|
Special contribution to the previous, 1997, edition of the "Globalization and Workers' Rights"
|
International labour law is one category of international law.
International law is the body of legal rules that apply between sovereign states and such other entities as have been granted international personality by sovereign states. Concerning labour law, the most important entity is International Labour Organization.
The rules of international law are of a normative character; that is, they prescribe standards of conduct. They distinguish themselves, however, from moral rules by being, at least potentially, designed for authoritative interpretation by an independent judicial authority and by being capable of enforcement by the application of external sanctions. These characteristics make them legal rules.
The law-creating processes of international law are the forms in which rules of international law come into existence; i.e., treaties, rules of international customary law, and general principles of law recognized by civilized nations. It is the merit of article 38 of the Statute of the International Court of Justice that this exclusive list of primary law-creating processes has received almost universal consent.
International law means public international law as distinct from private international law or the conflict of laws, which deals with the differences between the municipal laws of different countries.
International law forms a contrast to national law. While international law applies only between entities that can claim international personality, national law is the internal law of states that regulates the conduct of individuals and other legal entities within their jurisdiction.
International law can be universal, regional or bilateral. Although there is some duplication between universal and regional labour law, the practical value of regional law lies mainly in the possibility it offers to establish standards which are more progressive than worldwide standards for dealing with the special problems of the region concerned; to secure greater uniformity of law within a region; or to provide more extensive reciprocal advantages. Bilateral law has a different purpose. Mainly, it determines the conditions of entry and of employment in each contracting country for the nationals of the other. This chapter deals only with universal and regional labour law.
The sources - instruments by which states and other subjects of international law, such as certain international organizations - of international law are international agreements. The agreements assume a variety of form and style, but they are all governed by the law of treaties, which is part of customary international law.
A treaty, the typical instrument of international relations, is defined by the 1969 Vienna Convention on the Law of Treaties as an "agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
Some multilateral agreements set up an international organization for a specific purpose or a variety of purposes. They may therefore be referred to as constituent agreements. The United Nations Charter (1945) is both a multilateral treaty and the constituent agreement of the United Nations. An example of a regional agreement that operates as a constituent agreement is the charter of the Organization of American States (Charter of Bogotá), which established the organization in 1948. The constitution of an international organization may be part of a wider multilateral treaty. The Treaty of Versailles (1919), for example, contained in Part I the Covenant of the League of Nations and in Part XIII the constitution of the International Labour Organization.
The term supranational is of recent origin and is used to describe the type of treaty structure developed originally by six western European states: France, Germany, Italy, The Netherlands, Belgium, and Luxembourg. The first treaty was that of Paris, signed in 1951, establishing the European Coal and Steel Community (ECSC); the second, the Rome treaty, signed in 1957, establishing the European Economic Community (EEC); the third, the Rome treaty of the same date establishing the European Atomic Energy Community (Euratom). A clause in the ECSC treaty provides for the complete independence of the members of the executive organ from the governments that appoint them.
Treaties, however, are not the only instruments by which international agreements are concluded. There are single instruments that lack the formality of a treaty called agreed minute, memorandum of agreement, or modus vivendi; there are formal single instruments called convention, agreement, protocol, declaration, charter, covenant, pact, statute, final act, general act, and concordat; finally there are less formal agreements consisting of two or more instruments, such as "exchange of notes" or "exchange of letters." (See United Nations, Definition of Key Terms Used in the UN Treaty Collection)
Main sources of this section are British Encyclopaedia, International Law, British Encyclopaedia International Agreement and International Encyclopaedia for Labour Law and Industrial Relations, Supplement 163.
Helpful tools when reading international agreements is UN, Glossary of Terms Relating to Treaty Actions and the Glossary of European Union
The first moves toward international labour conventions date back to the beginning of the 19th century. Robert Owen in England, J.A. Blanqui and Villerme in France, and Ducepetiaux in Belgium are considered precursors to the idea of international regulation of labour matters. However, David Legrand, an industrialist from Alsace, put forward this idea most systematically, defending it and developing it in repeated appeals addressed to the governments of the main European countries from 1840 to 1855.
In the second half of the 19th century, the idea was first taken up by private associations. Thereafter, a number of proposals to promote international regulation of labour matters were made in the French and German parliaments. The first official initiative came from Switzerland – where, following proposals made in 1876 and 1881 and in consultation with other European countries, the Swiss government suggested convening a Conference on the matter in Bern in May 1890.
The establishment of an International Association for the Legal Protection of Workers, the seat of which was in Basle, was followed by a congress held in Brussels in 1897. The activity of this private organization led the Swiss government to convene international conferences in 1905 and 1906 in Bern, where the first two international labour conventions were adopted. One of these related to the prohibition of night work for women in industrial employment, and the other to the prohibition of the use of white phosphorus in the manufacture of matches.
During World War I, the trade union organizations of both sides, as well as those of neutral countries, insisted that their voice be heard at the time of the settlement of peace, and that the peace treaties contain clauses for improving the condition of workers. The peace conference entrusted the examination of this question to a special commission known as the Commission on International Labour Legislation. The work of the Commission led to the inclusion in the Treaty of Versailles and the other peace treaties of Part XIII, which dealt with labour matters. This section of the treaties provided for the establishment of an International Labour Organization, which might adopt conventions and recommendations in this field. Conventions would be binding only on those states which ratified them. (See Constitution of the International Labour Organization, adopted by the Peace Conference in April of 1919)
In October 1919, the International Labour Conference met in Washington to adopt the first Conventions and to appoint the Governing Body. Since then, the International Labour Conference has met regularly in general once a year, except during the Second World War.
At the end of the Second World War, the International Labour Conference adopted in May 1944, in Philadelphia, a Declaration (Philadelphia Declaration), which defined again the aims and purposes of the Organization. This Declaration reaffirmed in particular,
The Declaration affirmed that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity. It also referred to the social aspect of economic and financial measures.
The Declaration then defined a number of specific objectives of the ILO, such as
Apart from the ILO standards, an increasing number of bilateral and regional agreements have been concluded in the field of labour.
The general trend of agreements has been the constant broadening of their scope, both as regards the fields covered, the categories of persons protected and the framework within which the matters are treated. Thus a number of these instruments go beyond the traditional field of labour law and touch upon matters of civil liberties and penal law, of property law etc.
Main source of this section has been International Encyclopaedia for Labour Law and Industrial Relations, Supplement 163.
Various arguments have been advanced over the years in support of international labour law. The argument concerning international competition was used in its most extensive form throughout the 19th and at the beginning of the 20th century. The argument was that international agreements in the field of labour would help prevent international competition from taking place to the disadvantage of workers, and would constitute a kind of code of fair competition between employers and between countries.
This argument is generally given less prominence today, since it has been realized:
- that competition did not prevent the main industrialized countries of Europe from adopting the first labour laws
- that the cost and the competitive value of products depend on many factors other than labour costs (in fact, factors that increase labour costs, such as investments in training, safety and health, etc., can increase competitive value)
- that countries that are the most successful in world markets are not those where the conditions of work are the less favourable.
However, globalization (and especially trade liberalization) have again brought up discussions on the relationship of competition to very poor working conditions in developing countries and loss of jobs in developed countries. The discussion is focused mainly on developments in industries where manual labour and low skills dominate production.
In his report, the Director-General of the ILO reacted to this discussion by pointing out:
that "lifting restrictions on international trade lays the foundations for social progress – as the ILO has always implicitly acknowledged, even during the worst years of economic depression. But, at the same time, this liberalization carries the risk, as the Preamble to the Constitution of the ILO warns us, that international competition, by inhibiting the will of certain Members to introduce progress, might be 'an obstacle in the way of other nations, which desire to improve the conditions in their own countries'."
that "globalization has forced many States to carry out legislative reforms to be able to cope with international competition as best they can. It is likely – although this is not entirely clear from the replies – that the relative decline in the ratification rate of Conventions might, at least in some cases, be due to a reticence to make long-term international commitments in these circumstances."
that "the aim is not for the International Labour Organization to achieve uniformity in the level of social protection in order to ensure a proper international competition. Rather the idea is simply to place social progress into a relationship with the economic progress expected from the liberalization of trade and globalization."
that "differences in conditions and levels of protection are linked to a certain extent to differences in levels of development. Denying developing countries the advantages (relative and transitory), which ensue from these differences would be tantamount to denying them a share in the profits of globalization and, by extension, the possibility of subsequent social development. The Declaration of Singapore, to which I shall refer later in the text, shows that we have come a long way in universally accepting these principles." (See ILO, The ILO, Standard Setting and Globalization, 1997)
Most proposals for a social clause are based upon the seven ILO core Conventions. In the context of international trade, a social clause essentially refers to a legal provision in a trade agreement aimed at removing the most extreme forms of labour exploitation in exporting countries by allowing importing countries to take trade measures against exporting countries which fail to observe a set of internationally agreed minimum labour standards.(See Hoe Lim, The Social Clause: Issues and Challenges)
At the end of World War I a new argument appeared, namely that injustice in the social field endangers peace in the world, and that action against such injustice therefore serves the cause of peace.
It has been pointed out that measures of social justice – which provide, among other things, for trade union rights – are bound to strengthen democratic regimes, which are more likely than authoritarian governments to be peace loving. Social peace within countries may also sometimes be related to international peace, inasmuch as internal tensions may have repercussions abroad. Stress has equally been laid on the positive and dynamic concept of peace, involving the establishment of stable, just and harmonious conditions both within individual countries and between different countries. This would be accomplished by eliminating, inter alia, rivalry on world markets arising out of too great a disparity in labour conditions. It has also been claimed that the establishment of international labour standards aimed at improving the condition of mankind develops a common sense of solidarity internationally, and fosters a climate of mutual collaboration and understanding that transcends racial and national differences.
Yet progress toward these goals is threatened by many forces. Extremism – religious, ethnic, and political – is on the rise, often fuelled by growing disparities in levels of development. Despite the growth of democratic forms of government, violations of human rights continue in too many countries. The number of armed conflicts currently under way is only slightly less than at the end of the Cold War. Although the threat of nuclear war between the superpowers seems less likely, there is the frightening prospect of nuclear weapons loosely controlled by weak governments.
The driving force behind the idea of international labour law was the notion of social justice. In the field of labour, the humanitarian concern originally appeared in the face of conditions of great hardship imposed on the workers by industrialization. It was the mainspring of the movement, the first achievement of which was the adoption on both the national and international levels of measures to protect children from conditions of work that had shocked the public conscience.
The expression "social justice" itself was introduced in 1919 in the course of the discussions which took place at the peace conference, when the original Constitution of the ILO was being drafted as part of the Treaty of Versailles. This notion has certainly been the most powerful driving force in the development of international labour law.
It has often been stressed that economic growth does not automatically ensure social progress. Nevertheless, there remains a widespread tendency to give economic development precedence over social considerations. It is, therefore, the function of international labour standards to promote balanced economic and social progress.
Even when the labour legislation or practice of a country has reached a certain level, it may be desirable for the country to ratify a Convention that provides for a standard corresponding to the existing national situation. This is because, even if no substantial change is called for, ratification of the respective Convention could contribute to the consolidation of national labour legislation by acting as a guarantee against backsliding. There have been cases in which the existence of international commitments based on ratified Conventions has prevented governments from adopting retrograde measures they had contemplated, particularly in times of crisis.
As a result of the widespread economic, commercial, technological, social and even cultural changes that have taken place in the past two decades, governments have been amending their labour legislation to meet new needs and accommodate new circumstances.
In addition to the international commitments to which they may give rise, international labour standards can serve as a general guide and as a source of inspiration to governments by virtue of their authority as texts adopted by an assembly composed of representatives of governments, employers and workers of nearly all countries of the world. They may also for that reason provide a basis for the claims of workers and guide the policy of employers. International labour standards have thus developed into a kind of "international common law". Their influence is in many ways similar to that found elsewhere in various periods in the history of civil law – for example, the influence of Roman law, or of certain later European legal codifications. Those in charge of social policies in various countries have often highlighted this role of international labour law.
ILO sources of international labour law can be found in the Constitution of the Organization, and in its numerous Conventions and Recommendations. While the Constitution of the ILO mainly contains provisions relating to the functioning of the Organization, it also lays down a number of general principles which have come to be regarded in certain respects as a direct source of law. Such principles are contained in the Preamble of the Constitution and in the Declaration concerning the Aims and Purposes of the Organization, adopted by the Conference in Philadelphia in 1944 and incorporated in the ILO Constitution in 1946.
Specific features of Conventions
Conventions are instruments designed to create international obligations for the states which ratify them. In addition to its Conventions, the ILO has adopted a number of Recommendations, which are different from the point of view of their legal character. Recommendations do not create obligations, but rather provide guidelines for action.
Conventions have a number of specific features, which can be grouped under four main ideas:
- obligations: possibility of choosing, at the time of ratification, by means of formal declaration, the extent of the obligations undertaken. (f.ex. Social Security Convention, No. 102)
- scope: Governments may decide for themselves, subject to certain consultations, what the scope of the Convention shall be (f.ex. Conventions of minimum wage fixing machinery, Nos. 26 and 29), or they may be permitted to exclude certain categories of persons or undertakings (f.ex. Conventions on night work, Nos.41 and 89), or the definitions of persons covered may be based on a specified percentage of the wage earners or population of the country concerned (f.ex. many social security Conventions), or exceptions are allowed for a certain part of the country (Various types of Conventions, f.ex. Nos. 24, 25, 62, 63, 77, 78, 81, 88, 94, 95, 96 etc.), or governments may themselves define a certain branch, industry or sector (f.ex. Weekly rest Convention, No. 106)
- methods: State which ratifies a Convention shall take such action as may be necessary to make effective the provisions of such Convention, custom, administrative measures or, in certain circumstances, collective agreements.
While ILO Conventions are not ranked in terms of their order of importance, there is an underlying hierarchy, which can be discerned. In the first category are Conventions dealing with freedom of association and collective bargaining (Conventions Nos. 87 and 89), forced labour (Conventions Nos. 29 and 105), non-discrimination in employment (Conventions Nos. 100 and 111) and child labour (Convention 138).
These core Conventions were identified and given prominence in the Conclusion of the World Summit for Social Development in 1995 (See Copenhagen Declaration on Social Development). In the second category are technical standards, which establish norms to improve working conditions.
Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)
Establishes the right of all workers and employers to form and join organizations of their
own choosing without prior authorization, and lays down a series of guarantees for the
free functioning of organizations without interference by the public authorities. In
December 1997, 121 countries had ratified this convention.
Right to Organize and Collective Bargaining Convention, 1949 (No.
98)
Provides for protection against anti-union discrimination, for protection of workers' and
employers' organizations against acts of interference by each other, and for measures to
promote collective bargaining. In December 1997, 137 countries had ratified this
convention.
Forced Labour Convention, 1930 (No. 29)
Requires the suppression of forced or compulsory labour in all its forms. Certain
exceptions are permitted, such as military service, convict labour properly supervised,
emergencies such as wars, fires, earthquakes, etc. In December 1997, 145 countries had
ratified this convention.
Abolition of Forced Labour Convention, 1957 (No. 105)
Prohibits the use of any form of forced or compulsory labour as a means of political
coercion or education, punishment for the expression of political or ideological views,
workforce mobilization, labour discipline, punishment for participation in strikes, or
discrimination. In December 1997, 130 countries had ratified this convention.
Discrimination (Employment and Occupation) Convention, 1958 (No.
111)
Calls for a national policy to eliminate discrimination in access to employment, training
and working conditions, on grounds of race, color, sex, religion, political opinion,
national extraction or social origin and to promote equality of opportunity and treatment.
In December 1997, 129 countries had ratified this convention.
Equal Remuneration Convention, 1951 (No. 100)
Calls for equal pay for men and women for work of equal value. In December 1997, 135
countries had ratified this convention.
Minimum Age Convention, 1973 (No. 138)
Aims at the abolition of child labour, stipulating that the minimum age for admission to
employment shall not be less than the age of completion of compulsory schooling, and in
any case not less than 15 years (14 for developing countries). In December 1997, 59
countries had ratified this convention.
The ILO Declaration on Fundamental Principles and Rights at Work
The 86th International Labour Conference ( 1998) adopted by an overwhelming vote a solemn ILO Declaration on Fundamental Principles and Rights at Work, committing the Organization's member States to respect, to promote and to realize in good faith the right of workers and employers to freedom of association and the effective right to collective bargaining, and to work toward 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 underlines that all member countries have an obligation to respect the fundamental principles involved, whether or not they have ratified the relevant conventions.
The Declaration includes provision for follow up, in particular :
annual follow-up concerning non-ratified fundamental Conventions , which will cover each year the four areas of fundamental principles and rights specified in the Declaration. It will be based on reports requested from governments which have not ratified one or more of the fundamental Conventions, on any changes which may have taken place in their law and practice . These reports will be reviewed by the Governing Body. With a view to presenting an introduction to the reports thus compiled, drawing attention to any aspects which might call for a more in-depth discussion, the Office may call upon a group of experts appointed for this purpose by the Governing Body.
global report which will cover, each year, one of the four categories of fundamental principles and rights in turn. The report will be drawn up under the responsibility of the Director-General and will be submitted to the Conference for tripartite discussion .
In his address to the conference, Michel Hansenne,Director General of the ILO, said that "it was high time for the ILO to give itself the means to address the social consequences of the globalization of the economy......I believe we can all be proud of the Declaration that has been adopted ", adding that "the ILO can now proceed on the basis of a truly global set of common social values."
It is a historic step", said Bill Jordan , General Secretary of the international Confederation of Free Trade Unions ( ICFTU ) "and it establishes workers' fundamental rights as the ground-rules of globalisation .....The Declaration sends the ILO into the next millennium well-placed to meet the challenge of globalisation... Trade unionists world-wide are going to use this new tool as a powerful instrument in defence of their fundamental rights".
The Chairperson of the Workers’ Group of the Conference, Bill Brett , said that he was pleased to note " that we have indeed created a powerful search- light which will illuminate those areas that have previously remained in darkness. "
While the United Nations does not deal with labour matters as such, and recognizes the ILO as the specialized agency responsible for taking appropriate action for the accomplishment of the purposes set out in its Constitution, some UN instrument of more general scope have also covered labour matters.
A number of provisions concerning labour matters are contained in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, which are legally binding human rights agreements. Both were adopted in 1966 and entered into force 10 years later, making many of the provisions of the Universal Declaration of Human Rights effectively binding.
Because of their comprehensive nature, the Covenants are drafted in general terms, and the various rights relation to labour, which they recognize are dealt with in a less precise and detailed way than ILO standards.
The UN General Assembly has adopted also a number of legally binding Conventions concerning labour matters. The most important ones are the Convention on the Elimination of All Forms of Racial Discrimination (1969), Elimination of all Forms of Discrimination against Women (1979), Rights of the Child (1989), Status of the Refugees (1954) and Status of Stateless Persons (1960).
At the European level, a number of regional organizations that were created after the end of World War II have adopted legal instruments on labour matters. In the Americas, only few of the recently established regional organizations have adopted labour law instruments. The North American Free Trade Area (NAFTA) has the North American Agreement on Labor Cooperation, and the Caribbean Community and Common Market (CARICOM) has an Agreement on Social Security. However, the instruments of the Organization of American States (OAS) are still the main source of international labour law in the region. In Asia, none of the regional organizations has adopted legal instruments on labour matters – there are only recommendations, declarations and programmes dealing with these issues. In Africa, both of the recently established regional organizations, the Southern African Development Community (SADC) and the Common Market of Eastern and Southern Africa (COMESA), have human rights matters contained in their treaties. The Organization of African Unity (OAU) also has legal instruments.
The most comprehensive instrument adopted by the Council of Europe, which was established in 1949 by the Statute of Council of Europe, is the European Social Charter, signed in 1961. The Charter stipulates that any State wishing to become a Party must undertake to be bound by at least 10 Articles (out of 19) or 45 numbered paragraphs of Part II of the Charter. However, of the seven Articles regarded as particularly significant, each Party must accept at least five, namely: the right to work, the right to organize, the right to bargain collectively, the right to social security, the right to social and medical assistance, the right to the social, legal and economic protection of the family, and the right to protection and assistance for migrant workers and their families.
The most original feature of the Charter is that it recognizes the rights of workers and employers to collective action in case of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into and to some further restrictions.
In 1988 and Additional Protocol to the Charter was signed covering matters such as:
Two additional protocols were signed in 1991 and 1995, both of which improve considerably the control machinery and the effective enforcement of the social rights guaranteed by the Charter.
European Convention for the Protection of Human Rights and Fundamental Freedom
The European Convention for the Protection of Human Rights and Fundamental Freedom, which was concluded in Rome in 1950, and which has been amended by protocols, deals essentially with civil and political rights. However, it also deals with certain rights falling within the field of international labour law, such as the right not to be required to perform forced or compulsory labour and the right to form trade unions. It specifies that the rights and freedoms laid down in the Convention shall be enjoyed without discrimination on any grounds.
Social Security Instruments
In the field of social security, the Council of Europe has adopted a number of instruments.
The European Interim Agreement on Social Security Schemes relating to Old Age, Invalidity and Survivors and the European Interim Agreement on Social Security other than Schemes for Old Age, Invalidity and Survivors, both concluded in 1953, provide for nationals of any one of the Parties to be entitled to receive the social security benefit of the laws and regulations of any other Party, under the same conditions as if person were a national of the latter, provided that certain conditions of residence are fulfilled.
The European Code of Social Security, concluded in 1964, fixes a series of standards, which parties undertake to include in their social security systems. The Code defines norms for social security coverage and establishes minimum levels of protection, which Parties must provide in such areas as medical care, sickness benefits, unemployment benefit, old-age benefits, employment injury benefits, family benefits, maternity benefits, invalidity benefits, survivors' benefits, etc. It was supplemented by a Protocol, which provided for higher standards.
The EEuropean Convention on Social Security, concluded in 1972, consists of the four basic principles of international social security law: equality of treatment, single set of legislation applicable, maintenance of acquired rights and rights in the course of acquisition, and the payment of benefits abroad. Some of the parts of the Convention are immediately applicable. The application of special provisions concerning sickness and maternity, unemployment and family benefits, with the exception of the cumulation of periods, however, remains subject to the conclusion of bilateral or multilateral agreements between the Parties.
The EEuropean Convention on the Legal Status of Migrant Workers, concluded in 1977, is concerned with the principal aspects of the legal situation of migrant workers, in particular recruitment, medical examinations, occupational tests, travel, residence permits, work permits, the reuniting of families, working conditions, the transfer of savings and social security, social and medical assistance, the expiry of work contracts, dismissal and re-employment.
The term "Community legal instruments" refers to the instruments available to the Community institutions to carry out their tasks under the Treaty establishing the European Community with due respect for the subsidiary principle. The Community has three binding instruments. They are:
The adoption of legislation aimed at improving labour standards and workers' rights is one of the Union's main achievements in the social field. Its purpose is to ensure that the creation of the Single Market leads neither to a lowering of labour standards nor to distortions of competition. At the same time, it is a key element in the efforts to improve competitiveness. Since the adoption of the Single European Act, the emphasis has shifted from harmonization to defining minimum requirements.
Information, communication and participation of employees
A 1975 directive on the approximation of the laws of EU member states relating to collective redundancies, amended in 1992, affords greater protection to workers in the event of collective redundancies and approximates member states' legislation concerning the practical arrangements and procedures for such redundancies (see summary) An employer contemplating collective redundancies must hold consultations with the workers' representatives, with a view to reaching an agreement. The employer is to provide workers' representatives with all relevant information and, in any event, is to provide certain information, specified in the directive, in writing. The employer has to notify the competent public authority in writing of any projected collective redundancies. Collective redundancies can take effect at the earliest 30 days after the notification.
A 1991 directive on the obligation of employers to inform employees of the conditions applicable to the contract or employment relationship establishes the obligation for employers to inform employees in writing of their terms and conditions of employment (see summary) The obligatory basic information is specified in the directive. Employees required to work in another country must be in possession before departure of one of the documents referred to in the directive, and the documents must include additional information, specified in the directive, on terms and conditions of employment. Any change to the terms of the contract or employment relationship must be recorded in writing.
A 1977 directive on the approximation of the laws of the member states relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses protects employees in the event of a change of employer, and ensures that their rights are safeguarded (see summary). The former employer and the new employer are required to inform the representatives of their respective employees in good time (good time specified in the directive) of the reasons for the transfer, the legal, economic and social implications, and the measures envisaged in relation to the employees, and consult the representatives in good time with a view to seeking agreement on possible measures in relation to their employees. The terms and conditions agreed in the collective agreement continue to apply until the date of termination or expiry of the agreement or the entry into force of another agreement. Member States are required to adopt the necessary measures to protect the rights of employees and of persons no longer employed in the transferor's business. The transfer does not constitute grounds for dismissal. The status and function of employees' representatives are preserved.
A 1994 directive on the establishment of a European Works Council (EWC), or a procedure in Community-scale undertakings and groups of undertakings for the purpose of informing and consulting employees, improves the right to information and consultation of these employees (see summary). EWC or the procedure for informing and consulting employees is established by an agreement between the central management and a special negotiating body. The central management is responsible for the creation of the conditions and means necessary for the setting up of a EWC or an information and consultation procedure, and will initiate negotiations on its own initiative or at the written request of at least 100 employees or their representatives in at least two undertakings in at least two Member States.
In addition to these directives, there have been a number of regulations (and proposals for regulations and directives) regarding information and consultation arrangements for the involvement of employees in the decision-making process of certain entities. These include: a proposal for a Council Regulation on the Statute for a European Company and a proposal for a Council Directive complementing it with regard to the involvement of employees in the European company (see summary), a proposal for a Council Regulation on the Statute for a European Cooperative Society and a proposal for a Council Directive supplementing it with regard to the involvement of employees (see summary), a proposal for a Council Regulation on the Statute for a European Association and a proposal for a Council Directive complementing it with regard to the involvement of employees (see summary), and a proposal for a Council Regulation on the Statute for a European mutual society and a proposal for a Council Directive supplementing it with regard to the involvement of employees (see summary).
Working conditions
Considerable progress has also been made in the field of labour protection, in particular through directives on the protection of pregnant women, the protection of young people at work, and the reorganization of working time.
A 1992 directive concerning the implementation of measures to encourage improvements in the safety and health of pregnant workers, women workers who have recently given birth, and women who are breastfeeding includes a number of provisions concerning the tasks of such workers, their working hours, right to take leave, and so on (see summary). Maternity leave is defined to be for an uninterrupted period of at least 14 weeks before and/or after delivery, and women may not be dismissed for reasons related to their condition for the period from the beginning of their pregnancy to the end of the period of leave from work.
A 1994 directive on the protection of young people at work provides that member states shall take necessary measures to prohibit the employment of children (under the age of 15), and shall ensure that the employment of adolescents (between the age of 15 and 18) is strictly controlled and protected under the conditions provided for in the directive (see summary). It includes provisions on employers' obligations, types of employment, working hours, night work, rest periods, annual leave and rest breaks.
A 1993 directive concerning certain aspects of the organization of working time adopts minimum requirements in this regard, connected with workers' health and safety (see summary). It concerns normal working hours, working time schedule and night work. Maximum average weekly working period is 48 hours, including the overtime for each seven-day period. The minimum daily rest period of 11 consecutive hours per period of 24 hours. The minimum annual paid holiday is four weeks.
Health and safety at work
At present, Community health and safety legislation can be grouped under three headings:
On 22 June 1994, the Council adopted a regulation setting up the European Agency for Safety and Health at Work (see summary), which is located in Bilbao. The Agency's main tasks are to collect and disseminate technical, economic and scientific information on health and safety at work in addition to promoting and supporting exchanges of information and experience between the Member States.
In other geographical and political frameworks within Europe, various other instruments have been adopted on labour matters. Thus, the contracting parties of the Treaty of Brussels – and later the Western European Union, Benelux and the Nordic Council – framed a number of instruments which were adopted earlier than those of the European Communities, and were on a narrower basis.
The Organization of American States (OAS) adopted in 1969 an American Convention on Human Rights, which contains in particular provisions concerning freedom of association and forced labour. This Convention entered into force in July 1978. Its Additional Protocol in the Area of Economic, Social and Cultural Rights, which was signed in 1988, deals in a more specific way with such rights as right to work, just, equitable, and satisfactory conditions of work, trade union rights and rights to social security.
The side agreement of the North American Free Trade Agreement (NAFTA), the North American Agreement on Labor Cooperation (NAALC) encompasses the following rights: freedom of association and protection of the right to organize, the right to bargain collectively, the right to strike, prohibition of forced labor, labor protections for children and young persons minimum employment standards, elimination of employment discrimination equal pay for women and men, prevention of occupational injuries and illnesses, compensation in cases of occupational injuries and illness and protection of migrant workers.
The Caribbean Community (CARICOM) concluded in 1996 an Agreement on Social Security concerning the following social security payments: invalidity pensions, disablement pensions, old age or retirement pensions, survivors' pensions, and death benefits in the form of pensions.
The Treaty of Asuncion, which establishes the Southern Common Market does not contain any express mention of social and labour matters, but the preamble sets out a generic objective of accelerating development processes with social justice. Nevertheless, in the operative agreements, which they adopted later on to ensure full compliance with the objectives established in the Treaty during the transition period, the governments proceeded to create a working sub-group 10 to take up matters dealing with labour relations, employment and social security.
The Organization of African Unity adopted in 1981 the African [Banjul] Charter on Human and Peoples' Rights, which includes the right to work under equitable and satisfactory conditions, the right to equal pay for equal work and the right to free association. In 1990, OAU adopted the African Charter on the Rights and Welfare of the Child, which provides that every child shall be protected from all forms of economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's physical, mental, spiritual, moral, or social development. States Parties shall in particular provide through legislation, minimum wages for admission to every employment; provide for appropriate regulation of hours and conditions of employment; provide for appropriate penalties or other sanctions to ensure the effective enforcement of this Article; promote the dissemination of information on the hazards of child labour to all sectors of the community. Also, the Southern African Development Community (SADC) has human rights provisions in the Treaty of Windhoek by which the community was established, and the Common Market of Eastern and Southern Africa has the recognition, promotion and protection of human and people's rights in accordance with the provisions of the African Charter on Human and People's Rights as one of its objectives according to The Treaty establishing COMESA.
