On the occasion of the 70th anniversary (1952-2022) of the International Labour Organization’s (ILO) Committee on Freedom of Association (CFA), the Committee can be congratulated and praised on its impressive work and positive results over the years. The CFA has handled more than 3300 cases during this period and has demonstrated that it plays an important role when it comes to compliance with and enforcement of freedom of association across the globe. Over the years, it has reported on many cases of progress. In its latest annual report concerning 2021, the CFA also included much interesting data about the successful work it has carried out over the past 70 years. See www.ilo.org

So far, so good. But besides the praise, one could also offer some advice on how to go forward in the coming years in a globalised world in which many Trans National Companies (TNCs) operate and through global supply chains, where freedom of association has often proved to be problematic. According to ‘the rules of the ILO game’, the CFA can ‘only’ handle complaints in dialogue with the member states and the regular ILO constituents, i.e. trade unions and employers’ associations, in this caseu the International Organization of Employers (IOE). In case of an alleged violation of freedom of association at a specific private company, the CFA does not approach this company directly to try to do ‘business’ with it about the complaint. Evidently, that company is not a member of the ILO. According to international law, it is not legally obliged to comply with ILO Conventions or regulations and it is supposed to be represented by the IOE.

Meanwhile that company may well be a global player, a member of the UN Global Compact organisation, and a subscriber of the principles of that organisation, including the ILO’s fundamental labour rights. That company will very likely have established its own Code of Conduct, where it declares it will respect human rights, including the international fundamental labour rights as stated in the ILO Declaration of 1998. It will report yearly about its Corporate Social Responsibility (CSR) activities and sustainable conduct. It is possibly also a subscriber of the industry Code of Conduct, where the same rights are endorsed.

Would it, in the event of a complaint about freedom of association against such a company, be more effective and time-saving for the CFA and all the parties involved, to approach that company directly, and not, as now usually happens, via the government of the state where the violation took place and/or via the IOE/national employers’ association?

The rise of private regulation of international labour standards: Corporate Social Responsibility and Codes of Conduct

The concept of CSR has existed for around 25 years. The fast-paced globalisation and supply chain production method within TNCs has led to a gap in the global governance and enforcement of international labour standards. TNCs are not involved in the ILO system.

In an attempt to narrow this gap, TNCs developed, under pressure from stakeholders, NGOs, and the media for instance, their own written ‘business ethics’ , in the form of a ‘Code of Conduct (CoC). This development was accelerated by the creation of the UN Guiding Principles for Business and Human Rights (UNGP), endorsed by the UN Council for Human Rights, and prepared by the UN Special Representative for Business and Human Rights, Professor John Ruggie. In these UNGPs, the principle of freedom of association was included under Principle 12, where business is expected to respect the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work. Many TNCs have their own CoC. See www.dbbe.org, a Leiden University database of those CoCs

Possible new working method for the CFA?

Let’s suppose a complaint is lodged at the CFA concerning the alleged violation of the principles of freedom of association by a TNC which has created its own CoC or has endorsed the UNGP. According to the existing rules, it seems the CFA is not able to contact that company directly to check the alleged facts and, if true, to initiate a dialogue with that company to try to solve the issue. Instead of this direct and effective approach, the CFA has to depend entirely on the member state against whom the complaint is directed.

Take, for example, CFA case no. 3047 (CFA Report March 2017) against the Republic of Korea. That case concerned Samsung’s corporate anti-union policy, the global electronic corporation. The complaint was lodged by two globally operating workers’ organisations, the ITUC and IndustriAll Global Union, and one national trade union, the Korean Trade Union Confederation. The CFA’s decision on this case states that the CFA had contact with the government of South Korea and with the South Korean Employers’ Association; but not at all with the subject of the complaint: the company Samsung. This is ‘business as usual’ for the CFA.

Samsung is a TNC, operating across the globe. It has established a global code of conduct. In its Business Conduct Guidelines (Global Code of Conduct) it declares: ‘Samsung respects and protects the fundamental human rights, taking into account international human rights and standards set forth in … the UN Guiding Principles for Business and Human Rights, the OECD Guidelines for MNEs, the ILO Declaration on Principles and Rights at Work …’ etc. It is a member of the Electronic Industry Citizen Coalition (EICC) and it conforms to the EICC CoC. That CoC also refers to international labour standards and freedom of association as rights to respect. The conclusion is that Samsung on the basis of its own CoC is committed to the freedom of association as enshrined in the international labour standards. It promised to respect those standards.

It is not forbidden anywhere for the CFA to try to contact Samsung and ask about its CoC and its policy on freedom of association. However, this is not the standard procedure. As mentioned above, private companies do not play a role in the ILO; their channel is only the IOE. Sometimes, those companies are bigger and more powerful than many of the member states of the ILO. Why keep them out of any possibility for direct dialogue concerning alleged violation of freedom of association?