By Iftikhar Ahmad, WageIndicator Foundation
LABOUR LAW: WHY WE NEED IT
The Labour law acts as a tool to promote worker empowerment as well as worker protection. It regulates individual and collective employment relations. Other relevant legislation includes Constitutional law, the civil code, the criminal code as well as the supranational ILO Conventions.
Labour law aims to correct the imbalance of power between the worker and the employer; to prevent the employer from dismissing the worker without good cause; to set up and preserve the processes by which workers are recognized as ‘equal’ partners in negotiations about their working conditions etc.
Labour law aims to prevent a race to the bottom by placing restrictions on the contracting partners’ freedom to contract on whatever terms they wish, and setting minimum standards over safety and pay.
Labour law also regulates the labour market: a country may choose to put legislation in place setting maximum or minimum limits on wages or working hours, either nationally or in particular sectors or industries.
The major themes in Labour law are the following:
|Productive Work & Adequate Earnings||Minimum Wage, Regular and timely payment of wages, Overtime compensation, Compensation for night work, weekend work and holiday work|
|Decent Working Hours||Paid annual leave, Maximum hours of work (limits on overtime hours), Compensatory holidays for working on weekly/public holidays|
|Employment Security||Provision of a written statement of particulars at the start of employment, hiring fixed term contract workers for permanent tasks, Length of probation period, Notice requirements, Severance Pay|
|Combining Work and Life||Family Responsibilities (Paternity leave, Parental leave, Flex-time options),|
|Maternity Protection (Maternity leave, Free medical care, Salary during leave, Exemption from hazardous/arduous work, Protection from dismissal, Right to return to same/similar job, Nursing/Breastfeeding breaks)|
|Safe Working Environment||Health and Safety at Work (Safe workplace, Provision of free protective equipment, Safety training, Labour inspection esp. Occupational safety and health related),|
|Employment and Sickness/Accidents||Sickness and Employment Injury (Paid sick leave, Access to free medical care, Employment security during illness, Work injury/disability benefit/survivors’ benefits)|
|Social Security||Old-Age Pensions, Invalidity Benefit, Survivors’ Benefit, Unemployment Benefit|
|Equal Treatment at work||Equal pay for work of equal value, sexual harassment laws, Equal treatment in employment and prohibition of discrimination on any grounds, Occupational segregation/Right to choose one’s occupation|
|Children at Work||Minimum age for employment, Minimum age for hazardous work|
|Forced Labour||Forced labour, Worker’s ability to terminate employment, Limit to maximum overtime hours|
|Social Dialogue/Trade Unions||Right to form and join unions, Right to bargain collectively, Right to strike|
COMPLIANCE WITH THE LAW THROUGH RAISING AWARENESS BOTTOM-UP
Information on labour rights is lacking in many economies. Such information gaps may seem convenient for countries with no interest in raising awareness about legislation with the ultimate aim of improving it. The actual victim is the worker who never gets to know about his/her rights. Employers presumably also have no interest in raising a worker’s awareness on labour rights. They might fear that increased compliance leads to heightened cost of doing business. They may not be aware of research findings indicating that improved working conditions lead to higher productivity, which helps to recover the additional cost incurred in implementing worker benefits (see Heymann and Earle, 2010). Lee and McCann (2009) review considerable literature on the link between enforcement of labour legislation (compliance) and level of awareness (both among workers and employers). Their study brings forward data from Tanzania and shows that “worker’s awareness is strongly associated with better working conditions”.
Taking into account the low level of collective representation of workers (especially in developing countries) and budget-strapped and understaffed labour inspection systems, workers’ rights can be better enforced through a bottom-up approach – based on individual complaints. This approach however requires dissemination of legal knowledge to workers as a pre-condition, or first step towards compliance with the law. Labour legislation, worldwide, requires employers to display abstracts of labour laws. However the above-referred study indicates that this was ineffective in disseminating knowledge in US workplaces. What then would be the optimal way to disseminate information on statutory rights?
DECENT WORK: GETTING THERE
Decent Work is the type of work to which all aspire. It is done under conditions where:
- people are gainfully employed (and there exist adequate income and employment opportunities);
- a social protection system (labour protection and social security) is fully developed and accessible to all;
- social dialogue and tripartism are promoted and encouraged;
- rights at work, as specified in the ILO Declaration on Fundamental principles and Rights at Work and Core ILO Conventions, are practiced, promoted and respected.
The above conditions are usually referred to as the “four strategic objectives”, which – once achieved – promise Decent Work (ILO, 1999). Decent Work, a term introduced the ILO in 1999, was adopted by the UN as one of the measurements of Millennium Development Goals (MDGs). In 2008, Decent Work was included as a target in the first MDG and the ILO did all the reporting with regard to achieving this target (ILO, 2013) . Employment and Decent Work for all are also part of the Sustainable Development Goals (Goal 8).
While the first strategic objective seeks to create income and employment opportunities, it also addresses the quality of work. As indicated in the above ILO Report (1999), job quality has several dimensions.. These include labour compensation, i.e., wages, working hours, employment stability, and fundamental rights at work as laid down in ILO Core Conventions. All these facets of job quality impact a worker’s well-being. However, lacking a tailor-made tool, workers cannot compare their working conditions with the standards laid down in ILO Conventions or national labour law. Therefore, they cannot be sure whether they are employed in quality jobs.
THE DECENT WORK CHECK: AWARENESS RAISING TOOL AT THE WORKPLACE
Information gaps, as already noted, and the initial lack of such a comparative tool prompted the development of the Decent Work Check. Different dimensions of job quality have been included in it.
The Decent Work Check makes the abstract Conventions and legal texts tangible and measurable in practice.
The Decent Work Check uses a double comparison system. It first compares national laws with international labour standards and scores the national regulations (w. If a national regulation in a country is not consistent with ILO conventions, its score decreases (and vice versa). Next, It allows workers to compare their on-the-ground situation with their national regulations. Finally, workers can compare their own score and the qualification/score of their national labour law set against the international (ILO Conventions) labour standards. The Decent Work Check is thus based on de jure labour provisions, as found in the (inter)national legislation.
Experiences gathered through WageIndicator show that workers benchmark their position in the labour market with that of colleagues, others in their professional group or branch of industry and that they use these new insights to actively improve their current position.
WageIndicator has also observed that Decent Work deficits exist mainly because workers are not informed about their rights. Similarly, these violations may persist because employers are not aware of their obligations.
WageIndicator websites reach a wide audience. By placing the Decent Work Check as a web application prominently on their homepages, chances are that international Decent Work standards are perceived more and more as rightful national standards.
COMPOSITION OF THE DECENT WORK CHECK
To sum up the account in the previous paragraph, a Decent Work Check is composed of three parts:
- The scoring part. It scores a country’s national legislation against international labour standards in a particular field (irrespective of the fact whether a country ratified those or not) on 49 indicators.
- The national Labour Regulations part. It includes information from national labour laws on 13 topics (48 subtopics) of the Decent Work agenda (see Table above).
- The International Regulations part. It explains the relevant provisions of 28 ILO (core, governance, and priority) Conventions and checks whether a country has ratified these international standards or not.
SCOPE OF THE DECENT WORK CHECK
- The Decent Work Check analyses de jure labour market institutions and provisions and compares these with international best practices as provided in international labour standards.
- Topics of Decent Work Check relate to ILO’s agenda on Decent Work. While ILO’s work focuses more on statistics, WageIndicator first of all aims to inform workers about their rights. Ultimately its target population is the labour force as a whole, which evidently includes all types of workers, employees, employers or self-employed, whether formal or less formal.
- The Decent Work Check aims to create awareness among both workers and employers about their rights and obligations respectively (and vice versa), given the actual national and international labour standards. It informs employees of their rights at the workplace, while simultaneously enlightening employers about their obligations. Employers can also use this as an employment law audit tool to examine whether their organizations are complying with local and international labour standards.
- The Decent Work Check is also meant for researchers and labour rights organizations who conduct surveys on rights at work.
- It also serves (those in) the general public wanting to know more about the world of work.
- The Decent Work Check can be used to compare countries around the world and see which country has enacted a more labour protective regime.
THE DECENT WORK CHECK COMPARED TO OTHER GLOBAL INDICATORS
To highlight the unique features of the Decent Work Check a comparison with some other comparison tools on the international scene may be helpful.
The Decent Work Check offers more than indices like the World Bank’s Doing Business Indicators (Employing Workers Index-EWI ), the World Economic Forum’s Global Competitiveness Report-GCR (Labour Market Efficiency Pillar), the Harvard/NBER Global Labour Survey-GLS  or even the ISSA’s Social Security Programs throughout the World-SSPTW. The main differences are that it is not just descriptive (like SSPTW) and that it abstains from any subjective opinions (quite unlike GLS and GCR), but also that it covers many more work related aspects. Compared to all of these indices it is quite comprehensive.
Moreover, the primary target group, workers, may easily access and consult the Decent Work Check. This is not the case with the Women, Business and Law Database and the Labour Market Regulations Database, both maintained by the Word Bank. These cover many topics related to employment security, decent working hours, combining work and family as well as sexual harassment. But these databases, though useful for comparative purposes, have limited relevance for workers. Workers cannot easily check whether their individual situation is in accordance with the regulations. Also, the ILO has created many descriptive databases, however these are not regularly updated or have limited outreach.
The Global Labour Survey (GLS) and Global Competitiveness Index (GCI) cover a limited number of variables and cannot be used to measure Decent Work in a country. Moreover, they enumerate only the subjective opinions of local law firms, union leader & activists on local de-facto practices and business executives respectively.
The Decent Work Check may also be compared to corporate social responsibility tools like SA8000 and the UN Global Compact principles. This comparison shows that it is more elaborate and covers a lot more issues than these standards.
The various indicators mentioned in this paragraph rank countries on the basis of labour market regulations, but do not provide any knowledge of labour laws to workers or even employers. These indices can be used by businesses and the highly educated only.
As a consequence, organizations committed to corporate social responsibility and sustainability, may like to (and do) use the Decent Work Check as a checklist to see if they are following international best practices in the field or not.
Last but not least, the Decent Work Check-concept has been used to create the Decent Work Survey and App which is now being employed in the Indonesian and Ethiopian garment sectors, as well as in the flower industry of Ethiopia and Uganda, to measure compliance with national labour standards. This application also reviews compliance with minimum wages and collects wage data. Since it can measure compliance it may be used as a tool for labour inspectorates as it may provide relevant data which support them in their work..
The Decent Work Check is multilingual and similar across all countries. Currently the tool is available in Arabic, Bahasa, Burmese, Chinese, English, French, KinyaRwanda, Malay, Malagasay, Portuguese, Russian, Spanish, Swahili, and Vietnamese.
Decent Work Checks are currently available for 104 countries.
The national parts of the Decent Work Check provide the input for the WageIndicator Labour Law Database.
A national Decent Work Check provides both substantive and procedural legal knowledge. While the substantive legal knowledge is published online, the procedural knowledge (information on submission of complaints) is made available through online legal help desks.
WHY DOES WAGEINDICATOR FOCUS ON DE-JURE LABOUR MARKET PROVISIONS?
Well-drafted and inclusive laws (with least “exclusions”) are not a sufficient precondition for attaining Decent Work. This point is quite lucidly made in the World Social Security Report (ILO, 2010). It is of the view that even the widest and most encompassing legal foundations cannot achieve the desired outcomes if these are not enforced and backed by sufficient resources. Point taken. Yet, it is precisely strong legal foundations on which consistent policies for securing higher provisions and resources must be based. There is not a single situation where a country provides generous benefits without a comprehensive legal basis, the same ILO-report concludes ( 2010).
Earlier research by Botero et al. (2004) found that formal rules, although different from “on the ground” situations, matter a lot. Work of Heymann and Earle (2010) clearly indicates that in the absence of legislation, even the wealthiest country in the world, i.e., the United States of America, is unable to ensure decent working conditions for the majority of its citizens. As explained by Heymann and Earle (2010), “laws indicate a state’s commitment to its people, lead to change by shaping public attitudes, encourage government follow-up through inspection and implementation of law and allow court action for enforcement”.
THE DECENT WORK CHECK INITIATIVE: A BRIEF HISTORY
Since 2000, the WageIndicator Foundation develops and operates national websites with information on work and wages, including labour law, collective agreements, salaries, and alike. Starting from the Netherlands, a growing number of websites in other countries were launched, leading to some 125 national websites early 2020. The Foundation, and specifically the author of this paper, has been working on the idea of the Decent Work Check since late 2007 and the first series of Decent Work Checks for South Africa, India and the Netherlands were prepared in 2008. The original version covered all substantive elements relating to Decent Work, except “employment security” which was added to the current version in 2012.