Tim De Meyer Country Director for the ILO Country Office for China and Mongolia

1. Promotion of Collective Bargaining & Settlement of Collective Interest Disputes – International Labour Standards & Laws Tim De Meyer Country Director for the ILO Country Office for China and Mongolia

2. A Functional Presentation of relevant standards on Collective Bargaining & Settlement of Collective Interest Disputes

3. Collective Bargaining • Most fundamental social dialogue mechanism, ensuring that terms and conditions of employment (wages, working time, leave etc) are negotiated (and periodically re-negotiated) in line with an evolving economic environment • One of three main instruments of wealth redistribution to keep inequality in check in market economies • collective bargaining ~ private • social security (insurance) ~ private/public • taxation ~ public

4. What does it take to achieve effective collective bargaining ? • Most fundamentally: a formal recognition • that employers have private property over productive assets & profits and workers have private property over their labour • (see Article 13 of the Constitution of China) • that amongst private parties, negotiation is the only proper vehicle for transferring property (not force, not fraud) • that E & W workers have unequal bargaining power that is corrected by giving collective bargaining precedence over individual bargaining, if workers so wish • that E must submit to fair sharing of wealth … but can negotiate productivity improvement measures in return

5. trade unions & employers’ organizations that • have the trust of (and in return have a measure of control over) workers and employers • understand the law (i.e. legal boundaries within which to conduct negotiations) • understand the need to compromise • ... hence the emphasis in C. 87 • on “independence” of organizations • on “networking” of organizations (right to join federations or confederations) • on free “election” of officers

6. “good faith” of both E & W • legal corollary ~ “unfair labour practices” • consistent sharing of relevant business information (R. 129, R. 163) • strikes must be possible … but only “usable” as a means of last resort (R. 92) • govt’s offering professional conciliation / mediation services to prevent negotiations from “derailing” (R. 92 & R. 158 & R. 163) • governments offering voluntary arbitration (R. 92 & R. 158 & R. 163) • government promoting consultations at the industrial and national level to promote “mutual understanding and good relations” between G, E and W (R. 113)

7. Govts must resist the temptation of coming to the rescue of either party, and stay focused on the public interest dimension of what is essentially a private interest dispute • protect against acts of violence • no compulsory arbitration except where services affecting life and health of people are at stake • protect against economic fall-out of excessively protracted strikes • imposition of minimum operational requirements in public utilities (e.g. urban transport) • imposition of (agreed) minimum safety services (to prevent disasters and destruction of property) • respect “bargaining autonomy” (crisis ?) • labour inspectors are recommended not to get involved with conciliation and mediation (R. 81) • careful ~ every strike law affects the “bargaining balance” of the parties

8. determine the status of collective agreements in relation to individual employment contracts and in relation to the law (R. 91) • governments organizing swift, inexpensive, professional and informed rights dispute settlement (R. 130) • upholding law is a public function • essential to prevent strikes over rights disputes • comes generally in the form of labour inspection and labour courts

9. Relevant International Labour Standards on Social Dialogue and Industrial Relations (other than C. 87 & C. 98)

11. Conventions (+ R.) on Industrial Relations and Consultations • Workers' Representatives Convention, 1971 (No. 135) and R. (No. 143) • Rural Workers' Organizations Convention, 1975 (No. 141) and R. (No. 149) • Tripartite Consultations (International Labour Standards) C. (No. 144) and R (No. 152), 1976 • Labour Administration C. (No. 150) and R. (No. 158), 1978 • Labour Relations (Public Service) Convention, 1978 (No. 151) and R. (No. 159) • Collective Bargaining C. (No. 154) and R. (No. 163), 1981 • Termination of Employment C. (No. 158) and R. (No. 166), 1982

12. Recommendations on Industrial Relations and Consultations • Collective Agreements Recommendation, 1951 (No. 91) • Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92) • Co-operation at the Level of the Undertaking R., 1952 (No. 94) • Consultation (Industrial and National Levels) R., 1960 (No. 113) • Communications within the Undertaking Recommendation, 1967 (No. 129) • Examination of Grievances Recommendation, 1967 (No. 130)

13. “Building blocks” of a typical Legislative Framework on Collective Labour Relations

14. 1. General Principles • commonly expressing the purpose of collective labour relations • protection of human dignity & freedom, social justice • harmonious labour relations • fair sharing of wealth • promoting workplace democracy • balancing labour market flexibility and security … • commonly expressing legal guarantees that organizations of workers and employers can properly represent their members, i.e. operate on the basis of instructions of their members and in function of each other’s positions (which tend to fluctuate with market conditions)

15. 2. Trade Unions & Employers Organizations • Establishment of organizations of workers (“trade unions”) and organizations of employers (“business associations” or “employers’ associations”) • procedure for registration of organizations with the authorities • submission of constitutions (“by-laws”) to the Registrar (guarantee of democratic functioning) • limited rules on financial transparency towards organization members (not necessarily authorities or employers)

16. 3. Collective Agreements • to confirm their legal status as • the binding outcome of collective bargaining • the binding outcome of a collective interest dispute procedure • some rules on validity and scope • legally binding character of collective agreements in-between (public) laws and regulations and (private) individual employment contracts

17. 4. Workplace Cooperation Mechanisms • providing for regular sharing of information between employer and union • providing for settlement of disputes over rights arising from enterprise-level collective agreements (“grievance procedures”) • NO authority to engage in collective bargaining nor conclude collective agreements

18. 5. Collective Bargaining • choice for enterprise-level bargaining: rules for determining (exclusive) bargaining rights • choice for sector-level or “multi-employer” bargaining: institutional framework (e.g. sectoral bargaining councils) • obligation of “good faith” bargaining • some definition of “unfair labour practices”, typically involving discriminatory or interference behaviour by the employer

19. 6. Strike action • collective bargaining – right to strike = collective begging • peaceful strike action should be legitimized beyond collective bargaining (e.g. protest strikes against changes to the minimum wage in systems where the MW is exclusively determined by the public authorities; work stoppages in situations of manifest, serious and imminent danger to safety and health …)

20. strike action may be subject to procedures that give conciliation and arbitration a chance • strike action may be subject to certain limitations that directly aim to protect life, safety and health of the population at large • essential services • minimum safety operations in public and private sector • minimum operational requirements in public utilities not considered essential services (e.g. public transport)

21. Labour Relations Legislation in other Asian countries

27. Global Ratification Status of ILO Fundamental & Governance Conventions

28. Fundamental Conventions as of 1 February 2012 / ILO:183 Member States Year No. Official Title Ratifications 1930 29 Forced labour (175) 1948 87 Freedom of Association and Protection of the Right to Organise (150) 1949 98 Right to Organise and Collective Bargaining (160) 1951 100 Equal Remuneration (168) 1957 105 Abolition of Forced Labour (171) 1958 111 Discrimination (Employment (169) & Occupation) 1973 138 Minimum Age (161) 1999 182 Worst Forms of Child Labour (174)