DISPATCHES

A dispatch is a brief essay, ordinarily not to exceed five printed pages, describing a significant development in national labor law: legislative, judicial, administrative. The importance of the development in domestic context should be explained; the reasons for transnational interest might be suggested.

Proposed dispatches should be submitted to the Journal’s editorial office at law-cllpj@illinois.edu and, if approved, will be posted on the Journal’s website. The titles and authors of Dispatches appearing from one number to the next will be published in the Journal.

 

DISPATCH No. 5, Israel – “Using a Biometric Database in the Workplace – Employee Privacy, Trade Unions, and Public Employer Interests,” by Tammy Katsabian

July 8, 2017

The right to privacy of employees is at the center of contemporary legal debates around the world. The rapid development of technology, particularly digital technology, greatly facilitates the capacity of employers to closely supervise and monitor their employees. These changes led to new and unfamiliar scenarios that were brought to the courts, involving the employee’s right to privacy and the prerogative of the employer to manage its business autonomously. One of the innovative, yet problematic, ways to supervise an employee’s activity today – or more accurately, her presence at the workplace – is the use of a biometric time clock, through which the employee has to report whenever she enters and leaves her workplace.

The legality of using a biometric database at the workplace (which relies on employees’ fingerprints) was recently addressed by the Israeli National Labour Court (NLC) in The Histadrut vs. the Municipality of Qalansuwa (judgment of March 15, 2017). The Israeli legislature has not regulated this question, as of yet. That is why the NLC’s decision seems crucial on the national level. Furthermore, the NLC’s decision pertains to issues of consent versus notice, as well as to whether consent should be granted by the employee’s representatives or by each employee, and also raises questions of specific rules versus flexible standards. Therefore, I believe that the decision can also contribute to the global discourse on employees’ right to privacy in the technological age.

But before we will attempt to interpret the NLC’s decision, we should start with the factual background. Qalansuwa Municipality employees, including those at the municipality’s education department (most of whom are women) are represented by the national trade union, the “Histadrut”, and a general collective agreement with the Federation of Local Authorities regulates their rights and duties. In June 2012, the Municipality decided that all employees in the education department would be obligated to report, through a biometric time clock, each time they enter and leave the workplace, in order to accurately register their working hours. One of the Municipality’s claims was that the collective agreement gives it the mandate to require employees to do so. The Municipality clarified that employees who did not abide by these instructions would be considered absent and therefore would not receive their salary. The Municipality’s main justification for its dramatic decision was that, in the past, several employees manipulated the (previous) registration system. Therefore, it was decided to adopt a biometric time clock, which, it said, is the most efficient and accurate way to track employees’ working hours.

The Histadrut rejected the Municipality’s demand, arguing that it non-proportionally violated the employee’s right to privacy, and, moreover, that it was formulated without consulting with the labour union. Consequently, the Histadrut instructed the employees to ignore the Municipality’s new requirement and to refrain from using the biometric time clock. The Municipality, in turn, decided to pay only partial salaries to the employees who did not follow its instruction. Ultimately, after the sides did not reach an agreement, the case was brought to the Israeli Regional Labour Court (RLC). The RLC ruled that the prerogative of the employer to decide how to manage its business supersedes the employee’s right to privacy in this case, especially when taking into account that public funds are involved and that the biometric clock is used only for entrance and exit registrations.

Dissatisfied with this decision, the Histadrut appealed to the NLC. Given the novelty of the issue and its effects on the rights and interests of both sides, third parties were allowed to join the proceeding (the Israeli Attorney General, the Federation of Local Authorities in Israel, the Manufacturers Association of Israel, and civil and labour rights NGOs).

The NLC started the judgement by explaining that, first and foremost, we should ascertain whether the employees’ right to privacy was violated. Only if the answer to this initial question is affirmative, then there is a need to examine, and then balance, the other rights and interests at stake. Following this, the NLC clarified that a fingerprint is a person’s private information, and therefore protected in the framework of her right to privacy. By so doing, the NLC followed the perception of privacy as control over one’s life, particularly over information about her, in accordance with her right to autonomy.1 Next, the NLC noted that there are interests of the employer that need to be taken into account as well, namely the employer’s prerogative to manage its business as it wishes as well as its property rights. Furthermore, since the case at hand involves a public employer, there is a need to balance also the public authority’s obligation to operate in good faith and respect its employees’ rights versus the importance of saving public funds and assuring that employees are, in fact, present at the workplace. At this stage, the NLC referred to the proportionality test, which has been adopted and applied in previous Israeli cases pertaining to employees’ right to privacy, notably in the context of professional e-mail accounts.2 Yet, even though the NLC refers to proportionality principles, in practice it seems to accord the employee’s right to privacy an almost absolute status. 

Thus, after the NLC reached the conclusion that the right to privacy of the employees was violated, it examined whether there was legislation authorizing the employer to mandate its employees to provide a fingerprint or any other biometric information. After finding that there was no such legislation, it sought to determine whether each of the employees gave her free and informed consent to the Municipality’s instruction. Unsurprisingly, given that the issue reached a legal tribunal, the NLC asserted that the employees did not give their free and informed consent. Therefore, the NLC concluded, the Municipality’s decision should be overturned.

The NLC’s decision to examine each employee’s consent in order to determine whether Qalansuwa Municipality’s orders were valid or not, is interesting for several reasons. First, while not stating it explicitly, the NLC prioritized the element of consent over that of notice, thereby following the European approach to privacy (rather than the American one).3 By so doing, the NLC gave the right to privacy of the employee an almost absolute status, not taking into consideration the interests and rights of the employer. Or, put differently, without employing the proportionality principle. When we approach the issue from a labour rights perspective and as we consider the numerous ways in which employers can nowadays intrude into their employees’ privacy, it makes sense to give significant weight to the employee’s consent, and to demand that it is informed and authentic. However, it is interesting that the NLC does so in practice, and yet rhetorically it pretends to balance between the employers’ interests and the employees’ rights.

Second, when relying on the legislation and the consent of the employees, it seems that the NLC demonstrates a need for concrete and clear-cut rules. In terms of its rhetoric, the NLC follows its previous precedents and applies the open-ended proportionality standard.4 Yet, in practice, it operates differently and prefers not only the right to privacy of employees over the interests of the employer, but also a clear-cut rule rather than a more amorphous standard of regulation (such as the proportionality principle).5

Finally, when applying the consent element in this case the NLC clarified that it examined the concrete consent of each employee, as well as whether it was an informed consent that was given freely. In this case, the Histadrut did not consent to the privacy violation and had in fact instructed the employees to disobey the employer’s orders. Therefore, the NLC leaves unanswered the question of whether in principle a trade union can consent in the name of the employees to privacy violations. However, throughout its decision the NLC has repeatedly emphasized that each and every employee must give her consent after receiving detailed explanation of the privacy violation and freely and authentically agreeing without the interference of any other party. It therefore seems that the NLC implies that only the individual employee can consent and legitimize a violation of her privacy. Yet even from a labour-rights perspective it is worth questioning this approach. Given the general enforcement crisis in the labour field,6 along with the countless new ways to violate the right to privacy of employees in the technological era, there is a strong case for strengthening modes of regulation that are based on trade unions and employers’ representatives.7 Because, generally, trade unions are in a better position than the employee (and even the courts) to adapt privacy rules to the concrete workplace, and to assure that the employer is abiding by these rules.8 (Having said that, it should be taken into consideration that as a collective, a trade union might be less protective of the privacy of each employee).

To conclude, the NLC’s decision in this matter demonstrates its real commitment to the rights of employees, which seem to be under constant threats nowadays, to a large extent because of rapid technological developments. However, the decision may indicate a tendency of the NLC to accept only the employee’s individual consent, without balancing it with the rights and interests of the employer or opening the option of a trade union’s consent. Moreover, it appears that the NLC is doing so in a way which gives explicit priority to the right to privacy of employees, and incidentally, prioritizes clear-cut rules over flexible standards.

 

Tammy Katsabian (LLB, Bar-Ilan; LLM, Yale) is a doctoral candidate at the Hebrew University of Jerusalem, under the guidance of Professor Guy Davidov.

  1. Alan F. Westin, Privacy and Freedom 6–7 (1967). Michael Birnhack, Domination and Consent: The Theoretical Basis of the Right to Privacy, 11 L. & Gov’t 9 (2008) (Hebrew).
  2. Isakov v the Israeli State – the Commissioner on Women’s Work Law (judgment of February 8, 2011).
  3. Matthew Finkin, Chapter 7: Privacy and Autonomy, Employee Rights and Employment Policy Journal (forthcoming 2017); Marta Otto, The Right to Privacy in Employment (2016).
  4. See supra note 2.
  5. For more information on the tension between rules and standards, see Guy Davidov, A Purposive Approach to Labour Law 159–63 (2016).
  6. Id., at ch. 9.
  7. The notion of turning to trade unions in order to set up privacy rules in every workplace and ensure compliance seems to be accepted and acted upon in some European countries. The French Labor Code requires that employers notify the representatives of employees of monitoring practices in the workplace. In Germany, employers can interfere legitimately with the employees’ right of privacy only if a collective agreement, legislation or any other similar mechanism authorizes such interference. See Jay P, Kesan Cyber-Working or Cyber-Shirking?: A First Principles Examination of Electronic Privacy in the Workplace, 54 Fla. L. Rev. 289, 308–10 (2002).
  8. Id.

DISPATCH No. 4, France—“The new French labor law: Loi n° 2016-1088 du 8 août 2016 relative au travail, à la modernisation du dialogue social et à la sécurisation des parcours professionnels,” by Gwenola Bargain

March 25, 2017

“Work in progress.” Not surprisingly, in the midst of summer, the law related to labor, modernization of social dialogue and the security of career paths was finally passed. The process of the reform plan intended by the French socialist government at the beginning of the year 2016 was long and chaotic. It led to civil society mobilizations, online petitions, street protest, strikes, blockades of the oil refineries…etc. Given this massive reaction, the draft of the reform was revised and, then, the revised version was corrected again. Even the title of the law appeared to be undefined. At first, the draft law was entitled “building new freedoms and new protections for businesses and assets.” The title of the law now refers to “labor” and is commonly identified as the “labor” law or the “El Khomri law” – the name of the French Minister of Labor. The culmination of this series of attempts was the government choice to use the French constitution 49-3 provision, which allows, under conditions, the adoption of a law without a vote in the National Assembly.

Adopted on 21 July 2016 and published on 9 August 2016, the law came into force last summer but needed 127 measures to be implemented by a decree. Some provisions came into force on August, others on December 2016, and others on January 2017…etc. The final version of the reform is far different from what was initially planned. The reform has been elaborated without consultation with unions, in spite of Article 1 of the Labor Code, which provides the social dialogue with social partners when a reform related to social policy is intended. After the struggle between unions and the government, several measures have been left out of the final version. Among the most controversial measures were the cap imposed on damages for unfair dismissal and the assessment of economic difficulties of a company belonging to an international group at a national level; both have been abandoned. In the end, the text contains 123 articles and it is divided in 7 titles. It covers a wide range of subjects; from working time to personal account of activity; from the legal right to avoid checking work to the legal framework for digital platform; from the strengthening of collective bargaining to the reform of occupational medicine. The revisions are so substantial that the philosophy and the conceptual framework of the reform are really hard to grasp.1 

Context. The content of the law has been partly shaped by the propositions of several Reports. The main influence lies in a set of proposals advanced by the “Combrexelle Report” on collective bargaining and the renovation of social dialogue.2 The working group set out 44 recommendations in order to create a new dynamic of collective bargaining and to open new fields of collective bargaining. Pursuant to the spirit of the report, the Title 1 of the law is dedicated to: “Rebuilding labor law and strengthening collective bargaining.” Under Article 1 of the law, a group of experts should be commissioned to make recommendations related to a “reform of the Labor Code,” by taking into consideration that “a central role should be attributed to collective bargaining, by extending its fields and its scope of action.” Curiously, the reform plans itself a future reform (“refondation”) of the labor Code that it has not yet conceived. As a consequence, the future of the planned rewriting of the Labor Code is very uncertain, as the year 2017 is a year of presidential elections. 

Promoting collective bargaining at a decentralized level. The complexity of the El Khomri law results from the fact that the part of the Labor Code related to working time has been already revised in line with the “program” of Article 1. Chapter 3 of the law is dedicated to the implementation of a “new architecture of rules related to working time.” At this stage, working time is the main domain affected by the new articulation of collective norms and by the promotion of collective agreement at business level. Each regulation in the field in working time law is now divided into three paragraphs. The first paragraph mentions the public policy rules (ordre public). The second paragraph sets the scope of collective bargaining (champ de la négociation collective) and the third provides “the default rules” (règles supplétives). This rewriting of the existing legal framework is expected to enable a better understanding of the scope of collective bargaining but actually it creates a set of difficulties, while the field of public policy rules is not clearly set. This part of the reform is quite experimental, as the new architecture of the labor law rules ought to be extended to the whole Labor Code with the planned reform.

The other component of the reform of the working time rules is the priority given to company level agreement over sectorial agreements in some matters. As in other European countries, the expansion of negotiation at a decentralized level has been, for several years, the horizon of the desired changes by some social partners and promoted by the law. This trend is prevailing in the field of working time and collective bargaining at company level is put forward to address employment issues. Since the reforms in 20043 and in 2006,4 collective agreements at company level can be less favorable than agreement at sector level (under conditions). The El Khomri law goes one step further, in some specific matters.5

This promotion of collective bargaining goes with the strengthening of the legitimacy of the collective agreement. The reform changes the rules of validity of the company level agreements (Article 21). Under the current system, a company agreement has to be signed by trade unions representing employees who have received at least 30% of the votes in the first round of the last elections and the absence of opposition of trade unions who received the majority of votes in the same election. Under the new legal framework, an agreement has to be signed by unions represented at least 50% of the votes cast in the first round at the last elections in favor of representative unions. The law put an end to the system of the opposition right, which was a condition for the validity of the agreement. The system is not exclusively in favor of the “majority rule” as it allows to a minority trade union representing at least 30% of the votes to require the settlement of a referendum to bypass the reinforced requirement of majority. While making the majority agreement a principle, the law sets an exception by allowing a kind of minority agreement, given the “democratic” legitimacy of the votes of the employees. In the same time, the law widens the range of company agreements concluded in the absence of union delegate but with a consultation of employees approving the agreement (Article L. 2232-24-1). The legitimacy of collective agreements is directly challenged by, or grounded on, the legitimacy of the direct vote of employees. 

Economic rationality. Title 4 of the law, entitled “promoting employment,” displays the economic ambition of the reform. It contains a vast range of measures, more or less connected with this objective. The most contentious measure relates to economic dismissal (Article 67). A new legal framework of economic dismissal was initially conceived of but the reform eventually settled is less ambitious due to the protests and the chaotic process of the adoption of the law. The reform focuses on the legal characterization of economic difficulties justifying a dismissal. In order to promote employment by “securing dismissals and preventing legal disputes,”6 the law intends to clarify the criteria establishing economic difficulties. Under the new provision, an employer is entitled to justify the existence of economic difficulties by referring to one at least of these indicators: a decrease of orders, business figures, cash-flow problems, gross operating surplus (Article L. 1233-3 1° of the Labor Code). The reference to these accounting indicators is not new, as judges already refer to these. However these indicators are now “legal.” As a consequence, an employer is entitled to meet just one of these criteria justifying the existence of economic difficulties. Moreover, the list is not exhaustive as the law refers to the possibility to put forward “anything else” that is of nature to establish the difficulties. The law specifies that the evolution of these indicators should be “significant.” Under the new framework, a “significant” evolution is defined in relation to the number of terms and the number of employees. The purpose of this part of the reform is clearly to limit the margin of discretion of the judge when evaluating the reality of the difficulties. This legal framework is expected to impact the hiring decision by “securing” the firing decision.

Flexibility granted to employers lies also at the core of the new agreement created by the law: the “agreement on preserving and developing employment” (accord de preservation de l’emploi). Pursuant to the trend of “derogatory agreements,” a new kind of collective agreement has been created by Article 22 of the law in the chapter dedicated to the increase of the legitimacy of collective bargaining. This collective agreement aims to adapt the working conditions at a company level to its economic constraints. This new kind of collective agreement derogates to the traditional mode of articulation of the collective agreement and the labor contract. Under article L. 2254-1, when an employer is bound by a collective agreement, its provisions apply to the employment contract except if the contractual provisions are more favorable to the employee than those of the collective agreement. Contrary to this, the collective agreement on preserving and developing employment imposes its provisions upon those of the employment contract even if the contractual provisions are more favorable. The employee is entitled to refuse this “substitution” but in that case, the consecutive dismissal lies on a “specific motive which is a real and serious cause” (L. 2254-2.-I). The dismissal takes the form of an individual dismissal for economic reason with enforcement measures accompanying job research and training. This type of agreement is less restrictive that the one created by the previous law of 14 June 2013 on “securing employment law.” The agreement to maintain employment (accord de maintien de l’emploi) is only applying by companies facing serious temporary economic difficulties (L. 5125-1 of the labour Code). 

Security of career paths. To offset this economic dimension of the reform, the law contains provisions fostering the security of careers (Title 3). The key measure is the creation of “the personal account of activity” (compte personnel d’activité) aiming “to strengthen the autonomy of its holder” (article L. 5151-1) by bringing together several personal accounts, accessible on an online platform. Attached to its holder, the account encompasses the personal training account, the personal hardship account (compte personnel de prevention de la pénibilité) and the new civic engagement account.7 The originality of this account lies in its beneficiaries, as a vast range of workers (and job-seekers) is entitled to use one. The personal training account, created on 5 March 2014, allows workers to acquire training entitlements that they can use throughout their career. For instance, for a full time employee, the account is credited with 24 hours a year up to 120 hours. The personal hardship account, created on 20 January 2014, is designed to enable workers exposed to harsh working conditions to accumulate points on it and to convert these points into vocational training schemes, additional remuneration in case of part time or for their retirement. The new civic engagement account enables people involved into volunteer work to acquire training entitlements. The new legal framework leaves much to be desired as the new personal account of activity is mainly conceived as a tool for managing these three accounts. It enables individuals to inquire of theirs rights with an online access system but it does not provide a true support for the security of their careers. 

In spite of the vast diversity of measures contained by the law, the core of this reform is mainly built on a market-focused framework.8 It clearly moves away from one of the original aims of Labor law, i.e. the implementation of measures limiting the commodification of work.

 Gwenola Bargain is an Associate Professor at the Université François-Rabelais de Tours

 Notes: 

  1. See special issues in volume 12 of the Revue de Droit du Travail (2016) and Volume 11 of the Droit Social (2016).
  2. Rapport Combrexelle, La négociation collective, le travail et l’emploi, septembre 2015.
  3. Loi n° 2004-391 du 4 mai 2004 relative à la formation professionnelle tout au long de la vie et au dialogue social.
  4. Loi n° 2008-789 du 20 août 2008 portant rénovation de la démocratie sociale et réforme du temps de travail.
  5. See Article 8.
  6. See the statement of reasons of the law.
  7. See special issue : Droit social, n° 10, 2016.
  8. See, T. SACHS, « La consolidation d’un droit du marché du travail », Revue de droit du travail, 2016, p. 758.

     

     DISPATCH No. 3, RUSSIA -- “Problems of Enforcement of the Right of Association (Trade Union Establishment) in the Countries of the Eurasian Economic Union,” by T.A. Izbienova and M.I. Averyanova

On May 29, 2014 in Astana (Kazakhstan) the Treaty on the Eurasian Economic Union (hereinafter the “Eurasian Union” and/or the “Treaty”) was signed, initially composed of the Russian Federation, Belarus, Kazakhstan, and then the Republic of Armenia,1 and subsequently joined by the Kyrgyz Republic.2 The Union started working on January 1, 2015.

The interest in the Eurasian Union is due to the fact that one of the main objectives of its establishment is the “urge to set up a common market . . . of the labor force within the Union” (Article 4 of the Treaty),3 and a permanent governing body of the Eurasian Union—the Eurasian Economic Commission (hereinafter the “EEC” or the “Commission”)—carries out its activities not only in the field of customs and tariffs, currency and other economic regulation, but also labor migration.4 The Commission's decisions are binding upon on the territory of the EEC member countries. The successful realization of the goal of the Eurasian Union—the creation of a single market of labor resources—involves formation of a unified legal framework in order to regulate work of employees, including in the area of employees’ rights of association.

In this regard, the study of the national legislation of Eurasian Union member countries with a purpose of a step by step unification of labor and trade union rights is a very promising field in studies of the post-Soviet Union states’ legal systems.

The importance of this study is attributable to the fact that a dual trend in the development of the trade union movement has been observed in recent years, both at the international and national levels. On the one hand, there is a tendency to reduce the number of trade union organizations members. This process has started in the 1980s in most developed countries. According to the data of the International Confederation of Trade Unions, European countries are characterized by a global trend of the reduction in number of trade unions. Trade unions are in a state of trade unionism crisis meaning that they often appear to be disoriented in their relations with governments and employers, and are not able to express the employees’ positions in social and partnership relations.5

On the other hand, while recognizing the trade union crisis, researchers pays attention to the formation of a positive trend of “reunionization” understood as strengthening of the legal status of trade unions and the restoring of their role in social movement.6

Restoration of the active and effective trade union activity in the Eurasian Union member states implies an adequate review of the objectives, the priorities of this public association, identifying new ways of implementing them, as well as finding approaches in management of trade union associations.

The right to form and to join trade unions for the protection of personal interests is one of the most important social and labor rights. Worldwide this right is enshrined in Article 23 of the Universal Declaration of Human Rights adopted by the UN General Assembly on December 10, 1948, as well as in Article 22 of the International Covenant On Civil and Political Rights of December 16, 1966, ratified by the members of Eurasian Union.

The right to establish trade unions is contained in a number of conventions of the International Labor Organization (“ILO”), in particular: Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Right to Organise and Collective Bargaining Convention, 1949 (No. 98), Workers' Representatives Convention, 1971 (No. 135), Promoting Collective Bargaining Convention, 1981 (No. 154), as well as Workers’ Representatives Recommendation, 1971 (No. 143)

All current Eurasian Union countries are ILO members. In these circumstances, a statement from the ILO Declaration On Fundamental Principles and Rights at Work of 1998 should be taken into account. According to the statement all member states, even if they have not ratified the indicated Conventions, are under an obligation arising from the very fact of their membership in the ILO. This is to comply with, to promote application and to implement principles covering the four fundamental rights, one of which is freedom of association.

Referring to international labor treaties operational within a particular region, the right to freely join national or international organizations protecting one’s economic and social interests is enshrined in Article 5 of the European Social Charter, ratified by the Russian Federation in 2009. It establishes the workers’ and the employers’ right to form local, national and international organizations for the protection of their economic and social interests and to join those organizations.

The rules of these international treaties have been developed in the national legislation of the Russian Federation, the Republic of Kazakhstan, the Republic of Belarus, the Republic of Armenia, the Republic of Kyrgyzstan. Let us consider a number of problematic aspects of the workers’ right to freedom of association in the mentioned countries.

The Russian Federation

The right to establish trade unions is recognized in Article 37 of the Constitution of the Russian Federation, and in the provisions of the Federal Law No. 10-FZ of January 12, 1996 “On Trade Unions, Their Rights and Guarantees For Their Activity,” according to which a trade union is a voluntary association of citizens, brought together by their common production and professional interests by the kind of their activity, set up to represent them and to protect their socio-labor rights and interests. These trade unions’ powers were further defined in Labor Code of the Russian Federation (“RF Labor Code”) which includes Chapter 4 “Employees’ and Employers’ Representatives in the Social Partnership” and Chapter 58 “Protection of Workers’ Labor Rights and Lawful Interests by Trade Unions.” According to the legal provisions contained in the first of the above-mentioned chapters, these are trade unions that are given the priority to act as employees’ representatives in the social partnership. Chapter 58 gives interpretation of:

  • trade unions’ rights to monitor the employers’ compliance with the Labor Law (Article 370 of the RF Labor Code);
  • peculiarities of taking into consideration the trade unions’ opinion as a form of employees’ participation in management (while adopting local regulatory acts, etc.) (Articles 372 - 373 of the RF Labor Code).

Despite the large number of regulatory directions in the Russian legislation on the freedom of association, in practice, nonetheless, restriction of the rights of employees and trade union leaders due to their membership in the trade union is widely spread. Russian trade union leaders are often faced with discrimination affecting their labor rights due to their membership in this association. Do Russian employees faced with such restrictions because of their membership in a trade union have an effective instrument to protect their labor rights?

These circumstances, in particular, were the reason citizen Danilenkov and thirty-two citizens of Russia filed a complaint to the International Labor Organization Committee on Freedom of Association of the Labor Confederation of Russia, and then to the European Court of Human Rights (“ECHR”). The complaint was filed in accordance with Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The applicants claimed a violation of the right to freedom of association and sought for prohibition of discrimination. Considering the case, the ECHR concluded that the state failed to perform its positive obligations to adopt effective and clear judicial protection against discrimination on the ground of trade union membership. Consequently, violation of Article 14 in conjunction with Article 11 of the Convention occurred.7

Unfortunately, Russian case law has an insignificant number of examples when discrimination on the grounds of trade union membership was recognized as the true reason for employment termination relating to the specified individuals.8 In most cases, judicial and law enforcement bodies do not see discrimination in employers’ actions, for instance, in unlawful dismissal of trade union leaders. A representative example is the investigation conducted by the Investigative Committee of the Russian Federation in Saratov Region results of which received considerable public attention. On March 29, 2012, in Engels (town in Saratov Region, Russia) a criminal case on grounds of crime under Part 1 of Article 136 of the Russian Criminal Code (discrimination based on a citizen’s membership in public associations) was initiated. The employees of “Tander” JSC (the “Company”), a legal entity engaged in commercial activity, set up a primary trade union organization. After that, the members of the trade union were repeatedly approached by the administration of the Company with the proposal to halt trade union activities. Then, the employer made a decision to dismiss two employees violating their rights, freedoms and legitimate interests due to their choice to become members of a trade union. The court found dismissal of one of the employees had been illegal and, therefore, reinstated that employee in his position with the Company. The second employee was reinstated in his position by administration of the Company.9 However, after some time, despite the court decision, which stated that discrimination had taken place, the criminal investigation was closed due to the absence of a causal link between dismissal of the employees and their activity in the trade union.10

The existence of discrimination on the grounds of trade union membership has been confirmed by ILO’s criticism with regard to the Government of the Russian Federation. For instance, the ILO’s Committee On Freedom of Association handled a claim filed by the All-Russian Confederation of Labor, the Confederation of Labor of Russia and supported by the Federation of Independent Trade Unions of Russia, the International Trade Union Confederation, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Unions, International Metalworkers’ Federation, the International Transport Workers’ Federation (Decision of November 1–16, 2012). The claim contained statements about ineffectiveness of the existing mechanisms for the protection against discrimination on the grounds of trade union membership and against employers’ interference in the internal affairs of trade unions, despite the existence of a formal ban on such actions in legislation.

The claim raised concerns that there had been numerous trade union rights violations, namely: physical assaults of trade union leaders; violation of freedom of expression; interference into the trade unions’ affairs by the state authorities; refusals in registration of trade unions by the state authorities; discrimination on the grounds of trade union membership; the absence of effective mechanisms to protect the violated rights; failure to provide employees’ representatives with working conditions; violation of the right to collective bargaining; failure of state authorities to act against those violations.

One of the claim sections concerns the unprecedented fact that the Russian court included trade union leaflets containing such slogans as: “Be the price of the crisis paid by those who have started it,” “We are against precarious employment,” and “We demand to restore night differentials” into the federal extremist materials list.

The Committee emphasized that the existing fundamental legal provisions prohibiting discrimination on the grounds of trade union membership are not effective unless they are complemented by procedures which ensure effective protection against such discrimination. In the summary recommendations, the Committee requested the Government of Russia take measures to bring the legislation into conformity with the principles of freedom of association and the right to collective bargaining, to take the necessary measures to remove the union leaflets from the extremist literature list and to report on the further progress.11

At the time of this article, none of the above ILO’s recommendations have been implemented. This fact was noted in the published in July 2015 the Committee on Freedom of Association’s report by the ILO Governing Body. In this report, deep regret regarding non-implementation of recommendations by the ILO’s Governing Council in November 2012 (Case No. 2758) was expressed among other issues.12

The Republic of Belarus

The right of association is recognized in Article 36 of the Constitution of the Republic of Belarus, according to which “everyone has the right of freedom of association.” Article 41 of the Constitution provides the citizens of the Republic of Belarus with the right to protect their economic and social interests, including the right to association.13 The status of trade unions in the Republic of Belarus is defined by the law of the Republic of Belarus of April 22, 1992, No. 1605-XII “On Trade Unions” (hereinafter the “Law On Trade Unions of the Republic of Belarus”).14

Article 7 of the Law On Trade Unions of the Republic of Belarus contains a remarkable provision stating the following grounds for representation of the republican trade unions (trade union associations) and their organizational structures in the public authorities:

  • first, the existence of elective, managing, executive bodies and their legality in accordance with the requirements of the articles of association and legislative requirements of the Republic of Belarus;
  • second, the existence of the determined annual trade union’s statistical reports on the structure and membership, as well as the consolidated financial statements.

Should these grounds exist, trade unions have all the powers granted by the Law On Trade Unions of the Republic of Belarus and protect the labor, social and economic rights and interests of trade union members at appropriate levels.

Trade unions, which are not subject to the conditions mentioned, defend interests of their members only to the extent provided by the legislation of the Republic of Belarus and also by joining (with the consent of the parties) collective bargaining agreements (contracts) concluded by the most representative trade unions or their associations.

Thus, this country’s national legislation contains provisions contrary to the international law in terms of restricting the powers of trade unions, not having the statistical and financial statements prescribed by public authorities.

Severe restrictions on trade unions associations are contained in the Republic of Belarus President’s Decree of January 26, 1999, No. 2 “On Certain Measures to Regulate the Activities of Political Parties, Trade Unions and Other Public Associations.” Paragraph 3 of the Decree sets out the requirements for establishment of trade unions. For example, to establish and run the national trade union, at least 500 founders from the Republic of Belarus regions and Minsk are required; to establish the territorial trade union at least 500 founders from the majority of administrative-territorial and territorial entities of the respective territory are required, to establish a trade union at the enterprise, institution, organization, and other work (educational) places not less than 10% of employees (students) of the total number of employees at the enterprise, institution, organization, but at least ten people are required.

The activity of unregistered trade unions in the Republic of Belarus is banned, as well as trade unions failed to re-register.15

The state authorities of Belarus build relationships with the “state” trade unions only, for example, with the Federation of Belarus Trade Unions, supported by the government. There is discrimination of free and independent trade unions by the state.

Researchers specify the following discriminatory relations:

  • non-registration of new trade unions. Over the recent years, not a single new trade union has been registered in the Republic of Belarus. It should be noted that the trade unions are founded regularly, however, they are also regularly refused in state registration, which is required to run trade unions;
  • non-registration of the trade union organizational structures. Similar problems occur when the organizational structures of independent and free trade unions are being registered.16

The above-mentioned circumstances explain the fact that according to the International Trade Union Confederation having ranked 141 countries by ninety-seven internationally recognized indicators to assess the protection of labor rights, both at the legislative level and in practice, the Republic of Belarus is among the ten worst countries for employees. It is significant that Belarus is among such countries as China, Colombia, Egypt, Guatemala, Pakistan, Qatar, Saudi Arabia, Swaziland, and the United Arab Emirates. “The lack of guarantees of the employees’ labor rights” is the manifestation of violations of international standards by Belarus, according to experts of the International Trade Union Confederation.17

The Republic of Kazakhstan

Analysis of trade unions in the Republic of Kazakhstan leads us to a conclusion that these representative bodies lose their influence since nowadays “they are split and in fact consolidate only 30% of the employed population, or just slightly more than 2.5 million employees out of 8.4 million employees of the country's employed population.”18  The actual situation with independent trade unions in the country, especially in the oil industry, is the major concern of the ILO’s experts and representatives of human rights organizations. State interference in the peaceful strikes in 2011 proves this fact. The Kazakh authorities prosecuted an oilman OMG and trade union lawyer of Karazhanbasmunai JSC (a joint venture of Kazakhstan's state oil and gas corporation and Chinese state-owned company) Natalia Sokolova who in August 2011 was sentenced to six years’ imprisonment for her speech on wage inequality. Currently, Sokolova is released. In total, during the strikes in 2011 in three oil-producing companies in Kazakhstan, more than two thousand employees were dismissed. The ILO considers these retaliatory reasoned dismissals to be unlawful discrimination in employment.19

The legal basis of the trade unions’ activities in the Republic of Kazakhstan is determined by a number of regulatory legal acts, the main of which is the Constitution of the Republic of Kazakhstan. Article 23 enshrines the right to freedom of forming associations and states that activities of public associations in the country shall be governed by law. Article 7 of the Labor Code of the Republic of Kazakhstan prohibits discrimination in employment, including discrimination on the basis of membership in public associations.

In June 2014, the Republic of Kazakhstan’s legislation on trade unions underwent major amendments expressed in the change in the main approaches to the regulation of relations between the state and employees’ representatives.

For instance, Law of the Republic of Kazakhstan No. 211-V “On Trade Unions” (hereinafter the “Law On Trade Unions of the Republic of Kazakhstan”) enacted on June 27, 2014, contains a considerable but formalistic list of guarantees for trade unions and their members, aimed at protection against discrimination (Article 25).

Article 26 of the Law On Trade Unions of the Republic of Kazakhstan provides guarantees for employees elected to trade union bodies but not exempt from the primary employment. These guarantees involve, mainly, taking into account a reasoned trade union body’s opinion when employees who are members of the elective trade union bodies are dismissed at the employer’s initiative.

At the same time, this act introduces a mandatory procedure of trade unions registration, in other words sanctioning activities of state trade unions by the state (Article 10 of the Law On Trade Unions of the Republic of Kazakhstan). In addition, the Law On Trade Unions of the Republic of Kazakhstan sets out activities of public associations on the principles of associativity (membership), comprising of republican, territorial, sectoral and local levels social partnership, meaning the establishment of a sole trade union monopoly (Paragraph 3 of Article 12, Paragraph 3 of Article 13, Paragraph 4 of Article 14 of the Law On Trade Unions of the Republic of Kazakhstan).20

In the meanwhile, the official representatives of the government of Kazakhstan explain that the said principle of the associate membership will give a positive impact on the trade unions’ activities as it "will allow all unions systematically to participate in development of the program of action at all levels of social partnership, to provide a vertical feedback from employees to trade unions’ governing bodies and their associations with regard to taking decisions on key issues affecting labor and social and economic rights and interests of citizens on a consolidated basis."21

Giving a characteristics to the Law On Trade Unions of the Republic of Kazakhstan, it should be noted that, this law, according to the representatives of the above mentioned the most competent and largest international trade union organization, the International Trade Union Confederation, as well as the World Federation of Trade Unions which is an association of the radically oriented communists, in fact, “strengthened the monopoly in the trade union movement of the Republic Kazakhstan and severely restricted powers of the independent trade unions, as well as significantly restricted the trade unions’ rights to make demands, to organize and to stage strikes.”22

In his letter to the President of the Republic of Kazakhstan of August 12, 2014, the Secretariat of the World Federation of Trade Unions protested against the unacceptable decision on deprivation of the employees’ right to form their own trade unions, and expressed its disapproval of discrimination against employees who intend to create their own organizations free from control of the state authorities and employers and undemocratic violation of trade unions and human rights by the Government and the Parliament of the Republic of Kazakhstan. To summarize, the World Federation of Trade Unions urged the President of the Republic of Kazakhstan to bring the Law On Trade Unions in accordance with the provisions of ILO’s Conventions, international agreements and other documents signed by the authorities of the Republic of Kazakhstan.23

Thus, a detailed analysis of the articles of the Law On Trade Unions of the Republic of Kazakhstan relating to the freedom of the internal activities of trade unions (their structure, state registration, reorganization and dissolution of these public associations), requirements for making demands by the trade unions and the right to strike, etc. allows us to conclude that a serious restriction of the trade unions’ powers exists in the country.

The Republic of Armenia

According to the ILO’s statistics, the number of employees with membership in trade unions has sharply reduced in the Republic of Armenia in recent years.24  Referring to the guarantees for trade union rights enshrined in the legislation of the Republic of Armenia, firstly it is necessary to note the fact of the recognition in the Constitution of the Republic of Armenia the right of every citizen of associations with other persons, including trade unions establishment and join them (Article 28).

The status of trade unions is enshrined in the Law of the Republic of Armenia of December 05, 2000 On Trade Unions (“Law On Trade Unions of the Republic of Armenia”) Article 3 of which consolidates the basic principles of the trade union’s activity being:

  1. a) independence of the state authorities, local authorities, employers, political, social and other organizations;
  2. b) voluntary participation (membership) in trade unions;
  3. c) equality of trade unions;
  4. d) non-restriction of worker’s rights due to their participation (membership) in a trade union.

The Trade Union of the Republic of Armenia is independent of government agencies, local authorities, employers, other organizations and parties, it is not accountable to them and not the subject of their control, except for the in cases provided for by law.

State agencies, local governments, employers, other organizations, and individuals are prohibited to interfere with or intervene in the exercise of the rights established by the charter of a trade union, except for cases stipulated for by law (Article 13 of the Law On Trade Unions of the Republic of Armenia).

The principle enshrining the equality of labor relations parties of irrespective of the membership in trade unions or social organizations is found in paragraph 3 of Part 1 of Article 3 of the Labor Code of the Republic of Armenia.

Despite the presence of the said above legal provisions, there are certain observations to the legislation of the Republic of Armenia, on the right of association, expressed by the ILO Committee on Freedom of Association which has repeatedly noted the lack of certain provisions in the Law On Trade Unions and in Labor Code of the Republic of Armenia concerning the legal status of trade unions. The Committee's position rests upon the interpretation of the principle of the interrelationship between the trade union and other representative at the company, according to which “in the company where there are both trade union representatives and elected representatives, the existence of elected representatives cannot be used to undermine the positions of the trade unions concerned.” Provided for by the legislation of the Republic of Armenia (see sections 23, 25, 45, 55, and 56 of the Labor Code of the Republic of Armenia) "direct negotiations between the company’s employees, in circumvention of the representative organizations where they exist, harm the establishing principle that the negotiations between employers and workers’ organizations ought to be encouraged and developed. In this regard, the Committee requested the Government of the Republic of Armenia to take the necessary measures to amend the legislation of Armenia in accordance with the above principles."

The authors do not possess the information on addressing of the ILO bodies to the supreme executive bodies of Armenia, as well as, Trade Unions of Armenia to the Committee on Freedom of Association with claims of the principles of freedom of association violation.25

The substantiated criticism is brought also to Article 2 of the Law On Trade Unions of the Republic of Armenia, under which a legally legitimate trade union association can be considered those which are composed of more than a half of the professional organizations and (or) unions of professional organizations operating in a particular area of professional activity, or in the related fields or in the state as a whole. This requirement is in a fact a barrier for establishing a trade union organization and an indirect government intervention in the activities of employees’ representatives.26

The Republic of Kyrgyzstan

Every person’s right of freedom of association as well as in other Eurasian Union’ member states is enshrined in Article 35 of the Constitution of the Kyrgyz Republic. On October 5, 1998, a special Act of the Kyrgyz Republic On Trade Unions in relation to the trade unions was adopted (“Law On Trade Unions of the Republic of Kyrgyzstan”), which gave a powerful impetus to the trade unions’ activities and brought broader powers to them.

Currently, the Federation of Trade Unions of Kyrgyzstan unites twenty national trade unions, six regional inter-union associations and 8,060 primary trade union organizations, in total:  966,000. Union members.27

The Law On Trade Unions of the Republic of Kyrgyzstan recognizes independence of trade unions and lack of control by public authorities’, employers, political parties and other public associations; prohibition of discrimination against citizens on the grounds of their membership in trade unions; quite a wide range of rights—right of trade unions to protect workers’ labor rights, right to negotiate and conclude collective treaties and agreements in the field of social insurance, social security and health care, right to monitor compliance with labor laws, right to participate in management of public and industrial affairs, and other rights. Dismissal of undispensed chairmen, members, organizers of trade union committees by the employer’s initiative (regardless of the grounds of dismissal), apart from the procedure of labor contract termination established by the Labor Code of the Kyrgyz Republic, is permitted only with the consent of the higher trade union body.

Nonetheless, as in case with the Republics of Belarus and Kazakhstan, legal capacity of trade unions, their associations, primary trade union organizations as a legal entity arises from the moment of their state registration (Article 3) in violation of the provisions of international acts, in particular the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). However, establishment of a trade union consisting of three or more people is allowed.

Similarly to the Republic of Kazakhstan, Kyrgyzstan applies a principle of associate membership, i.e. primary trade unions and their representative bodies operate under the articles of association of national, inter trade union, territorial or industrial association of trade unions, which contradicts international standards (e.g., ILO Convention No. 87) with regard to the right of workers’ organizations to draft their own charters and administrative regulations, to freely organize their bodies and activities.

Regularly undertaken attempts of state authorities to restrict the fundamental trade unions’ right to organize and hold strikes,28 as well as other labor rights,29 are a wake-up call reflecting position of trade unions in Kyrgyzstan.

To sum up, it should be noted that Russian, Belarussian, Kazakh, Armenian and Kyrgyz legislation, regulating the right to establish and join trade unions, is very similar. For instance, the right to freedom of association is recognized in constitutions of the above-mentioned countries, and special laws on trade unions have been adopted.

At the same time, members of the Eurasian Union have issues related to the freedom of association, such as intervention of public authorities in activities of trade unions (by imposing mandatory state registration, filing statistical and financial reports, etc.) and absence of effective mechanisms of protection against discrimination.

Nevertheless, ensuring workers’ freedom of association should be one of the main priorities in order to create a single market of labor resources within the Eurasian Union and to encourage labor migration, which are the goals set by the Eurasian Union. Migrant worker, independently of the Eurasian Union country where he intends to work, shall be ensured that he has this right to the extent stipulated by the international labor standards and, in particular, by the acts of the International Labor Organization.

Within this framework, the Eurasian Economic Commission as a supranational governing body possesses the authority to draft proposals of further development of integration, including those in the sphere of workers’ freedom of association. These proposals are to be primarily aimed at the exclusion of nationwide elimination of the above-mentioned freedom of association restrictions, creation of effective mechanisms to prevent and reduce discrimination on the grounds of workers’ membership in trade unions.

The ultimate result can only be achieved if an effective system of enforcement of the Eurasian Economic Commission’s resolutions is established: timely amendments into the national legislations aimed at ensuring the workers’ right of association, creating effective control mechanisms over the implementation of international standards in labor regulation and the resolutions of the Eurasian Economic Commission, etc.

T.A. Izbienova is an Associate Professor at Mari State University as well as an Associate Professor at the Interregional Open Social Institute in Russia

M.I. Averyanova is an Associate Professor at Nizhny Novgorod Institute of Management as well as a member of the Russian Presidential Academy of National Economy and Public Administration (RANEPA) in Russia

 

Notes

  1. http://www.eaeunion.org/#about-countries
  2. On August 6, 2015, the Depository of Eurasian Economic Commission said that over the next few days the last note of ratification of this agreement is expected, after which it comes into effect, and the accession of Kyrgyzstan to the EEC will be completed (Russian).
  3. Dogovor o Evraziiskom Economicheskom Soiuze; Polozheniie o Evraziiskoi Economicheskoi Komissii
  4. Appendix No. 1 to Dogovor o Evraziiskom Economicheskom Soiuze.
  5. REBECCA GUMBRELL-McCORMICK & RICHARD HYMAN, TRADE UNIONS IN WESTERN EUROPE: HARD TIMES, HARD CHOICES; VASCO PEDRINA, RANK & FILE PARTICIPATION AND INTERNATIONAL UNION DEMOCRACY.
  6. Ronaldo Munck, Trade Unions, Globalisation and Internationalism, SOCIAL EUROPE, May 30, 2012; P.E. Morozov, Rejunionizacija kak osnova usilenija social'nogo dialoga v zarubezhnykh stranakh v uslovijakh globalizacii.  Probely v Rossijskom Zakonodatel'stve. 2011. - No. 3. 106-110.
  7. Danilenkov i drugie protiv Rossijskoj Federacii: postanovlenie ESPCh ot 30 ijulja 2009 g. Bjulleten' Evropejskogo Suda po pravam cheloveka. 2005. No. 2, 31 – 32.
  8. 365-j Doklad Komiteta po svobode ob#edinenija po delu, No. 2758, iniciirovannomu zhaloboj ot 20 janvarja 2010 goda. Juristy za trudovye prava. Informacionnyj bjulleten'. 2013. No. 96, p. 51; Trudovaja diskriminacija v Rossii: dokazat' nel'zja, i nikto ne zhaluetsja, PAДИO CBOБOДA.
  9. Po informacii s sajta Sledstvennogo upravlenija Sledstvennogo komiteta Rossijskoj Federacii po Saratovskoj oblasti.
  10. Po informacii s sajta Sledstvennogo upravlenija Sledstvennogo komiteta Rossijskoj Federacii po Saratovskoj oblasti.
  11. Case No. 2758 (Russian Federation): Report in which the Committee requests to be kept informed of developments // 365th Report of the Committee on Freedom of Association. Governing Body. 316th Session, Geneva, 1–16 November 2012. 379 – 380.
  12. Report of the Committee on Freedom of Association 375th Report of the Committee on Freedom of Association, International Labour Office, 324th Session, Geneva, 13 June 2015.
  13. Nacional'nyj reestr pravovykh aktov Respubliki Belarus' na 31.07.2015.
  14. Vedomosti Verkhovnogo Soveta Respubliki Belarus', 1992, No. 19. Art. 300; Vedomosti Nacional'nogo sobranija Respubliki Belarus'. 1999. No. 34-35. Art. 518; Nacional'nyj reestr pravovykh aktov Respubliki Belarus'. 2000. No. 23, 2/146; 2000. No. 69, 2/191.
  15. Nacional'nyj reestr pravovykh aktov Respubliki Belarus.
  16. Nezavisimye demokraticheskie profsojuzy Belarusi – lokomotiv social'nykh preobrazovanij? 2012. Vilnus. 22 – 24.
  17. “Global'nyj indeks po pravam trudjashhikhsja 2015 goda”. Presentation of the research at the 104th International Labor Conference in Geneva. Data of 10 June 2015. ITUC Global Rights Index names world’s ten worst countries for workers.
  18. Speech of Labor and Social Security Minister at the conference “O regulirovanii trudovykh otnoshenij i modernizacii profsojuzov Respubliki Kazakhstan” (Astana, 14 March 2014).
  19. Human Rights Watch. Report “Neft' i zabastovki. Narushenija trudovyh prav v neftjanom sektore Kazahstana."
  20. KSPK’s critical analysis of Kazakhstan’s law “O profsojuzakh” forwarded to ILO.
  21. Speech of Labor and Social Security Minister at the conference “O regulirovanii trudovykh otnoshenij i modernizacii profsojuzov Respubliki Kazakhstan” (Astana, 14 March 2014).
  22. MKP’s criticism of Kazakhstan’s draft Law “O profsojuzakh”; KSPK’s critical analysis of Kazakhstan’s law “O profsojuzakh” forwarded to ILO.
  23. Kazakhstan: WFTU Secretariat sends letter of protest to President Nazarbayev.
  24. According to the information from the website of the conference of Armenia’s Trade Unions.
  25. Ukreplenie demokratii i prav profsojuzov v Novykh nezavisimykh gosudarstvakh. Materialy Vseobshhej konfederacii profsojuzov. 25.
  26. Application of International Labor Standards 2014 (I) International Labor Conference, 103rd Session, 2014 / International Labor Office Geneva, Geneva, 52.
  27. http://www.open.kg/about-kyrgyzstan/political-entity/domestic-policy/1288-sovet-federacii-profsoyuzov.html.
  28. For example, the address of the General Secretary of MKP, Sharon Barrow to the Speaker of the Republic of Kyrgyzstan Zhogorku Keneshi.
  29. A new working group will be set up to make amendments to the Labor Code.

 

DISPATCH No. 2, PHILIPPINES – “The Labor Implications of the Philippine Competition Act (2015),” by Jonathan Sale

 August 20, 2016

 The Philippine Competition Act (the Act) was signed into law on 21 July 2015.  Heralded as long overdue (about “twenty years” in the making), it has been claimed that its signing was timely in light of the commencement of the ASEAN Economic Community (AEC) in December 2015.1  The Act appears to have been partly driven by the deeper regional integration that the AEC aims to bring about.  By the looks of it, the Act responds to social changes that have been fostered by globalization as it declares that “efficiency of market competition as a mechanism for allocating goods and services is a generally accepted precept” that serves “the interest of consumers.”2  Apparently, it aspires for social change as its policy declaration is “to attain a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.”3  The Act seeks to “penalize all forms of anti-competitive agreements, abuse of dominant position and anti-competitive mergers and acquisitions, with the objective of protecting consumer welfare and advancing domestic and international trade and economic development.”4

Historically, however, the combination of labor via unions has been challenged under the aegis of competition law. In the United States, for example, the Clayton Act of 1914 attempted to exempt unions from the reach of anti-trust law with the assertion that, “The labor of a human being is not a commodity or article of commerce.”5

Does the Philippine Competition Act apply to combinations of workers or employees?  If so, to what types of combinations of workers or employees does it apply?   In its sole address to these questions the law does not apply to “the combinations or activities of workers or employees nor to agreements or arrangements with their employers when such combinations, activities, agreements, or arrangements are designed solely to facilitate collective bargaining in respect of conditions of employment.”6

This formulation tends to create problems for Philippine collective labor law.  At present, there exists a range of statutory and administrative rules governing combinations of workers not solely for “collective bargaining in respect of conditions of employment” but rather for “mutual aid and protection.”   Philippine collective labor law makes an important distinction between these forms of worker participation occupying loci or points along a continuum.  The Philippine Labor Code provides: 

Art. 253. Coverage and employees’ right to self-organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. 7

Under the relevant implementing rule issued by the Philippine Department of Labor and Employment (DoLE), “‘Workers’ Association’ refers to an association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining.”8  A relatively novel form of worker participation—a combination of ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers for their mutual aid and protection—has evolved in the country.  As currently formulated, the Act appears to apply to this type of combination of workers; which means that the organization of these workers might be deemed an unlawful combination in restraint of trade.

This statutory grant of the right to self-organization to workers not necessarily covered by employment relationships and bargaining units, e.g., informal workers who constitute about 70% of non-agricultural employment in the Philippines,9 is a significant aspect of Philippine law because of the avenue it opens up for formalizing informal workers.  Under the Labor Code and its implementing rules they may organize into a “workers’ association” for “mutual aid and protection of its members,” not for collective bargaining purposes.  They are not mentioned in the exclusionary rule of the Act’s scope of application, which means they might be deemed covered and regarded as combinations in restraint of trade.

Union density is declining in many parts of the world.  Such decline is also occurring in the Philippines where union density (less than 9% of total wage and salaried workers) and workers under coverage of collective agreements (nearly 228,000 workers) are low.10  But membership of workers’ associations is growing over time, which correlates with the high number of small enterprises.11 About 92% of establishments in the country employ fewer than 10 workers.12  To illustrate, the number and membership of workers’ association were 8,237 and 286,354, respectively, in 2004.13  Nearly a decade later as of June 2013 (based on preliminary data), they stood at 32,424 and 1,272,000 reflecting increases of about 294% and 344%, correspondingly.14  These increases also coincide with the high proportion of informal workers.

These developments were apparently overlooked in the crafting of the Philippine Competition Act. The provision (Section 3) that excludes from the Act’s scope and application only combinations of workers for “collective bargaining in respect of conditions of employment” might have adverse effects on the effectiveness of workers’ associations as a form of worker participation. The Act’s current phraseology creates ambiguity as to their status.  Ostensibly, the Act breaks the continuum (of worker participation types) and converts it into a dichotomy between combinations of workers or employees for purposes of collective bargaining and those for purposes of mutual aid and protection; the former exempted from antitrust-labor regulation, the latter within it.  Combinations of such workers for mutual aid and protection are seemingly covered by Philippine competition law and, thus, might be deemed anticompetitive combinations.   Residual law-making and enforcement might help keep the Act compliant with the goal of social justice and human rights under the Philippine Constitution.  Otherwise, legislative amendment might be necessary to address contextual factors, restore the continuum and safeguard worker welfare.

Jonathan Sale is the Coordinator for the Informal Workers Study Group, XXII World Congress, International Society for Labour and Social Security Law.

Notes:

  1. Bobit S. Avila, Finally, we have an anti-trust law!, The Philippine Star, July 23, 2015, http://www.philstar.com/opinion/2015/07/23/1480033/finally-we-have-anti-trust-law.   Francis Ed Lim, A new competition law at last!, Philippine Daily Inquirer, June 25, 2015, http://business.inquirer.net/194066/a-new-competition-law-at-last.
  2. An Act Providing for a National Competition Policy Prohibiting Anti-Competitive Agreements, Abuse of Dominant Position, and Anti-Competitive Mergers and Acquisitions, Establishing the Philippine Competition Commission and Appropriating Funds Therefor, Rep. Act No. 10667, § 2 (2015), http://www.gov.ph/2015/07/21/republic-act-no-10667.
  3. Id.
  4. Id. (emphasis added).
  5. 15 U.S.C. § 17 (1914).
  6. See supra note 2, at § 3 (emphasis added).
  7. Department of Labor and Employment, Department Advisory No. 01, Series of 2015, Renumbering of the Labor Code of the Philippines, as amended.
  8. Department of Labor and Employment (DoLE), Department Order No. 40-03, Series of 2003, Amending the implementing rules of Book V of the Labor Code of the Philippines, Rule I, Section 1 (ccc) (emphasis added).
  9. Jonathan P. Sale & Arlene B. Sale, Changes in Philippine Labour Relations Policy: Convergence or Divergence of Productivity, Flexibility and Welfare?, 25, Econ. & Lab. Rel. Rev. 327, 344 (2014).
  10. Jonathan Sale, Legal Landscape of Unionism in the Philippines, in Rene E. Ofreneo et al, Union Capacity in Organizing, Bargaining and Social Dialogue in the Philippines, July 5, 2013 Report to the International Labour Organization, 13, 21-23 (on file with author).
  11. Id.
  12. Id.
  13. Jonathan P. Sale & Arlene C. Bool, Recent Developments in Philippine Labor Market Governance: Shifting Methods from Command to Collaboration?, 1 OIDA Int’l J. Sustainable Dev., 79, 83, (2010), available at http://ssrn.com/abstract=1672324.
  14. Table 57, Existing Workers’ Organizations and Collective Bargaining Agreements, Philippines: 2011, June 2013, Bureau of Labor & Employment Statistics, Department of Labor & Employment.

 

DISPATCH* No. 1, ISRAEL -- "Employers Prohibited from Voicing Objection to Unions," by Guy Davidov

July 21, 2016

*This contribution first appeared in Revue de Droit Compare du Travail et de la Securite Sociale (2015), and is reproduced here with permission.

Union density in Israel experienced the most dramatic decline in OECD countries, from roughly 85% in the 1980s to 45% in 2000 to 25% in 2012. In response, in the last few years the Histadrut (Israel’s major labor union) intensified its efforts to organize workers in new sectors. At the same time, a new union, Ko’ach La’ovdim (“Power to the Workers”), established in 2007, has managed to create grass-roots excitement toward unionism. It appeared that unions were bouncing back, to some extent. However, employers were not going to accept this without a fight. Many of them have strongly resisted organizing attempts, including by using “union-busting” methods imported from the United States. Although the law made it clear, at least since the 1990s, that employers cannot actively interfere with freedom of association,1 in practice this proved very difficult to enforce.

The struggles of the Histadrut culminated in the summer of 2012 with the organizing campaign at Pelephone Communications Ltd., Israel’s first cellular company and still one of the largest companies in the sector, employing some 4,000 workers. Being part of the “new economy” service sector, and employing mostly young and relatively educated workers, the cellular sector was highly coveted by the union. The time was also ripe for organizing: wide-ranging reforms introduced by the Government significantly intensified competition in the sector, cutting profit margins and creating an expectation for mass redundancies. Workers were thus particularly in need of protection. The company on its part was fearful of losing managerial flexibility and especially of jeopardizing its competitive stance in the non-unionized sector. This led to a bitter fight.

Israeli labor law is based on exclusive union representation but does not set any certification procedures. There is only one simple rule in legislation: to become a representative union, with the power to represent the workers in collective bargaining and strikes, a union must have at least a third of the workers in the bargaining unit as members (and more than any other union).2 In Pelephone, the Histadrut and its supporters therefore had to sign up a third of the workforce, which was not an easy task given the dispersion of workers across the country. After an initial phase of signing some workers covertly, the organizing campaign became public, eliciting a prompt response from the company.

Some of Pelephone’s actions were clearly illegal. For example, some employees were not allowed to talk to union representatives; others were asked by direct supervisors to sign forms revoking union membership. There was no doubt that the law—as in many other countries—prohibits such practices of coercion, threats and intimidation. However, the Histadrut also raised before the courts a more fundamental legal question: are employers allowed to voice their views against unionization at all? Does the law allow an employer, for example, to send workers information about the damage that will happen, in its view, as a result of organizing? Pelephone did all that, extensively.

In a dramatic judgment, the National Labour Court (NLC) decided that employers are prohibited from voicing views against unionization.3 Employers have no say whatsoever on this matter; even the delivery of information which they think is relevant or missing from the discussion is not allowed. The only (narrow) grounds for exception are if an employer believes that the union is making factual misrepresentations; in such a case, it can petition a labor court and ask for permission to correct this misinformation. But the employer is not allowed to do so without a specific judicial permit.

The judgment was received by employers’ associations with astonishment and even rage. They filed a petition to the Supreme Court of Israel (SC) to review the decision. Recently, the SC decided to affirm the NLC judgment.4 In the meantime, the results on the ground were transformative. Pelephone quickly had to accept the Histadrut and has signed a first collective agreement. The other two major cellular companies in Israel (Cellcom and Partner) soon followed suit. Quickly, successful organizing campaigns have spread to insurance companies, financial companies, fast-food chains, and even the information technology sector. Admittedly, the numbers are still not dramatic, but the judgment was nonetheless a noticeable turning point. Although many employers still oppose unionization, and some still fight it fiercely, other employers have internalized the fact that they have to accept the union and work with it. Organizing a new workplace is still a challenge, but it is much more realistic.

The judgments of the NLC and the SC are both based on an analysis of the conflict between the workers’ freedom of association and the employer’s freedom of speech. Despite claims by the employers’ associations that a flat ban on employer speech is unprecedented world-wide, the NLC preferred to focus on the normative questions. It realized (rightly in my view5) that as a matter of practice, the prohibition on threats and coercion was not sufficient to make organizing a realistic possibility. The inherent vulnerability of workers in the employment relationship means that views expressed by the employer are never just informative; they are also, at least implicitly, tantamount to a command/threat. In a sense, the judgment created an unrebuttable legal presumption that any expression by the employer in the context of organizing is coercive. The NLC emphasized the decline in union density and the growing difficulties faced by workers when attempting to organize. In light of the context of this new reality, it concluded that less weight should be given to employers’ freedom of speech.

The SC agreed, affirming the judgment, although it noted that a flat ban could be too extreme, and perhaps more room should be left for employers to responds to unfair statements by unions. Otherwise put, the SC hinted that the presumption should be more open to rebuttal in its view. However, at the end of the day it deferred to the NLC, leaving such questions for future consideration. The strong statement of the law against anti-union speech by employers, as expressed by the NLC, still stands.   

Guy Davidov is the Elias Lieberman Professor of Labour Law, Hebrew University, Jerusalem.

Notes:

  1. See, e.g., Mif’aley Tachanot Ltd. v. Israel Yaniv, 33 P.D.A. 389 (1996) (National Labour Court); Collective Agreements Act of 1957, as amended in 2001, §§ 33h, 33ff.
  2. Collective Agreements Act 1957, § 3.
  3. The Histadrut v. Pelephone Communications Ltd., judgment of Jan. 2, 2013 (Israeli National Labour Court).
  4. Coordinating Chamber of Economic Organizations v. National Labour Court, judgment of July 7, 2014.
  5. For a detailed discussion, see Pnina Alon-Shenker & Guy Davidov, Organizing: Should the Employer Have a Say?, 17 Theoretical Inquiries in Law 63 (2016).