HSEMOSCOW

The future of Labour Law in a Globalised or Regionalised World

Dr Paul Smit28 October 2015

Date

The future of Labour Law in a Globalised or Regionalised World

• Introduction• Transnational Law• Compliance with International

Law / International Treaties• Non-compliance with

International Law / Treaties• Transnational Labour Relations• Regional Integration v Regional

Globalization• Role of Trade Unions (TU) /

labour lawyers in era of Globalisation

• Conclusion

Introduction

• Globalisation – laws in general and labour laws in particular are obtaining an international character

• Regional economic agreements and integration schemes – ILO have assumed greater prominence

• Most regional formations reflect preoccupation with narrow commercial objectives

• Civil society wants more than economic interests• Groundwork for inclusive developmental social

policy at regional level has been laid• This can include transnational labour law

Transnational Law• “Transnational” – beyond national borders• Laws that govern conduct of independent

nations and their relationship with each other• Transnational Law = Transnational Legal

Process (TLP)• TLP has four very distinctive features:

– It is non-traditional– It is non-statist (includes non-state actors)– It is dynamic and not static– It is normative – describes a process and also

normativity of that process

Compliance with International Law / Treaties

• Democracies are more likely to comply• Countries with independent judiciaries are more likely

to trust and respect

• Compliance based on three propositions:– Propensity to comply is more plausible that assumptions that

states will violate– Compliance problems do not reflect deliberate decision to

violate– Complete compliance not required only acceptable level of

compliance

• Fundamental norm of International law – Pacta Sunt Servanda (Treaties are to be obeyed)

Non compliance with International Law / Treaties

• Non complying behaviour can be attributed to:– Ambiguity, indeterminacy of treaty language– Limitations on capacity of parties, lack of political will to

comply– All treaties require period of transition – they are not

“aspirational” goal is to start a process

• Use of International Labour Standards (ILS) in domestic law must be based on legal material available to states under its domestic law

• ILS rich source for development of labour law can assist with state compliance with international obligations

Transnational Labour Relations / Law • National labour relations system must not be understood in

isolation, but within a framework to understand global labour relations

• Problematic when labour decisions are taken in one part of the world and have an effect on labour relations somewhere else in the world

• Globalisation of markets has a profound impact on labour relations

• Transnational labour relations are still in an emerging and formative phase

• Expansion of transnational labour relations would require TU / labour lawyers to adapt in order to function in flexible labour markets in different workplaces

• Transnational TU federations must decide on strategies to confront the challenges of increasing globalisation

Regional Integration v Regional Globalisation• Globalisation – economies become more integrated

almost a “global culture”• Some see globalisation as Americanisation• Economic integration – group of nations form a

regional trading bloc• Regional economic bloc is an entity encompassing

and transcending nation-states• Regional economic organisation gives members

greater ability to protect national or regional interests – this contradicts globalisation

• Social welfare, social institutions and social relations extend beyond national borders – regional character

Regional Integration v Regional Globalisation

• Regional formations often the result of political struggle

• Regional agreements discriminate against third countries – have become protectionist blocs

• Proliferation of regional formations indicate willingness of governments to commit to collaboration

• Regional integration restricts sovereignty of member states to a certain degree

• Regionalisation and Globalisation have similarities but also differences

• Not totally incompatible nor totally compatible

Role of Trade Unions in era of Globalisation• New challenges for TU’s and labour lawyers, no

longer only those applicable at local or national level

• It seems that most TU’s / labour lawyers have not involved in a significant debate on globalisation

• If employers can circulate and operate freely across national borders, TU’s and labour lawyers cant just function within their own national jurisdiction

• Globalisation / Regionalism have altered the balance of power between capital and labour to the disadvantage of labour

Role of Trade Unions in era of Globalisation

• In order to deal with globalisation TU’s and labour lawyers should come up with strategic responses and initiatives to counter act process of globalisation

• Focus must shift from organisational or national issues to regional issues

• There should be greater participation in regional bodies

• Unions and labour lawyers must truly start thinking outside the box

Conclusion• Due to globalisation and or regionalisation the normal scope

of labour law is attaining an international character• Organisations like the UN, ILO, EU, and regional formations

- countries are now faced with decision taken on international level that directly influence their national legal process

• International principles, standards like “decent work”, ILO Core Conventions will be minimum international standards

• Uniqueness of national labour relations / law will not disappear but will more and more be subjected to scrutiny of international and regional organisations

• As globalisation / regionalisation increase the importance of the Transnational Legal Process will become more evident

• Labour Law will have to spread their wings across national borders in order to meet the challenges of globalisation

Thank you