Faculty of Law, McGill University
McGill University, Faculty of Law
142 International Labour Review 419 (2003)
The ILO Declaration on Fundamental Principles and Rights at Work adopted in 1998 could not be clearer: “the effective recognition of the right to collective bargaining” and “the elimination of discrimination in respect of employment and occupation” (ILO, 1998, Para. 2 (a) and (d)) are both so central to the ILO’s social justice mandate and Decent Work Agenda that they are two of the four fundamental principles which Members of the ILO have a “good faith obligation … to respect, to promote and to realize”. Both are among the immutable principles embodied in the ILO Constitution and represent robust standards of egalitarian and democratic inspiration that stress the centrality of enfranchisement within the world of work, reflected in the ILO’s Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). For generations, both these principles have been dynamically interpreted and applied by the ILO’s supervisory machinery. And now, with the adoption of the ILO Declaration, both are urgently reaffirmed by the ILO and its Members “in a situation of growing economic interdependence” (ILO, 1998, Preamble, para. 7) as essential components to promote a vision of “sustainable development” that sees the economic and the social as mutually reinforcing. Despite the ILO’s longstanding commitment to collective bargaining and the elimination of discrimination, initiatives to explore the interface between the two principles have only recently emerged, and have focused overwhelmingly on gender equality. The ILO Declaration resists the impulse to establish a hierarchy between collective bargaining and equality, merely setting these principles apart from the broader range of labour standards. In an increasingly integrated transnational context that challenges traditional labour regulation structures, the time is now ripe to investigate the complex and changing relationship between these two fundamental principles and rights at work.
The starting-point for this article is that, despite an overwhelming rate of ratification of Convention No. 98, effective recognition of the right to collective bargaining remains elusive for the vast majority of workers. Globally, only a minority of workers benefit from the free and fair representation of their collective rights, needs and interests. Unequal access to collective bargaining shows how far dominant paradigms of collective bargaining have failed to reflect the plural structures of work, notably in the informal economy and in the developing world. Moreover, emerging post-Fordist paradigms pose difficult challenges to the founding concepts on which twentieth-century industrial relations were constructed.