The ILO employers’ row: time for an industrial relations rethink


One of the less remarked-upon annual publications of the ILO is the report of the director-general to the International Labour Conference (ILC).

This year’s effort attracted as little attention as usual, but is actually well worth reading.

In an occasionally strongly-worded report – or at least, as strongly-worded as these types of documents ever get – new Director-General Guy Ryder calls to order those within the organisation who seem determined to ensure that it can’t fulfil its mandate.

The main group in Ryder’s line of fire is the employers, who at the 2012 ILC launched an unprecedented attack both on ILO procedure and on the right to strike.

The ILC, which is the ILO’s annual meeting, is supposed to discuss the year’s worst instances of labour standards violations.

Whether or not some law or government action counts as a violation is evaluated by a group of independent experts called the Committee of Experts on the Application of Conventions and Recommendations (CEACR).

There are always too many violations to deal with in the time available, so the Conference Committee on the Application of Standards (CCAS) chooses about 25 cases to be discussed in the full session of the conference.

In 2012, however, the employer members of the CCAS decided that they would veto the discussion of any case where the issue was a violation of the right to strike.

Their stated reason for this was that they did not agree with the CEACR that the right to strike could be implied on the basis of Conventions 87 and 98 on freedom of association and collective bargaining, despite the longstanding and widely-accepted view that the rights enshrined in these conventions are meaningless in the absence of a right to strike.

The employers argued that they had never accepted that this was an acceptable interpretation, and that the right to strike was a matter for purely national decision.


Procedure and substance

There are two things that we need to highlight here, one a question of procedure and the other of substance.

First of all, not only did the employers question the validity of the interpretation of the CEACR, they actually tried to argue that whether or not a labour standards violation has occurred is a political question rather than one of legal interpretation (Record of proceedings of the CCAS, ILC 2012, para. 82-3), thus putting into question the entire supervisory system.

If a group of participants decides from one day to the next that it will not accept the settled opinion of the jointly-appointed group of non-aligned experts, whose role is precisely to advise the ILO on the legal aspects of compliance or non-compliance with its standards, then the supervisory system either simply grinds to a halt or, as the employers seem to want, it becomes a purely political process in which the substance of standards compliance is at best a secondary issue and decision-making reflects nothing more than the balance of power between workers and employers.

Second, the employers’ position on the right to strike makes a nonsense of the whole concept of freedom of association – as the arguments of the CEACR show very clearly (Report of the CEACR 2012 Report III Part 1B para. 117-128).

While they do not directly claim that workers should not have the right to strike, they argue that it’s up to each state to decide for itself whether to permit strikes and in what circumstances.

The obvious implication of this, of course, is that outlawing strikes is a legitimate state choice.


Ryder: diplomatic but direct

Ryder’s comments on the situation and the need to resolve it are diplomatic in the sense that he only ever refers to ‘constituents’ and leaves room to conclude that the workers’ representatives are also at fault to some extent:

“Differences of position in defence of the specific interests of constituents are not only compatible with the goal of strengthening standards policy; they are a necessary ingredient. But to advance the standards function, that dynamic should be positive, and it gives way to something quite different when the perception of the actors is that their partners actually aim to extract partisan advantage at the expense of the common endeavour.” (para. 108)

On the other hand, his specific comments about the controversy over the status of the CEACR’s opinions and the right to strike can hardly be directed at anyone other than the employers’ representatives since it was they and only they who called the existing system into question:

“It is important to acknowledge that this controversy poses questions of fundamental significance for standards policy and hence for the ILO itself.

It follows that the ILO cannot afford to allow it to remain unresolved for very long. A standards system which does not command full tripartite support and commitment will inevitably suffer in terms of authority and credibility.” (para. 115; emphasis added)

Ryder doesn’t attempt to propose any answers in his report, confining himself to emphasising the urgency of finding a solution.

Unfortunately, little progress was made at this year’s ILC. What emerged from the CCAS was an uncomfortable, and probably unrepeatable, compromise.

An agreed list of labour standards violations was produced, but wherever the CEACR had identified a violation of the right to strike, the official report of the CCAS states:

“The Committee did not address the right to strike in this case, as the employers do not agree that there is a right to strike recognized in Convention No. 87.”

No agreement of any substance was reached about the status of the CEACR’s findings, nor about the right to strike itself and both sides made it clear that they would be maintaining their established positions.


Attack on the right to strike

So what now? It looks very much as if the employers are happy with labour standards only as long as they do not escape from the institutional confines of the ILO itself.

As Ryder himself notes (para. 115) they seem to have decided that now is the time to question the idea that the right to strike can be implied from the ILO’s core conventions precisely because of the increasing normative reach of labour standards, included as they are in virtually every corporate social responsibility policy, corporate code of practice and sustainability labelling scheme.

While it’s crucial that the employers are brought into line, in the long term the workers’ strategy of sitting tight and holding on to the existing system is not going to work.

The row in the CCAS has brought into the open the fact that that there is no shared vision and no shared understanding of industrial relations among the constituents.

In targeting the right to strike, however, employers’ representatives have unwittingly provided the perfect opportunity to begin a discussion on the most fundamental underpinnings of industrial relations and the employment relationship.

Many trade unionists would argue that it would be madness to allow the global labour movement to be drawn into a discussion in which the right to strike and the right to organise could end up being questioned.

But to pass up the opportunity to open such a discussion would be to waste a unique opportunity to take the initiative in an historical context more favourable to the cause of labour than it has been for decades.

In the context of the global economic crisis and recent events in Bangladesh and elsewhere, the world’s ordinary workers have the moral upper hand and a rare degree of public sympathy that it would a terrible shame to waste.

Taking advantage of the moment, though, demands new ideas and new institutional practices that fit the world as it is now, not as it was 50 years ago.

Ryder’s report to the ILC strongly suggests that the ILO might in future be more open to this kind of innovation and I for one am (cautiously) optimistic about what his tenure as DG might bring.

I am also sure, though, that nothing will happen unless the labour movement makes it happen.

Now is the time to start a discussion on what industrial relations are for. And yes, this may mean fundamentally rethinking worker representation, the institutional form and role of unions and even the practice of collective bargaining itself.

What it certainly does not mean is abandoning the goal of establishing substantive forms of democracy within every organisation; of ensuring that workers have the inalienable right to participate in decision-making at every level.


An earlier, unabridged version of this article was published on the New Unionism blog (