreement between an individual worker and his or her employer over an aspect of their employment relationship. An individual dispute exemplifies a “rights dispute”, that is a dispute over the application of the terms of legislation or an existing agreement, whether a collective bargaining agreement or an individual written or oral contract of employment. Thus there could be a dispute over the amount of wages paid or their manner of payment, work schedules, working conditions, entitlement to leave and so forth. In the field of health and safety an individual dispute may arise in relation to the use of personal protective equipment, extra payments for carrying out dangerous work (hazard pay – a practice now frowned upon in favour of eliminating hazards), refusal to perform work that poses an imminent danger and observance of health and safety rules.

An individual dispute may be initiated by a worker complaining to vindicate what he or she believes to be a right, or reacting to employer-imposed disciplinary action or dismissal. If a dispute involves similar claims on behalf of individual workers, or if an individual dispute raises a point of important principle for a trade union, an individual dispute can also lead to collective action and, where new rights are then sought, to an interests dispute. For instance, a single worker who refuses to perform work that he or she thinks is too hazardous may be disciplined or even dismissed by the employer; if the trade union sees that this work poses a continuing danger for other workers, it may take up the issue with collective action, including a work stoppage (i.e., a lawful strike or a wildcat strike). In this way, an individual dispute may lead to and become a collective dispute. Similarly, the union may see a point of principle which, if not recognized, will lead it to make new demands, thus giving rise to an interests dispute in future negotiations.

The resolution of an individual dispute will depend largely upon three factors: (1) the extent of legal protection afforded to workers in a particular country; (2) whether or not a worker falls under the umbrella of a collective agreement; and (3) the ease with which a worker can have enforcement of his or her rights, whether they are afforded by law or collective agreement.

Disputes over Victimization and Dismissal

In most countries, however, certain rights enjoyed by an individual will be the same no matter what the length of his or her engagement or the size of the enterprise. These normally include protection against victimization for trade union activity or for reporting to the authorities an employer’s alleged infringement of the law, called “whistle-blower” protection. In most countries, the law affords protection to all workers against discrimination on the basis of race or sex (including pregnancy) and, in many cases, religion, political opinion, national extraction or social origin, marital status and family responsibilities. Those grounds are all listed as improper bases for dismissal by the ILO Termination of Employment Convention, 1982 (No. 158), which also adds to them: union membership and participation in union activities; seeking office as, or acting or having acted as, a workers’ representative; and filing a complaint, or participating in proceedings against an employer involving alleged violation of laws or regulations, or having recourse to administrative authorities. These last three are clearly of particular relevance to the protection of workers’ rights in the field of safety and health. The ILO Committee of Experts on the Application of Conventions and Recommendations recently highlighted the seriousness of retaliatory measures, in particular in the form of termination of employment, taken against a worker who reports the employer’s failure to apply occupational safety and health rules while the workers’ physical integrity, health and even lives may be at risk. When fundamental rights or the physical integrity of lives of workers are at stake, it would be desirable for conditions as to proof (reversal of the burden of proof) and measures of redress (reinstatement) to be such as to allow the worker to report illegal practices without fearing reprisals (ILO 1995c).

However, when it comes to retention of employment in practice, two major determinants of an individual’s employment rights are the enforcement mechanism available to vindicate these rights and the type of contract of employment under which he or she has been engaged. The longer the term of the engagement, generally the stronger the protection. Thus a worker still in the probationary period (in most countries a matter of a few months) will have little or no protection from dismissal. The same is true for a casual worker (i.e., a person engaged on a day-to-day basis) or a seasonal worker (i.e., one employed for a limited, recurring period). A worker with a contract of employment for a fixed term will have protection during the period covered by the contract, but will normally not have a right to its renewal. Workers engaged on contracts that are without limit of time are in the most secure position, but they may still be dismissed for specified reasons or more generally for what is often termed “gross misconduct”. Their jobs may also be eliminated in the course of company restructuring. With increasing pressures for greater flexibility in the labour market, the recent trend in legislation governing contracts of employment has been to make it easier for employers to “shed labour” in the restructuring process. In addition, a number of new forms of work relationships have arisen outside the traditional one of employer/employee. Without employee status, the individual concerned may have little legal protection.

Disputes over a Worker’s Refusal to Perform Hazardous Work

An individual dispute may often arise around the question of an employee’s refusal to perform work that he or she believes to pose an imminent hazard; the belief must be that of a reasonable person and/or be held in good faith. In the United States the reasonable belief must be that performance of the work constitutes an imminent danger of death or serious physical injury. In some countries, this right is negotiated in collective bargaining; in others, it exists by virtue of legislation or court interpretations. Unfortunately, this important right is not yet universally recognized, despite its inclusion as a basic principle in Article 13 of the ILO Occupational Health and Safety Convention, 1981 (No. 155). And even where the right exists in law, employees may fear retaliation or job loss for exercising it, particularly where they do not enjoy the backing of a trade union or an effective labour inspectorate.

The right to refuse such work is normally accompanied by a duty to inform the employer immediately of the situation; sometimes the joint safety committee must be informed as well. Neither the worker who refused nor another in his or her place should be (re)assigned to the work until the problem has been resolved. If this happens nonetheless and a worker is injured, the law may (as in France and Venezuela) subject the employer to severe civil and criminal penalties. In Canada, both the worker who refused the work and the health and safety representative have rights to be present while the employer undertakes an on-the-spot investigation. If the employee still refuses to do the work after the employer has taken remedial measures, an expedited government inspection can be triggered; until that has led to a decision, the employer cannot require the worker to do that work and is supposed to provide him or her with an alternative assignment to avoid earnings loss. A worker designated to replace the one who refused must be advised of the other’s refusal.

Recognition of a right to refuse hazardous work is an important exception to the general rule that the employer is the one who assigns work and that an employee is not to abandon his or her post or refuse to carry out instructions. Its conceptual justification lies in the urgency of the situation and the presence of interests of public order to save life (Bousiges 1991; Renaud and St. Jacques 1986).

Participation in a Strike

Another way in which an individual dispute can arise in connection with a health and safety issue is the participation of an individual in strike action to protest unsafe working conditions. His or her fate will depend on whether the work stoppage was lawful or unlawful and the extent to which the right to strike is guaranteed in the particular circumstances. This will involve not only its status as a collective right, but how the legal system views the employee’s withdrawal of labour. In many countries, going on strike constitutes a breach of the employment contract on the part of the employee and whether this will be forgiven or not may well be influenced by the overall power of his or her trade union vis-à-vis the employer and possibly the government. A worker who has a strong theoretical right to strike but who can be temporarily or permanently replaced will be reluctant to exercise that right for fear of job loss. In other countries, engaging in a lawful strike is explicitly made one of the grounds on which a worker’s employment may not be brought to an end (Finland, France).

Means of Dispute Resolution

The ways in which an individual dispute can be resolved are in general the same as those available for the resolution of collective disputes. However, different labour relations systems offer varying approaches. Some countries (e.g., Germany, Israel, Lesotho and Namibia) provide labour courts for the resolution of both collective and individual disputes. The labour courts in Denmark and Norway hear only collective disputes; individual workers’ claims must go through the regular civil courts. In other countries, such as France and the United Kingdom, special machinery is reserved for disputes between individual workers and their employers. In the United States, individuals have rights to bring actions claiming unlawfùl employment discrimination before bodies that are distinct from those before which unfair labour practice claims are pressed. However, in non-union situations, employer mandated arbitration for individual disputes is enjoying popularity despite criticism from labour practitioners. Where an individual is covered by a collective bargaining agreement, his or her grievance can be pursued by the trade union under that agreement, which usually refers disputes to voluntary arbitration. An individual’s ability to win a claim may ofien depend on his or her access to procedures that are fair, affordable and rapid and whether he or she has the support of a trade union or an able labour inspectorate.

Case Study: The Labour Agreement between the Bethlehem Steel Corporation and the United Steelworkers of America

Case study: denmark: worker participation in health and safety.

Excerpted from Vogel 1994

Danish industrial relations provide an example of a country with a number of institutions that play a role in relation to health and safety. The main features are:

COLLECTIVE BARGAINING : Negotiation of agreements by which trade unions and employers fix wages, conditions of work, etc. Pertinent highlights are:

Shop stewards who are elected by workers under collective bargaining agreements; enjoy statutory protection against dismissal; serve as channel between workers and management on working conditions.

Collective Agreement on Cooperation and Cooperation Committees provides for information to be given to individuals and groups of workers in advance so they can make their views known before a decision is taken and for the establishment of cooperation committees.

Cooperation committees must be set up in all firms employing more than 35 workers (25 in the public service). Joint committees to promote cooperation in day-to-day operations; they must be consulted on the introduction of new technologies and the organization of production; some co-determination rights on working conditions, training and personal data.

National collective agreement on industrial disputes (of 1910) gives workers a right (rarely exercised) to stop work if considerations of “life, welfare or honour” make this absolutely necessary. Other collective agreements contain provisions on training and trade unions also provide it.

FRAMEWORK LAW : The Working Environment Act creates “the basis on which the undertakings themselves will be able to solve questions relating to safety and health under the guidance of the employers’ and workers’ organizations and under the guidance and supervision of the Labour Inspection Service” (Sec. 1(b)). The Act establishes a complete system from the plant to the national level to permit worker participation:

Safety representatives are elected representatives required in firms employing at least ten workers; they enjoy the same protection against dismissal and retaliation as shop stewards and are entitled to reimbursement of official expenses.

Safety groups: The safety representative and the department supervisor form the safety group. Its functions are to:

• monitor working conditions
• inspect equipment, tools, materials
• report any risk which cannot be avoided immediately
• halt production where necessary to avert an imminent serious danger
• ensure that work is performed safely and proper instructions are given
• investigate industrial accidents and occupational diseases
• participate in prevention activities
• cooperate with the occupational health service
• act as link between workers and the safety committee.

Members of the safety group are entitled to training and to necessary information.

Safety Committees are required in firms employing at least 20 workers. In firms with more than two safety groups, the safety committees consist of workers elected from among safety representatives, two supervisor members and an employer’s representative.

The functions are:

• planning, directing and coordinating health and safety activities
• being consulted on these matters
• cooperating with other companies engaged in work at the same workplace
• cooperating with the company’s occupational health service
• supervising the activity of safety groups
• making recommendations on prevention of accidents and diseases.

WORKING ENVIRONMENT COUNCIL involves employers’ and workers’ organizations in the definition and application of preventive policy at the national level. Composition: 11 representatives of employee organizations representing manual and non-manual workers, one for supervisors, ten of employers’ organizations, plus an occupational medical practitioner, a technical expert and non-voting governmental representatives. Functions:

• is consulted on drafting legislation and regulations
• may on its own initiative take up a health and safety matter
• submits annual recommendations on working environment policy
• coordinates the activities of Trade Safety Councils
• supervises the activity of the Working Environment Fund.

WORKING ENVIRONMENT FUND is managed by a tripartite board. The Fund has mainly information and training duties, but also finances research programmes.

TRADE SAFETY COUNCILS : Twelve Trade Safety Councils examine the problems of their trade or industry and advise undertakings. They are also consulted on draft legislation. Equal representation of employers’ and supervisors’ organizations on the one hand and workers’ organizations on the other hand.

GOVERNMENTAL AUTHORITIES : In addition, the Ministry of Labour, the Labour Inspection Service and within it, the Danish Institute of the Working Environment, provide various types of services and advice in the field of occupational safety and health. Collective industrial disputes are heard by the Labour Courts.

" DISCLAIMER: The ILO does not take responsibility for content presented on this web portal that is presented in any language other than English, which is the language used for the initial production and peer-review of original content. Certain statistics have not been updated since the production of the 4th edition of the Encyclopaedia (1998)."

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Home > Books > Issues of Human Resource Management

Labor Relations: Contemporary Issues in Human Resource Management

Submitted: 16 October 2016 Reviewed: 17 March 2017 Published: 07 June 2017

DOI: 10.5772/intechopen.68625

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In this chapter, we examine the labor relations through the role of trade unions, collective bargaining, wages and benefits across the European Union. We conclude that labor relations have a direct influence on the labor market, designing the lines for taking decisions in organizations, but also, by governments. Our argumentation explains the relationship between employers and employees through legal rights (established by the law), negotiation process, collective bargaining, ‘actors’ in this process, wage and benefits, social and security protection.

• negotiation
• collective bargaining
• trade unions
• wages and benefits
• social protection
• European countries

Author Information

Ana‐maria bercu *.

• Faculty of Economics and Business Administration, Alexandru Ioan Cuza University of Iasi, Romania

Ana Iolanda Vodă

• Department of Interdisciplinary Research—Humanities and Social Sciences, Alexandru Ioan Cuza University of Iasi, Romania

*Address all correspondence to: [email protected]

1. Introduction

Today’s workers want more than a salary, and they want additional benefits to enrich their lives, to increase their importance at workplace and to be valuable for the organization. The labor relations are more than a static interpretation of contract between an employee and an employer. Means a sum of connections between skills, abilities, values and opportunities at work. Employee role in organization has grown in importance and variety over the time. For them, the labor relations become a way to live, to self‐development and to obtain recognition. The employers realize that to keep motivated and committed people in organization need more than a salary. It is about benefits in financial terms, but, also, talking about safety at work, security, rights and duties. Benefits are necessary to assure the job satisfaction.

Labor relations are the term used to define the process between employers and employees, management and unions in order to make decisions in organizations. The decisions taken refer to wages, working conditions, hours of work, and safety at work, security and grievances. Why is an important topic for Human Resource Management?

It is know that wage and other economic benefits for employees represent not only their current income, but also the potential for economic growth and the ability to live comfortable during the active life and after the retirement. Wage is considered as an important economic variable for competitiveness. The world economic crises have shown that the role of wages in sustaining demand in a context of stagnant growth and very low inflation is very important and needs a particular attention from the part of management boards, government and employees, through their representants.

Wages and benefits received by employees for their work represent the compensation or ‘the price paid by employers for their workers services’. This requires a specific analyze due to the fact that the work is realized under a contract and propose and active commitment of the workers [ 1 ]. From this perspective, the wage issues require a specific analytical framework because the work cannot be separated by the human beings, and according to the several studies, the level of payment and economic benefits of employees are positively related to employee satisfaction at work.

Wage and salary are considered as most important and difficult collective bargaining issue. In the employment relationships, the collective bargaining process has several implication at individual levels, for the employers, as a determinant of production and labor costs, among employers on the competition market, between employers and employees as a distribution of added value, for employees, as a key factor for their income and sustainability on a dynamic labor market, among employees, expressing the solidarity through the ‘wage floors’ applying to different group of workers at a given bargaining level.

The parties could negotiate the total package of wage and benefits in individual terms or in collective terms, but reflecting the aim of labor contract: The employees must be paid for their work, and the employers must receive qualitative work.

Also, the negotiations reflect the interest of all the parties involved: managers, employees through their representants and government.

In this chapter, we examine the labor relations through the role of trade unions, collective bargaining, wages and benefits across the European Union. We conclude that labor relations have a direct influence on the labor market, designing the lines for taking decisions in organizations, but also, by governments. Our argumentation explains the relationship between employers and employees through legal rights (established by the law), negotiation process, collective bargaining, ‘actors’ in this process, wage and benefits, social and security protection.

For the policy‐makers to find a balance between assuring the rights and promote competitiveness in their organization, also to make their employers more productive is a key priority, drawing on a range of policy measure. Important aspects cover wage settings, collective bargaining, employees’ representativeness, safety and security needs, working hours and contracts. All these influence the policies and the labor market flexibility. The employees find satisfaction in being able to perform task adequately and are more willing to perform a better job, increasing the involvement at workplace and become more implies [ 2 – 5 ].

2. Data and methodology

The necessary data to conduct our research were collected from various statistics, official reports, databases of the worker‐participation.eu and ICTWSS: Database on Institutional Characteristics of Trade Unions, Wage Setting, State Intervention and Social Pacts . The analyzed countries are EU‐28, grouped in five analytical clusters, defined by European Commission as industrial regimes [ 5 ], namely: (a) North Europe: Denmark, Finland, Norway and Sweden; (b) Central‐West Europe: Austria, Belgium, Germany, Luxembourg, the Netherlands and Slovenia; (c) South Europe: France, Greece, Italy, Portugal and Spain; (d) West Europe: Cyprus, Ireland, Malta and the United Kingdom; (e) Central‐Eastern Europe: Bulgaria; Czech Republic; Estonia; Latvia; Lithuania; Hungary; Poland; Romania and Slovakia.

The main indicators taken into account are collective bargaining coverage, trade union density, collective bargaining coordination index and collective bargaining centralization. The chosen period was 2013–2014 for the analyzed countries, except for Portugal were no data were available for collective bargaining centralization. Also, for Cyprus, we used the data available only for the south part of the county.

Table 1 presents the descriptive statistics for included variables, the number of analyzed countries, the minimum and maximum values for the chosen indicators, the mean and standard deviation.

Table 1.

Descriptive statistics.

Source: Authors’ calculation.

For the sample of 28 EU countries, we studied the bivariate correlations between the variables, using Pearson correlation coefficient and the associated p values. A value lower than 0.05 dictates the significance of the used variables, while the correlation coefficient values are a number from −1 to 1, which determines whether the sets of data are related. The closer to 1 the more confident we are of a positive linear correlation and closer to −1 the more confident we are of a negative linear correlation. The person correlation values closer to zero indicate the lack of any relationship between the variables.

For collective bargaining coverage and trade union density, we calculated the mean for the chosen period based on the data provided by worker‐participation.eu, while, for collective bargaining coordination index, we used the estimated index values based on a five‐point scale [ 6 ]. Collective Bargaining Centralization is an indicator calculated by Visser as: Level—(Frequency or scope of additional enterprise bargaining ( FAEB= 0,3 ¯ ) + Articulation of enterprise bargaining ( AEB= 0,3 ¯ ) )/4(=max value) + (AEB + Derogation ( DER= 0,3 ¯ ) − 1 )/5( = max value), and the index scores are between 0 and 3, in which ‘0’ represents the lower value and ‘3’ the higher value [ 6 ].

3. Wage systems and institutions: unions and management wage concerns

The wage systems and institutions that served the issue are deepening linked by the market, legislation and industrial relations. The market is the factor, which reflects the macro‐ and microequilibrium between the labor force and state, the differences in labor and cost productivity. The legislation has the reglementation role for work and the conditions to made it and put into provisions the relationships between employers, employees and government. Setting the minimum wage is a requirement for a special category of workers, and an objective for the policy of governments.

The total economic package should be negotiated between employers and employees by their representants to estimate accurately the total cost of the contract of work, in term of salary and benefits. The collective bargaining has different dimensions and indicates, in a general way, how the conditions and requirements of the work interact with legal and market regulation. Even if the collective bargaining is independently and autonomous than the legislation, the results of the negotiations should be in accordance with the legal provisions.

The collective bargaining process is the actual negotiations carried out by the parties to reach an agreement. Artful use of this process can improve the relationship between an employer and employees and has as result a contract for both parties [ 7 , 8 ].

The bargaining process implies the representative of employees, the management representatives. Successful negotiations depend on the knowledge and skills of the negotiators, which should prepare their side’s interests in the bargaining issues. They should make realist proposals and within the framework of negotiations. The bargaining items could be: mandatory, as rates of pay, wages, hours of employment, overtime pay, holidays, pensions, insurance benefits, employee security, job performance, management‐union relationship, subcontracting or relocating union members’ work, medical exams and permissive, as indemnity bounds, preferential hiring, pension benefits off retired employees, use of union label, employer child care, plant closings.

Concerning these issues, many changes have been noticed in industrial relations over the last decade due to long‐term development trends caused by an ever‐changing socio‐economic environment. The trends shifts occur especially since the beginning of the recent economic and financial crisis and their impact varied across European Union Member states.

In the table, we group the EU member states in five analytical clusters, defined by the European Commission as industrial relations regimes or arrangements: (a) North Europe: Denmark, Finland, Norway and Sweden; (b) Central‐West Europe: Austria, Belgium, Germany, Luxembourg, the Netherlands and Slovenia; (c) South Europe: France, Greece, Italy, Portugal and Spain; (d) West Europe: Cyprus, Ireland, Malta and the United Kingdom; (e) Central‐Eastern Europe: Bulgaria; Czech Republic; Estonia; Latvia; Lithuania; Hungary; Poland; Romania and Slovakia. These countries are grouped in relation to some collective features related to union density, bargaining coverage rates, employee representativeness and role of the state and social partners in the industrial relations [ 5 ].

• The data is available only for the south part of the island, officially recognized by the state government.

The relative change in employees and trade unions trends is a consequence of the recent economic and financial crises impact. These recent developments can be explained through factors like low level of employment of young people, part‐time hiring, together with the higher number of fixed‐term contracts which dropped the number of unionized employees since 2008 in many European countries. Recent developments appear to have slowed, at least for the moment, the downfall of the trade union density.

In European industrial relations or arrangements, collective bargaining represents a fundamental element through which employers and their organizations, on one side, and trade unions, on the other, can typically determine wages and working conditions, and relations between involved parties. Collective bargaining coverage represents ‘an indicator of the extent to which the terms of workers’ employment are influenced by collective negotiation. It is calculated as the number of employees covered by the collective agreement divided by the total number of wage and salary‐earners’ [ 10 ]. The contrast between the European Member states is particularly strong with regard to collective bargaining coverage. In North, Central‐West and South Europe, the coverage rate is above 60%, with the exception of Luxemburg. Between West Europe and Central‐Eastern Europe, only Malta has a coverage rate above 60%. The lower collective bargaining coverage is registered in Poland (10–15%) and the United Kingdom (29%). In the literature, coverage rates are correlated with the employers’ density rates, and in several countries like Germany and the Netherlands, the two concepts are connected and associated one with other. As Carley [ 11 ] noted ‘in these countries, employers who are member of employers’ organization are generally bound by collective agreements. In other cases, coverage rates go beyond employers’ density rates due to statutory extension procedures that are supported and legislated by governments. This is the case in France, where statutory extension compensates for low trade union membership levels [ 11 ].

Table 2 also shows that the level at which collective barraging takes place also differs across EU member states. For instance, while for North, Central‐West and South Europe groups, the sector is the main place where negotiations between the involved parts occur, in the West (with the exception of Cyprus) and Central‐East Europe, different standards are applied and the bargaining processes between employees and trade unions are at company level. Although this is the overall trend in the analyzed groups, some of the EU countries have a mixed level approach (Luxemburg, the Netherlands, Slovakia), and collective bargaining takes place at both industry and company level or other different styles are adopted (in Belgium, negotiations take place at the national level, while in France and Spain, we have three levels procedure: national, industry and company/organization).

Table 2.

Industrial regimes across Europe.

In calculating collective bargaining coverage for Poland, we took the average mean, based on the date provided by http://www.worker‐participation.eu/National‐Industrial‐Relations/Countries/Sweden/Trade‐Unions. Available from Refs. [ 12 , 13 ].

Overall other representatives are not excluded.

No category: Bulgaria, Estonia, Latvia, Lithuania and Romania and yes: state‐owned companies for the rest.

In the majority of the European member states, the employee representation at the workplace is through unions, except the Central‐West area where the workplace structures are represented by works councils (with the exception of Slovenia dominated by union structure, and Belgium and France with both unions and works council).

North Europe, Central‐West and South Europe have employee representation at board level, with the exception of Belgium (not featured at board level, apart from a handful of publicly owned organizations) and Italy (no right for employee representation at board level although a proposal have been included in the Jobs Acts 2002 legislation). In the West Europe, just Ireland accepts employee representation but only in the state‐owned sector. In the Central‐Eastern Group, the extent of employee representation at board level is divided between the countries: While in Czech Republic, Hungary, Poland and Slovakia employee representation do exist, in Bulgaria, Estonia, Latvia, Lithuania and Romania, there is no participation at board level, although is some situations employee representatives can have a consultative role in shareholders’ meetings.

Moreover, the role played by social partners in public policy‐making is different across the five analyzed groups. In the North and Central‐West Europe corporatist clusters, the implication of employers’ organization and unions in designing policy proposals is extensive, and their connection with political actors is highly institutionalized. In Western countries, although social policy‐makers are constantly engaged in social and economic debates, not always their beliefs are reflected in policy outcomes. Distinct practices occur in the other groups involved in the analyses. For instance, in South Europe, the role of social partners in policy‐making depends mostly on the individual governments’ willingness of inclusion. Despite the fact that the engaged policy‐makers are formally involved in the decision‐making policy, the government has the freedom to oppose their participation. In the Central and Eastern Europe, an effective social partnership can be undermined by organization politicization which ‘combined with the overall weakness of organized interest representation, social partners’ politicization seriously limits their influence in the policy‐making sphere’ [ 14 ].

The role of the state and its involvement in collective bargaining differs significantly across EU countries. In North, Central‐West and West Europe, state interventions are limited and in the latter region quite rare. In Southern European countries, although there exist strong pressures toward less state regulation regarding collective bargaining and working conditions, the state assumes an almost exclusive role in governing change, particularly in the recent economic context. Regulatory amendments framework, alongside clientelistic relations with social partners, has mainly limited the governing capacity of trade unions and employer organizations over industrial relations. In Central‐Eastern Europe, the collective bargaining is dominated by the government; meanwhile, the existing legislation remains the only instrument in settling work relations disputes.

In Table 3 , the correlations between different institutions of wage bargaining are described. Pearson correlation coefficients demonstrate the positive relationships among all the variables and strong association between: collective bargaining coverage with coordination (0.746) and centralization (0.774), among trade union density with collective bargaining coordination (0.595), and the both way and powerful relationship between coordination index and centralization. Strong actors are interrelated with centralized and coordinated institutions and high rates for bargaining coverage; meanwhile, fragile and weak players are connected with low levels of coordination and de‐centralization.

Table 3.

Institutional features/linkages of wage bargaining.

Correlation is significant at the 0.05 level (one‐tailed).

Correlation is significant at the 0.01 level (one‐tailed).

Except Collective Bargaining Coverage and Trade Unions Density mentioned already in the analyses, two more indicators appear in Table 3 : Collective Bargaining Coordination Index (CBCI) and Collective Bargaining Centralization.

Collective bargaining coordination represents the combination between the level of bargaining and the range of sectors/organization that are bound by the collective agreement that succeeds negotiations . Collective bargaining coordination index (CBCI) was first developed by Kenworthy [ 15 ] and put in application with some small adjustments by authors like Visser which estimates the indexed values based on a five‐point scale [ 6 ]:

If maximum or minimum wage rates/increases based on: enforceable agreements between the peak association(s) of unions and employers affecting the whole economy or entire private sector with or without government involvement, and/or government imposition of wage schedule/freeze, with peace obligation, then a score of ‘5’ is set.

A ‘4’ score is set if wage norms or guidelines (recommendations) are based on centralized bargaining by peak associations with or without government involvement, informal centralization of industry‐level bargaining by a powerful and monopolistic union confederation and extensive, regularized pattern setting coupled with high degree of union concentration centralized bargaining by peak association(s), with or without government involvement, and/or government imposition of wage schedule/freeze, with peace obligation.

‘3’ score is set if negotiation guidelines are based on limited government involvement on central bargaining by major associations, informal centralization of bargaining at industry level and on government arbitration or intervention.

If we have a mixed sector and firm level bargaining with weak enforceability of industry agreements than a ‘2’ score is considered.

‘1’ for none of the above: fragmented wage bargaining, confined largely to individual firms or plants.

From Figure 1 , we can observe that 7.1% of the analyzed countries (Finland, Belgium) score a ‘5’ value, meaning that economy‐wide bargaining is based either on enforceable agreements or on government establishment of a wage schedule, freeze or ceiling. The larger percent (32.1%) is registered by those countries (Luxemburg, France, Greece, Malta, Cyprus, Bulgaria, Czech Republic, Portugal and Romania), which have a mixed sector and firm level bargaining characterized by weak enforceability of industry agreements. In some cases (14.3%—Slovenia, Italy, Spain and Slovakia), the industry bargaining is characterized by an irregular pattern setting and narrow implication of central organization and limited freedoms for firms bargaining. A 21.4% of the analyzed countries register a ‘4’ value score, while 25% of them register fragmented wage bargaining, confined largely to individual firms or plants (Ireland, the UK, Estonia, Latvia, Lithuania, Hungary and Poland).

Figure 1.

Collective bargaining coordination index (CBCI), EU‐28. Source: Authors’ calculation.

Another used indicator, Collective Bargaining Centralization or the actual level of wage bargaining is calculated by Visser [ 6 ] as: Level—(Frequency or scope of additional enterprise bargaining ( FAEB= 0,3 ¯ ) + Articulation of enterprise bargaining ( AEB= 0,3 ¯ ) )/4( = max value) + (AEB + Derogation ( DER= 0,3 ¯ ) − 1 )/5( = max value) in which:

Frequency or scope of additional enterprise bargaining (FAEB) scores is between 0 and 3, in which ‘0’ represents the value for no additional enterprise, ‘1’ for rarity and, respectively, the frequency of additional enterprise bargaining in large firms and ‘3’ for its regularity.

Articulation of enterprise bargaining (AEB) equals with values from 0 , 3 ¯ , where ‘0’ score means that this concept does not apply; ‘1’ score is applied for disarticulated enterprise bargaining or if exits is reinforced by non‐union bodies; ‘2’ denotes that articulated bargaining is established under union control; and ‘3’ score is applied for disarticulated bargaining abolish or limited by sectoral agreements or existing law.

Derogation is also valued from 0 , 3 ¯ where, ‘0’ value stands for inversed favorability; ‘1’ for the linkage between agreements not subject to existing law; ‘2’ agreements are law enforced but under some conditions derogation is possible; ‘3’ favorability is anchored in law and strictly applied, no derogation [ 6 ].

In the North Europe, the higher is the collective bargaining coverage, the higher are the rates for coordination and centralization. From Central‐West Europe, Belgium has the higher value not only for coverage and density but also for collective bargaining coordination and centralization. The lowest values regarding collective bargaining coordination index (CBCI) and collective bargaining centralization are registered in most Central‐Eastern European countries ( Figures 1 and 2 ).

Figure 2.

Collective bargaining centralization, EU‐28. Source: Authors’ calculation. *** No data are available for Portugal on Collective Bargaining Centralization.

Regardless the importance of coverage and trade union density, the above described indicators, collective bargaining coordination index (CBCI) and collective bargaining centralization represent important assets in association of wage setting with economic and labor market performance measures. For instance, in the literature has been identified that as the extend of union coverage increases from less than one quarter to more than 70%, unemployment more than doubles, but bargaining coordination growth tend to compensate this effect [ 16 ].

The benefits systems are very important for the employees and employers, also. For the employee, the benefits represent that the income needs for necessities of life and is part of the economic package that can receive. For the employers, is a manner to motivate the people, to attract and to sustain their personal development in organizations, to retain the personal and to increase the productivity and competitively on the market.

Another important topic for the labor relations is job security. Today, the security at work became such important as wages and economic incomes and implies rights to work, to be promoted, to perform at work, to be fire or lay‐off.

According to industrial relations research, payment level is positively related to employee satisfaction [ 17 – 20 ], employees considering as a primary indicator of the organization goodwill. The unions’ objectives concerning the level of wages are direct related to negotiation. The unions’ goals in wage bargaining are to achieve a maximum level of wages and benefits for its members and to maintain the jobs as long as possible. Also, the bargaining process follows to assure a structure of wage scales between employees, negotiating for differences in working conditions, skills, seniority, age and job classification.

The establishment of a statutory or collectively agreed minimum wages is an important way of policy intervention in wage setting processes. Most of the European member states have different forms of regulations in determine minimum wages enforcement: statutory minimum wages and minimum wages established through collective agreements. In the first type, the minimum wage levels are fixed either by government legislation or through inter‐sectoral agreements at national level. In the second situation, the wages are established by consultation with social partners or tripartite agreements. Although these are the main minimal wages set approaches, different combinations of these forms of regulations are not excluded.

Visser sets a nine‐item scale to measure the minimum wage setting according to the following statements [ 6 ]: ‘0’ value score is set for non‐statutory minimum wage; ‘1’ represents the case scenario in which the minimal wages are set in consultation with social partners (sectoral collective agreements) or tripartite agreements; ‘2’ values are associated with the hypostasis that minimum wages are set by national agreements, along unions and employers; ‘3’ the minimum wage is established based on an extended agreement enforced by law or Ministerial decree; ‘4’ through tripartite negotiations, the minimal wages is decided; ‘5’ the government sets the national minimal wages, after voluntary tripartite consultations; ‘6’ minimum wage is adjust by judges or experts; ‘7’ the minimum wage is fixed by the state but in accordance with a indexed‐based minim wage; ‘8’ government established minimum wage without fixed rule.

In Figure 3 , we can observe that in the European Member states, there are some forms of establishing the minimum wage settings. In 46.1% of the analyzed countries, the minim wage is set by government and is based either on fixed rule (26.9%) or is bound by index‐based minimum wage (19.2%). In 19.3% of the cases, the minim wages are set by sectoral collective agreements or tripartite wage boards. Only in 11.5% of the countries, the minimum wage is set by national agreements between unions and employers, and in 7.7% of the cases is established based on an extended agreement enforced by law or Ministerial decree. A very small percentage of 3.8% remains for those European countries in which the government sets the national minimal wages, after voluntary tripartite consultations.

Figure 3.

Minimum wage setting in EU 28. Source: Authors’ representation. ***No data are available for Romania on minimum wage setting in 2014.

Human Resource Management is concerned with the development of both individuals and the organization in which they operate. Wage issues, economic benefits, job security and seniority, grievances and possibilities to resolve them are themes with a high impact at the level of organizations in terms of retaining good people, motivating and promoting, hiring and lay‐off. It is a complex world of relations in which people are involved. In this regard, the decisions take reflects the capability of management to respond to the complex requirements and to solve problems.

The chapter reflects the current issues and investigations in this complex and important field of research.

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• Preface PART I: Labor Relations Overview
• CHAPTER 1 History and Law The Roots of the American Labor Movement Growth of National Unions Early Judicial Regulation Pro-Labor Legislation The Creation of a National Labor Policy Public Sector Collective Bargaining Summary CASE STUDY 1-1: Interfering with the Employee's Right to Unionize CASE STUDY 1-2: Discriminating Against Union Members You Be the Arbitrator: Should an Employee's File Be Expunged? EXERCISE: Sources of Labor Relations Information
• CHAPTER 2 Challenges and Opportunities Workplace Changes The Challenges The Opportunities Employee Teams Why Unionize? Union Growth Areas Workforce Diversity CASE STUDY 2-1: Job Performance CASE STUDY 2-2: Company Unions You Be the Arbitrator: Can a "Just Cause" Standard Be Satisfied Without Proving Fault? EXERCISE: Attitudes Toward Unions PART II: The Collective Bargaining Process
• CHAPTER 3 Establishing a Bargaining Unit What Is Collective Bargaining? The National Labor Relations Board Bargaining Unit Determination in Private and Public Sectors Union Structure and Public Sector Unions The Organizing Drive Union Security Individual Rights Within Unions Summary CASE STUDY 3-1: Duty of Fair Representation CASE STUDY 3-2: Employer's Unlawful Assistance to Union You Be the Arbitrator: "Just Cause" for Termination EXERCISE: Certification Election
• CHAPTER 4 Unfair Labor Practices Organizational Campaigns Union Organizing Strategies Union Avoidance Strategies by Management Unfair Labor Practices by Employers Unfair Labor Practices by Labor Organizations Duty to Bargain in Good Faith Duty to Furnish Information The Authority of the NLRB Unfair Labor Practices in the Public Sector Summary CASE STUDY 4-1: Unfair Labor Practice by an Employer CASE STUDY 4-2: Unfair Labor Practice by a Union You Be the Arbitrator: Bereavement Leave EXERCISE: What Do You Really Know About Organizational Campaign Unfair Labor Practices?
• CHAPTER 5 Negotiating an Agreement The Bargaining Process Bargaining Techniques Impasse Bargaining in the Public Sector Summary CASE STUDY 5-1: Surface Bargaining CASE STUDY 5-2: Surface Bargaining You Be the Arbitrator: School Bus Drivers EXERCISE: Develop Your Own Negotiating Skills PART III: Cost of Labor Contracts
• CHAPTER 6 Wage and Salary Issues Union Wage Concerns Management Wage Concerns Negotiated Wage Adjustments Wage Negotiation Issues Wage Surveys Costing Wage Proposals Union Wages and Inflation Public Employee Wage and Salary Issues Summary CASE STUDY 6-1: Premium Pay Rates CASE STUDY 6-2: Incentive Pay You Be the Arbitrator: Scheduling Saturday as Part of the Workweek EXERCISE: Wage Provisions
• CHAPTER 7 Employee Benefits Issues Concession Bargaining Required Benefits Negotiated Benefits Income Maintenance Plans Health Care Pay for Time Not Worked Premium Pay Employee Services Public Sector Benefits Issues Summary CASE STUDY 7-1: Paid Leaves of Absence CASE STUDY 7-2: Employee Benefits You Be the Arbitrator: Not Working a 40-Hour Week EXERCISE: Flexible Benefit Decisions
• CHAPTER 8 Job Security and Seniority Job Security Seniority Calculation of Seniority Promotions Layoff and Recall Rights Advanced Notice of Shutdown Shared Work Determining Ability Company Mergers Successorship Employee Alcohol and Drug Testing Public Sector Security Issues Summary CASE STUDY 8-1: Relocating Work Without Bargaining CASE STUDY 8-2: Drug Testing You Be the Arbitrator: Subcontracting Work or Union Busting? EXERCISE: Merging Seniority Lists PART IV: The Labor Relations Process in Action
• CHAPTER 9 Implementing the Collective Bargaining Agreement Reducing an Agreement to Writing Nature of Labor Agreement Contract Enforcement Rights and Prohibited Conduct Public Sector Contract Enforcement Issues Summary CASE STUDY 9-1: Contract Interpretation CASE STUDY 9-2: Duty to Bargain You Be the Arbitrator: Reassignment of Job Duties EXERCISE: Provisional Intent
• CHAPTER 10 Grievance and Disciplinary Procedures Sources of Employee Grievances Steps in a Grievance Procedure Functions of Grievance Procedures Employee Misconduct Disciplinary Procedures Grievance Mediation Public Sector Grievance Issues Summary CASE STUDY 10-1: Insubordination of a Police Officer While in Pursuit of a Stolen Vehicle CASE STUDY 10-2: Grooming Standards at Southwest Airlines You Be the Arbitrator: Employee Writing Threats EXERCISE: Source of Grievances
• CHAPTER 11 The Arbitration Process History and Legal State of Arbitration Arbitration of Statutory Rights in Union and Nonunion Cases Types of Arbitration Selecting the Arbitrator Determining Arbitrability Hearing Procedures Case Preparation Contractual Issues Arbitration Issues in the Public Sector Summary CASE STUDY 11-1: Drug and Alcohol Testing CASE STUDY 11-2: Arbitrability You Be the Arbitrator: Alleged Theft of Company Property EXERCISE: Use of the Arbitration Process
• CHAPTER 12 Comparative Industrial Relations Globalization World Wide Labor Movement International Labour Organization Anglophone Countries European Union Nations Far East Nations Summary CASE STUDY 12-1: Insider Trading by Union Official You Be the Arbitrator: Minimum Wage EXERCISE: Attitudes Toward Unions APPENDIX A Collective Bargaining Simulation APPENDIX B Texts of Statutes National Labor Relations Act Labor-Management Relations Act Endnotes Glossary Photo Credits Index.
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Case study: How IIAC advances labour-management relations

Incheon International Airport has established itself as a world class airport and as the gateway to Korea, with 90 airlines connecting 186 cities worldwide. Accordingly, recognising the hard work by all of its 40,000 employees that enable the airport to fulfill its responsibilities to its customers and society, Incheon International Airport Corporation (IIAC) seeks to create a win-win labour management culture.     Tweet This!

This case study is based on the 2016 Social Responsibility Report b y IIAC published on the Global Reporting Initiative Sustainability Disclosure Database  that can be found at this link . Through all case studies we aim to demonstrate what CSR/ ESG/ sustainability reporting done responsibly means. Essentially, it means: a) identifying a company’s most important impacts on the environment, economy and society, and b) measuring, managing and changing.

To promote the constant and consistent communication between labour and management IIAC has established various communication channels, and always consults the labour union prior to making changes to business or organisation that will affect working conditions. In order to advance labour-management relations IIAC took action to:

• establish a labour union
• update labour relations strategies
• set up communication channels
• prevent labour-management conflicts

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20 most important Labour Law judgements every HR manager should learn about

This article is written by Gaurav Kumar , from Surendranath Law College (University of Calcutta). This article depicts the landmark judgments pertaining to labour laws.

Table of Contents

Introduction

The Labour law is the area of law that regulates the relationship between the employer and the employee. An employer could be government agencies or private entities, companies, organizations, industry. It also mediates the relation between trade unions, employing entities. Recently, the Parliament of India passed three long-awaited labour codes compiling the 29 central laws. The three codes are:

• The Industrial Relations Code Bill, 2020 ; 
• Code on Social Security Bill, 2020 ; 
• The Occupational Safety, Health and Working Conditions Code Bill, 2020 .

They received Presidential assent on September 29, 2020, bringing a major change in the arena of Labour and Employment Laws. Since, “Labour” falls under the concurrent list of the Constitution of India , so both the Parliament and the State legislature can make laws on the subject. Prior to the existence of newly formed labour codes, there were more than 40 central laws related to the subject “labour and employment”. 

The second National Commission on Labour (2002) found the existing laws were complex with anarchic provisions, so it proposed the consolidation of the existing laws. In this article, we will discuss twenty landmark judgements pertaining to the Labour Laws that every HR manager should learn. However, the new labour codes have not been enforced yet. It will be tentatively enforced by the upcoming financial year (April 2021).

Social Welfare Act

Workmen of m/s firestone tyre and rubber co. of india v. management, air 1973, sc 1227 air 1227, 1973 scr (3) 587.

In this case , the workmen of the Firestone Tyre and Rubber Company had a dispute with its employer as the employer had terminated its workmen on the basis of a Domestic Inquiry Finding. During the pendency of the case, the Industrial Tribunal Act was amended in 1971 and Section 11A was inserted conferring the power over the Appellate Authority to the Industrial Tribunal over the domestic enquiry into the arising disputes. 

The Tribunal decided in the favour of the employer, denying to have the retrospective effect of Section 11A. Aggrieved from the decision of the tribunal, the workmen moved to the apex court against the employer.

The issue before the Supreme Court was on the interpretation of Section 11A of the Industrial Disputes Act, 1947. Since, the section was inserted through amendment amidst the pending suit, the question in issue was whether the said section shall be applicable on the case which is instituted prior to the insertion of the said section.

The Supreme Court stated that the Industrial Disputes Act, 1947 was a beneficial piece of legislation, enacted by the legislature for the betterment of the employees. The Court found the legislation to be a welfare one so it decided to apply the beneficial rule of legislation. It was further held that in case of arising disputes among the two parties, leniency will be applied over the view which will be in the best interest of employees. 

However, the suit was instituted prior to the amendment so the said section shall not be applicable in this case. It shall be only applicable to the cases which are instituted after the amendment in the Industrial Dispute Act, 1947.

Appropriate Government: Central Government as well as State Government

Steel authority of india limited v. national union waterfront workers, air 2001, appeal (civil) 6009-6010 of  2001.

In this case , the appellants, a Central Government Enterprise, along with its manager is having their business of manufacturing iron and steel products. The Company is also engaged in import-export of its goods through the Central Marketing Organisation, which is the marketing unit of the company. The company has its branches located in different parts of the Indian territory. The work of goods handling at the stockyard was provided to the contractors.

The Government of West Bengal vide its notification issued under Section (10)(1) of the Contract Labour (Regulation and Abolition) Act, 1989 prohibited contract labour at four specified stockyards in Calcutta.

However, the Government of West Bengal put the said notification into abeyance through the notification vide dated August 28, 1989, but further extended that period from time to time till August 31, 1994.

The contract labourers filed a petition before the Calcutta High Court seeking the direction for the appellants SAIL for the absorption of contract labour in their regular establishment in view of the prohibition notice issued by the West Bengal State Government. The primary question in the issue was who is an appropriate government with regard to the Contract Labour (Prohibition and Regulation) Act, 1970.

The Division Bench of the Calcutta High Court dismissing the writ petition stated that on the relevant date of prohibition notification, the appropriate government was the “State Government”.

Aggrieved from the decision of the High Court, the appellant preferred an appeal before the apex court. The issue before the apex court was with regard to the correct interpretation of the term “appropriate government” as defined in Section 2(1)(a) of the Contract Labour (Regulation and Abolition) Act, 1970.

The apex court held that any company which was being run on the power bestowed by the Central Government to the central government companies or its undertaking if fails to operate due to the lack of conferment power the company shall be considered to be an industry under the Central Government. The Court held that the appropriate government was Central Government under the Contract Labour (Regulation and Abolition) Act, 1970.

State Government

Hindustan aeronautics limited v. workmen air 1975, 1975 air 1737, 1976 scr (1) 231.

In this case , the appellant Hindustan Aeronautics Limited is a company registered under Section 617 of the Company Act, 1956 . The Central Government purely owns the share of the company. This case is regarding 1000 workers who were working in the company’s repairing unit situated at Barrackpore, West Bengal. The major issues were with regard to the allowance of the education of employees, revision of lunch allowances and for the permanency of their job.

In this case the West Bengal Govt. referred to the dispute under Section 10(1) of the Industrial Dispute Act, 1947

The Industrial Tribunal partly granted relief to the workmen. The appellants approached the apex court with the issue that whether the West Bengal government was the appropriate government to refer the dispute or not. The Supreme Court held that the appropriate government was the West Bengal government as the branch or industrial unit of the company was carrying out a “separate” kind of work in West Bengal.

The workers were being paid at the company and they were totally regulated by the officials of the company’s branch at Barrackpore in West Bengal. In such a case, if any kind of disputes or disturbances arises, the onus lies on the West Bengal government for the settlement of those disputes and maintaining industrial peace.

Industry Definition

Bengaluru water supply and sewerage board v. a rajappa air 1978, 1978 air 548, 1978 scr (3) 207.

In this case , the dispute was between the appellants Bengaluru Water Supply and Sewerage Board, its management and the respondents employees. For some kind of misconduct, the board had levied a fine over the employees and recovered the money from them. The respondents approached the labour court against such a fine under Section 33C(2) of the Industrial Disputes Act, 1947 alleging that such imposition of a fine was against the principle of natural justice.

The appellant board put the contention that it was a statutory body serving the citizen, so it doesn’t come under the ambit of the definition of the term “industry” as provided in the Act. The labour court rejected the contention and held that the board comes under the ambit of “industry” as under Section 2(j) of the Industrial Disputes Act, 1947.

The board management aggrieved from the order of the Labour Court approached the High Court of Karnataka with a writ petition objecting that the board was not covered under the definition of “industry” as held by the Labour Court. The High Court of Karnataka rejected the objection, and upheld the labour court’s order.

The board management approached the Supreme Court with the issue of whether it was covered under the definition of industry or not. The apex court in order to declare the identity of industry, laid down a test to determine the activities carrying out by the industry This test was called the “Triple Test method”:

• Whether there is a systematic activity carried out on the cooperation between the employer and the employee for the purpose of production and services all the satisfaction that the human being wants and wishes;
• It is material to know whether there is an absence of profit gainful objective behind the corporation or venture;
• The major focus is on the employer-employee relation;
• If the organisation is for trade or business purpose it would not cease to be one based upon its philanthropic nature.

Hence, an organization having all the said elements not being a trade or business would be considered as an industry. The apex court held Bangalore Water Supply and Sewerage Board an industry as per section provided under the Industrial Disputes Act. 

Individual dispute vs. Industrial dispute

Central provinces transport limited nagpur, v. raghunath gopal patwardhan 1957 air 104, 1956 scr 956.

In this case , respondent  Raghunath Gopal Patwardhan was working under the appellant “Central Provinces Transport Limited Nagpur”. The appellant alleged that the respondent stole some of the goods from the appellant’s company. A domestic inquiry was conducted by the company where the respondent was found guilty. He was dismissed on the ground of misconduct and gross negligence.

The respondent approached the Industrial Court for reinstatement, where the appellant contented the maintainability of the case as it was an individual dispute, not an industrial dispute.

The Industrial Court decided in the favour of the respondent claiming the dispute to be an industrial one. This position was upheld by the Labour Appellate Tribunal while deciding the appeal filed by the appellant.

Aggrieved by the order of the Labour Appellate Tribunal, the appellant approached the Supreme Court. The apex court held that the dispute was an individual one and not an industrial one. The court further added that the dispute would have been industrial if the cause had been taken by the union or a mass of workmen. 

The court was of the opinion that the definition of Section 2(k) of the Industrial Dispute’s Act was wide enough to include a dispute between an employer and an employee. Further, the dispute must attract the workmen’s support from the industry to become an industrial one otherwise it will be an individual one.

Employer definition

Hussainbhai calicut v. alath factory thozhilali union, air 1978, 1978 air 1410, 1978 scr (3)1073.

In this case , the petitioner was the owner of the factory engaged in the manufacturing of ropes. He had hired some contractors for the purpose of engaging workmen in his factory. Some of the workers were denied employment stating that they were not factory’s workers but hired by the contractors. 

The dispute was raised by the respondent in the Industrial Court against the denial of their employment. The Industrial Court decided in the favour of the workmen union and this position was upheld by the High Court of Kerala on an appeal filed by the appellant.  

The owner of the industry preferred an appeal before the Supreme Court stating that there was no employer-employee relationship between him and the workers as they were hired by the contractors. 

The apex court held that in an industry or a factory where the employees produce goods and services for the business of another person, then the other person shall be the employer. In order to find whether he is an employer or not, the factors of continued employment and the economic control upon the workers by the industry is to be taken into consideration. The court further added that if the livelihood of the workmen is directly dependent on the service provided by him in the industry, then it would not leave an effect on whether there is a direct relationship or not. One who has been in charge throughout the period shall be the real employer.

Workman definition

Arkal govind rajrao v. ciba geigy of india ltd, 1985 air 985, 1985 scr supl. (1) 282.

In this case, the appellant Arkal Govind Rajrao joined the respondent’s company as a stenographer-cum-accountant on 18 January 1956. After almost 10 years of time, the appellant was promoted to the post of assistant. However, in 1972 the company terminated him with the contention that he was not a “workman” defined as under Section 2(s) of the Industrial Disputes Act. The District Commissioner Labour (Administration), Bombay referred the dispute before the Labour Court.

The Labour Court dismissed the petition with the view that the claimant was not a workman as he was carrying out administrative and supervisory work along with clerical work, so he could not be kept under the definition of workman as provided under Section 2(s) of the Industrial Dispute’s Act. 

The appellant filed an appeal in the Supreme Court against the aggrieved order of the Labour Court. The apex court was of the view that the appellant was a workman under the definition provided in Section 2(c) of the Industrial Disputes Act. The court held that the person would not be a workman if he is indulged in some supervisory activities.

The apex court further added that while adjudicating such matters one has to put in mind what are primary and basic duties along with the secondary duties of the person, as the secondary duties do not change the character and nature of the person. The court said that basic duties have to be considered first and it doesn’t affect the nature and character of the duties of the person.

National Engineering Industries Ltd. v. Kishan Bhageria, 1988 AIR 329

In this case , respondent Kishan Bhageria was working as an internal auditor. He was absent from the office for a period of time, so the company stopped his salary and sent him on suspension. The respondent filed an application but he was dismissed from the service.

The respondent filed an application before the Labour Court against his dismissal. The appellant contended that respondent’s claim was not maintainable as he was not under the term “workman” provided under the act. The Labour Court held that the respondent was a workman as under the definition of Section 2(s) of the Industrial Disputes Act.

The appellant moved the High Court of Rajasthan against the order. The single bench judge of the Rajasthan High Court held that respondent Kishan Bhageria was not a workman as under the said act. The appeal was again filed before the Division Bench of High Court where the order of the Ld. single bench judge was reversed.

The management company moved to the apex court against the order. The Supreme Court stated that the fact in issue was whether the person was working for the managerial post or supervisory post, and for the purpose of deciding it, one has to look into the nature of the duties of the claimant.

The Supreme Court stipulated that a supervisor is a person taking decisions on the behalf of the company. The person can’t be held as a supervisor if he is merely reporting the affairs of the company and the management.

In the said matter the apex court held the respondent as “workman” as he was not engaged in managerial work or administration work. The Court also held that the person if would have been engaged in work of assigning duties among the other staffs then he shall qualify the criteria of being a “supervisor”.

Strikes and lockout

Syndicate bank and ors v. k. umesh nayak, 1995 air 319, 1994 scc (5) 572.

In this case , the major issue before the Supreme Court was whether the workmen were to get paid during the period of strike despite the fact that the strike was legal or illegal. The apex court decided the matter in the light of conflicting opinions rendered by itself in other decisions of the smaller bench.

The apex court held that the strike can be held illegal if it contravenes the provisions of the Industrial Disputes Act, 1947. For the purpose of deciding the legality of the strike the Court had to take certain things into consideration such as; whether the demands of the workmen like pay scale, service issues were justified or not. The Court stated that in every case the detailed inquiry on facts and circumstances of the strike shall be taken into consideration.

The SC held that the strike is a result of a long struggle between the employer and the employee. It is the last weapon available to the employees in order to allow their demands to be fulfilled by the industry. The court stated it as an abnormal act and the Industrial Legislation doesn’t deny the worker’s right to protest and it seeks the concept of the strike to be regulated with the right of the employer to lockout and provide machinery for peaceful inquiry and settlement of disputes between them. The court ordered the employer to pay the workers for the “strike period”.

Excel Wear v. Union of India, 1979 AIR 25, 1979 SCR (1)1009

In this case , Excel Wear is a garment manufacturing firm/petitioner having 400 employed workers in its firm. The relationship between the employer and employee deteriorated as the workers became very militant and aggressive. The appellant was the management of Excel Wear. The workers of the company started doing unjustifiable strikes.

The petitioner approached the government-respondent for the closure of the undertaking. The Government disallowed the closure of the undertaking.

Aggrieved from the order of the government/respondent, the appellant approached the Supreme Court of India. The apex court held that the right to business is not equal to the carry on business as both things can’t go together. The court further held that the right to close the business is not an absolute one and can be restricted and regulated by the legal provisions. 

The Constitutionality of Section 25(o) of the Industrial Disputes Act, 1947 was scrutinized and the court found it unconstitutional. The said section didn’t require the government to provide any reasons for the closure of the business. However, in this case, as the workers had become violent, it was not safer for the employer to continue the business.

The Court added that the employer’s life can’t be put at risk.

Retrenchment

Municipal corporation of greater bombay v. labour appellate tribunal of india, air 1957 bom 188.

This question of retrenchment was discussed in this case. The term “retrenchment” means the termination of the employee by the employee for reasons other than awarding punishment by way of disciplinary action, as defined under Section 2 (gg)(oo) of the Industrial Disputes Act, 1947. The section also states providing compensation to the employee. Retrenchment of employees is generally done so as to relieve them from a job in good faith.

In this case, the employee company sent the show-cause notice to the employer with regard to some misconduct as an inquiry was held. The employee was found guilty and thus unfit for the company. So, the company terminated him from the service.

The claimant filed the petition against the company for reinstatement and compensation as he claimed that the company had illegally terminated him. The Labour Court found merits in the case and allowed the claim of the claimant. 

Aggrieved from the order of the Labour Court the appellant approached the High Court of Bombay. The Bombay High Court held that there was no retrenchment in this case as the claimant was removed on the basis of the disciplinary proceedings initiated against him. The High Court further held that retrenchment can only take place when the employer is relieved from the services in good faith and not as a disciplinary action taken as a punishment.

Management of Kairbetta Estate, Kotagiri Po v. Rajamanickam, 1960 AIR 893, 1960 SCR (3) 371

In this case , Ramkrishna Iyer the manager of the appellant was violently assaulted by the workers which resulted in serious injury along with multiple fractures. The staff of the company was also threatened by the workers. The staff of the lower division denied going on work in the lower division as a threat to their lives. The management closed the company’s lower division for a period of time.

The respondents filed a complaint in the Labour Court under Section 33A of the Industrial Disputes Act, 1947 as they contended that the work in the division was stopped without any prior notice. The said section deals with the adjudication of the disputes whether the conditions of the service changed during the pendency of the proceedings. The respondents also claimed compensation for the layoff as under Section 25 of the Industrial Disputes Act, 1947. The Labour Court allowed the claim of the respondents.

Aggrieved from the order of the Labour Court the appellant approached the apex court. The apex court while deciding the issue made the distinction between the layoff and the lockout and held that the present case was “lockout” not “lay-off” as there was a work stoppage initiated by the management of the company due to the labour dispute. In the layoff, the management has to provide compensation if the work is stopped due to different reasons such as shortage of coal or anything similar.

The lockout was a tool available to the employer to force his demands against the employee. The Supreme Court held that in this case, the workmen had become aggressive and went out of control of the employer and not adhering to his request, so the employer can make a closure and such closure shall be considered as a lockout not layoff, hence no compensation shall be provided to the workman.

Suits of Employment

Indian express newspaper v. state of west bengal (2005) iillj 333 cal.

In this case , the appellant was Indian Express, a print media agency. The claimant was posted in the Calcutta office of the appellant the Indian Express. The claimant was transferred to Bombay from the Calcutta office but he didn’t join the office at the prescribed time. The appellant served him with show-cause notice and the domestic inquiry was conducted against him. Subsequently, the appellant terminated him from the service.

An industrial dispute had arisen and it was referred for adjudication by the Government of West Bengal/respondent. The appellant contended that the reference had no jurisdiction in the case, the appropriate government for the referral was not the Government of West Bengal, as the claimant was transferred to Bombay.

The dispute was sent before the Labour Court for adjudication, and the court held that the appropriate government was the Government of West Bengal.

Aggrieved from the order of the Labour Court the appellant approached the High Court of Calcutta. The High Court stated that the situs of the employment needs to be kept in mind as to where the dispute arose. The court held that the transfer order was made to Bombay and mere the presence of the termination order at Calcutta doesn’t provide the cause of action to the State of West Bengal for adjudication.

The situs of the employment is more important than the control of the employer over the employee for the purpose of referring to the dispute before the Industrial Tribunal.

Bata Shoe Co. Ltd. v. D.N Ganguly, 1961 AIR 1158, 1961 SCR (3) 308

A dispute arose between the Bata Company/appellant and the workers/respondent. The dispute went in course of the conciliation where the parties in disputes amicably reached a settlement. However, after the settlement, the workers went on strike. The company claimed the strike as illegal and irrelevant in light of the settlement done by the respondent. The company held the inquiry and dismissed the workers who had gone on strike.

With regard to the dispute of termination of workers, the conciliation proceeding was again preferred reaching an agreement signed by both parties of the dispute. However, in the whole process of conciliation, no conciliation officer was present.

The question in issue before the apex court was whether the settlement was done by the company and the workers were as per as provided under Section 12 and Section 18 of the Industrial Dispute Act, 1947. The apex court held the settlement at which the parties had arrived was according to the provisions of the sections provided under the Industrial Dispute Act and the settlement was binding over the parties as they can’t deny the terms at which they had arrived upon at the time of settlement.

However, the court further held that the second settlement done by the parties after the first one was non-binding as it was contrary to the provided provisions of the Industrial legislation.    

Execution proceedings

M/s kasturi and sons pvt ltd. v. n. salivateswaran, 1958 air 507.

In this case , the respondent/Salivateswaran used to work with the private newspaper company appellant- The Hindu. The respondent was a journalist who used to share the news with different journals, newsagencies. He worked in the said company on an honorarium basis. Contrary to the advice and instructions of the appellant the respondent left India for Zurich and came back after a short period of time. The appellant relived him from his services, under the arrangement he was supplying news to the company. On his return to India, he requested the company to reconsider his termination decision but the company refused reconsideration. The respondent approached the Labour Minister of Bombay against the order of the company under Section 17 of the Working Journalist Act, 1955 . The State of Bombay on receiving the application of the respondent appointed M.R Mehar (Retired ICS) as the second respondent for the inquiry in the application of the First respondent’s claim.

The appellant contended on the basis of the jurisdiction issue, but respondent no-2 found that it was having the appropriate jurisdiction to inquire of the matter as under Section 17 of the Journalist Act.

Aggrieved from the order of the appointed respondent the appellant filed a petition in the Supreme Court with regard to the arising jurisdiction issue in the matter.

The apex court in this case exhaustively dealt with Section 17 of the Working Journalist Act in this case. The court said that Section 17 of the said act was similar to Section 33C of the Industrial Disputes Act. The Court further held that Section 17 of the act, provides the mechanism for the recovery of the amount which is due from the employer towards his employee. However, the same can only be done once the due amount is decided by the Labour Court.

Equal work is equivalent to equal pay

Randhir singh v. union of india, 1982 air 879.

In this case , petitioner Randhir Singh was a driver working with the Delhi Police Force. He claimed that his salary was not as per standard with the other drivers working in the Delhi Administration. It was stated that the drivers of the Delhi Administration perform a similar function as the drivers of the other department.

The apex court while dealing with the matter said that the Constitution of India doesn’t include the provisions for equal pay, and so it can’t be kept under the ambit of the fundamental right. However, Article 39(d) of the Constitution of India provides the provision for equal pay for equal work for both man and woman, and it is included under the Directive Principles of the State Policy.

The apex court interpreted Article 14 and Article 16 of the Constitution of India in the light of the Directive Principles of the State Policy as provided under Article 39(d) and construed the principle of equal pay for equal work. According to such interpretation, the apex court ordered the Delhi Police to fix the salary of the driver in accordance with the other drivers working under the Delhi Administration.

Bonded Labour

Bandhua mukti morcha v. union of india, 1984 air 802.

In this case , the petitioner- an association wrote a letter to Justice P.N Bhagwati with regard to the poor condition of the large number of reinforced workers who were working in the stone quarries in some part of Faridabad, Haryana. The association described the brutal and insufferable conditions of the labourers and stated the different provisions of the Constitution of India that was not being actualized with respect to these workers. The petitioner in the letter referred to the name of the stone quarries and the point of interest of the workers to be implored under a writ as the different social welfare legislation provides for the same.

The letter of the petitioner was treated as a writ petition and the apex court constituted a commission for the inquiry into the truth of the matter as stated by the petitioner. The commission inquired into the matter and found the statement of the petitioner to be true as bonded labour existed there, and there were severe violations of the labour laws.

The apex court on the basis of inquiry made by the commission held the petition maintainable stating that it was the duty of the state government to make rectification as it failed to ensure proper compliance of the labour laws. The apex court further added that the workmen were being held under bondage and in pathetic condition, and it not only violated the Constitutional provision of Article 21 but also the human right laws. Such act of the stone quarries companies had curtailed the fundamental rights of the petitioner as Article 21 provides that the “right to live with dignity” is a part of the fundamental rights and the onus is on the State for proper compliance of such rights if it is curtailed.

Miscellaneous

People union for democratic rights v. union of india, 1982 air 1473.

In this case , the PUDR, which is an organization formed for the purpose of protecting the democratic rights of the Citizen, appointed three scientists for the purpose of inquiry to be made in the ASIAD Projects. 

Based on these investigations, the petitioner wrote a letter to Justice P.N Bhagwati which further transformed into Public Interest Litigation. In the letter, allegations of violation of various labour laws were stated and the apex court was requested to intervene in the issue. The letter was treated as a writ petition by the Supreme Court and notices were issued to the Union Government, Delhi Development Authority and the Delhi Administration.

The major allegations made in the letter were the violation of the Equal Remuneration Act, 1976 as the women workers were not paid properly and there was a misappropriation of money. There was a violation of Article 24 of the Constitution of India and the Employment of Children Act, 1938 and 1970 as the children below 14 years were deployed at the construction site by the contractors. There were also violations of the Contract Labour (Regulation and Violation) Act, 1970 which had resulted in the exploitation of the workers and denial of their various rights.

The apex court in this case found serious violations of the labour laws as the workers were not being paid adequately and there was a misappropriation of the funds. The court also found that there was a disparity in the remuneration paid to the male and female workers.

The court said that the workers were forced to work taking fewer wages against the minimum per-day wages fixed by the government. The court held that there were violations of labour laws in masse and the State was obligated to take action against such violation ensuring that the fundamental rights of the labourers are protected. 

Delhi Transport Corporation v. D.T.C Mazdoor Congress, 1991 AIR 101

In this case , the respondent/D.T.C Mazdoor Congress were the regular employees working under the appellant-Company Delhi Transport Corporation. The respondents were alleging that they were being terminated by the appellant on the ground of non-satisfactory work.

They were terminated from their job paying reverence over the regulation of the transport corporation which allowed them to terminate their workers from the job by providing 1-month notice or 1-month pay in lieu of notice.

The matter reached before the apex court by the appellant. The apex court held that the regulation of the corporation of terminating their permanent employees without hearing them and just providing one-month prior notice or one-month pay in lieu of notice was contrary to the principles of natural justice, as there was no reasonable cause.

The court found the regulation of the corporation arbitrary, unreasonable and in violation of Article 14 of the Indian Constitution. The court held that the principle of audi alteram partem is a part of Article 14 and it is equally applicable over the regulations of the corporation. Hence, the termination of the employees was held unreasonable.

Marathwada Gramin Bank Karmchari Sangthan v. management of Gramin Bank, (2011) 9 SCC 620

In this case , Marathwada Gramin Bank is the respondent Bank. The provisions of the Employees Provident Fund Scheme, 1952 became applicable in the bank from 1979.

The respondent till 1981, complied with the provisions of the said scheme and after that, it formed its new scheme by establishing its new trust for the payment of provident fund to its employees. So, the employees were getting the provident fund in excess of the Employees Provident Fund Scheme, 1981. The Regional Provident fund Commissioner vide a notification dated 29.09.1981 permitted the bank with regard to its own trust and compliance with the new scheme, but later on it cancelled and the bank was directed to comply with the provided statutory rule for the purpose of paying provident fund to its employees.

The respondent Bank issued a notice under Section 9A of Industrial Disputes Act, 1947 expressing its intention to discontinue the provident fund in excess of its statutory liability, but it continued to continue towards the Employee Provident Fund.

The Central Government referred the dispute to the Central Government Industrial Tribunal, Nagpur. The Tribunal relied upon the Employees Provident Fund and Miscellaneous Provisions Act, 1952 held that the management can’t reduce the wages of the employees directly and indirectly to whom the scheme of the said act applies. The Tribunal further directed that the employees can draw an equal amount of money from the provident fund as earlier according to the scheme without any ceiling cap on their salary.

Aggrieved from the order of the tribunal the respondent bank filed a writ petition before the Ld. Single Judge Nagpur Bench of Bombay High Court. The High Court reversed the order of the Labour Court and the same was upheld by the Division Bench of the High Court.

The appellants filed an appeal before the Supreme Court. The apex court held that the action of the respondents was not contrary to the law, as they had continued to pay the Provident fund, but the contributions were made limited which was required by the statute to pay. The apex court further held that the employer can’t be compelled to pay more than the provided statutory ceiling.

The twenty aforementioned law judgements are the important ones that a human resource manager in every company needs to learn. The judgements have brought a new discourse in the jurisprudence of labour law. The precedent set by the apex court helps the judicial bodies across the country to decide the cases, if they face matters on similar issues. Since, the Industrial Disputes Act, 1947 has been stated as the law made by the parliament to protect and serve for the welfare of the employees against their employer.

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Labour’s changes to employment law: What’s the reality?

The Labour party made a long list of pledges around employment rights in its manifesto. Now it is in government, is it realistic to expect those changes to take effect soon? And what does this mean for employers while laws are drafted and passed? Beverley Sunderland considers some of the issues. 

Before it secured its landslide victory in last week’s general election , Labour clearly set out in its manifesto a sweeping plan to update employment law.

And in an interview with Laura Kuenssberg on Sunday 7 July, Labour cabinet minister Jonathan Reynolds confirmed the new government was “getting started on the process” within the first 100 days.

However, whichever you look at it, Labour has set itself a huge challenge in what is a complex area of the law.

To recap, its biggest proposals are:

• Outlawing zero-hours contracts
• A ‘reform’ of ‘fire and rehire’ but not an outright ban (although Jonathan Reynolds did use the word ‘ban’ on Sunday…)
• Day one rights for unfair dismissal (subject to a probation period), sick pay and parental leave
• Consultation on worker status
• Reform of collective consultation to count all employees across every location
• Strengthening rights in TUPE
• Strengthening protection for whistleblowers
• Ensuring flexible working is a genuine default
• Consulting on whether carer’s leave should be paid
• Enhancing redundancy protections relating to maternity
• Right to switch off
• Removing the lower earnings limit for Statutory Sick Pay (SSP)
• Repealing curbs on unions
• Ensuring outsourced workers are included in gender pay gap reporting
• Menopause action plans for employers with more than 250 staff

This is a long shopping list, and anyone expecting these to be on the statute book in 100 days is likely to be very disappointed.

Complex reforms

There is the starting point of who exactly will do the drafting – this is a hugely complex area of the law and as the Conservatives discovered when trying to impose third-party liability for harassment, absolutely rife with difficulties.

Labour government

Labour ministers begin work on employment issues 

Labour government sets out to deliver bold employment agenda  

It is also quite easy to make sweeping promises when some of those making them may not have had any exposure to the actual challenges facing businesses. Should reform all be one way? Should a government perhaps be relieving pressure from employers in relation to matters such as tactical subject access requests by aggrieved employees?

The danger is that at the same time as promising to cut red tape, Labour potentially risks wrapping employers up so tightly in employment legislation that they cannot actually go about growing the economy.

And then there is the practical problem of how law is made or changed. The reality is that introduction of, or changes to, both primary legislation (acts of Parliament) and secondary legislation (regulations) take time.

Primary legislation must be debated by the House of Commons, and pass through the House of Lords. Even if Labour makes the changes through secondary legislation, this will have to be consulted on.

State of flux

The devil is in the detail and one word out of place in legislation and employers will be in a state of flux for years as the cases escalate up to the Supreme Court for a definitive answer.

At least we no longer have to factor in decisions handed down by the Court of Justice of the European Union, but when tribunal cases are taking over a year to get to the first hearing, it is not realistic to think that definitive answers will be coming any time soon.

After all, it only took from April 2012 ( Lock v British Gas ) to October 2023 ( Chief Constable of Police Service of Northern Ireland v Agnew ) for there to be some element of certainty in relation to how the wording in the Employment Rights Act should be interpreted when it came to what a worker was paid when on holiday and how far back claims could be made.

There is also the problem of what employers do in the meantime and will we see unintended consequences. If the law is changed to include day one employment rights (subject to a probationary period) then there is the very real possibility that all those employees currently under two years’ service, where the employer is undecided about them, will be dismissed before any new laws come in.

Those companies currently able to flex their workforce to meet demand using zero-hours workers may look at a completely different business model – automation, AI, outsourcing abroad? Or just shutting down completely.

Following the process

We do not yet have the details of exactly what the new day one unfair dismissal protection will look like, it does at least seem that an employer will be permitted a probationary period to decide.

The devil is in the detail and one word out of place in legislation and employers will be in a state of flux for years.”

But can there be a one-size-fits-all in terms of the length of a probationary period?

It does however seem that once an employee has passed their probation then employers will still be able to dismiss for the same fair reasons: conduct, capability, redundancy, illegality and some other substantial reason.

This is of course provided they follow a fair process – a series of warnings for capability or conduct (other than gross misconduct), and consultation in redundancy.

Although some businesses may cynically regard HR professionals as a cost, the next few years will highlight once and for all the importance of HR expertise and the consequences of not taking proper advice.

A silver lining perhaps – or just another 30 items for HR’s ‘to-do’ list.

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Beverley Sunderland

Beverley Sunderland is managing director at Crossland Employment Solicitors .

EHRC seeks views on new guidance on preventing sexual harassment

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