Labour Rights as Human Rights: Implications of the International Consensus
By Roy J. Adams, McMaster University, 4 January 1999
(Paper prepared for a talk delivered at the Annual Meeting of the Industrial Relations Research Association, New York City, 4 January 1999. Another (documented) version of the paper is available at my web page - go to web address indicated in my tagline below, punch on articles and the irra paper is the first one highlighted.)
In the 1930s and 40s a lot of bad things happened in the world. the holocaust is probably the most well remembered of a long litany of atrocities. With a view towards creating a culture in which a repeat of that era would be made more difficult, at the end of the war the nations of the world agreed to establish an international moral code of right and wrong behaviour.
The code was initially embodied in the Universal declaration of Human Rights and was later fleshed out in the United Nation's Covenants on Political and Civil Rights and on Economic, Social and Cultural rights and in a myriad of other regional and global documents, statements and affirmations.
The code said that racism and sexism were wrong and wherever we saw them we should condemn them. It said that no one should be victimized for practising a religion or for expressing their political convictions or fear being victimized for doing so. It said that it was wrong to exploit children for monetary gain and it was wrong to use force or threats to compel people to work without their willing consent.
The code said that "human rights and fundamental freedoms are the birthright of all human beings" and as a result such rights may neither be granted nor be taken away by legislation. It said that all governments, institutions and individuals have a moral responsibility to respect and honour human rights and that any government, institution or individual who actively attempts to deny or willingly tolerates the denial of human rights should be condemned by all decent people for doing so. It said that all fundamental human rights are "universal, indivisible, interdependent and interrelated" and therefore deserve equal respect.
Included in the code was an affirmation that Freedom of Association is a fundamental human right. What that meant was fleshed out in the UN's covenants, by comments on over 1800 cases brought before it by the International Labour Organization's Freedom of association Committee, and most recently by statements issued by global UN conferences on human rights and social development. During the 1990s Freedom of association as a human right has been further affirmed by the Organization for Economic Cooperation and Development, by the World Trade Organization, by the International Confederation of Free Trade Unions and by its global social partner the International Organization of Employers. most recently, during the summer of 1998, the annual labour conference of the ILO adopted a "solemn declaration" regarding Fundamental Principles and Rights at work.
That declaration stated that all ILO members Have an obligation "to respect, to promote and to realize in good faith" a set of fundamental rights which include: Freedom of Association the effective recognition of the right to collective bargaining the elimination of all forms of forced or compulsory labour the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation.
the declaration passed unanimously 273-0 with 43 abstentions. As a tripartite organization, the ILO consists not only of governments but also of labour and employer representatives. So the declaration had very broad bi-partisan backing. It had the support not only of the Canadian and American governments but also of the Canadian and US union and employer representatives at the conference.
Probably the most significant implication of this situation for industrial relations in North America has to do with collective bargaining as a human right. Although not mentioned specifically in the Universal Declaration of Human Rights, collective bargaining was later affirmed to be an inalienable aspect of freedom of association and in the latest statements and declarations has been affirmed to be a right equal in stature to Freedom of Association.
If collective bargaining is a human right, as the very strong bi-partisan global consensus reported above says it is, then the most common of industrial relations practices in North America are morally wrong. The denial of bargaining rights by companies such as Wal-Mart, IBM, Radio-Shack, Mcdonalds and many others (and the willful toleration of that behaviour by the government) are human rights violations morally equivalent to the incarceration of political dissidents in China, the sexual exploitation of children in Southeast Asia, or the apartheid system so severely condemned by the world in pre-Mandela South Africa. If all human rights deserve equal respect, as the international consensus insists that they do, then for the past several decades we have been experiencing in North America a sort of labour relations holocaust.
It is not unlikely that the argument to this point has aroused some skepticism. After all the industrial relations implications of the international human rights consensus are not generally taught in our law schools. Nor are they part of the normal curriculum in our industrial relations programs. It is very unlikely that the implications of collective bargaining as a human right are discussed in any of our economics programs or business schools.
What's more neither human rights groups nor labour organizations have devoted much time or energy promoting understanding and respect for the IR implications of the international consensus. The human rights community has chosen to direct most of its attention to abuses in developing countries and unions have been focused on North American law and policy. Although some labour organizations have, in recent years, begun to discuss the concept of labour rights as a human rights, it has been my experience that very few trade union members or officials are aware of the developments reported above and even fewer have thought about what it means for the day to day practice of labour-management relations.
It is like there is a mass conspiracy of silence. Why is that so? That's a question which deserves some serious research. In part I think the explanation lies in the US being the most powerful nation in the world and a champion of human rights beyond its borders. Even within its borders it is a model of behaviour with regard to certain human rights such as freedom of expression. It is also the dominant financial contributor to organizations such as the UN and the ILO (although in arrears) and so officials from those organizations may not go out of their way to shine a spotlight on its very bad behaviour.
Canada, too, has a considerable reputation for being a human rights champion. As a result a halo effect may be in operation. Since its performance is very good in many respects it is not unreasonable for observers unconsciously to allow themselves to believe that its behaviour must be exemplary across the board.
Nor does the usual apology for North American practice hold up when closely scrutinized.
Apologists have long insisted that employees should have a choice between individual and collective bargaining. This argument has been widely accepted not only by those who hope to benefit by it but also, in my experience, by most unionists and folks on the street. But when examined closely the argument is fraught with problems.
First, choice in North America is not available in a neutral environment. Employer illegality in pursuit of the denial of the right to bargain has been well documented, especially in the United States. But even those employers who remain on the side of the law usually make it known that they prefer that their employees not exercise their right. Thus, to establish a collective bargaining relationship working people must go against the express wishes of the employer raising in their minds a myriad of fears about the outcome. Imagine an employer saying, "I don't want any people of colour working for me but if they show up I will follow the law". Does such a statement infringe upon the civil and human rights of minorities? Most of us would say that it certainly does so.
Many North American companies openly pursue "union free" workplaces. Imagine the uproar that would be provoked by a company that openly pursued a "black-free" workplace or a "female-free" workplace or a "gay-free" workplace. But the global consensus asserts that the pursuit of "union-free" is the exact moral equivalent of those despicable practices.
In a world in which employers actually did respect the human rights of their employees, wouldn't they make it known they were willing voluntarily to recognize and bargain with any freely chosen representative? Under that circumstance it is pretty hard to imagine any group of working people willfully refusing to select a representative in order to participate in the making of conditions critical to their welfare. What group would say to the employer "no we don't want to participate, we want you unilaterally and without our input to make up all the rules about our pay & conditions, about our health and safety, about our employment security?" It is preposterous to believe that they would do so but we are under a spell that compels us benignly to accept that sane adults daily make such a choice.
Nor is individual bargaining a true alternative to collective bargaining. Many of the most important rules of work are collective in nature. Despite the disparity in bargaining power, some individuals might be able theoretically to bargain the starting wage or a wage increase but each individual cannot negotiate the wage payment scheme or how the enterprise will place itself in the market with regard to salaries and benefits. Individuals cannot each negotiate enterprise health and safety policy or the implementation of equal employment opportunity or a universe of other similar employment practices. Those are collective issues and, if employees are to be involved, can only be settled by a collective process.
Finally, we need to reconsider entirely the application of the criterion of choice to collective bargaining. Why should there be choice about something that is so obviously good and in the general interest and which the government has accepted a responsibility not to tolerate but to promote in order to ensure that the practice is realized? We don't allow citizens of municipalities to choose dictatorship; we don't allow workers legally to negotiate wages below the minimum wage; we don't allow capable adults to sell themselves into slavery; we don't allow children to quit school at the age of 10. Why do we allow dictation of the rules of work?
Shouldn't we emulate the German practice of requiring worker participation in all firms with more than five employees or the equivalent practice of other Western European countries where nearly all working people have the advantage of being represented in the making of their conditions of employment via some combination of works councils, union-management negotiations and worker participation on corporate boards? If we accepted our moral obligation to respect collective bargaining as a human right we certainly would do that.
And if we did, the results would most likely be good not only for employees but, despite their stubborn opposition, for firms too. That certainly is what the literature on participation says. It is also the German experience. In a recent review of the co-determination system in Germany the government-appointed investigators found nearly total agreement that the system was beneficial for all involved.
For the sake of the economy, for the sake of democracy and most of all for the sake of moral decency it is time to bring about an end to the daily violation in North America of the human right to bargain collectively. If we want to have a world in which human rights are respected and honoured, we all have a personal obligation to do what we can to bring about that end.
Roy J. Adams