Giving globalization a human face

Giving globalization a human face INTERNATIONAL LABOUR OFFICE GENEVA

Contents Parti. Introduction 1 Chapter 1. Preliminary comments 1 Page Chapter 2. The protection of fundamental principles and rights at work in national constitutions 3 Freedom of association and collective bargaining 4 Forced labour 4 Child labour 5 Equality, non-discrimination and equal remuneration 6 Chapter 3. Other relevant international instruments 9 Recognition of fundamental principles and rights at work in other universal and regional instruments 9 United Nations instruments 9 Freedom of association and the right to collective bargaining 9 Elimination of all forms of forced or compulsory labour 10 Effective abolition of child labour 10 Equality, non-discrimination and equal remuneration 11 Regional instruments 12 Freedom of association and the right to collective bargaining 12 Elimination of all forms of forced or compulsory labour 13 Effective abolition of child labour 13 Equality, non-discrimination and equal remuneration 14 The objective of coherence in the supervision of the international and regional obligations of States in relation to fundamental principles and rights at work 14 Part II. Freedom of association and collective bargaining 17 Chapter 1. Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) 17 Introduction 17 Scope of the Convention and methods of application 19 General principle and authorized exceptions 19 Methods of application 19 Main difficulties concerning the scope of application 21

Giving globalization a human face Thematic issues 21 Right of workers and employers to establish and to join organizations of their own choosing 21 Trade union rights and civil liberties 21 Right of workers and employers, "without distinction whatsoever", to establish and join organizations 23 Public "service 23 Police and armed forces'...-..r.: 25 Fire service personnel and prison staff 25 Magistrates and teachers 26 Other categories of workers 26 Domestic workers 27 Workers in export processing zones 27 Workers in the informal economy 28 Subcontracting and other means of circumventing the right to organize... 29 Other forms of distinction 29 Distinction based on age : 29 Distinction based on nationality or residence 29 Distinction based on political opinion 30 Right to establish organizations "without previous authorization" 30 Filing of by-laws and registration 31 Recognition of legal personality 32 Appeals to the courts ' 33 Right of workers and employers to establish organizations "of their own choosing" 33 Structure and composition of organizations: Minimum membership 33 Right to join several organizations 34 Trade union monopoly 34 Coercion or favouritism by the public authorities 36 Recognition of the most representative trade unions 36 Trade union security and the right not to join an organization 37 Right of workers' and employers' organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities 38 Drawing up of constitutions and rules 38 Freedom to elect representatives 39 Election procedures 39 Conditions of eligibility of representatives 39 Requirement to belong to an occupation or to an enterprise, and service requirements 39 Nationality, age and literacy 40 Political views or activities 41 Criminal record 41 Re-election, removal and suspension of trade union officers 42 Organization of administration and activities and formulation of programmes... 42 Financial management 42 Internal administration and inviolability of union premises 44 VI

Contents Activities and programmes 45 The right to strike 46 Dissolution and suspension of organizations by administrative authority 65 Right of organizations to establish federations and confederations and to affiliate with international organizations 65 Chapter 2. Right to Organise and Collective Bargaining Convention, 1949 (No. 98) 67 Introduction._ 67 Scope of the Convention and methods of application 68 General principle and authorized exceptions 68 Methods of application 68 Difficulties concerning the scope of application 69 Thematic issues 70 Protection against acts of anti-union discrimination and of interference 70 National legislation 70 Protection against acts of anti-union discrimination 72 Acts covered 72 Anti-union dismissal and reinstatement 74 Persons protected 76 Effective and rapid procedures 78 Burden of proof 78 Effective and sufficiently dissuasive sanctions 79 Protection against acts of interference 79 Acts covered, rapid and impartial procedures 79 Effective and sufficiently dissuasive sanctions 81 Promotion of collective bargaining 81 National legislation 81 Scope of collective bargaining 82 Free and voluntary negotiation and autonomy of the parties 82 Negotiation in good faith... 85 Workers covered by collective bargaining 85 The public sector and the public service 86 Content of collective bargaining 88 Pensions or supplementary retirement schemes and wages in the public service 89 Level of collective bargaining 91 Recognition of organizations for the purposes of collective bargaining 92 Means of recognition 92 Rights of minority unions 92 Recognition procedure and criteria of representativity 93 Threshold of representativity 94 Grouping of trade unions 96 Representativity of employers' organizations 96 Negotiation with representatives of non-unionized workers 96 Vll

Giving globalization a human face Machinery and procedures to facilitate and promote collective bargaining 98 Extension of collective agreements 99 Compulsory arbitration 100 Part III. Forced labour 103 Chapter 1. Introduction 103 Chapter 2. Scope of the Conventions and methods of application 107 Scope 107 Methods of application: Constitutional and legislative provisions, judicial decisions 108 Difficulties in the application of the Conventions 108 Chapter 3. Forced Labour Convention, 1930 (No. 29) 111 Definition of forced or compulsory labour 111 Exceptions from the definition of forced labour 112 Compulsory military service 112 Normal civic obligations 113 Compulsory labour of convicted persons 114 Cases of emergency 114 Minor communal services 115 Imposition of labour for public works or services and other specified purposes 116 National service obligations 120 Restrictions on the freedom of workers to terminate employment 121 Work of prisoners for private companies 123 Obligation to perform overtime work under threat of a penalty 123 Slavery, slavery-like practices and other illegal forms of compulsion to work: Imposition of forced labour on workers in most vulnerable groups 124 Trafficking in persons 128 Chapter 4. Abolition of Forced Labour Convention, 1957 (No. 105) 131 Scope of Convention No. 105 in relation to Convention No. 29 131 Imposition of sanctions involving compulsory labour for non-compliance with restrictions on civil rights and political freedoms 132 Imposition of forced or compulsory labour for purposes of economic development... 135 Violations of labour discipline punishable with sanctions involving compulsory labour 136 Sanctions involving compulsory labour as a punishment for having participated in strikes 138 Imposition of forced or compulsory labour as a means of racial, social, national or religious discrimination 140 Chapter 5. Law enforcement 141 Penal sanctions 141 Law enforcement bodies 142 VHl

Contents Protection of victims 144 Part IV. Elimination of child labour 147 Chapter 1. Minimum Age Convention, 1973 (No. 138) 147 Introduction 147 Scope of the Convention and methods of application 148 Scope of application 148 Methods of application '.' 151 Difficulties of application concerning the scope 152 Thematic issues 153 Child labour in the informal economy 153 Legislative measures addressing child labour in the informal economy 153 Monitoring mechanisms of child labour in the informal economy 154 Labour inspection 154 Child labour monitoring systems 155 Good practices in reaching out to children working in the informal economy, 156 Child labour in agriculture 156 Application of the Convention to the agricultural sector in law 157 Issues arising out of the application of the Convention in the agricultural sector 157 Monitoring child labour in agriculture through labour inspection 158 Programmatic measures to address child labour in agriculture 159 Family workers and domestic workers 159 Family workers, including unpaid family work 160 Child domestic workers 160 Minimum age for admission to employment or work 161 Setting the general minimum age for admission to employment or work 161 Raising the general minimum age for admission to employment or work 162 Minimum age for admission to work and compulsory education 163 Ensuring compulsory education up to the minimum age 163 Linking the age of completion of compulsory education with the minimum age for admission to work 164 Ensuring access to compulsory education for all children 165 Minimum age for hazardous work 166 Minimum age of 18 for admission to hazardous work 166 Minimum age of 16 for admission to hazardous work and determination of such types of hazardous work 166 Absence of a general prohibition on hazardous work 167 Absence of a minimum age of 16 for prohibited types of hazardous work 167 Non-compliance with the conditions required for carrying out hazardous work from the age of 16 168 Work done by children and young persons in general, vocational or technical education or in an apprenticeship programme 168 The minimum age for admission to apprenticeship 169 IX

Giving globalization a human face Apprenticeship and hazardous work 170 Problems of application of the legislation relating to work done as part of education and training 170 Employment in light work 170 Minimum age for light work 170 Lower minimum age of 13 for light work 171 Lower minimum age of 12 for light work 171 Absence of a lower minimum age for light work 172 Determination of the types and conditions of light work activities 173 Types of light work activities 173 Conditions of light work activities 174 Issues of application regarding legislation on light work 175 Enforcement and impact 175 Monitoring mechanisms 175 Good practices: Child labour and labour inspection 176 Child labour related inspections 176 Employers' registers 177 Collaboration with other bodies., 177 Labour inspectorate and data dissemination 177 Strengthening the effectiveness of the labour inspectorate 178 Penalties 179 Adopting appropriate penalties to ensure the effective enforcement of the Convention, 180 Penalties for violations of the prohibitions on minimum age and hazardous work 180 Penalties for non-enrolment and non-attendance at school 180 Issues of application regarding penalties : 181 Absence of penalties in national legislation 181 Insufficiently deterrent penalties 181 Statistical information, 182 Achieving universal primary education by 2015: A global overview 182 General picture of the situation in practice in member States 183 Measuring the magnitude.of child labour 183 Magnitude of child labour 184 Education 184 Differences in enrolment rates between boys and girls 185 Enrolment rates in primary and secondary education and out-of-school children 185 Chapter2. Worst Forms of Child Labour Convention, 1999(No. 182) 187 Introduction 187 Scope and methods of application 189 Scope of application 189 Methods of application 190 Difficulties concerning the scope of application 192 Thematic issues 192 Sale and trafficking of children 192

Contents Definition of sale and trafficking 192 Legislative measures 193 Comprehensive legislation to prohibit the sale and trafficking of children.. 193 Prohibiting child trafficking at 18 years of age 194 Prohibiting child trafficking for both sexual and labour exploitation 194 Prohibiting the trafficking of both girls and boys under 18 years, taking into account the special situation of girls 195 Prohibiting both cross-border and internal child trafficking 196 Issues of the application of the legislation relating to the sale and trafficking of children 196 Lack of effective enforcement of the anti-trafficking legislation 196 Complicity of government officials 197 Programmatic measures 197 Programmes and national plans of action against trafficking 198 ILO-IPEC collaboration 199 ILO-IPEC Time-bound Programmes 199 ILO-IPEC regional projects 200 Prevalence of child trafficking in practice 201 Forced labour '. 201 Children in bonded labour 201 Legislation prohibiting child bonded labour 201 Issues relating to the application of the prohibition of child bonded labour 202 Complementary programmatic initiatives to address child bonded labour 202 Forced child labour in domestic work 203 Protecting children from forced domestic labour through legislative measures 203 Issues related to the application of the prohibition on forced child domestic work 204 Forced domestic labour continues despite legislative prohibitions 204 Taking account of the special situation of girl domestic workers 204 Programmatic measures to reach out to child victims of forced domestic work 205 The role of national action plans in combating forced domestic child labour 205 The role of ILO-IPEC projects 205 Reaching out to child domestic workers through skills training and educational measures 205 Issues regarding the implementation of programmatic initiatives 206 Compulsory labour within the school system 206 Work-study programmes 206 Talibe children 207 Despite legislative efforts, the exploitation of talibe children continues 208 Small progress: Programmatic measures to reach out to talibe children : 208 Child labour and armed conflict 209 XI

Giving globalization a human face The inclusion of forced or compulsory recruitment of children in armed conflict as a worst form of child labour 209 Legislative measures adopted by member States 209 Issues relating to the application of the legislation concerning the forced or compulsory recruitment of children for use in armed conflict 210 Cases of progress 211 Forced recruitment of children by armed forces and/or armed groups 211 The various roles in which children associated with armed forces and/or armed groups are used... 213 Programmatic measures 213 National programmes for disarmament, demobilization and reintegration (DDR) and ILO-IPEC interregional projects 213 The challenge of rehabilitating former child soldiers 215 Girls associated with armed forces and/or armed groups 215 Child commercial sexual exploitation 215 Prostitution 216 Legislation prohibiting the use, procuring or offering of a child for the purpose of prostitution 216 Positive legislative developments 216 Prohibiting child prostitution for both boys and girls 216 Protecting all persons under the age of 18 from prostitution 217 Prohibiting the "use" of a child for the purpose of prostitution 217 Age of consent versus commercial sexual exploitation 217 Treating children engaged in prostitution as victims, not offenders 218 Good practices: Programmatic measures to combat child prostitution... 218 National plans of action against commercial sexual exploitation 218 ILO-IPEC: TBPs and regional projects 219 Taking into account the special situation of girls in combating child prostitution 219 Pornography 220 Legislative prohibition of the use, procuring or offering of a child for the production of pornography 220 Increasing legislative conformity with the Convention regarding child pornography 220 Absence of legislative provisions prohibiting child pornography 220 Protecting both girls and boys under the age of 18 from exploitation in child pornography 220 The importance of specifically addressing the involvement of a child in the production of pornography 221 Prohibiting child pornographic performances 221 Lack of clarity in the definition of child pornography 222 Positive initiatives to combat the exploitation of children in pornography.. 222 Child sex tourism 223 Extraterritorial legislation to combat child sex tourism and other legislative initiatives 223 Challenges in enforcing the prohibition of child sex tourism 224 Good practices in preventing and combating child sex tourism 224 Use, procuring or offering of children for illicit activities 225 Xll

Contents The inclusion of the use, procuring or offering of a child for illicit activities as a worst form of child labour 225 Legislative measures adopted by member States to prohibit the use, procuring or offering of children for illicit activities 226 The production and trafficking of drugs 226 Begging and other types of illicit activities 226 Prohibiting the use of children for illicit activities 227 Issues of application of the legislation relating to the use, procuring or offering of children for illicit activities 227 Most common types of illicit activities in which children are used 227 Street children 227 Programmatic measures 228 Good practices: Programmes designed specifically for children involved in illicit activities 228 Specific measures to protect street children 229 Hazardous work 229 Hazardous work as a worst form of child labour 229 Hazardous work and determination of the types of hazardous work 230 General prohibition of hazardous work for children under 18 years of age 230 Lists of types of hazardous work 231 Legislative gaps in the prohibition of hazardous work 233 Prohibiting hazardous work for children under 18 years of age 233 Determining a list of types of hazardous work 233 Gaps in legislative coverage of hazardous work 234 Hazardous work in the informal economy 234 Hazardous work in the domestic sector 235 Domestic work as a hazardous form of child labour 235 Taking into account the special situation of girls 236 Hazardous work in the agricultural sector 236 Programmatic measures 237 ILO-IPEC collaboration 237 ILO-IPEC Time-bound Programmes (TBPs) 237 ILO-IPEC regional projects 239 Lack of effective programmatic measures 239 Access to free basic education 239 Evolution in enrolment and attendance rates in basic education 240 Increasing school attendance rates 240 Reducing the gap between the school attendance rates in primary and secondary education 241 Decreasing school drop-out rates 241 Overcoming major barriers to free basic education 242 Ensuring access to free basic education 242 Unconditional cash transfer programmes 242 Conditional cash transfer programmes 243 Improving the general functioning of the education system 243 Putting an end to discrimination and disparities in educational opportunities, 243 Achieving gender parity 243 ILC.101/IH/1B xiii

Giving globalization a human face Ensuring equal access to free basic education for vulnerable children 244 Ensuring access to free basic education and vocational training for children removed from the worst forms of child labour 245 Identifying and reaching out to children at special risk 246 HIV and AIDS orphans and other vulnerable children 247 Specific national plans of action for OVCs 247 Facilitating access to education or vocational training for OVCs to prevent their engagement in the worst forms of child labour 248 Good practices in mainstreaming OVC issues into national policies and programmes to combat child labour 249 Roma children 249 Programmatic measures to address the vulnerability of Roma children... 250 The importance of access to free basic education for Roma children 250 Children from poor families and rural areas 251 Measures to reach out to children from poor families and rural areas 251 Good practices to facilitate access to education for children from poor families and rural areas 252 Taking into account the special situation of girls in rural areas 253 Children living and working on the street 254 Programmes to reach out to street children 254 Reintegrating street children into educational programmes 255 Enhanced international cooperation and mutual assistance 255 International and regional organizations, 256 International and regional cooperation 256 Cooperation to combat the sale and trafficking and commercial sexual exploitation of children 257 Regional agreements 257 Bilateral agreements 258 National measures aimed at enhancing cooperation 258 Moving towards enhanced international cooperation and mutual assistance 258 Poverty eradication : 259 Enforcement and impact 260 Monitoring mechanisms 260 Law enforcement agencies 261 Good practices in monitoring the worst forms of child labour,. 261 The importance of collaboration with other institutions 261 Gaps in law enforcement 262 Border and immigration officials 262 Labour inspection.:. 263 Labour inspection and hazardous work 263 The role of labour inspection in monitoring other worst forms of child labour 263 Child protection agencies 264 Penalties 264 Adoption of sufficiently dissuasive penalties to ensure the effective enforcement of the Convention 264 XIV

Contents Issues of application regarding legislation on penalties 265 Insufficiently deterrent penalties 265 Enforcement of penalties 265 Statistical information 266 Measuring the nature, extent and trends of the worst forms of child labour. 266 Sources of statistical information 266 Information on the implementation of provisions prohibiting the worst forms of child labour 267 Main findings :.'... 268 PartV. Equality, non-discrimination and equal remuneration 271 Chapter 1. Introduction 271 Chapter2. Equal Remuneration Convention, 1951 (No. 100) 275 Introduction 275 Scope of the Convention and methods of application 275 Scope of application 275 Methods of application: Flexibility and impact :. 276 Difficulties of application concerning scope of the Convention 277 Thematic issues 279 Gender pay gap 279 Promote and ensure application 280 Equal value: The cornerstone of the Convention 281 Legislation. 282 Collective agreements 285 Minimum wages 285 Remuneration: The diversity of elements 287 Legislation 288 Additional emoluments 289 Discriminatory legislation regarding allowances and benefits 290 Collective agreements 290 Comparing jobs, determining value 291 Scope of comparison 291 Objective job evaluation methods 293 Legislation 294 Collective agreements : 295 Minimum wages 295 Domestic workers 296 Promoting job evaluation...^ 296 Measures for effective application 297 Addressing underlying causes 297 Proactive measures to promote equal remuneration 300 National plans and policies 300 Public procurement 300 Equal pay audits and plans 301 Equality and equal pay bodies 303 XV

Giving globalization a human face Tools and guides 303 Incentives 304 Awareness raising and public information 304 Collective agreements 304 Chapter 3. Equality of opportunity and treatment in employment and occupation (Convention No. 111) 307 Introduction...".: 307 Scope of the Convention and methods of application 307 Scope of application 307 Methods of application 308 Difficulties in application 309 Thematic issues 312 Defining discrimination 312 Direct and indirect discrimination 312 Multiple discrimination 314 Aspects of employment and occupation covered by the Convention 314 Education, vocational guidance and training 314 Access to employment and to particular occupations 315 Terms and conditions of employment 317 Grounds of discrimination: An evolving area 318 Grounds of discrimination under Article 1(1)(a) 318 Race, colour and national extraction,.' 318 People of African descent 320 Indigenous and tribal peoples 320 Roma people 323 Migrant workers 324 Sex discrimination and gender equality 326 Pregnancy and maternity 327 Workers with family responsibilities 328 Laws on personal and family relations 329 Exclusions from particular jobs 330 Sexual harassment 330 Domestic workers 333 Religion 334 Social origin 335 Political opinion 336 Additional grounds of discrimination under Article 1(1)(b) 337 Real or perceived HIV status 338 Age 339 Disability 341 Nationality 342 Sexual orientation and gender identity 344 Measures not deemed to be discrimination 345 Distinctions, exclusions or preferences based on inherent requirements 345 State security versus equality 346 Special measures of protection and assistance 348 Xvi

Contents Protective measures versus equality 348 National policy on equality 349 Immediate, progressive and effective application 349 Multifaceted policy 351 Constitutional and legislative developments 352 Promoting equality through proactive measures 354 National plans and strategies 354 Public procurement, 355 Equality planning 356 Codes, tools and guides 356 Affirmative action measures 356 Awareness raising and public information 358 Chapter 4. Monitoring and enforcement relating to Conventions Nos 100 and 111 361 The labour inspectorate 362 Specialized bodies 364 Courts and tribunals 366 Access to procedures and remedies :. 367 Statistics 368 Part VI. Obstacles to ratification and technical assistance 371 Chapter 1. Freedom of association and collective bargaining 371 Obstacles to ratification and future prospects 371 Technical assistance.. 373 Chapter 2. Elimination of forced labour : 375 Obstacles to ratification and future prospects 375 Convention No. 29 375 Convention No. 105 376 Technical assistance 376 Chapter3. Elimination of child labour 379 Obstacles to ratification and future prospects 379 Technical assistance 379 Chapter 4. Equality of opportunity and treatment 381 Obstacles to ratification and future prospects.. 381 Technical assistance 382 Part VII. Conclusions 385 Appendix List of ratifications of fundamental Conventions and of reports received pursuant to Article 19 397 XVU

Giving globalization a human face List of boxes Freedom of association, gender equality and non-discrimination 38 Employers'group 47 Workers'group 48 ILO response to forced labour in Myanmar 119 Role of the social partners : 177 Global picture: Incidence of child labour in the world 182 Defining the worst forms of child labour - Article 3 of Convention No. 182 187 The ILO response to the trafficking of children for use as camel jockeys in Qatar 198 ILO response to forced labour and under-age recruitment in Myanmar 214 Sweden -Wage mapping 302 General observation concerning Convention No. 100., 369 XVlll