Freedom at the workplace

Organizing for Social Justice, Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2004; International Labour Office, Geneva.

PRIME among the reasons that India has offered for not ratifying two of the global conventions that guarantee the freedom of association and the right to collective bargaining are its concerns with public sector employees. As an official statement of the Labour Ministry puts it, "the main reason" why India has declined to ratify these conventions is the government's "inability" to "promote unionisation" of public sector employees "in a highly politicised trade union system". The rights and guarantees enshrined by International Labour Conventions 87 (on freedom of association) and 98 (on the right to collective bargaining) are available under the Indian Constitution to all citizens, the Ministry argues. The government has "promoted and implemented the principles and rights envisaged under these two Conventions in India and the workers are exercising their rights in a free and fair democratic society". In the circumstances, ratification of the two conventions would be superfluous and would serve no useful purpose.

This rather half-hearted affirmation of the principles that were adopted in the late-1940s perhaps set the context for the extraordinary ruling by the Supreme Court last year, extinguishing the right to strike for government employees. At a subsequent meeting convened by the International Labour Office (ILO), this ruling came in for pointed criticism, with experts in industrial relations law seeking a clear affirmation from the Indian government that there would be no long-term damage to worker interests from the Supreme Court's ex cathedra denunciation of the right to strike. That affirmation is yet to be given and trade unions in India are currently exploring two options: to either challenge the ruling through judicial processes or to confront it in practice.

Organizing for Social Justice is part of the ILO's follow-up to the 1998 "Declaration of the Fundamental Principles and Rights at Work". It is a successor report to the 2000 volume Your Voice at Work. The picture it draws of the contemporary global scene on freedom at the workplace is optimistic, since there has been a distinctly improving trend in recent years. But the downside is all too evident. As the report observes, "violations of freedom of association rights persist in different forms, including murder, violence, detention and refusal to allow organisations the legal right to exist and function". Among the sections most vulnerable to the denial of these rights are public sector employees, domestic workers, agricultural labourers, migrant workers and workers in export processing zones (EPZs). As part of its mandate to follow up on the 1998 declaration, the ILO report looks closely at each of these categories of workers to identify the specific problems they face.

Conventions 87 and 98 have had almost universal acceptance in Europe. A major ratification drive, spearheaded by trade unions was undertaken in the 1970s. The coverage of the conventions became almost complete when the Eastern Bloc began the transition to market orientation in the 1990s.

In Africa and the Americas, coverage of the conventions is substantial though not universal.

Curiously, the hold-outs in the Americas include the two most affluent nations, the United States and Canada. Like India, the U.S. continues to insist that it is committed to the fundamental principle of freedom of association and the "effective recognition" of the right to collective bargaining. But it does not credibly explain why it should resist the international trend of explicitly ratifying Conventions 87 and 98. The only explanation perhaps, is the U.S.' cultural aversion towards international treaties and conventions. With Canada though, the main impediment appears to be the system of legal rights and obligations under its federal Constitution. This necessitates extended consultations with the "provinces and territories" and Canada is in the process of undertaking such consultations.

Ratification levels are the lowest in the Asia Pacific region and the Arab states. Convention 87 has been ratified by a mere 46 per cent of the countries in the former region and Convention 98 by 64 per cent. These figures obscure the larger reality that the two largest countries in the world - China and India - remain hold-outs. India's sensitivities on the status and role of public sector employees have been hard to placate. And China continues to follow the "single-union system, under political control of the leading party". It is a situation that renders both unionisation and the process of collective bargaining irrelevant, since working conditions are determined as part of an agreement between the government and the enterprise. The ILO has in the past, expressed itself rather strongly against this situation. And with liberalisation processes in China bringing in new notions of enterprise autonomy and capital mobility, labour rights may be on the threshold of radical change.

Beyond the plain figures of formal ratification, the reality of operationalising these rights is quite another matter. "For their active engagement in pursuing rights," the ILO report observes, "trade unionists can pay with their freedom and even with their lives." Figures compiled from diverse sources, reveal that in 2002, 213 trade unionists were killed worldwide, some 1,000 were injured or subjected to violence, 2,562 were arrested or detained and 89 were sentenced to prison terms.

The number of killings has been tragically inflated by the single case of Colombia, which witnessed no fewer than 184 trade union murders in 2002, mostly, the ILO observes, carried out by "paramilitary groups" and to a smaller extent by "armed opposition groups". There have been "repeated calls" for an international inquiry, but the Governing Body of the ILO has never been able to summon up the required degree of consensus within. A less confrontational course was then adopted, which involves a "special technical cooperation" programme between the ILO and Colombia, intended to create "a minimum basis for protecting fundamental rights". This involves preparing a "map on freedom of association" and tempering some of the most virulent manifestations of anti-union activity such as mass dismissals. The ILO estimates that in 2002 alone, some 40,000 public servants were dismissed from service in Colombia.

By this template, India had a dubious contribution to make to the annals of undemocratic actions: the Tamil Nadu government's mass dismissal of 170,000 striking employees last year, as also their reinstatement, conditioned by the Supreme Court's extraordinary strictures against the right to strike. These events perhaps came too late in the year for the ILO's consideration. But in an extended treatment of the status of public sector employees, the ILO report points out that Convention 87 "applies to all workers, without distinction, although it (does allow) national authorities to make exceptions for the armed forces and police". Convention 98 also leaves an area of discretion for national authorities to decide how far the "guarantees laid down in it apply to the armed forces and the police". Convention 98, however, does stipulate that its provisions shall not be "construed as prejudicing" the "rights and status" of public sector employees in any way.

To clarify all areas of ambiguity, the ILO in 1978 adopted the Labour Relations (Public Service) Convention (or Convention 151), which guarantees the right to organise for "all persons employed by public authorities, to the extent that more favourable provisions in other international Labour Conventions are not available to them". Convention 151 is specific in calling for "protection from anti-union discrimination and the involvement of public employees in decisions affecting them".

The suggestion that public employees should be accorded the right to being heard on major issues is of a piece with the ILO's advocacy of "social dialogue" as a major ingredient of good governance and the development process. Viewed in this light, it is striking how far the 1990s debate on the role of the public sector has proceeded without any real dialogue between the government and its employees. Privatisation was embraced as a reflexive, ill thought through reaction to the fiscal crisis. "Downsizing" of government departments was proposed when public services - from law enforcement to traffic regulation to industrial safety - remain woefully inadequate and essential infrastructure reveals glaring gaps and lacunae.

The ILO report warns that conflict within the public sector could become endemic in a context of growing privatisation and out-sourcing of government functions. In the case of the French public sector, unilateral moves by the government to effect a change in conditions of work and retirement, led to a prolonged strike. Though the new terms proposed were not in themselves adverse to worker interests, a sense of resentment at not being consulted boiled over in industrial action. With worker organisation being high and fiscal constraints generally discouraging wage settlements that could compare with the more rapidly growing sectors of the global economy, the government sphere in future years could be a zone of sharpening friction. A culture of dialogue and a cooperative endeavour to meet larger social goals could well be an antidote. A participatory environment is not merely more effective in preserving harmony, but also in ensuring that basic services reach intended beneficiary groups.

Particularly, vulnerable groups such as agricultural workers, domestic workers and migrant labour, the ILO observes, still remain in large part, excluded from all efforts at organisation. Nearly half the world's workforce derives its livelihood from agriculture. But where legislative barriers are not present, other obstacles to organisation have proven insurmountable. And where collective agreements had been concluded, an ILO survey revealed, they were "either not well respected (41 per cent) or systematically violated (14 per cent)". With the "exception of large plantation sectors in Asia and some African countries", the "representation rates" among farm workers have generally been low. Globally, the ILO survey revealed, there has been no indication "that the number of mass-based organisations representing agricultural workers (has) increased in recent years". It is a problem that the new work processes generated by the process of globalisation has considerably aggravated.

To talk about globalisation of course is also to talk of the obsessive exports push that most developing countries have been compelled to undertake. Between 1975 and 2002, the ILO points out, the number of EPZs increased from 79 in 25 countries, to 3,000 in 116 countries. The number of workers involved now stands at 43 million, of which some 30 million are in China alone. The phenomenon has attained sufficient magnitude to warrant special attention by the ILO. And the prognoses are not entirely hopeful. The lack of worker protections and the inapplicability of national laws in these zones, it has pointed out, "undermine the ability of zones to upgrade skills, improve working conditions and productivity and thereby to become more dynamic and internationally competitive platforms". These in turn mean that intended functions of transferring "technology, expertise and improved production methods to host countries", remain unfulfilled.

The ILO is of course a tripartite organisation that seeks to harmonise the interests of labour, capital and governments. Its prescriptions cling faithfully to the path of moderation, but some of its propositions on freedom at the workplace have the ring of radicalism to them merely because they have come in a context dominated by the discourse of capital. Manifestations of dissent have become increasingly frequent and powerful in recent times. The ILO report now serves as a timely reminder that in speaking of a rights-based approach to development, it is not merely the rights of capital that need to be reckoned with, but the larger democratic rights of the larger mass of the people.