HUMAN RIGHTS

AT WORK

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Introduction

In this essay we will focus on human rights at work. We will start by briefly overlooking theories
that discuss why companies should address this issue. Sequentially, we will focus on how
organizations currently deal with this topic and finish with some critical perspectives on that action.

Why should companies care about human rights?

According to Muchlinski (2001), business cannot flourish in a context where human rights are not
respected. Furthermore, any complacent behavior of companies will damage their reputation. So he
took a pragmatic approach that companies just will themselves suffer from neglecting human rights.

A more famous and perhaps deeper discussion addressing this question is done through the theories
called ‘stakeholders approach’ and ‘shareholders approach’ (Danielson, Heck & Shaffer, 2008).
Their main ideas are a bit controversial: Stakeholders approach supporters believe that managers
should address the needs of all stakeholders, simply because all of them are involved and affected
by the company’s operations, what then includes human rights at work. Shareholders approach
supporters argue that managers are paid to maximize the value of shareholders, so whatever has not
this as main purpose is a deviation and should be addressed by someone else, not companies.

Although there is no simple conclusion, those theories have helped us during the next sections,
alerting us about the different perspectives and interests that are involved with this issue.

How do companies deal with human rights at work?

Complying with the law is a basic proposition for companies, and since analyzing the adequacy of
the current legislation is not an object of our study, we concentrate here on what companies do
about human rights at work, despite laws and national borders.

Macklem (2002) argues there is a decreasing importance of national legal systems and, to fill that
gap, new patterns are being developed. He identified three international and transnational modes of
regulation being formed beyond states. First, the International Labor Organization (ILO) is
promoting a set of core labor rights with which all states should comply as a matter of international
law. Secondly, numerous institutions and actors are linking international labor rights with trade
liberalization initiatives. Finally, corporations are increasingly relying on codes of conduct to
govern their employment relations. Due to their direct implications for companies, we decided to go
further on Mackelm’s (2002) study and analyze, respectively, the principles set by the International
Labor Organization (ILO) and the nature and application of codes of conduct.

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Principles set by the International Labor Organization
Emily and Jang (2008) mentioned that in 1977 the International Labor Organization implemented
the ‘tripartite declaration of principles concerning multinational enterprises and social policy’.
These declarations focused on three areas of TNCs, which are states and employers and workers
organizations. The aim of the declaration is to provide support to the TNCs to contribute to the
economy and the society. The Tripartite declaration covers areas such as employment promotion,
equality of opportunity and treatment, security of employment, training, conditions of work and life,
and industrial relations. In the tripartite declaration the ‘equality of opportunity and treatment’
addresses that all the government should follow policies to encourage equality of opportunity and
treatment in employment. Transnational companies should therefore make qualifications, skill and
experience the basis for the recruitment, placement, training and advancement of their staff at all
levels. Government should never encourage transnational companies to discriminate on race, color,
sex, religion, political opinion, national extraction or social origin.

Alston (2004) argues that due to the pressure of globalization and other labor standards, the
transformation process of ILO started in 1995 at the Copenhagen World summit for social
development to make the standards more flexible. Followed this in the 1998 ILO adopted the
declaration of fundamental principles and rights at work as a soft law instruments. It rights of four
‘core labor standards’ are, freedom of association, freedom from forced labor and from child labor,
and non-discrimination in employment. Eren (2008) added, the emphasis on soft law instruments in
1998 declaration seemed appropriate and suitable in the face of globalization’s decline of the
effectiveness of domestic and international legal instrument to protect labor rights.

Helfer (2007) also mentioned that the first and most important change in the ILO is the adoption of
the 1998 declaration on fundamental principles and rights at workplace. Even though he criticized
that ILO has been around forever, it has also done nothing forever and is not very interesting.
Despite the progress made after 1998 declaration specifically in its reforming activities and
restructuring international labor law, Helfer (2007) described some challenges for ILO: the ILO has
lacked behind on Corporate Social Responsibility (CSR) issue. It’s implemented the ‘tripartite
declaration of principles concerning multinational enterprises and social policy’ in 1977, this was
one of the earliest standers for corporation to ensure human rights at workplace (Helfer, 2007),
(Emily and Jang, 2008). Since the tripartite declaration is old enough and it has overlooked by an
explosion of CSR initiative in international and regional organizations. Now ILO needs to promote
CSR issue because it is the only international organization, which can care organizations and

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workers. It’s also important to take a leadership role in proclaiming and monitoring of CSR
standards.

Béthoux, Didry & Mias (2007) believe that the principles set by international organizations are the
base for the development of corporate codes of conduct, our focus in the next section

Codes of conduct

According Macklem (2002), codes of conduct involve voluntary and written commitments by
corporations to observe certain standards in their relations with their employees, customers and
suppliers; they usually intend to govern a wide variety of concerns, including ethical responsibility,
transparent business practices, respect for the rule of law, as well as rights of workers. Sethi &
Emelianova (2006) have a similar definition. For them, voluntary codes of conduct represent a set
of undertakings that corporations promise to implement with a view to addressing some of the real
or perceived societal concerns associated with or emanating from their conduct.

Macklem (2002) explains that globalization encourages the use of codes of conduct by weakening
the national legal systems, since companies tend to operate simultaneously with different laws and
economic restrictions. McClintock (1999) and Muchlinski (2001) agree that multinational
companies mainly adopt such codes not because they are directly involved with globalization, but
because they acknowledge their importance on affecting and addressing such social issues.

A study carried by Béthoux, Didry & Mias (2007) confirmed that work issues are the main topic on
codes of conduct, but after performing a lexical analysis of a sample of codes, they found such
codes may also be designed with a perspective of benefiting companies, not just workers or third
parties. Another criticism was made by Verney (2003), after analyzing a survey made by the OECD
(Organization for Economic Co-operation and Development) in 2000. That survey, based on 246
codes of conduct collected from 24 countries, stated that no conclusions about practices could be
drawn from the findings. According to Verney (2003), “while the survey finds that certain elements
of the implementation process are more frequently mentioned than others, there is overall not much
agreement among organizations surveyed as to what information about implementation a code
should contain.” (Verney, 2003, p. 36). He finally concluded from his researches that “(…) a picture
emerges of polished generalizations, hugely differing methods of multinational enterprises code
implementation and commitment as best uneven to core labour right” (Verney, 2003, p. 36)

McClintock (1999) and Sethi & Emelianova (2006), respectively studied the emergence of codes of
conduct in the football and knotted carpet industries in southern Asia and the code developed by the
International Council on Mining and Metals (ICMM), which focused on the mining industry.

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McClintock (1999) called the results ‘disappointing’ meanwhile Sethi & Emelianova (2006)
referred to the results as a ‘failure’. Both studies implied that this happens due to factors such as the
lack of external regulation and major enforcement, differences between the motivation within
different industries and ineffective implementation, in this case mainly due to the absence of
effective means of reporting non-compliance.

But if criticism is a general idea about codes of conduct, the authors we have analyzed are almost
unanimous on stressing their positive points. Muchlinski (2001) opined that, at the very least, codes
of conduct create a moral expectation that they will be observed and they can also gain legal force if
incorporated through contracts. Sethi & Emelianova (2006) stressed as main suggestion for future
developments of codes of conduct the importance of standardized measures of performance,
uniformity in reporting and transparency. Finally, Vogel (2009) argued that codes of conduct can
compensate some of the shortcomings of public governance, although they are not a substitute for
the more effective exercise of state authority at both the national and international levels since they
somehow lack better enforcement, something we will go further in the next section.

Issues concerning the enforcement of principles set by international

organizations and codes of conduct

Hepple (2002) argues that the enforcement of social rights is becoming increasingly problematic
due to three different global trends: the growth of soft law, privatization of enforcement and
restrictions of collective solidarity. Hepple distinguishes between hard law, binding legal
instruments with enforcement mechanisms, and soft law in the form of non-binding
recommendations, codes of practice and guidelines and argues that the latter are becoming more
and more common.

The share of hard law is decreasing due to several reasons. Fewer ILO conventions are ratified, as
governments are increasingly reluctant to commit themselves due to increasing global competition,
administrational burdens and growing federalism. (Hepple 2002) Also, the WTO refused to
implement the social clause, i.e. connecting low enforcement of human rights with trade sanctions
(Egels-Zandén 2009). In addition more and more soft law is implemented. This can take the form of
code of conducts or international framework agreements, negotiated agreements between unions
and corporations that build on ILO and UN conventions (Egels-Zandén 2009, Hepple 2002). Hepple
(2002) argues that soft law cannot be a substitute for binding law, since it would only change the
behavior of certain companies that anyway have an interest in pursuing those issues, but would not
have a significant influence on the majority of companies.

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The second critical trend Hepple (2002) states is the privatization of enforcement, meaning that
even though employees have certain legally enforceable rights, it is on them to report breaches and
to fight for their rights in court. This can be problematic if this procedure implies that costs, e.g. for
lawyers, court and related expenses, are imposed on employees. The fact that the employees that
most frequently experiences infringements of their rights are those employees that are in very
unfavorable financial situations and therefore simply cannot afford to claim their rights through
lawsuits. (Hepple 2002) Another huge problem connected to this approach is that the anonymity of
claiming employees is not always protected, especially when they are working in very small
companies. When employers find out whom of the employees filed a claim the concerned employee
risks being treated adversely by his employee and could in the worst case even loose his job. The
problems stated by both Hepple and Croucher & White are contrary to what one might think issues
that are occurring in Britain and not in developing countries, leaving space to imagine how much
more problematic these procedures can be in other countries. Thus, due to the asymmetrical power
distribution in employment relationships, labor rights enforcement through employees is very
critical especially for vulnerable risk groups, such as immigrants and part-time workers. (Croucher
& White 2007)

The third problematic tendency Hepple (2002) states are the restrictions on collective solidarity.
There are legal limitations when employees of one MNC want to support other employees of the
same MNC in a different country who are fighting for their rights through collective solidary
actions such as strikes.

Discussion
Since governments and international organizations like the ILO have not been very successful in
advancing labor law standards on a global level, more and more soft law in the form of code of
conducts and international principles is implemented. We see this as problematic because the actual
enforcement of soft law is very low and codes of conducts are often used for window-dressing
instead of ensuring labor rights. We therefore believe that more effort should be put into
enforcement of law, hard and soft law, instead of discussing details of laws.

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