T2-17: Transnational regulation of labour

Stefania Marassi, The Hague University of Applied Sciences

Multinational enterprises (MNEs) have become global players in the current globalized labour market and their economic activities are no longer territorially limited. However, the regulation of these corporations is still predominantly governed by national law, which consider parent companies, subsidiaries and business partners as different legal entities.

The lack of international regulations governing the direct legal accountability of parent companies for the violation of labour standards by their subsidiaries and/or business partners has had severe social consequences. (H. F. Cantú Rivera, ‘Business & Human Rights: From a “Responsibility to Respect” to Legal Obligations and Enforcement’, 2015). To that end, MNEs and global/European trade unions have started concluding transnational company agreements (TCAs), amongst other CSR initiatives. The emergence of forms of transnational private labour regulation has then been the answer to tackle the discrepancy between economic and legal realities.

By looking at the texts of TCAs one can notice that the signatory parties extend the scope of application of some agreements not only to subsidiaries but also to suppliers and (sub-) contractors. An illustrative example is the recent international framework agreement (IFA) concluded by IndustriALL and H&M, a Swedish MNE in the garment sector, on the respect of fundamental rights (e.g. child labor, freedom of association) in H&M’s global supply chain (2015). The link between TCAs and the regulation of labour rights in MNEs’ global supply chains has been also reaffirmed by the International Labour Organization (ILO) in its recent report “Decent Work in Global Supply Chains” (2016).

The paper contributes to furthering the academic debate on the development of TCAs as well as on the regulation and enforcement of labour rights in MNEs’ global supply chains. To that end, it conducts qualitative empirical research via a textual analysis of the texts of TCAs. The aim is to map out the different provisions on the application of TCAs in the global supply chain, identify the state of play on the topic and update it. Building on this analysis, the paper intends to explore and propose potential strategies and mechanisms to ensure the enforcement of the labour standards laid down in TCAs throughout MNEs’ global supply chains. In doing so, it also examines the potential role the ILO could play in the regulation of TCAs and their implementation in the global supply chain.

Place in the system of labour law sources

Kirill Tomashevski, International University “MITSO”, Minsk

In connection with the processes of globalization and internationalization of the economies of States in different regions of the world, the increasing pressure of competition, there are new forms of social partnership agreements at the regional levels (so called transnational collective agreements) and global collective agreements. Regional associations of employers and trade unions, transnational corporations and trade unions participate and play an important role in this process. The paper examines collision issues related to the solution of the problem of correlation of transnational collective agreements and global collective agreements with other international and national sources of labour law.

In his monograph (“System of Labour Law Sources of Belarus (history, theory and practice)”, Minsk, 2013) the author justified the concept of transition from the dual system of sources of labour law to the triune system. This system includes in addition to the traditionally subsystems of national sources of labour law, international labour law and a third, a new subsystem – supranational sources of labour law. In the development of this conceptual idea, it can be extended to the system of sources of labour law of both EU and the EAEU member States. In favor of the substantiation of the concept of a triune subsystem in the systems of modern sources of labour law of the Eurasian Economic Union (EAEU) and the EU member States, the report will provide additional arguments. The author will seek the place of transnational collective agreements and global collective agreements in the triune system of sources of labour law: do they belong to national, international or supranational sources of labour law? The speaker will also try to answer the question: what rules of labour law prevail there (mandatory, dispositive or soft law)?

This paper is almost not settled both in the national labour legislation of the member states of the EU and the EAEU , and at the international level. The author examines specific examples of transnational collective agreements and global collective agreements from the legal system of the European Union, as well as the member states of the Eurasian Economic Union, in particular the Russian Federation. The conceptual solutions to the above-mentioned problem of resolving legal conflicts between transnational collective agreements and global collective agreements and national social partnership agreements in the member states of the EU and the EAEU will be proposed.

Thomas Haipeter, Institute for Work, Skills and Training, University of Duisburg-Essen

Transnational information and consultation has become an integral part of labour regulation in a number of multinational companies (MNC), driven by the EU directive on European Works Councils (EWC). Empirical studies have offered valuable and manifold insights into structures and practices of EWCs. However, many of these studies focused to a large extent on EWCs as a singular institution or as an independent (collective) actor or organization, while the complex interplay of different actors and institutional levels within MNCs – the way interests are articulated – was not systematically taken into account. The perspective on EWC as single actors, however, does not seem to be sufficient to understand the way interests and identities are constructed and shaped – if at all – on the transnational level. Especially it does not explain how information, definitions and resources flow between the different levels and institutions of interest representation, for instance works councils, comités d’établissement, délégués du personnel or shop stewards at the local level, comités central d’entreprise/comités de groupe, central or group works councils and board-level employee representation at the national company level. The picture is even getting more complex if the trade unions, local unions, national unions as well as European and Global Union Federations are taken into account as well.

Against this backdrop, we will try to widen the perspective and to analyse the processes of articulation that are developing between these different institutions and levels of interest representation in processes of restructuring and whipsawing within MNC. Our analysis is based on case studies in ten MNC we made in the context of a research project funded by the German Research Foundation. The case studies are based on semi-structured interviews with EWC members, employee and union representatives at the national and local level in at least three countries within each of the MNC. We will develop a typology of patterns of articulation of interest representation and show why and in what respect the cases differ, what the conditions for higher levels of articulation are, why actors from local and national levels get involved in transnational collective action and if and in how far they benefit from transnational interest representation on the local and national levels.