Jules Arntz-Gray MA Thesis

GLOBAL GOVERNANCE AND DECENT WORK:

ARE NORMS AND VALUES ENOUGH?

By

JULES ARNTZ-GRAY

MAIS 702 Integrated Studies Project

submitted to Dr. Paul Kellogg

in partial fulfillment of the requirements for the degree of

Master of Arts – Integrated Studies

Athabasca, Alberta

September, 2014

Contents

Abstract...................................................................................................................................... 1 Acknowledgements .................................................................................................................... 2 Introduction ................................................................................................................................ 3

Thesis Statement ........................................................................................................... 5 Research Question ......................................................................................................... 5 Structure ......................................................................................................................... 5

1. Globalization, work and challenges of global governance: a review of the literature ............... 6 Laying the Groundwork .................................................................................................. 6

Global Labour Markets and Labour Standards as Human Rights ........................ 7 Cooperation ........................................................................................................ 8 Norms 10

Global governance, labour standards and the modern corporation ................................13 Labour Standards and Trade .............................................................................16 Transnational Labour Regulation .......................................................................20 The governance deficit .......................................................................................22

International Labour Organization (ILO) .........................................................................25 ILO, Trade, and Innovative Approaches to Improving Labour Standards ...........26

Corporate Social Responsibility (CSR) ..........................................................................28 Global Compact .................................................................................................30

2. Data – Labour standards in a globalized world ......................................................................32 Occupational Health and Safety ....................................................................................32 Methodology ..................................................................................................................33 Fatality Rate in Select Countries in the Mining and quarrying, electricity, gas and

water supply sector ............................................................................................35 Injury, Illness and Fatality Trends in Ontario’s Mining Sector .........................................38 ILO Convention and Extractive Industries Transparency Initiative (EITI)

Ratification .........................................................................................................49 Global Labour Inspection (in select countries) ...............................................................56

3. Legislative and Regulatory Compliance in the Mining Sector in Ontario, Canada – 2004-2013 .....................................................................................................................59

4. Summary of Results from Sections 2 and 3 ..........................................................................70 Fatality Rate in Select Countries in the Mining and quarrying, electricity, gas and

water supply sector ............................................................................................70 Injury, Illness and Fatality Trends in Ontario’s Mining Sector .........................................70 ILO Convention and Extractive Industries Transparency Initiative (EITI)

Ratification .........................................................................................................70 Global Labour Inspection (in select countries) ...............................................................71 Legislative and Regulatory Compliance in the Mining Sector in Ontario, Canada –

2004-2013..........................................................................................................71 5. In a Complex Global Governance World, How can Labour Standards be Improved? ............73

Mining Sector .....................................................................................................76 Conclusion ................................................................................................................................78 References: ..............................................................................................................................79 Appendix A – Mining Fatality Rate in Select Countries in Detail ................................................86 Appendix B – Orders Issued Pursuant to the Ontario OHSA in the Mining Sector 2004-

2013 Categorized by Occupational Health and Safety (OH&S) System Framework ....................................................................................................................98

Global Governance and Decent Work 1

Abstract

We find ourselves living in an increasingly globalized world where capital, information, and

trade are moving around the world at an unprecedented pace. While the nation state still plays an

important role, borders seem to be blurring and losing some of their relevance. Despite this

apparent weakening of the Westphalian model, institutions of global governance have not filled

the gap and instead remain weak and incomplete, unable to fill the role traditionally expected of

the nation state. In such a world public regulators do not always have the capacity to ensure

labour standards are met. One approach to fill this regulatory gap is self-regulation by the private

sector. But self-regulation without external audit with sanction powers is not enough to ensure

societal goals are met. This paper explores the role that global governance, or its lack may play

in the realization of decent working conditions for all workers, by asking: what is the role for

global governance in decent working conditions for all workers? Is a transformation of norms

and values enough or is some form of a global regulator required and who can play this role if

necessary? This paper examines Ontario’s mining sector, composed of many advanced

transnational companies, in order to test the self-regulatory idea. Analysis of regulatory

compliance – in the developed world with sophisticated companies without independent external

audit with ability to lay sanctions – finds the concept of self-regulation lacking, therefore

challenging the utility of using such an approach in the developing world with weaker

governance regimes.


Acknowledgements

My exploration of global change and globalization as a student at Athabasca University has been

a rich and rewarding experience. This paper is the culmination of the multi-disciplinary

exploration I have had the privilege of being on for the past few years. I would like to personally

recognize and thank a few key people who have supported and advised me along this path. With

regard to the idea that regulatory compliance could potentially be linked to health and safety

management systems I would like to recognize the work of my former manager at the Ontario

Ministry of Labour, Duncan Martin. It was Duncan who initially opened my mind to the idea that

compliance orders could indicate the state of health and safety in a workplace if properly

analyzed. I would also like to thank Dr. Mike Gismondi for listening to my initial ideas in this

research paper and for guiding me to my research advisor, Dr. Paul Kellogg. Paul has been a

great sounding board; I have really appreciated his support and important advice and

suggestions. Last but definitely not least I want to thank my wife Janna, it has been a long

journey and I couldn’t have done it without her support. Her willingness to discuss an at times

bewilderingly wide range of topics, providing key insights and ideas is much appreciated. In

addition I appreciate Janna’s editorial comments; she is a master at helping make arcane ideas

clearer.


Introduction

We find ourselves living in an increasingly globalized world where capital, information, and

trade are moving around the world at an unprecedented pace. It is a world that in many ways

seems to be shrinking. While the nation state still plays an important role, borders seem to be

blurring and losing some of their relevance. Despite this apparent weakening of the Westphalian

model, institutions of global governance have not filled the gap and instead remain weak and

incomplete, unable to fill the role traditionally expected of the nation state. This leaves us having

to deal with global problems that extend beyond the power of any single nation state but without

a global government to tackle these problems.

Increasing globalization has major implications for the working conditions of workers worldwide

– workers who are extracting resources, growing food, and producing goods for a global market.

With business increasingly able to move to jurisdictions providing a ‘favourable’ business

climate, can lower working standards be part of this attraction? If so what factors can control or

mitigate this; what can stop a race to the bottom? Working conditions in the Westphalian model

are the responsibility of the nation state. But what happens when the nation state is unable to

effectively perform this role, either from lack of will or lack of resources and capacity?

Given that institutions of global governance have played central roles in lowering barriers to

trade and capital movement, should there be a role for institutions of global governance in

overseeing and regulating working standards being impacted by this trade and capital

movement? Without a global regulator of labour standards can we create a world with decent

working conditions for all? The International Labour Organization (ILO) is often seen to be

creating norms and values to guide the creation and implementation of decent work, but are

norms and values enough?

In this, my final project as a student pursuing a Master’s degree in interdisciplinary studies at

Athabasca University, I aim to use the interdisciplinary background I have built to flesh out and

explore the role that global governance, or its lack may play in the realization of decent working

conditions for all workers. I intend to explore this question using concepts and theories from

political science, history, anthropology, psychology, sociology, social theory, economics,

evolutionary theory, policy analysis, and complexity science.

It is my belief that the long-term prospects of human civilization will be enhanced by the

evolution of an equitable and sustainable global governance regime and that decent work is a key

component in the creation of such a world. This does not necessarily mean that there needs to be

a global government. But short of the establishment of a functioning global government, does

there need to be a global regulator of labour standards? That topic will be explored in this paper.

This research will be a form of activist scholarship. Realization of a sustainable and equitable

world with decent work for all is not just a research topic but, I argue, a legitimate and important

ethical goal for us all. In this sense it would be most accurate to state that this research project

aims to provide recommendations for improving working conditions through transformative

research.


It is my hypothesis that global governance cannot be achieved within the narrow focus of the

current economic model of globalization. Rather what is needed is a transformative approach

with a view to the long-term prospects, opportunities and threats humanity faces. Such

transformative change cannot occur without changing or at least adapting to the weaknesses of

some of our dominant institutions, such as governments tied to four-year voting cycles (as many

are), and corporations tied to quarterly income statements. But more important than making

institutional changes will be the changing of humanity’s viewpoints (norms and values) – these

viewpoints are often moulded by and constrained by racist, sexist, nationalistic, or religiously

hegemonic cultural conditioning, which will all have to be addressed in the pursuit of this goal.

Global problems and global governance issues like decent work for all are embedded in a

complex policy environment, and those who wish to create an equitable, sustainable world need

to have a sophisticated approach to influencing change beyond the traditional tools available to

nation states. Many jurisdictions around the globe are already accepting this, but only for issues

that fall within their borders. Globally, where there is no government, it is even more imperative

we explore such approaches.

Beyond laws and regulations, there exists a range of other tools that can be employed to achieve

the global equity and sustainability policy objectives. Some of these tools are based on the need

to influence change where command and control approaches cannot be implemented. Others are

based on insights flowing from behavioural economics and compliance psychology. What are the

incentives that lie behind the setting of labour standards, and can changes be made to influence

positive change?


Thesis Statement

In an increasingly globalized world public regulators do not always have the capacity to ensure

labour standards are met. One approach to fill this regulatory gap is self-regulation by the private

sector, but self-regulation without external audit with sanction powers is not enough to ensure

societal goals are met.

Research Question

What is the role for global governance in decent working conditions for all workers? Is a

transformation of norms and values enough or is some form of a global regulator required and

who can play this role if necessary?

Structure

The project below has five major components.

First, is an essay surveying key concepts in the literature, essential to the exploration of

the research question.

Second is an extensive compilation of data on labour conditions in representative parts of

the world economy.

Third is an empirical examination of legislative and regulatory compliance in one sector

(mining) and one jurisdiction (Ontario, Canada)

Fourth are some reflections on the results we can tease out of the data presented in

sections two and three.

Finally, there is my attempt to use the concepts from the essay and the information from

the data to suggest ways in which the research question might be answered.


1. Globalization, work and challenges of global governance:

a review of the literature

Laying the Groundwork

Before digging into the topic of global labour standards it is first necessary to explore this topic

through an interdisciplinary review that begins by digging deeper into the concepts that lie

behind why it is that society has rules and why it is that some follow these rules and some do not.

Labour standards are a small subset of human rights, which themselves are a small subset of the

much larger class of social objects known as norms and values. Norms and values are often used

interchangeably but they do express slightly different concepts. A norm is “a standard or pattern

of social behaviour that is accepted in or expected of a group” (OED, 2014). In contrast values

are “the principles or moral standards held by a person or social group; the generally accepted or

personally held judgement of what is valuable and important in life” (OED, 2014). Therefore we

can see that while norms and values can overlap when one is speaking of the values held by a

social group, values also can be held by individuals. Norms differ with regard to this, as they are

not held by individuals but by their very nature and definition are a part of the fabric of our

social group.

While there are many ways one can approach these issues one good framework approach is that

of social psychology, which is the “branch of psychology that attempts to explain how the actual,

imagined or implied presence of others can influence the thoughts, emotions and behaviours of

an individual (Psychology Centre, 2014). It is through the discipline of social psychology that we

are introduced to the idea of socialization, the concept that explores how individuals learn social

norms, including through observation and imitation of parents, peers and other role models in

society (Psychology Centre. 2014).

Another key concept to be explored is that of compliance, which is “conforming one's outward

behaviour to that of others because of social pressure even though one's private beliefs may not

have changed” (Psychology Centre. 2014). Compliance is achieved through social control which

is the control of individuals or groups in society in order to ensure that social norms are

followed. Various techniques can be used stemming from socialization, which is often invisible

without analysis to the more visible use of laws and enforcement (OED, 2014). Informal social

control occurs when individuals internalise the norms and values of their social group, accepting

them unconsciously, leading to control of behaviour to a far narrower range than available

without such constraints. Formal controls are more visible and are often enforced by

governments and can often be expressed through laws and regulations.

Norms and values that have been internalized are extremely effective methods of control.

Unconscious controls are only with analysis revealed in a manner that would allow questioning

and challenge. Formal controls in contrast are often resisted by the social groups they are applied

to. One feature that may play a key role in any exploration of global labour standards is the idea

that corporations, while “persons” under the law are not themselves swayed by norms and

values, it is only people that are. This leads to the idea that while individuals are not truly the


rational economic actors often seen in economic theory we will examine whether it may be true

that corporations can be. While there may be no Homo economicus, there may be a Corporis

economicus, therefore any attempt to apply norms and values may need to consider this.

Global Labour Markets and Labour Standards as Human Rights

While globalization is not a new phenomenon, since the end of the twentieth century we have

seen increased economic globalization principally through the creation of globally extended

capital markets and also through the outsourcing of production in global supply systems across

the globe. Many argue that this recent globalization has been predominantly liberal capitalist and

pro-business and that international social and environmental governance mechanisms have not

kept pace with this rapid growth. “We are, in other words, faced with a highly imbalanced

globalization, where, judging by the standards of advanced democratic industrial economies, the

global space remains politically under-governed – particularly in the environmental and social

fields. Yet while the global markets remain politically under-governed in a political sense,

Corporate social responsibility (CSR) and business self-regulation have rapidly expanded”

(Midttun, 2008, pp.406-407). This is an interesting new development that may be an innovative

creation of governance mechanisms where they are lacking, or it may be a smokescreen based on

protecting brand without truly providing governance.

Our commerce has for millennia been embedded in a system of social rules. Even the ancient

Israelites circa 1500 BCE had safety rules for construction projects, "When you build a new

house, be sure to put a railing around the edge of the roof. Then you will not be responsible if

someone falls off and is killed” (GNB, Deuteronomy 22:8, p.195). Markets set up in medieval

European cities were created and sustained by a network of actors, the ‘Great Chain of Being’,

who each had a defined role, from the monarch who provided the charter or franchise, to the

merchants and customers who bought and sold products within a defined set of conventions and

rules. Human have consistently set up systems that have a defined set of “rules of the game”,

some explicit and some implicit, that shape political, social and economic interactions (Mouzas

and Ford, 2009, p.496).

Eleanor Roosevelt discussed the idea of human rights at the individual and local level, “Where,

after all, do universal human rights begin? In small places, close to home-so close and so small

that they cannot be seen on any map of the world. Yet they are the world of the individual

person: the neighbourhood he lives in; the school or college he attends; the factory, farm or

office where he works. Such are the places where every man, woman, and child seeks equal

justice, equal opportunity, equal dignity without discrimination. Unless these rights have

meaning there, they have little meaning anywhere” (Carozza, 2003, p.38). So while we are

taking a global view, it is at the level of each and every worker that labour standards are truly

realized. Labour standards are a subset of human rights and are based on the concept that “each

human individual is endowed with an inherent and inalienable worth, or dignity, and thus that the

value of the individual human person is ontologically and morally prior to the state or other

social groupings" (Carozza, 2003, pp.42-43).

The intersection between business and human rights has been a topic explored by the United

Nations (UN) for the last several decades, most recently led by John Ruggie establishing the


Global Compact in the year 2000 and then from 2005 to 2011 as the United Nations Secretary-

General's Special Representative for Business and Human Rights. In the latter role, Ruggie

asserted that “business is the major source of investment and job creation, and markets can be

highly efficient means for allocating scarce resources” (Ruggie, 2008, p.3). Business is a creation

of our societies, a creation that is capable of generating economic growth and reducing poverty.

Business also can play a role in increasing the demand for the rule of law, which is a key

underpinning of a robust human rights regime. But history has shown us that markets only work

towards the goals of society as a whole when “they are embedded within rules, customs and

institutions. Markets themselves require these to survive and thrive, while society needs them to

manage the adverse effects of market dynamics and produce the public goods that markets

undersupply” (Ruggie, 2008, p.3). In fact, business actually poses the greatest risk to both

society and itself when its scope and power far exceed the governance mechanisms that allow

them to function effectively by providing necessary stability. “This is such a time and escalating

charges of corporate-related human rights abuses are the canary in the coal mine, signalling that

all is not well” (Ruggie, 2008, p.3).

As with all complex problems, the solution is complex as well. Three pillars of society –

government, business and civil society – need to work together in new, yet to be fully developed

ways (Ruggie, 2008, p.4). Not surprisingly the worst human rights violations by business occur

in locations in the world where the governance systems are the weakest (Ruggie, 2008, p.7). It is

in many of these countries that we have seen rapid market growth, and noticeable governance

gaps with regard to the ability of political actors to manage any potential detrimental effects of

such growth (Ruggie, 2008, p.27).

Ruggie has detailed how some positive progress has been made. Some of these include

innovative “multi-stakeholder initiatives, public-private hybrids combining mandatory with

voluntary measures, and industry and company self-regulation” (Ruggie, 2008, p.27). . Despite

some of these positive developments the key issue remains; there are more harms than methods

to tackle them, and as of yet there is no coordinated approach to dealing with challenges to

labour standards on a global scale so any initiative remains at best a band aid solution (Ruggie,

2008, p.27).

Cooperation

The first issue that needs to be addressed is whether a world where labour standards are

universally respected is even realistic. The good news is that, Thomas Hobbes notwithstanding, it

is increasingly clear from both observation and experiment that humans do seem to have evolved

into a (mostly) cooperative species. This may be explained away as kin selection or reciprocal

altruism, both of which have self-interest at their core. In fact recent experiments have

potentially revealed behaviours that do not seem to be explicable using just kin selection or

reciprocal altruistic theories.

Experiments are beginning to show not only that we have a strong tendency to cooperate but also

that we are willing, even when it hurts us, to punish those who violate the norms of cooperation

(Gintis, Bowles, Boyd and Feyr, 2002, p.153). Researchers have termed this strong reciprocity


and the experimental results are showing that this tendency to cooperate and to punish those who

don’t, even when it causes personal harm, occurs even when it is unlikely that any costs will be

repaid (Gintis, Bowles, Boyd and Feyr, 2002, p.154). Fascinatingly, these results show up across

cultures across the world. “The canonical model of self-interested behaviour is not supported in

any society studied…all societies…behaved in a reciprocal manner” (Gintis, Bowles, Boyd and

Feyr, 2002, p.158). These results challenge a major tenet of standard economics – that of the

Homo economicus. Research has found higher rates of cooperation than such an economic model

would ever predict, with even higher cooperation rates when the subjects are given the option of

incurring a cost to punish so called “free riders” in the system (Gintis, Bowles, Boyd and Feyr,

2002, pp.158-159).

While these systems are not restricted to the human species, in humans they reach a level

unobserved elsewhere in nature. “More complex and unique mechanisms to enforce cooperation

have arisen in humans, such as contracts, laws, justice, trade and social norms, leading to

incredible feats such as the extreme division of labour that keeps large cities or nations going”

(West, El Mouden and Gardner, 2011, p.255). Results such as these are starting to appear in

economics and political science research with new theories beginning to explore fairness,

reciprocity, aversion to inequality, a concern for relative payoff and a tendency to punish those

who aren’t cooperative (Henrich, Boyd, Bowles, Camerer and Fehr, 2001, p.45). This goes in the

face of received wisdom, at least of the economic variety (Gintis, Bowles, Boyd and Feyr, 2002,

p.163). These results are significant and should be considered in any public policy considerations

with regard to economics and social policy.

Increasingly, the concept of humans as selfish beings, Homo economicus, is being disproven. In

reality, individuals care about fairness and reciprocity and they are willing to reward those who

cooperate while punishing those who do not (Henrich, Boyd, Bowles, Camerer, Fehr, Gintis, and

McElreath, 2001, p.2). While contemporary experiments have recently expanded on these ideas,

they are not new. In fact even Adam Smith, the father of modern self-interested economics

understood this fact. “How selfish soever man may be supposed, there are evidently some

principles in his nature, which interest him in the fortunes of others, and render their happiness

necessary to him, though he derives nothing from it, except the pleasure of seeing it” (Smith,

1759, p.1).

The reality of the importance of cooperation is clear once anyone begins any thought into the

creation of any product we use. The essay, I Pencil articulates the complex cooperative

relationships needed to create even a pencil. “…because I am seemingly so simple. Simple? Yet,

not a single person on the face of this earth knows how to make me” (Read, 2000, paragraph 4-

5).

It appears that at our core, rather than being a selfish species, we are in fact a social one, even an

empathic one. This is not a trivial debate, but rather one of the core debates in the social

sciences. Are we Homo economicus or Homo sociologicus (Elster, 1989, p.99)? As with all truly

complex questions though the answer is likely far from being restricted solely to a binary option.

Actions are likely influenced by both rational thought and by norms with the outcome likely

being some form of a compromise between Homo economicus and sociologicus (Elster, 1989,

p.102).


Our evolution appears to show an increasing expansion not only of our increased power over

nature, but also to our growing extension of empathy even beyond our own (Rifkin, 2010, p.2).

These are important findings especially given that in our increasingly complex global world the

nation state is no longer omnipotent and self-sufficient (was it ever?). As Crozier (1987) puts it,

the modern state is a modest state that has been forced to recognize that many social problems

are complex, interdependent and can only be solved by working with all of society.

It is only in such a collaborative society that complex problems will be tackled, and this is a

model that has been missing in all previous models of governance (Mendoza and Vernis, 2008,

p.390). Mendoza and Vernis call this approach the relational state. It is built on the concept of

subsidiarity. No one area of society is given precedence over another, in such a model,

government can work with civil society, business can work with government etc., all approaches

are possible and will likely be needed. Both competition and cooperation, and sometimes the

combination of both, will be needed to create innovative, alternative ways to achieve social

efficiency and effectiveness (Mendoza and Vernis, 2008, p.390). In such a model all sectors

should cooperate and complement each other or even, in some public services, compete with

each other” (Mendoza and Vernis, 2008, pp.393-394).

Norms

While it appears that our very biology and psychology may be positively reinforcing cooperative

approaches, the next question is: what is it that we are cooperating on? This is where we must

now explore norms and values. Norms are rules or patterns of behaviour that maintain order to

guarantee social regulation (Coelho and Costa, 2009, p.440). Norms are often enforced without

the need of any state apparatus, but rather they are enforced through the use of moral

judgements. Such moral judgements mark a behaviour as compliant or not to the set of moral

norms. From moral judgements flow regulative actions, of which there are two kinds, either

punishments or rewards (Coelho and Costa, 2009, pp.440-441). A suite of emotions serve to

reinforce our social norms including shame, guilt, pride, regret, and joy amongst others. Pro-

social emotions provide guides “for action that bypass the explicit cognitive optimizing process

that lies at the core of the standard behavioural model in economics” (Bowles and Gintis, 2002,

abstract).

Some scientists are now starting to claim that little progress has been made in understanding how

norms affect behaviour because too much emphasis has been placed on trying to come up with a

self-interested explanation, neglecting the role of evolutionarily-derived emotions on behaviour

(Bowles and Gintis, 2002, p.1). This points to the underlying psychological importance of

behaviour that may stem from non-conscious and not necessarily rational influences.

Norms that are consciously recognized can be explained as worthy of following either to

maximize rewards or to avoid punishment. Internalized norms though are ones that have been so

fully accepted that rather than being seen as a constraint they are seen as an argument in support

of our objective function. “We strive to conform to internalized norms not because we will be

punished if we do not conform, but because we actively wish to conform…Sociological theory

treats the internalization of norms as a central element [in] the analysis of pro-social behaviour.

Norms are internalized from parents (vertical transmission), influential elders and institutional


practices (oblique transmission), and one’s peers (horizontal transmission)” (Bowles and Gintis,

2002, pp.19-20).

These concepts cannot be overstated in their importance to social policy. A standard economic

approach when arguing how to deal with unethical or anti-social behaviour is to raise the cost to

the individual of that behaviour. What is missed in this approach is that in some settings, costs

actually can infer legitimacy, in that the willingness to pay for the harm somehow offsets it.

What is misunderstood in this approach is that laws and regulations have a power of their own, a

power to stigmatize antisocial behaviour, thereby influencing behaviour, at times becoming

internalized (Hirschman, 1985, p.10).

The important thing to understand is that norms are often hard to discern, they often work in

what can be described as an invisible hand manner, but are not unchangeable (Helbing, Yu, Opp,

and Rauhut, 2010, p.1). Helbing et al describe how norms can emerge through deliberate action

such as through the passing of laws, or they can arise on their own forming the customs of the

culture we find ourselves immersed in, such as what is appropriate to wear to work (Helbing, Yu,

Opp, and Rauhut, 2010, p.4).

What makes norms relevant to areas of human rights such as labour standards is that

norms do not need external sanction to be effective. When norms are

internalized, they are followed even when violation would be unobserved and

not exposed to sanctions. Shame or anticipation of it is a sufficient internal

sanction…I don't throw litter in the park, even when there is nobody around to

observe me. If punishment was merely the price tag attached to crime, nobody

would feel shame when caught. People have an internal gyroscope that keeps

them adhering steadily to norms, independently of the current reactions of others

(Elster, 1989, pp.104-105).

Now some, possibly from the economic academy, may claim that what appear to be irrational

norms may on closer inspection be shown to actually be disguised self-interested behaviour. The

research, however, does not bear this out. Some norms actually make everyone worse off, or at

least in no way make the majority better off than if the norm did not exist. In addition, we can all

imagine norms, which, if internalized would actually make everyone actually better off, yet these

norms do not exist (Elster, 1989, p.108). For instance, Elster gives the example that a norm for

using public transportation would lead to less congested roadways and less commuting time for a

majority of people, yet such a norm does not exist (Elster, 1989, p.113). The capacity to

internalize the norms that do exist in our society is widespread among humans, though amongst

‘‘sociopaths’’, this ability to internalize norms is diminished or lacking, a fact which may be

useful when thinking about the legal “people” we call corporations (Gintis, 2003, p.407).

Given that corporate “citizens” are not flesh and blood creatures it can be argued that, for them,

the important social control function played by norms is non-existent. When considering the

social control or risk reduction approach with regard to corporations we often again see a binary

opposition. Either corporate action is based on preserving reputational capital or it is based on

protecting human rights. What will continue to be a theme throughout this paper is that binary

opposition models are too simplistic. The world is not binary, and it is far more gray than black


and white. In fact these views are mutually supportive of each other. “Human rights form the

core of global corporate governance; normative exemplars systematize human rights and

incorporate standards of practical reason; proactive compliance with human rights

simultaneously builds reputational capital (intangible assets), while advancing integral human

fulfillment, thus harmonizing moral obligations running to shareholders and stakeholders”

(Jackson, 2008, pp.440-441).

At this stage a concept that needs to be explored with regard to norms and values is that of

institutions, a subject covered brilliantly by Douglass C. North (1993) in his lecture to the

memory of Alfred Nobel. Institutions form the networks of incentive structures that underlie our

political and economic systems and our very society of which norms and values play a part.

These incentive structures are one of the key determinants of economic performance. Time is

also a key factor here; time is the dimension that needs to be considered with regard to the

necessary learning process to occur through which humanity shapes how our institutions evolve.

The beliefs that individuals, groups, and societies hold and determine their choices are a factor of

this learning over time, a time greater than the lifespan of any given individual or even of a

generation. Institutions and their incentive structures are created over spans of time through

lessons passed on inter-generationally by our societal cultures (North, 1993, Part I).

Institutions are the humanly devised constraints that structure human interaction.

They are made up of formal constraints (rules, laws, constitutions), informal

constraints (norms of behaviour, conventions, and self-imposed codes of

conduct), and their enforcement characteristics. Together they define the

incentive structure of societies and specifically economies … Institutions are not

necessarily or even usually created to be socially efficient, rather, they … are

created to serve the interests of those with the bargaining power to create new

rules (North, 1993, Part II).

With institutions creating the rules of the game, organizations, as groups of individuals bound

together by a common purpose, can be seen as the players. Examples of organizations include

political entities, economic entities, social entities and educational entities. What organizations

can come into existence depends on the institutional framework in society. If making a profit is

rewarded by the institutional structure, then profit-making organizations will flourish (North,

1993, Part III). It is institutions that transform our belief structures into societal and economic

structures. All of us create mental models to interpret our environment and institutions are the

mechanisms created to provide structure and order to those mental models (North, 1993, Part

IV).

As already discussed time plays a key element, it is the transmission of our accumulated

knowledge over time that leads to path dependence. Path dependence speaks to the powerful

influence the past can have on the future, in some ways it is analogous to the inertia of a society.

So whatever learning and change we try to make today, such as by incorporating new labour

standards, we have to realize that learning is an incremental process that is always filtered

through a cultural lens that will determine what it perceives as the pay-offs. The issue can be that

there is no reason to think that the cumulative knowledge extending from the past forward into

the future is necessarily the right way to approach and solve new problems.


There is a chance that due to societal inertia, institutions built on beliefs can fail to properly

address global problems of increasing complexity (North, 1993, Part V). Therefore, considerable

thought and experiment may need to be put into considering how to alter cost/benefit rations that

favour cooperative approaches that value things like labour standards. This may include more

than just changes to political institutions but also economic institutions. North argues that this is

a key reason for the failure of development policies in the underdeveloped world since the end of

World War II. He argues that neo-classical economics fails to consider the important role of

institutions and the societal incentive structure they enforce (North, 1993, Part VI). By ignoring

or misunderstanding these incentive structures neo-classical economics makes incorrect

assumptions that time and institutions don’t play a key role (North, 1993, Part I). So while

formal rules can be changed at the stroke of a pen, informal norms change only gradually over

time. It is from norms that rules gain their legitimacy, so revolutionary changes to rules will

always have less of a revolutionary impact than expected due to norm inertia. This is especially

true in settings where rules from different societies and cultures are adopted, what is missing

with the new rules is the norms and their attached societal enforcement mechanism that

undergird formal rules (North, 1993, Part VII).

So, we find ourselves with some tools that are inherent to ourselves as a species. We are a

cooperative species which can form norms and be guided by values and create institutions. But if

it was that simple then there would be no need to work towards improved human rights, and yet

that is the world we find ourselves in. While we may be at heart cooperative, we still do also act

with self-interest and what is important to understand is that no matter what rules are in place,

humans have a tendency to try to “game the system”. The challenge for policy makers is to

understand this and to design the rules in such a way that, when organizations or individuals

interact, desirable outcomes are still possible. (Veal and Mouzas, 2011, p.290).

Global governance, labour standards and the modern corporation

It is important at this stage to try to get a sense of what is meant by the concept “global

governance”, a term that is becoming increasingly common. Some may argue that global is a

synonym for other words used in the discussion of the world political system for decades, words

such as international, interstate, intergovernmental, or transnational. Yet if this were so then why

are not those terms used in place of the less clear term global? We must assume there is a

different intent (Finkelstein, 1995, p.367). What seems to be increasingly recognized as different

is that there are an increasing number of actors playing increasingly significant roles. Especially

noticeable is the rise of non-state actors and Transnational Corporations (TNCs) on the global

stage. The interconnectedness of all of these actors in the decision-making processes, in states

and between states, has created a situation that is increasingly tangled and complex (Finkelstein,

1995, p.367).

Lack of clarity is also applicable to the term governance. “

At least it must be clear that it does not mean ‘government’, or we would say

that instead. Since that term would be used”. The use of the term governance is

deliberate. “Since the international system” composed of states, business, and

non-state actors “notoriously lacks hierarchy and government, the fuzzier word


governance is used instead…In other words, we say ‘governance’ because we

don't really know what to call what is going on (Finkelstein, 1995, pp.367-368).

Lawrence Finkelstein has captured a very workable definition when he states that global

governance “is any purposeful activity intended to ‘control’ or influence someone else that either

occurs in the arena occupied by nations or, occurring at other levels, projects influence into that

arena” (1995, p.368). Another way to describe global governance is to say that it is doing

globally what governments do within state boundaries (Finkelstein, 1995, p.369).

While it is still argued today by some that problems such as poverty, human rights violations and

environmental issues outside of one’s country are beyond ones control and even moral

responsibility, globalization continues to shrink our world and this position is becoming

increasingly untenable. Our own actions in our country can be connected to issues of concern in

other countries, and global problems can also have local impacts. Due to the increasing

interconnectedness of all societies solely expecting each nation state to solve its own problems,

when part of the causes are beyond their nation’s borders is increasingly indefensible (Rajan,

2006, p.3).

At this point I will bring the United Nations (UN) into the discussion of the concept of global

governance. The UN clearly has had some successes with influencing behaviour that occurs at a

global level. This includes the establishment of universal standards and frameworks to support

them such as in the area of human rights. In the past raising any question of human rights

concerns occurring within territorial boundaries of a nation-state was considered off limits but

today it has become increasingly accepted that such critique, and at times even action and

response are the role of bodies like the UN (Boutros-Ghali, 1995, p.3). It is now recognized that

for many issues it is beyond the capacity of any single nation-state to act on its own such as in

efforts to tackle disease, pollution or global climate change (Boutros-Ghali, 1995, p.9).

Labour standards are theoretically one area that is within the scope of control of a nation state.

Many nation states do a relatively effective job at producing and maintaining labour standards.

However, we do not see equal successes in all countries across the globe. This is where

organizations such as the UN and others can play a role. Boutros-Ghali describes how the UN

now has the capacity to discuss, investigate, make recommendations, and even condemn a

member state for violations of human rights (Boutros-Ghali, 1995, p.3). A positive benefit of

increasing globalization is that it has raised both economic and political awareness around the

world. The issue is that “many are aware that they have little or no say in changing the

conditions affecting their lives” (Boutros-Ghali, 1995, p.4).

With the protection of human rights as one of its main purposes the UN is a key player with truly

global reach in realizing a world where human rights are respected. What has limited the role of

the UN in protecting labour rights though is the fact that it is primarily focused on the actions of

governments. When the responsible government is incapable of action, or where key actors that

could actually make a difference are in the private sector the UN’s ability to influence change is

reduced (Frey, 1997, p.155).

Here, the intersection between global governance and corporations becomes important.

Historically, corporations have not been the focus in discussions of responsibility for human


rights. This is changing, especially since the 1970’s when calls for transnational codes of conduct

for TNCs began. As corporations find themselves increasingly critiqued, many of them are

creating their own policies regarding human rights in the countries they are active in (Frey, 1997,

p.154, 158). In addition in some instances the activities of corporations in other countries are

regulated by laws in the domestic jurisdiction they are based in. For instance in the United States

corporate investment in countries with serious human rights violations can be banned (Frey,

1997, p.158).

Despite serious attempts to create some kind of legal framework regarding the actions of TNCs

starting in the 1970’s, the climate has changed. It is unlikely that binding global regulations

would be accepted without a struggle. There has been “a retreat from the international control

model that was in vogue in the 1960s and 1970s regarding TNCs. States once critical of TNCs

now find themselves competing for the benefits of foreign direct investment from multinational

companies” (Frey, 1997, pp.159-160). It is for this reason that activists in many cases have

turned their gaze directly on the companies themselves in order to influence change.

While legal scholars agree that the Universal Declaration of Human Rights applies to nation

states it is not as clear as to whether it applies to TNCs. As a treaty it binds the governments that

ratify it but not the entities that fall under that government. However there are duties for TNCs

under the International Bill of Human Rights to respect the rights of others. Articles 29 and 30 of

the Universal Declaration and corresponding articles 5(1) of the Economic, Social and Cultural

Rights Covenant and the Civil and Political Covenant also address both individual and corporate

behaviour with regard to human rights. These agreements state that no person or private entity

may engage in an activity which treads upon any other person's rights and freedoms. While

providing some restrictions these covenants do not require TNCs (or individuals for that matter)

to proactively take steps to ensure human rights are respected such as by preventing others from

violating these rights, regulating these entities is left up to the responsible national government

(Frey, 1997, p.163).

Affirmative responsibility remains in the hands of governments, who themselves have the power

to create legislation regulating the behaviour of the individuals and the private sector. What this

means is that in countries with weak laws with regard to labour rights the only obligation for

TNCs is to comply with the local laws of the jurisdiction they operate in. This speaks only to the

legal duties of a TNC, it can be argued that there still is an ethical and/or moral duty to respect

and support the goals of the Universal Declaration of Human Rights (Frey, 1997, p.163). Frey

argues though that a TNC is unlikely to adopt affirmative actions towards the realization of

human rights without being forced to (Frey, 1997, p.165).

While some may argue that issues such as labour rights are not the concern of global governance

the truth is that without consideration of the fact that not every state has the same capacity or

even inclination to enforce labour rights, such rights will continue to be haphazardly enforced.

Examples abound. Kolben discusses in just one case the fact that factory owners working in

Cambodia have few ties to Cambodia, and their modus operandi is to move regularly, moving

from low-wage countries to even lower wage countries as working conditions improve. It is this

movement from country to country, seeking low wages and weaker regulatory regimes that allow

them to produce at the lowest possible cost, and therefore highest profit (Kolben, 2004, pp.82).


The Cambodian example is instructive, as a relatively strong labour code has been in place there

since 1996 without consequent improvements, showing that laws are only one piece of the

puzzle. According to Kolben a strong labour code hasn’t prevented poor working conditions in

Cambodian garment factories (Kolben, 2004, pp.83). Part of the reason for this was that laws

need enforcement in order to achieve their public policy goals. In the case of Cambodia

enforcement was poor partly to the weakness of the labour inspectorate. Not only was there a

lack of necessary technical knowledge, but the inspectors, like civil servants in many developing

countries, are paid low wages. Kolben argues that these low wages lead to increased corruption

in the form of the taking of bribes just to make ends meet. But beyond this issue at the level of

the individual inspector, there were also strong incentives for the state to not desire strong

enforcement of the labour code due to political and financial interests arising from the strong

connection between the political class and the private sector (Kolben, 2004, pp.85). This is not to

say that there weren’t some incentives pushing for labour standards. In 2000 for instance the Free

Trade Union of the Workers of the Kingdom of Cambodia (FTUWKC) led a strike of up to

20,000 garment workers asking for a higher minimum wage with result that the minimum wage

was subsequently raised (Kolben, 2004, pp.87). Yet despite this factory owners continue to know

that paying the appropriate bribes at the appropriate levels can be a cost effective method to

circumvent labour standards.

A key challenge is in front of us as we find ourselves in a transition period in our history. The

challenge is that as the worldwide interdependence of social entities grows, there is a concurrent

erosion of the sovereignty of nation states. Martinelli defines globalization as “a set of related

processes that interconnect individuals, groups, communities, states, markets, corporations and

international and non-governmental organizations in complex webs of social relations; and, more

synthetically, as the growth of networks of worldwide interdependence” (Martinelli, 2003,

p.294). The challenge though is the complexity this engenders. Who is in charge, who is

responsible, how do we ensure labour rights are protected?

Some of the problems growing out of our increasing globalization include trans boundary

problems (e.g. cross-border human trafficking, pollution); common property problems (e.g.

oceans, the atmosphere); and simultaneous problems (i.e. nations experiencing similar problems

in urbanization or downward pressures on labour rights (Tapscott and Gegenhuber, 2013, p.2). In

a more insulated world a single nation state was free to manage its labour rights regime as it saw

fit, now with increased capital mobility, issues of remaining competitive come to the forefront. If

labour rights impact competitiveness, then there may be incentives to weaken labour right

regimes. What this can lead to is simultaneous pressures on all jurisdictions to continually erode

rights in an endless competitive spiral downwards.

In the next few sections we will explore the major mechanisms that are playing a role or could

play a role in improving global labour standards.

Labour Standards and Trade

Our current global trading system was built on three fundamental principles. The three

fundamental principles are:


“Non-Discrimination: this principle is in two parts. Members of the system must extend

to all other members the privileges that are extended to any one of them (Most Favored

Nation). Further, they must offer foreign trading partners conditions no less favourable

than those offered to domestic competitors (National Treatment).

Transparency: this principle is not used in the traditional sense, but instead refers to

countries (or trading entities) being fully transparent about the criteria, standards, and

regulations that apply to trade with them.

Peaceful Settlement of Disputes: it is often said that trade sanctions represent the one

effective tool available to States to constrain or influence the behavior of other States,

beyond the weak approach available through diplomacy and the other extreme of

warfare” (Halle, 2006, pp.2-3).

While these three trade principles guide global trade, especially through organizations such as

the World Trade Organization (WTO), over a half century of experience has shown that these

principles alone do not guarantee the emergence of an ideal world. A key issue in

conceptualizing labour standards is that the trading principle of non-discrimination has been

argued as a reason not to consider the conditions of production for the products that are traded.

The WTO … has tended to maintain the position that the test of ‘likeness’

should rely on the physical characteristics of the traded goods” and not to the

way a good was produced. Thus “a manufactured good prepared through a

process involving child labour or at the cost of destroying natural resources or

polluting waterways, is to be treated at the border no less favourably than a

good produced using the most environmentally and socially preferable process

(Halle, 2006, p.3).

Despite attempts to disregard how something is made, this approach has not stood the test of

time. While at present the WTO still does not consider labour standards it does consider other

conditions regarding how a good was produced including those produced “identically” and

therefore violating intellectual property rights. In addition the WTOs appellate body “has taken

the position that trade law must not be considered in isolation from other rules governing public

policy” (Halle, 2006, p.3).

The idea of using trade agreements to enhance labour standards is not a new idea; it has been

sought since the early 1800’s as a way to protect workers from economic exploitation

(Trebilcock and Howse, 2004, p.261). International conferences to discuss this very issue were

first held beginning in 1890, these conferences were held as it was felt by participants “that in the

absence of international labour standards, international competition in an environment of

increasingly freer trade would precipitate a race to the bottom” (Trebilcock and Howse, 2004,

p.266). Some characterize allowing countries with lower labour standards equal trading rights is

in fact a form of unfair competition. Countries that do not comply with international labour

standards are accused of engaging in social dumping, by allowing lower standards they are

providing a subsidy which allows the relevant industry to lower prices thereby outcompeting

those with stricter labour regimes (Trebilcock and Howse, 2004, p.266).


The counter argument from exporting countries, particularly developing ones is that given that

their main and often only competitive advantage at their disposal in competition with advanced

economies is their access to low cost labour. “To deny them the ability to exploit this advantage

is to consign them forever to low value-added commodity production for developed country

markets (‘hewers of wood and drawers of water’)” (Trebilcock and Howse, 2004, p.267).

Regardless of the arguments for or against trade including labour standards, the fact is that WTO

rules already have and do influence rules outside of the scope of trade law. Domestic laws,

regulations and standards are now regularly scrutinized in light of WTO obligations and where

found in conflict are often modified. This practice favours trade laws over other public policy

goals such as labour and environmental legislation. It seems disingenuous for the WTO to claim

it cannot be impacted by concerns beyond trade when at the same time trade law demands that

all other concerns be subordinated to its principles (Halle, 2006, p.5). In addition, what has been

increasingly recognized as unfair in the very creation of the WTO was that the WTO rules were

presented as an all or nothing option. Membership requires acceptance of all the rules with no

possibility to pick or choose if adoption would seriously impact domestic policy goals. The

implication of this is that the WTO trade rules are given “a power and authority that goes well

beyond the rules governing environment, social justice, or other areas of development concern”

(Halle, 2006, p.6).

The WTO itself admits that the global trade regime is intended to advance other public policy

objectives, not to undermine them. Therefore even if the WTO does not wish to administer

labour standards, it should at the very least create a system where trade rules do not have the

unintended consequence of conflicting with other societal goals (Halle, 2006, pp.8-9). “Trade is

a tool, a means to an end, and not an end in itself…development that pursues economic growth

and efficiency while addressing social equity and inclusion, and the sound management of

natural resources and ecosystems—is the end that trade is designed to serve, and that trade must

serve” (Halle, 2006, p.9).

It is important at this point to explain that the resistance to the inclusion of labour standards into

trade rules is not something that is coming exclusively or even predominantly from developed

countries or TNCs. A large portion of the resistance has come from developing nations for the

reason enumerated above with regard to concerns of any erasure of their often sole competitive

advantage which arises from the ability to provide low cost labour. The tripartite decision

making process at the ILO (representatives of trade unions, employers and governments) has

found itself subject to this disagreement and even global labour union bodies have been unable to

come to consensus on these issues amongst themselves (Wilkinson and Hughes, 2000, p.261).

Interestingly, resistance is not found just among labour and employer groups but also from the

International Labour Organization (ILO). The ILO has exhibited significant resistance to the

inclusion of punitive social clauses, as their organizational approach has always been to pursue

improved labour standards by encouraging best practices and by providing technical assistance.

If even the ILO is resistant to the inclusion of labour standards into WTO agreements, it is hard

to envision how the two organizations could effectively come to a cooperative arrangement

ensuring they are included (Wilkinson and Hughes, 2000, p.265).

Providing further context is other initiatives that are occurring at the global level, most

importantly the launch of the Global Compact at the 1999 World Economic Forum by then UN


Secretary General Kofi Annan. Annan rejected linking labour standards and trade rules and

instead proposed a compact calling on business to uphold core worker rights in return for a UN

commitment to work to maintain an environment that favours trade and open markets (Wilkinson

and Hughes, 2000, p.266). Studies from both the Organization for Economic Co-Operation and

Development (OECD) and the ILO have argued that compliance with core labour standards is

likely to have no negative implications for exporting countries and in some studies substantial

welfare gains will be made (Trebilcock and Howse, 2004, pp.268-269).

As far back as the early 19th

century there has been concern that without global labour standards

the inevitable outcome will be a race to the bottom with regard to standards with no winners in

the end. Such an outcome for many can only be avoided by ensuring that some form of

international agreement on global labour standards and their enforcement is reached (Trebilcock

and Howse, 2004, p.270). Many of the above arguments have remained focused on economic

outcomes, but it is important to remind ourselves that many, with strong moral rationale, argue

that regardless of the supposed economic impact of labour standards what is needed is a human

rights perspective.

A human rights perspective challenges one to think beyond the calculations of economists and

instead to consider whether rights for those in the developed world should just as equally apply

to those in the developing world. Such an approach is sceptical of the argument that developing

countries are resistant to the imposition of stronger labour standards based on the argument that

this is not based on the will of the people but rather reflects the will of governments that are

either unrepresentative, repressive or reflect the interests of those with power and who gain from

weak standards. Even when citizens themselves resist rights that would improve their own labour

conditions, they argue that this is often in countries where the citizenry is uniformed and often

poorly educated (Trebilcock and Howse, 2004, p.272).

An example of how a linkage between labour standards and trade can be made can be seen in

Burma. In 2000 the ILO, based on serious labour and human rights abuses, invoked Article 33 of

its constitution encouraging its members to encourage compliance with labour standards from

Burma enforced by member state actions. In 2003 the US congress did that very thing, enacting

the Burmese Freedom and Democracy Act which authorized human rights based trade sanctions

in with Burma (Trebilcock and Howse, 2004, p.282).

No matter whether labour standards and trade rule are linked, labour standards cannot be

exclusively addressed through trade rules. Other important elements include clear reporting and

the provision of technical assistance in order to allow national regulators to effectively address

labour standards issues in their own jurisdiction (Albertson, 2010, p.510). In situations where

trade rules are considered an appropriate mechanism to improve labour standard though Banks

has developed some important necessary core elements:

1. “A mandatory process through which the parties deliberate upon and identify a program

of measures constituting reasonable best efforts to improve core labour standards

compliance over a determinate period of time, and iteratively redefine such best efforts.

2. Economic or other incentives sufficient to offset short run incentives for non-compliance

that in practice remain contingent upon such agreement and upon ongoing best efforts,


and will only be removed in the event that best efforts cease. In particular, the withdrawal

of benefits should not follow failure to carry out any particular measure, nor should it

follow a failure to comply with a conception of core labour standards compliance

requiring anything other than the set of measures agreed upon as a program to be

implemented within any given time period.

3. Systematic monitoring by a reliable and neutral third party of whether best efforts are

being carried out, and of whether they are achieving their goals.

4. Transparent reporting of monitoring results in order to ensure state accountability for

those results, and that subsequent negotiations respond to findings with respect to

whether best efforts have achieved core labour standards compliance improvements.

5. Regular opportunities for stakeholder consultation and input with respect to the design of

the program in order to ensure that those with an interest in its implementation accept its

broad contours and attempt to hold governments accountable for its implementation”

(Banks, 2011, pp.138-139).

Transnational Labour Regulation

If trade rules do not include labour standards, then consideration must be given to the exploration

of the creation of global, transnational labour legislation. Given concerns that developing nations

may be prevented from pursuing their social development goals if they come in conflict with

short-term economic incentives, one possible strategy would be to create legal incentives as a

counterweight. Economic incentives in the developing, and potentially even developed nations,

may be strong enough to either prevent or erode national labour standards. In this case a

requirement to meet international labour laws could take the political pressure of individual

states, and instead put labour law into the same sphere as the international trade law they are

already trying to comply with (Banks, 2011, p.136).

Kevin Banks argues that global trade is a different game with different incentives. Pressures on

business aren’t the same as in a solely domestic sphere. For instance, states have no control over

whether their competitor states comply with equal labour standards, the concern is that those that

don’t will undercut those that do. A system that could provide such assurances could encourage

their own compliance with labour standards. Some argue that monitoring and transparency can

provide such assurances but a majority of states do not participate in such schemes, including

major players such as China. Even in cases where monitoring and transparency have uncovered

labour standards abuses it has rarely adversely affected the state as a whole (Banks, 2011, p.136).

The application of law to address standards in other countries has in some instances been done

unilaterally by domestic legislatures thereby controlling the actions of business in dealing with

certain countries. The US since 1930 for instance has prohibited the importation of products

made using convict labour (Frey, 1997, p.168). The examples are few and far between though.

While the US and many nations prohibited trade with South Africa due to its apartheid policies,

similar attempts to pass legislation prohibiting the import of products made by child labour have

repeatedly failed to be passed (Frey, 1997, p.169).


Reluctance to pass binding international labour standards is not just exhibited by states however.

TNCs have been powerful voices of resistance. Given the strategic economic importance of

TNCs to states in both the developed and developing world, their resistance has been a

significant barrier to improving standards. Instead the TNCs have pushed, often with the support

of governments around the world, for a regime where it is believed that business should be

trusted to regulate itself. Despite this resistance, calls for binding and enforceable rules on global

business, including labour standards are growing (Oshionebo, 2007, pp.3-5).

Oshionebo argues that models exist – for example the ILO has instruments designed to influence

labour practices in TNCs. The Tripartite Declaration of Principles Concerning Multinational

Enterprises and Social Policy, encourages TNCs to promote workplace safety and to minimize

and resolve the adverse effects of their activities on employees. It details best practices

concerning employment and working conditions. The Declaration on Fundamental Principles

and Rights at Work and its successor encourages ILO Member States (including those that have

yet to ratify the relevant ILO Conventions) to respect, promote and realize the ILOs core labour

standards. These core rights include rights to freedom of association and to collective bargaining;

the elimination of all forms of forced or compulsory labour; the effective abolition of child

labour; and the elimination of discrimination in respect to employment and occupation. While

well meaning, such approaches are in the end of limited utility because they are unenforceable

(Oshionebo, 2007, pp.6-7).

Oshionebo shows that it is not only the ILO that has been active on this front, the Organization

for Economic Cooperation and Development (OECD) has also sought to influence the conduct of

TNCs through the Guidelines for Multinational Enterprises (Guidelines) which were established

in 1976 and substantially revised in 2000. These guidelines were drafted to apply to business in

nations both in and outside the OECD group of nations. The guidelines encourage business to

respect human rights and to specifically contribute to the effective abolition of child labour, the

elimination of all forms of forced or compulsory labour; to respect the right of their employees to

form and participate in trade unions; to refrain from discriminating against employees on

grounds of race, colour, sex, religion, political opinion, national extraction, or social origin; and

to take adequate steps to ensure occupational health and safety in their operations. In addition the

guidelines also call on TNCs to ensure that they work towards protecting the environment. While

well intentioned, they again are weak, voluntary guidelines. As in the case of other tools they

lack the teeth of the financial instruments released by the OECD particularly those on trade and

investment liberalization, which help rather than hinder TNCs (Oshionebo, 2007, pp.8-9).

Given the ineffectiveness of many of the existing instruments aiming at “regulating” the

behaviour of international business there have been renewed calls for stronger mechanisms. In

some cases civil society are creating their own private governance regimes, such as the well-

known Fair Trade movement, a portion of which addresses labour standards. These private

governance regimes aim to influence the private sector through information disclosure and

certification which can affect sales, thereby providing the “teeth” of the approach (Oshionebo,

2007, pp.8-9).


The governance deficit

At this point it is important to explore in greater depth this idea of needing rules with teeth. It is

well understood that labour rights are theoretically the jurisdiction and mandate of domestic

governments. Yet the reality is that as developing countries have connected to the global trading

system and TNCs have increasingly employed global supply chains, a gap has arisen between the

ability of the state to regulate. This has been termed the "governance deficit” (Kolben, 2011,

p.405). Kolben explores the components of this governance deficit, the first deficit is that the

home countries of TNCs do not have adequate regulatory tools to control the activities of such

companies outside of their domestic borders. The second deficit is that of international

institutions such as the ILO which have not been given true enforcement powers beyond the

ability to report about the state of labour standards in a given country. The third and the most

important deficit is the limited capacity for domestic governments in the developing world to

effectively regulate (Kolben, 2011, p.406). In addition the countervailing force of the labour

movement has also largely operated and been defined within national borders (Kolben, 2011,

p.407).

While some have argued for the important role of private governance regimes such as Fair Trade,

these can never fully replace regulated labour standards. Private governance regimes, even when

well-meaning suffer from legitimacy and democratic deficits. They are not created by any

specific political polity and are largely unresponsive to democratic levers. In addition they are

accused of being top-down, paternalistic approaches which give little to no voice to the workers

on the ground most affected by poor labour standards. In addition they are usually driven by

consumers and civil society outside of the jurisdiction of the workers themselves. It is only the

attention of the consumers that ensures labour standards are met, leaving the provision of

fundamental rights in the hands of distant consumers and organizations who cannot be called to

task if such rights aren’t provided (Kolben, 2011, pp.408-409). A strong criticism is that we have

seen the rise of private governance mechanisms not precisely because they are filling a

regulatory gap per say, but are in fact strategic responses from governments and the private

sector to avoid any consideration of stronger forms of intergovernmental labour regulation

(Kolben, 2011, pp.409-410).

John Braithwaite argues, however, that the rise of private governance regimes is a positive

development if viewed in what he calls a responsive regulatory world. Braithwaite argues that

we need to re-conceptualize traditional command and control regulatory approaches. In a world

of responsive regulation, policymakers set policy goals, but leave implementation to the

regulated community. Regulators then audit this implementation and respond based on the

degree to which actors effectively regulate themselves. If regulated parties fail to repair and

reform on their own then they are subject to increasing scrutiny and punishment by the regulator.

Again, this theory fails to address issues where the domestic regulator lacks the capacity to do

this (Kolben, 2011, p.417).

Kolben argues that it is key for us to understand that labour ministries in the developed world are

often amongst the most neglected ministries suffering from both resource and staffing challenges

even when the laws are compliant with international standards. Rather than addressing and

remedying these capacity issues the too often taken approach is “to leapfrog dysfunctional states

and move to a post-statist regime of labour regulation that relies on global society to provide the


norm-generating and coercive functions” (Kolben, 2011, pp.427-428). Instead of leapfrogging

the state, what is required is an approach to regulation that is sensitive to the limits of private

governance regimes and to the importance of the state in a regulatory field that has important

linkages with public law and institutions (Kolben, 2011, p.428).

Examples where this have been done are when private governance regimes mimic the regulatory

environment they find themselves in, thereby respecting the domestic government institutions.

Where this fails though is that it does not address the issue of weak labour standards and the

pressures to further weaken them that we are attempting to address. Matthew Amengual in a

study of labour regulation in the Dominican Republic found evidence of what he termed

“complementary regulation”. In these cases private labour inspection complemented that done by

the state, improving labour standards on the whole and in some cases it actually resulted in an

increased demand for the regulatory services of the state. In some instances the private and

public inspectors focused on their areas of better expertise and interest, private inspectors on

health and safety, public inspectors on freedom of association issues. In other cases the presence

of private inspectors in some industries freed public inspectors to focus on other neglected

sectors (Amengual, 2010)).

While private labour inspection may have positive benefits; the key concern always comes back

to what is the “stick” for non-compliance? For public regulators it is the sanctioning power of the

state, usually expressed through fines or prison. For private governance regimes the stick is

breach of contract or in other cases naming and shaming which is expected to lead to lost sales.

Yet this is not always the case. Christopherson and Lillie discuss how since the early 1990s for

instance Wal-Mart has been found in violation of core labour standards repeatedly. For example,

between 1999 and 2001 they were discovered sourcing from Chinese sweatshops which were

paying only 8 cents per hour under virtual forced labour conditions and also from source

factories using forced labour in Bangladesh and Myanmar. Other Wal-Mart examples include

contracts with Guatemalan sweatshops where employees were required to be tested for

pregnancy both before and during employment in order be able to fire them, a clear violation of

human rights.. Another NGO, the `Clean Clothes' campaign, has documented over 800 entries in

its database devoted to Wal-Mart labour standards violations (Christopherson and Lillie, 2005,

p.1931). Yet Wal-Mart continues to be one of the most successful TNCs in the world, showing

the weakness of the private regulatory stick in some instances.

These labour standards violations took place amidst a Wal-Mart policy to only work with

factories that are run legally and ethically. During this entire period Wal-Mart had even

contracted for an independent inspection scheme which included more than 200 factory

inspections a week led by a third party firm. By implementing this scheme Wal-Mart was

rewarded by being included in a list of companies to invest in when looking for ethical mutual

funds, a listing since removed due to the large amount of violations noted above (Christopherson

and Lillie, 2005, p.1932). Reviews of their independent monitoring program, which is

administered by PWC, found that auditors failed to note serious labour standards abuses.

Examples included overlooking hazardous chemical use, overtime violations, and health and

safety violations. Partly this stemmed from the fact that local firms were able to successfully

“manage” the audits by ensuring that the auditors only spoke to workers identified by the

managers (Christopherson and Lillie, 2005, p.1932).


Despite these serious flaws, Waddell believes that there have been examples of positive impacts

from private governance schemes. A powerful example is the successful reversal of a planned

plant closure in 1999 by Russell based on pressure from the Fair Labor Association (FLA) who

objected to the closing of the plant in Honduras. The FLA suspected the plant was slated for

closure because it was unionized, brining into question Russell’s commitment to freedom of

association. Russell reached an agreement with the FLA, reopening the plant and rehiring all

2000 workers with compensation, and more significantly the ability to unionize would be

extended to all their plants, covering and additional 8000 workers (Waddell, 2011, pp.5-6).

The most recent serious attempt towards transnational labour regulation has been done under the

auspices of the UN’s human rights regimes. In 1997, the UN Sub-Commission on the Promotion

and Protection of Human Rights created the Working Group on the Working Methods and

Activities of Transnational Corporations. In 1999, the Working Group decided to draft a code of

conduct for TNCs, the later named “Norms on the Responsibilities of Transnational Corporations

and Other Business Enterprises with Regard to Human Rights" (Mantilla, 2009, pp.285-286).

Mantilla describes that while these norms were not a treaty, upon approval they would have

acquired international legal standing as a form of soft law similar to other UN declarations,

standards etc. Of note, the norms included mechanisms for independent monitoring reporting and

verification, financial redress, and directions that they were to be enforced by national courts

and/or international tribunals. This made them the strongest attempt to date to create global rules

with teeth (Mantilla, 2009, p.286).

The Norms were presented in April 2004 to the UN Commission on Human Rights. The

commission declared that while the responsibilities of business with regard to human rights was

important, the Commission had not requested the Norms and therefore they would not be

considered. This decision came despite the fact that the Working Group was in fact mandated to

do that very thing. “This move by the commission was puzzling to the supporters of the Norms,

within and outside the sub-commission” (Mantilla, 2009, pp.286-287). Mantilla argues that

business actively lobbied against the Norms, and states reacted to this lobbying and chose to

support the interests of business by blocking the Norms (Mantilla, 2009, p.294). The issue has

not died there, beginning in 2005 the UN Commission on Human Rights began exploring this

idea again leading to the release of the document “Guiding Principles on Business and Human

Rights: Implementing the UN Protect, Respect and Remedy Framework”. This latest attempt

lacks the teeth proposed in the Norms and therefore it falls prey to the same arguments that are

raised with any initiative without a mechanism to employ the stick if necessary (De La Vega,

Mehra, and Wong, 2011, p.9).

“Without mandatory or legal mechanisms in place, a culture of impunity may

prevail among corporations and their approach to human rights violations. The

international community needs to seriously consider the viability of creating

and implementing international legal mechanisms, including accountability and

oversight instruments, and providing effective remedies for victims aggrieved

by business impacts. Internal industry mechanisms are no substitute for

independent judicial mechanisms. The threat of legal recourse need not be

targeted at well-intentioned corporate actors, but rather at the worst offenders:

those engaged in or acting in complicity with human rights violations. Further,

such mechanisms would create a level playing field across culture and context,


ensuring that all businesses are held to the same standards in their practices.

Many corporations have raised this particular issue” (De La Vega, Mehra, and

Wong, 2011, p.12).

International Labour Organization (ILO)

In this discussion of global labour standards some more detailed comments about the ILO must

be included. The ILO was created in 1919, as part of the Treaty of Versailles that ended World

War I, which partly explains the hope that such an organization could play a role in ensuring a

universal and lasting peace. Its founding documents argue that peace can only be accomplished if

it is based on social justice. As an organization it actually predates the United Nations, but it is

now recognized as a specialized agency of the United Nations. This recognition of the

importance of social justice in securing peace was overlaid against a background of the real

exploitation of workers in many of the industrializing nations at the time. Amazingly, given it

was almost a century ago, there was also recognition of the increasing interdependence of the

world's economic systems and the need to cooperate in order to obtain similar working

conditions in countries competing for markets. These formative ideas are still being argued for

today, and reflect the main theme of this paper. The Preamble to the original constitution is

relevant today, it states:

1. Whereas universal and lasting peace can be established only if it is based upon social

justice;

2. And whereas conditions of labour exist involving such injustice hardship and privation to

large numbers of people as to produce unrest so great that the peace and harmony of the

world are imperilled; and an improvement of those conditions is urgently required;

3. Whereas also the failure of any nation to adopt humane conditions of labour is an

obstacle in the way of other nations which desire to improve the conditions in their own

countries.

The areas of improvement listed in the Preamble also remain relevant today, for example:

1. Regulation of the hours of work including the establishment of a maximum working day

and week;

2. Regulation of labour supply, prevention of unemployment and provision of an adequate

living wage;

3. Protection of the worker against sickness, disease and injury arising out of his

employment;

4. Protection of children, young persons and women;

5. Provision for old age and injury, protection of the interests of workers when employed in

countries other than their own;

6. Recognition of the principle of equal remuneration for work of equal value;

7. Recognition of the principle of freedom of association;

8. Organization of vocational and technical education, and other measures.


(ILO, 2014b)

With the rise of the World Trade Organization (WTO) beginning in the 1990s some speculated

that WTO might be a more effective organization to deal with labour standards issues through

attaching requirements to trade agreements, much as was done to the North American Free Trade

Agreement (NAFTA). But the WTO has consistently rejected the inclusion of labour issues in its

mandate, instead insisting this is the mandate of the ILO, thereby ensuring that the ILO remains

the pre-eminent global organization dedicated to labour standards. To address methods for

achieving global consensus on labour standards the ILO decided to focus on a regime of core

labour standards in order to integrate social policy into a world system increasingly focused on

economic governance (Haworth, Hughes and Wilkinson, 2005, p.1939).

The focus of ILO’s current work in labour rights is focused on what is called the Decent Work

agenda. The stated aim is to promote decent work for all, recognizing the central place work

plays in people’s well-being, including improvements that are economic, social, and personal.

For work to do this though it must be good, safe and fair. Through a series of Decent Work

Country Programs developed in consultation with stakeholders, the ILO works to implement its

four strategic objectives with gender equality being an ever present cross cutting objective. These

four objectives are:

Creating jobs

Guaranteeing rights at work

Extending social protection

Promoting social dialogue (ILO, 2014a)”

So although the ILO began to find its influence waning during the 1980s, it has continued to be

the most relevant voice for labour standards at a global level. Decent Work Country Programs

are running in over 70 countries and they are generally focused on providing funding and/or

technical assistance to national governments or local NGOs.

The Decent Work program has had significant successes but the ILO continues to be unable to

exert significant economic or other leverage in order to bring about compliance with core labour

standards in the majority of cases of deliberate non-compliance, let alone inadvertent non-

compliance. Despite this, the ILO does still maintain several sources of direct and effective

influence. Its main strength is in the creation of global regulatory norms, norms can have more

power than laws, but in addition they often are the starting point for the creation of legal

frameworks around the world. When capacity is the reason for labour standards not being

implemented the ILO also can play a strong role, “by providing legal and policy models and

technical assistance to states at political transition points where governments are actively seeking

models for legal, programmatic, and administrative reform” (Banks, 2011, p.140).

ILO, Trade, and Innovative Approaches to Improving Labour Standards

Given the complexity of global governance questions, and the failure of the status quo to ensure

labour standards are met, novel ideas are needed. The ILO is involved in one program well


described by Kolben which takes a different approach and has shown positive results as seen in

the following précis of his study of the Cambodian Decent Work Country Program.

While the issue of linking trade agreements with labour standards (the so-called `social clause')

has been resisted by the WTO despite being raised during its very creation during the Uruguay

round (1986-94) of negotiations, it has not been absent from bilateral and multilateral trade

negotiations such as NAFTA. A great example of a bilateral trade agreement linking trade and

labour standards also links to one of the most successful ILO Decent Work Country Programs. In

1999 the United States and Cambodia signed a bilateral textile trade agreement that included

incentives for the Cambodian garment industry to improve labour standards. What was

especially innovative was that not only was the Cambodian textile industry to comply with

Cambodian law (which should in theory already be happening) but in addition there were

incentives to implement global labour standards. The lead on implementation in the agreement

was not the US or Cambodian governments, but rather the ILO. Another innovation was to not

only provide economic incentives via the trade agreement, but also the implementation of a

factor monitoring program led by the ILO (Kolben, 2004, p.79).

The enforcement of trade agreements and labour standards are usually considered distinct and

unconnected domains. Kolben describes how the ILO's program in Cambodia was novel because

it combined disparate approaches. The first of these approaches was trade incentives to enforce

workers' rights. Academics and advocates have long argued that to achieve labour rights trade

agreements need to include workers' rights as a condition of trading. Such an approach is focused

at the state level as it calls upon the national labour regulator to enact and enforce labour

standards legislation in return for trade (Kolben, 2004, pp.80-81). The second approach is the

inclusion of factory level monitoring into the scheme. Again, what is novel about this approach

is that the ILO is the monitor.

There are many ways to regulate global supply chains and what is often suggested and done in

practice is to have the private sector, usually corporations, implement and monitor their own

codes of conduct. The aim is to improve the respect for labour standards at the level of the

factory floor, but usually also outside of the public regulatory framework. Many, including trade

unions and NGOs, are sceptical of such approaches, suggesting that self-regulated codes of

conduct are at best inadequate and at worst a method of replacing the checks and balances

provided by organized labour and public regulators with voluntary enforcement. That is why the

Cambodian factory-monitoring program is unique as it is not the local public sector, the private

sector, unions or NGOs that are doing the monitoring, but rather the world’s only global labour

organization. Kolben describes the program as “not only as a mechanism to report on labour

conditions in factories, but as a kind of supplement to and temporary replacement for Cambodia's

inadequate national regulatory system, which does not, and perhaps cannot, enforce international

labour standards or its own labour law” (Kolben, 2004, pp.81).

It is interesting to note at this point that there were various pressures on the US government to

include these standards in a bilateral trade agreement; it was not something that arose out of

standard US trade policy. Key stakeholders included American labour unions, particularly the

Union of Needle trades, Industrial and Textile Employees (UNITE), with the support of NGOs

such as the International Labor Rights Fund and the Lawyers Committee for Human Rights. The

labour standards provision reads:


The carrot in these schemes is that if the U.S. determines that the Cambodian garment industry is

in substantial compliance with Cambodian labour law and internationally recognized labour

standards, then they can increase quotas up to fourteen percent per year in addition to a standard

six percent annual increase (Kolben, 2004, pp.90). Upon implementation what is fascinating is

that one of the major sticks ensuring compliance has turned out to not to be the ILO, or the

Cambodian or US governments but rather foreign buyers. Companies such as the Gap have

required all factories they source from to be fully compliant with the ILO monitoring standards

as a condition of contract (Kolben, 2004, pp.105).

The ILO monitoring project in Cambodia is important for the use of novel incentives. Improved

trade quotas are based on the behaviour of the garment sector as a whole, not on the performance

of the government creating a collective incentive to improve labour standards. In addition, in

concert with the collective incentive there is the addition of individual incentive in the form of

factory monitoring; monitoring that can cause the loss of buyer’s contracts if labour conditions

do not meet international standards (Kolben, 2004, pp.106). Despite the relative success of the

Cambodian Decent Work Country Program, the ILO is far from being acceptable or even able to

play the role of global labour regulator, therefore despite considerable successes ranging from

norm creation to actual labour standard monitoring, the majority of nation states are not ready or

willing to accept a global labour police force (Banks, 2011, p.140).

Corporate Social Responsibility (CSR)

Having explored governance by the nation state, intergovernmental organizations and civil

society it is appropriate to examine the corporate contribution to addressing the labour standards

governance deficit in the form of Corporate Social Responsibility (CSR).–CSR is increasingly

being touted as a change in the way business is done, a change that can address concerns

regarding poor labour standards. CSR addresses more than labour standards; its aim is for

business to contribute to sustainable economic development outcomes, arguing that this is both

good for business and good for development. In many ways there are reasonable arguments for

this approach based on the idea that businesses are after all a part of society, and therefore they

have the potential to make a positive contribution to the goals of society (Ward, 2004, p.3). The

most global approach to CSR can be seen in the efforts led by the UN to launch a Global

Compact; this specific instance of CSR will be addressed in its own section.

CSR has arisen as a response from business to a number of external and internal drivers that

generate a business case for CSR. Such drivers include “new business opportunities through

social and environmental innovation, reputational risk management, campaign pressure from

nongovernmental organizations (NGOs) or trade unions, media exposure to the practices of

individual companies or sectors, regulation, and litigation” (Ward, 2004, p.3). Ward sees the rise

of CSR as a positive development, but not as a replacement for public regulation. To support the

rise of CSR he advocates for the public sector to do the following:

“Mandate: Laws, regulations, penalties, and associated public sector institutions that

relate to the control of some aspect of business investment or operations.

Facilitate: Setting clear overall policy frameworks and positions to guide business

investment in CSR, development of nonbinding guidance and labels or codes for


application in the marketplace, laws and regulations that facilitate and provide incentives

for business investment in CSR by mandating transparency or disclosure on various

issues, tax incentives, investment in awareness raising and research, and facilitating

processes of stakeholder dialogue (though not necessarily in the lead).

Partner: Combining public resources with those of business and other actors to leverage

complementary skills and resources to tackle issues within the CSR agenda, whether as

participants, conveners, or catalysts.

Endorse: Showing public political support for particular kinds of CSR practice in the

marketplace or for individual companies; endorsing specific award schemes or

nongovernmental metrics, indicators, guidelines, and standards; and leading by example,

such as through public procurement practices” (Ward, 2004, p.5).

What is key though is that however beneficial the rise of CSR may be, voluntary initiatives

cannot be an effective substitute for good governance. What business needs is not a repeal of

regulation, but rather clarity in its regulations, the baseline standards it requires of all firms, and

predictability of government intervention (Ward, 2004, p.7).

A major driving force behind the rise of CSR has been due to pressure from civil society, and the

demand for more than traditional economic capital, or even basic compliance with law, but

rather, that to operate business needs social license as well, which can only be provided by the

communities affected by any potential harms created. Within our increasingly media driven

society business reputation is hugely significant. Media ‘‘canonization’’ or conversely

demonization may carry extensive weight in a brand-oriented world where negative media could

inflict serious brand damage. Therefore we are finding ourselves in a new world where

stakeholders with ‘moral rights’ may sometimes negotiate almost on par with shareholders

(Midttun, 2008, p.407).

In a world where CSR is becoming good business practice we see it being implemented in two

separate but complementary ways. One ways is where firms implement CSR as a tool to

differentiate themselves from competitors, a more broad way is where standards across and

industry as a whole are lifted based on CSR. Both approaches led though to business

internalizing new norms of behaviour that can lead to better societal outcomes (Midttun, 2008,

p.408), (Albareda, 2008, p.431).

Blackett argues that while not public governance these initiatives are in fact new and emerging

forms of labour regulation. The rise of CSR speaks in many ways to the limits to public

regulators, and the ability of CSR to adapt to the logic of the new international division of labour

(Blackett, 2001, p.402). The demand for greater corporate social responsibility is not new; it is

just that there are new drivers pushing it. Three previous attempts from international

organizations beginning in the 1970s failed to promote the adoption of greater corporate social

responsibility. These included efforts led by the UN Commission on Transnational Corporations

(UNCTC), the ILO and the OECD (Blackett, 2001, p.408), (Mantilla, 2009, p.282). It reveals

either that these were ideas come before their time, or business only responds to economic

levers.


Despite the seemingly positive rise of CSR, in the area of labour rights they often fail to

reference the ILO Declaration on Fundamental Principles and Rights at Work, or to specific core

labour standards (Blackett, 2001, p.411). There are attempts to link CSR and ILO labour

standards, through for instance the creation of the Social Accountability International's (SAI)

SA8000 code. The SA8000 relies on the Conventions of the ILO and other key human rights

instruments, including child labour, forced labour, health and safety, compensation, working

hours, discrimination, discipline, freedom of association and the right to bargain collectively. Yet

as with all such CSR schemes, auditing is left to the implementer, with the result being that it is

the companies themselves that are required to prevent anti-union activities in their workplaces,

something that one must imagine goes against other incentives (Blackett, 2001, p.415). Many

social reporting structures exist including the recent Sustainability Reporting Framework

launched by GRI (GRI, 2014).

While CSR may be effective when the brand damage is involved this only covers the small

number or workers employed in sectors with image conscious companies involved. One would

be hard pressed to find a boycott campaign on using nickel from one mining company versus its

competitors; there is no way to tell where the nickel we use comes (Liubicic, 1998, pp.157-158).

These are not insignificant concerns. While there is room to argue about the necessity of a stick

in ensuring better outcomes, if the need for a stick is perceived of as important to key

stakeholders then the lack of them can fatally damage the implementation of any CSR initiative

whether it truly needed the stick or not (Berliner and Prakash, 2012, pp.149-150). For this

reason, program design is as or almost as important as the high level goals of any CSR initiative.

Stronger sticks usually lead to less participation so one must ask whether greater good is reached

through broad membership, but the potential for non-compliance, or small membership with

greater compliance. In all likelihood what is needed is both types of programs, with a clear

understanding of the differences between the two (Berliner and Prakash, 2012, p.150). What is

clear though, is that for CSR to realize its lofty goals, and not just be a marketing tool designed

not to improve social outcomes but rather to solely protect brands governments and

intergovernmental organizations will need to play a role. If the public sector can provide support

to both the private sector and civil society then there is potential for real social and

environmental improvements (Jørgensen, Pruzan-Jørgensen, Jungk, and Cramer, 2003, p.4).

Global Compact

The Global Compact is, in theory, an example of a CSR initiative with all actors at the table:

governments, international organizations, civil society and of course business itself. Launched at

the 1999 World Economic Forum in Davos, by then UN Secretary-General Kofi Annan, it

signified a new chapter in the history of the United Nations. This was the most visible attempt

from the UN to join with business in promoting international development, and is likely

something that could never happened during the cold war when the debate on capitalism still

raged so prominently. The stated objective of the Global Compact is to give global markets a

more human face. Since its launch the Global Compact has become, “thanks to the direct

leadership of the secretary-general, a key instrument in the UN's overall strategy to foster a more

inclusive and sustainable world economy” (Thérien and Pouliot, 2006, p.55). Amongst the

guiding principles are key labour standards including:


a position that businesses should uphold the freedom of association and the effective

recognition of the right to collective bargaining;

the elimination of all forms of forced and compulsory labour;

the effective abolition of child labour; and

the elimination of discrimination in respect of employment and occupation.

Noticeably absence is mention of health and safety standards.

While it is admirable that the Global Compact has secured the participation of business,

governments and civil society, similar to other approaches, it lacks teeth. As with CSR initiatives

the concern is that without an appropriate stick there will be incentives to join and not implement

true socially responsible actions (Oshionebo, 2007, pp.17-18). Inclusion in the Global Compact

is relatively simple, all that is required is a letter endorsed by a company’s board expressing

support for and commitment to the Compact. The business is then expected to do three things:

set in motion changes to its business operations ensuring Compact principles become part

of its strategy, culture, and day-to-day operations;

publicly advocate the Compact; and

publish an annual report or Communication on Progress indicating ways in which it is

supporting the Compact and its principles.

There is no vetting of applications to examine whether the applicant corporation may be involved

in rights violations even as it is applying to join (Oshionebo, 2007, p.23). Failure to submit a

Communication on Progress for two consecutive years may result in being listed as inactive on

the Compact website. In addition a complaint mechanism has recently been introduced where the

Compact will forward the complaint to the relevant corporation asking them to submit written

comments on the allegations. The biggest stick available is, in cases of egregious violations, the

removal of the offending corporation from the list of participating companies altogether

(Oshionebo, 2007, pp.24-25). Understandably many see these as relatively weak incentives

(Blackett, 2001, p.442), (Arevalo and Fallon, 2008, p.459).

Despite these concerns it is positive to have business at the table discussing issues of social and

environmental concern. In addition the Compact has re-engaged nations in the discussion,

especially nations in the developing world (Blackett, 2001, pp.443-444).

Despite terms in the guidelines that suggest that corporations that are complicit

in human rights abuses will not be eligible for partnership, it is not apparent that

any triage has been undertaken, and the absence of a monitoring mechanism

calls into question how this determination can ultimately be made by the United

Nations (Blackett, 2001, p.445), (Deva, 2006, pp.149-150).

However, any initiative that has succeeded in getting the participation of over 8000 companies

and 4000 civil society organizations in 140 countries deserves some recognition (UNGC, 2013,

p.4).


2. Data – Labour standards in a globalized world

Having surveyed and critiqued the relevant literature relevant, the next step is to see what kind of

“quantitative shape” we can give to our topic.

Occupational Health and Safety

Labour standards, while only a subset of human rights, are themselves broad – covering at a high

level three major areas: collective bargaining rights, employment standards (such as minimum

wages) and occupational health and safety standards. While all of these areas would provide a

fruitful exploration, this paper will drill down into occupational health and safety in order to test

its thesis. With a more narrow focus we will be able to test some of the concepts and challenges

arising in the global governance of labour standards. Even more specifically, data to be explored

will focus on the mining sector in a subset of countries that have active mining sectors. The

countries selected include a mixture of developed and developing economies.

Mining lends itself well as a subsector to explore given that developing countries that have not

yet achieved wide scale industrialization find themselves blessed (or cursed) with natural

resources attractive to mining companies. Many researchers have explored this idea of a resource

curse, whether resources, especially non-renewable ones such as minerals do not actually lead to

economic growth but rather stagnation or even economic reversal. What seems to be key is not

just the presence of resources but the institutional context in which they are found. Where

institutions benefit the companies themselves, results are poor, where institutions are friendly to

the workers, positive results are seen (Mehlum, Moene and Torvik. 2006, p.1).

Occupational health and safety is an interesting topic as there is evidence that improved

outcomes are not only a realization of worker rights, but in many cases come with economic

benefits as well. Countries with poor occupational health and safety systems spend a larger

percentage of their GDP on work related injuries and illness, taking away resources and money

that could be used to support more productive activities (OSHA Europa, 2007, p.1). For example

“ILO estimates that work-related illness and accidents cost up to 10 % of GDP in Latin America,

compared with just 2.6 % to 3.8 % in the EU” (OSHA Europa, 2007, p.1). In addition, work-

related fatalities were estimated at over 2 million deaths per year in 2000 (ILO, 2003, p.6).

Reducing work related accidents and disease is a huge challenge. Understanding the size of the

problem is even difficult, given that so many fatalities, let alone injuries, aren’t even reported to

anyone with a global view, if anyone at all. What is known is that “the countries with the highest

accident and illness rates are unlikely to be those with the best-developed inspection and

reporting structures” (ILO, 2003, p.2). Reducing fatalities, injuries and illness in the workplace is

often difficult due to a variety of factors as depicted in the figure below.


Figure 1 Factors Resisting Reductions of Fatalities, Injuries and Illness

(ILO, 2013, p.5).

In the sections that follow data will be examined in order to inform an exploration of potential

approaches and considerations that can and do play a role in any potential system of global

labour standards harm reduction.

Methodology

As discussed, labour standards are only a subset of the much broader field of human rights. Even

within labour standards there are a multitude of different rights. In exploring whether norms and

values are enough to maintain decent labour standards, I focus on occupational health and safety,

more specifically, fatalities in the global mining sector in fifteen countries. These countries form

a snapshot of countries with active mining sectors, and include underdeveloped, developing and

developed economies. They can also be grouped in various ways: by membership in the

Organization for Economic Cooperation and Development (OECD), BRICS (Brazil, Russia,

India, China, South Africa), the western hemisphere or by English speaking nations. No matter

how they are grouped, one positive observation is that the fatality rate on average is improving in

the mining sector across the world.

Yet, more work can be done.

OSH

is a low priority

Lack of treatment,

compensation

Under-reporting

No picture

of the real impact

of poor OSH

conditions

Low resources

for

OSH improveme

nt

and collection

of informatio

n

Public ignorance


Mining accounts for only about 1 per cent of the global workforce, but it is

responsible for up to 5 per cent of fatal accidents at work (at least 15,000 per year,

or over 40 each day). Despite considerable efforts in many parts of the industry to

improve its safety record, mining remains the most hazardous occupation in most

countries where it exists, when the number of people exposed to risk is taken into

account (ILO, 2003, p.10).

Raw data was from the ILO archives and was reported to them by each individual country. Using

two databases (Employees by sex and economic activity (Thousands), and Cases of fatal

occupational injury by sex and economic activity both for the Mining and quarrying, electricity,

gas and water supply sector) the data was analyzed, combined and is presented in charts format

below. These charts give context to the problem before us, yet one of the initial conclusions that

can be made just by looking at the data is that in many cases there are gaps in the data. If you

can’t measure something, how can you improve it? If national authorities are not watching, who

can work to fill the data gap?

To calculate the fatality frequency rate two sets were combined, employment data aggregated by

sector and reported fatalities. Interestingly the ILO did not have a published data set with

calculated fatality rates, just raw numbers which on their own tell little as the larger the

workforce the larger the expected fatalities.

Then, a more in depth look is given to injury, illness and fatality rates in our focus jurisdiction –

Ontario, Canada. These statistics did not have to be calculated given that Ontario has a relatively

sophisticated health and safety system in place. The data was obtained from Workplace Safety

North, available online. WSN gets these statistics from the Workplace Safety and Insurance

Board (WSIB). Workplace Safety North is a safe workplace association, one of six different

health and safety associations in Ontario that are funded in part from WSIB premiums. These

health and safety associations are arms-length from government and are not directly an agency of

government, but through the transfer of funding they are accountable to government priorities in

a broad sense. Workplace Safety North is the safe workplace association tasked with providing

training and support to the Ontario mining sector, in addition to the, forestry, paper, printing and

converting sectors. They also provide health and safety services to businesses in other sectors

across Northern Ontario. (WSN, 2014a).

The next section of data analysis explores ratification of key ILO conventions related to health

and safety and inspectorate data for select countries. These charts give context on what global

conventions are in place, and a comparison of the inspectorate that are auditing compliance.

Again what is a key finding is that ratification is sporadic at best, and data on inspectorates and

their activities is low to non-existent. With no data, does that mean that no independent audit is

being done or is the data just not being shared? It is impossible to know, but if a national

regulator is unable to accurately report on its activities to the ILO, this raised basic concerns on

its ability to audit health and safety systems in their own jurisdiction.

This collection of data will lay the basis for the Section 3, where we test whether norms and

values are enough, through an analysis of compliance data in the mining sector in Ontario,

Canada.

Fatality Rate in Select Countries in the Mining and quarrying, electricity, gas and water supply sector

Chart 1 Mining Fatality Rate in Select Countries

(ILOStat, 2014a; ILOStat, 2014b).

0.00

0.05

0.10

0.15

0.20

0.25

0.30

0.35

0.40

0.45

0.50

1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Year

Australia

Brazil

Canada

China

France

Germany

India

Peru

Russian Federation

South Africa

Sweden

Turkey

Ukraine

United States

Zimbabwe


Chart 2 Mining Fatality Rate in Select Countries (with trendlines)


1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

-0.20

0.00

0.20

0.40

0.60

0.80

1.00

1.20

1.40

Year

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Australia

Brazil

Canada

China

France

Germany

India

Peru

Russian Federation

South Africa

Sweden

Turkey

Ukraine

United States

Zimbabwe


Table 1 Trend Line R-Value

Country R-Value

Australia R² = 0.7956

Brazil R² = 1

Canada R² = 0.4265

China R² = 0.1206

France R² = 0.0022

Germany R² = 0.6699

India R² = 0.7414

Peru R² = 0.9527

Russian Federation R² = 0.1867

South Africa R² = 0.0792

Sweden R² = 0.1829

Turkey R² = 0.599

Ukraine R² = 0.604

United States R² = 0.7261

Zimbabwe R² = 1



Injury, Illness and Fatality Trends in Ontario’s Mining Sector

Chart 3 Total Injury Rates Ontario Mining Sector 2000-2013

(WSN, 2014b).

9.8 9.4

9

8.5 8.7

8.2

7.5 7.1 7

6

5.4

6.6

5.6

5.1

0

2

4

6

8

10

12

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

To

tal

Me

dic

al

Inju

rie

s p

er

10

0 F

TE

wo

rke

rs


Chart 4 Lost-time Injury Rates Ontario Mining Sector 2000-2013

(WSN, 2014b).

2.4

2.2 2.3

2 1.9

1.6 1.5

1.4 1.3

1 1.1

1.3

0.9 0.8

0

0.5

1

1.5

2

2.5

3

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Lo

st-t

ime

in

juri

es

pe

r 1

00

FT

E w

ork

ers


Chart 5 Allowed Noise Induced Hearing Loss Claims by Registration Year Ontario Mining Sector 2000-2013

(WSN, 2014b).

114

93 96

116 114

105 105 110

101

120

133 129

141

125

0

20

40

60

80

100

120

140

160

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Nu

mb

er

of

All

ow

ed

Cla

ims


Chart 6 Lost-time Injury Rate by Ontario Industrial Sector 2013

(WSN, 2014b).

2.2

1.8

1.5

1.5

1.4

1.2

1.1

0.9

0.9

0.8

0.8

0.7

0.7

0.7

0.5

0.4

0.4

0 0.5 1 1.5 2 2.5

Agriculture

Transportation

Forestry

Municipal

Health Care

Construction

Automotive

Aggregates

Food

Services

Mining

Steel

Chemical/Process

Manufacturing

Pulp & Paper

Education

Electrical

Lost-time Injury Rate per 100 FTE Workers


Chart 7 Traumatic Fatalities Ontario Mining Sector 2000-2013

(WSN, 2014b).

5

1

4

3 3

1

3

4

2

1

0

6

2 2

0

1

2

3

4

5

6

7

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Nu

mb

er

of

Cla

ims


Chart 8 Allowed Fatal Occupational Disease Claims Ontario Mining Sector 2000-2013

(WSN, 2014b).

18

12

26

23

20

32

16 15

17 18

21

14

8

10

0

5

10

15

20

25

30

35

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Nu

mb

er

of

Fa

tals


Chart 9 Total Fatalities (Trauma and Disease) Ontario Mining Sector 2000-2013

(WSN, 2014b).

23

13

30

26

20

33

19 19 19 19

21 20

10

12

0

5

10

15

20

25

30

35

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Nu

mb

er

of

Cla

ims


Chart 10 Traumatic Fatalities Ontario Mining Sector 2004-2014

(WSN, 2014b).

3

1

3

4

2

1

0

6

2 2

6

0

1

2

3

4

5

6

7

2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Nu

mb

er

of

Cla

ims


Chart 11 Fatal Injury Rate Ontario Mining Sector 2000-2013

(WSN, 2014b).

0.0353

0.0069

0.0276

0.0207

0.0188

0.0062

0.0179

0.0205

0.0094

0.0057

0

0.0268

0.0084 0.009

0

0.005

0.01

0.015

0.02

0.025

0.03

0.035

0.04

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Fa

tal

Inju

ry R

ate

/ 1

00

Wo

rke

rs


Chart 12 Fatal Injury Rate Ontario Mining Sector 2009-2013

(WSN, 2014b).

0.0057

0

0.0268

0.0084 0.009

0

0.005

0.01

0.015

0.02

0.025

0.03

2009 2010 2011 2012 2013

Fa

tal

Inju

ry R

ate

/ 1

00

Wo

rke

rs


Chart 13 Fatal Traumatic Injury Rate by Ontario Industrial Sector 2009-2013

(WSN, 2014b).

0.0136

0.0125

0.0104

0.0096

0.0068

0.0064

0.0026

0.0018

0.0016

0.0008

0.0007

0.0007

0.0006

0.0006

0.0003

0.0003

0.0001

0 0.002 0.004 0.006 0.008 0.01 0.012 0.014 0.016

Forestry

Agriculture

Mining

Aggregates

Transportation

Construction

Pulp & Paper

Electrical

Municipal

Food

Manufacturing

Steel

Chemical/Process

Services

Health Care

Automotive

Education

Fatal Traumatic Injury Rate per 100 FTE Workers


ILO Convention and Extractive Industries Transparency Initiative (EITI) Ratification

In addition to a review of fatality rates it is interesting to note which of the selected countries have ratified ILO health and safety

conventions relevant to the mining sector.

Convention C45, drafted in 1935 actually forbids women from working underground. Canada repealed it in 1977 but surprisingly

some other developed countries only repealed it in the last decade.

Chart 14 CO45 – Underground Work (Women Convention)

(ILO, 2014c).


Chart 15 C081 Labour Inspection Convention

(ILO, 2014c).


Chart 16 C123 Minimum Age (Underground Work) Convention

(ILO, 2014c).


Chart 17 C124 Medical Examination of Young Persons (Underground Work) Convention

(ILO, 2014c).


Chart 18 C155 Occupational Safety and Health Convention

(ILO, 2014c).


Chart 19 C176 Safety and Health in Mines Convention

(ILO, 2014c).


Chart 20 Extractive Industries Transparency Initiative (EITI) Ratification

(EITI, 2014).


Global Labour Inspection (in select countries)

Chart 21 Labour Inspection Rate in Select Countries

(ILOStat, 2014c)

2009

2011

0

0.5

1

1.5

2

2009

2010

2011

2012


Chart 22 Labour Inspection Visits per Inspector (in select countries)

(ILOStat, 2014d).

2009

2011

050

100150200250

2009

2010

2011

2012


Chart 23 Number of Labour Inspectors (in select countries)

(ILOStat, 2014e).

200901000200030004000500060007000

2009

2010

3. Legislative and Regulatory Compliance in the Mining

Sector in Ontario, Canada – 2004-2013

This section of data analysis explores regulatory compliance in Ontario, Canada in the mining

sector. The approach used in unique in the literature, combining an analysis of regulatory

compliance laid against a common health and safety standard framework used by companies

across the world. This analysis allows us to both test the hypothesis of whether companies need

to have independent audit, and it also allows for conclusions to be made on where the weak

points in both regulatory compliance and health and safety implementation lie.

Ontario is used as a proxy to explore the concept of whether there norms and values are enough

or whether there is a need for regulator. Canada is one of the richest nations in the world and it

has a highly developed regulatory system. Workplace injuries and fatalities are legally required

to be reported and multiple checks and balances are in place to ensure that they are. Given this

setting Ontario makes a good test of the idea of whether sophisticated, wealthy jurisdictions with

cultural norms (expressed both informally and formally through law) need anyone watching. Do

the workplace parties comply with the norm of health and safety or is there a need for an auditor

with the potential of a stick to realign behaviour compliance?

This data was acquired through a Freedom of Information request to the Ontario Ministry of

Labour. The data request was for all orders in the 10-fiscal year period covering calendar year

(CY) 2004 through to CY2013, written in workplaces under Mining Health and Safety Program

(MHSP) authority. Specifically I requested the numbers of orders on selected Sections,

Subsections, and Clauses for the Ontario Ministry of Labour’s mining program over the last 10

years for the MHSP.

The data contains no identifying information with regard to the identity of the contravener.

Therefore, while it can be analyzed to make conclusions about compliance in the mining sector

on a provincial level, it does not measure compliance at the level of individuals or companies. In

addition, the data only records non-compliance, Ministry of Labour inspectors do not make

records of compliance with health and safety legislation, and therefore it is not possible to make

conclusions about compliance versus non-compliance rates.

While the analysis method used only examines compliance at a provincial level, the tool

developed could be used to analyze compliance on a company by company basis if contraveners

were identified, in a sense allowing for a compliance score to be given. While this was not the

focus of this research paper, such an approach could prove valuable to regulators who wish to

improve targeting of their limited inspectorates or to take proactive and preventative approaches

with regard to identified non-compliance.

In addition it could prove valuable to companies themselves, many of who are familiar with

standards implementation such as International Standards Organization (ISO) 9001: Quality

Management Systems. In Canada the health and safety standard most often used is Canadian

Standards Association (CSA) Z1000 – Occupational Health and Safety Management Systems.

The compliance data provided by the Ministry of Labour is categorized using CSA Z1000,


allowing for the audit information collected by the Ministry of Labour to be put into a format

that fits into the health and safety systems used in the workplace. Standards follow the high level

format conceived of as a continuous loop of Plan, Do, Check, and Act. The analysis possible

through this innovative approach would allow companies to “check” which then feeds back into

the loop of Act, Plan and Do.

An order is one of the compliance tools that can be used, at an inspector’s discretion if a

violation of the Ontario Occupational Health and Safety Act, or its regulations is observed. There

are five different types of orders:

Non-Compliance Orders

Forthwith order – efforts to achieve compliance must begin immediately and be

completed before the inspector leaves the workplace;

Time-based order – compliance must be achieved within a time frame determined by the

inspector in consultation with the employer and workers;

Time-unknown order- length of time to achieve compliance cannot be determined by the

inspector in consultation with the employer and workers therefore no compliance date is

given but the contravention is noted (see companion orders)

Companion Orders (Always written in conjunction with a Time-unknown order)

Compliance plan order- length of time to achieve compliance cannot be determined by

the inspector in consultation with the employer and workers; therefore an companion

order to the non-compliance order is issued to the employer requiring the employer to

communicate what they intend to do to achieve compliance and in what timeframe. Must

be approved by the inspector.

Stop work order – used when an inspector finds that the contravention is an immediate

danger or hazard to the health or safety of a worker (e.g. unguarded machinery that is

being used). A stop work order will be withdrawn upon compliance. There is no date of

compliance for stop-work orders; they remain in place until compliance has been

achieved.

The Ministry of Labour data request returned an Excel spreadsheet with a total of 36865 orders

issued in the mining sector between January 1st, 2004 and December 31

st, 2013. 14,508 of the

orders were issued under the Occupational Health and Safety Act (OHSA), and 22,357 were

issued under various regulations under the OHSA. The OHSA orders and the regulatory orders

were analyzed separately.

Upon analysis, 7162 of the OHSA orders were excluded. 1 was excluded as it was issued under a

repealed Act, 2 were excluded as the relevant section had been repealed. 1277 were excluded as

there was no contravener or contravention identified, the orders had been issued under

administrative sections detailing things such as the powers of inspectors, rather than health and

safety contraventions. Orders issued under these sections were incorrectly applied and without

the text of the order it was not possible to determine what the non-compliance observed was or


who the contravener was. 6066 orders were excluded as they were companion orders and if

included would have resulted in double counting contraventions.

A total of 22,357 orders were issued under regulations under the OHSA. These regulations

included the following:

Confined Spaces

Construction Projects

Control of Exposure to Biological or Chemical Agents

Designated Substances

Industrial Establishments

Mines and Mining Plants

Oil and Gas – Offshore

Roll-Over Protective Structures

WHMIS

X-Ray Safety

Regulatory order sections can be issued to whoever is the relevant contravener unlike sections

under the OHSA which include the contravener. Without the text of the order it was not possible

to determine who the contravener was. That said, for most sections the employer or constructor

is most often the contravener given their overarching duty and responsibility for health and

safety in the workplace. For the OHSA orders, 95.06% of them were issued to the

employer/constructor; it is likely that the percentage of regulatory orders issued to the

employer/constructor would be of a similar magnitude. Designated substances (such as Asbestos

and Isocyanates) used to have separate regulations but in the last decade these were consolidated

into two regulations. All designated substance orders were combined for the purpose of analysis

under the category “Designated Substances”.

An analysis tool was developed by the researcher in order to categorized orders issued against

the Canadian Standards Association (CSA) Z1000 Occupational Health and Safety Management

System standard. Orders were categorized by high level elements based on duties as found in

Ontario health and safety legislation, under four categories derived from CSA Z1000:

Commitment, Leadership, and Participation

Planning

Implementation

Evaluation and Corrective Action

Each of the legislated responsibilities can be categorized under one of these four key parts of a

successful health and safety management system (See Appendix B).

Labour rights are well understood in comparison to many developing world jurisdictions due to

the workforce being highly educated, mining being one of the most unionized sectors in the

private sector, and training in rights being required by law as part of the mining Common Core


program which all mine workers must take. Given this setting it will be instructive to analyze

compliance with Ontario’s OHSA and its regulations.

The sections of the OHSA and its regulations are regulatory minimums and many best practices

and standards go far beyond them. As minimums, I intend to analyze compliance, as one would

expect that a mining sector pursuing best practices and corporate social responsibility should be

beyond the legal minimums prescribed in law, proving that a regulator does not need to be

playing an audit role. If an order has been issued then non-compliance has been observed.

When considering legal minimums, a statement from my training years ago, first as a worker Co-

Chair for a Joint Health and Safety Committee in the private sector, and later as an inspector for

the Ministry of Labour, that comes to mind is that every section has been written in blood. The

meaning of this is that it has usually only been after tragedy that legal requirements have been

created, making the legal framework reactive rather than proactive. Therefore, observed non-

compliance not only is a failure to observe minimum requirements, but in many cases, a potential

gap that could potentially lead to injury or even death.

Chart 24 Orders Issued Pursuant to the Ontario OHSA in the Mining Sector 2004-2013 Categorized by OH&S System Element

(MOL, 2014a).

132 72

230

5

1609

86

315

904

3420

114 155 5 8

95 6 4

0

500

1000

1500

2000

2500

3000

3500

4000

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Ord

ers

Iss

ue

d

OH&S System Elements


Chart 25 Orders Issued Pursuant to Ontario OHSA in the Mining Sector 2004-2013 Categorized by OH&S System Framework

(MOL, 2014a).

434

1614

5007

105

Commitment, Leadership and Participation

Planning

Implementation

Evaluation and Corrective Action


Chart 26 Orders Issued Pursuant to the Ontario OHSA in the Mining Sector 2004-2013 Categorized by Contravener

(MOL, 2014a).

6806

8 72 114 5 155

0

1000

2000

3000

4000

5000

6000

7000

8000

Employers andConstructors

Engineers Owners, Directors andOfficers

Supervisors Suppliers Workers

Ord

ers

Iss

ue

d

Contravenor


Chart 27 Orders Issued Pursuant to the Ontario OHSA in the Mining Sector 2004-2013 by Contravener

(MOL, 2014a).

68

06

8

72

11

4

5

15

5

Employers and Constructors

Engineers

Owners, Directors and Officers

Supervisors

Suppliers

Workers


Chart 28 Order % Pursuant to the Ontario OHSA in the Mining Sector 2004-2013 by Contravener

(MOL, 2014a).

95

.06

0.1

1

1.0

1

1.5

9

0.0

7

2.1

6

Employers and Constructors

Engineers

Owners, Directors and Officers

Supervisors

Suppliers

Workers


Chart 29 Orders Issued Pursuant to the Ontario OHSA Regulations in the Mining Sector 2004-2013 Column Chart

(MOL, 2014a).

4 65 12 90 705

21173

2 38 260 8 0

5,000

10,000

15,000

20,000

25,000

Ontario Regulation under the OHSA


Chart 30 Orders Issued Pursuant to the Ontario OHSA Regulations in the Mining Sector 2004-2013 Pie Chart

(MOL, 2014a).

Confined Spaces

Construction Projects

Control of Exposure to Biological or ChemicalAgents

Designated Substances

Industrial Establishments

Mines and Mining Plants

Oil and Gas - Offshore

Roll-Over Protective Structures

WHMIS

X-Ray Safety

4. Summary of Results from Sections 2 and 3

Fatality Rate in Select Countries in the Mining and quarrying, electricity, gas and water supply sector

Fatality rates across the countries surveyed are declining in the Mining and quarrying, electricity,

gas and water supply sectors (also see Appendix A). But despite dramatic declines, they appear

to have plateaued at an admittedly low level with less significant improvement in recent years.

The United States and China alone show an increasing trend in fatality rates but this conclusion

is based on only two data points and therefore is not reliable. Instead, what this points to is a fact

that applies to the entire ILO data set – the issue of poor reporting. While one may argue about

whether or not there should be a global labour regulator, without the ability to measure the

problem it is next to impossible to make informed decisions as to what should be done.

Injury, Illness and Fatality Trends in Ontario’s Mining Sector

Injury, illness and fatality rates are declining in most instances in the Ontario mining sector.

With regard to lost-time injuries (LTIs) mining is below average, but with fatalities it is above

average.

Fatalities are a better indicator than lost time injuries because in some cases LTIs are more

manageable. By introducing return to work programs employers can significantly reduce the LTI

rate, without reducing the actual events that led to the injury. In addition programs that provide

incentives or rewards for low injury rates can encourage non-reporting. Fatalities are a different

matter – hey are far less likely to be underreported and they can’t be managed to a lower number

except solely through reducing the causative factors.

While the long-term trend in fatality reduction is encouraging, on a shorter time frame it is

concerning that when only looking at the last five years what is observed is a growth in fatalities.

While this could be an artefact of smaller data set, it could also be indicative of a weakening of

controls. While not part of the data set, fatalities this year continue this trend, with six fatalities

already by mid-year, a number already equal to the worst year considered in this data set

beginning 14 years ago (MOL, 2014b, p.10). This is potentially disturbing, and the mining sector

in Ontario should consider their hazard controls in light of this.

ILO Convention and Extractive Industries Transparency Initiative (EITI) Ratification

The clear conclusion from this data is that ILO convention ratification is extremely spotty. Of

noted absence is Canada – the only country reviewed that has not ratified any of the conventions

relevant to worker health and safety. While this is not as concerning with regard to Convention

45 which forbids women in underground mines, and is therefore sexist, it is concerning that they

have not ratified any of the other conventions.


The lack of ratification by every country reviewed apart from Peru with the EITI is also

concerning though recent efforts on this issue show hope that countries will increasingly sign on

to this effort at transparency.

Global Labour Inspection (in select countries)

As discussed with respect to ILO fatality data, the data on inspections and inspectorates is

extremely poor. Without such data it is impossible to make conclusions regarding the

effectiveness of the inspectorates.

Legislative and Regulatory Compliance in the Mining Sector in Ontario, Canada – 2004-2013

Despite Ontario’s mining sector being well developed, sophisticated and highly unionized

operating in a developed jurisdiction with strong legal protections and well-educated citizens,

independent assessment of health and safety compliance by Ministry of Labour inspectors still

found 22,357 instances of non-compliance in a 10 year period. This is an important finding as

legislative and regulatory provisions are legal minimums – the bare minimum that the law

allows – not best practices. If sophisticated companies with well-developed health and safety

management systems in place are found in non-compliance at this level by independent auditors

the obvious conclusion is that there is still a need at this point for such independent audits.

It is a reasonable extrapolation from Ontario’s data that this conclusion would apply to other

jurisdictions, such as those in the developed world. Therefore if the national inspectorates are not

able to fill this role, and human rights such as labour standards truly are a societal value, than

thought needs to be given as to whom can play that audit role.

The analysis was based on the basic concepts that guide most occupational health and safety

(OH&S) management systems. The basic concept behind these standards is the mantra: Plan, Do,

Check, Act. Theoretically a well-run OH&S system would not need independent auditors as is

would self-assess as part of the “check” requirements of such standards. But, as with financial

standards, our society has long understood that there is a role to play for independent assessment

in providing transparency, and another incentive/stick to comply.

Based on standard OH&S standards the bulk of non-compliance orders issued under the OHSA

in the mining sector were in regard to:

Lack of appropriate job hazard control (1609 orders)

Failure of employers to comply with their duties (3420 orders)

Failure to provide necessary training to workers (904 orders) (MOL, 2014).

In addition, of concern was that 4285 stop work orders were issued (MOL, 2014). These are

issued only in the presence of violations that could immediately lead to injury or death. It is these

types of non-compliance that one would especially expect a sophisticated OH&S system to have

caught on its own.


The greatest number of orders were issued for failure to properly implement OH&S controls in

the workplace, with the next largest amount issued for failure to properly plan.

The bulk of the orders by far were issued to employers, 6806, or 95%. Employers have the

greatest command and control of the workplace, and it shows that the weakness of the OH&S

systems in the Ontario mining sector are not found at the supervisor or worker level (MOL,

2014).


5. In a Complex Global Governance World, How can Labour

Standards be Improved?

Given the conclusion drawn in Section 4 based on the Ontario data – the conclusion that it is

necessary, even in developed economies with sophisticated companies to have an independent

audit function when it comes to Occupational Health and Safety – who is it that should play this

role, especially in nation states that do not have well-functioning regulatory regimes?

Rosenau argues that governments should “not be posited as first among equals,

but simply as significant actors in a world marked by an increasing diffusion of

authority and a corresponding diminution of hierarchy. States retain their

sovereign rights, however the realms within which these rights can be exercised

have diminished as the world becomes even more interdependent and as state

boundaries become ever more porous (Tapscott and Gegenhuber, 2013, p.3).

Rosenau’s argument opens a window on a potential way forward with regard to improving

labour standards. The challenge is in how to ensure that the desired social outcomes arise out of

such a complex system. In such a world authority cannot be expected to only be applied through

explicit means such as laws and enforcement but also through implicit means such as persuasion

and influence (Tapscott and Gegenhuber, 2013, p.4).

Looking at the analysis of the ILO data, the low data reporting by states is significant. With such

low data reporting, and low ratification rates, the conclusion can be drawn that there is low

respect for the mechanisms of the ILO itself. While not reporting fatalities or inspection numbers

does not necessarily mean that there is a problem in the country being reviewed it does make it

impossible to understand the size of the issue from a global perspective and it shows a

concerning lack of respect for attempts by the ILO to scope out these issues. This poses

significant challenges for those who would exclusively call on the ILO to be the global labour

regulator. It is clear that there is a lack of legitimacy ascribed to the ILO’s mandate by at least

some nations, and this would be a stumbling block to the ILO as regulator. This is not to say this

may never change, but for the near future, we cannot expect the ILO alone to play the role of

global labour regulator.

The idea of needing to use a multitude of tools is not new to regulators. In one concise example

in 1994, the Dutch Ministry of Justice decided to monitor the level of compliance with

legislation, rather than just enacting it. Flowing out of this research a new tool was developed

called the ‘Table of Eleven’. The ‘Table of Eleven’ guides regulators, using a model based on

behavioural sciences, to better outcomes by having them think about how and why people

comply and then crafting their responses based on this (LEEC, 2004, p.3). Tools such as these

will help us tackle the complex challenges facing improving global labour standards.

Malcolm Sparrow provides key insight into operationalizing attempts to improve issues of

concern to society. His advice can be summed up by directing public, private or civil society

actors to unravel the knot of the problem before them in order to discover points which are

weaker and open to what he terms sabotage. Such approaches are perfectly adaptable to global

governance situations with a variety of actors at play (Sparrow, 2008). The idea one has to


employ as with any craft is using the right tool at the right time. Those who are required to

follow rules fall along a compliance continuum into three basic categories:

Watch Me

Show Me (or Help Me)

Make Me (or Catch Me)

Figure 2 – Compliance Continuum

(ATO, 2007).

One should not use the same approach with everyone along the continuum. The “watch me”

category is for those who are above legal minimums and leaders pushing best practices. They are

the businesses that truly mean to make a difference through CSR for instance. All they need is a

supportive environment in which to pursue their best practices, and reasonable audits on

infrequent basis. The “show me” category either doesn’t know what the norms or rules are, or

doesn’t understand what needs to be done. This category needs compliance assistance, and

regular audits to ensure compliance, more carrot than stick. The last category is the “make me”

group and they know the rules but deliberately choose not to follow them. This group needs


more stick than carrot, but a combination may be best. In worst case scenarios such entities may

need to have the full force of the law applied to them (OFB, 2011).

It is true that having someone independently monitor labour standards can cause work and

potentially some costs, in the same way that preparing your financial records for independent

audit does the same. Yet financial auditing is considered a worthy process by most jurisdictions.

The goal though is not to have whoever is auditing get in the way of innovation and profit, but

rather to work towards improvement of social goals in concert with other such goals of business.

Nike, after huge efforts at factory monitoring, learnt that monitoring alone was not enough, but

rather had to be combined with other interventions especially those that tackled the root

problems leading to poor working conditions. One of their most interesting findings was that in

factories where they focused on improving quality and efficiency, labour standards improved on

their own (Locke, Qin, and Brause, 2007, p.3).

One potential additional tool in the toolbox is what has been termed Global Action Networks

which involve a multitude of actors from all sectors of society working together to tackle

complex problems. Examples include the Forest Stewardship Council and the Fair Labour

Association” (Tapscott and Gegenhuber, 2013, p.8). Both of these organizations have been

successful in making change in realms where traditionally only governments held authority.

These watchdog networks can complement traditional regulators and demonstrate how actors

outside government can collaborate to advance powerful new solutions. Watchdog networks can

help by increasing transparency with the” result of having a larger crowd of informed and

empowered individuals helping to protect the public interest” (GSN, 2013, p.12), (Semogas,

2014, p.1).

While outside auditors can play an important role it is important that they themselves have the

capacity, and incentive to be thorough. When PwC auditors were hired to audit Wal-Mart’s

overseas partners many key labour standards contraventions were missed. These errors stemmed

from a poor methodology that primarily focused on gathering information from management –

physical inspections were conducted on a very limited basis (O’Rourke, 2000, p.1).

This idea of needing someone to watch and regulate applies beyond the world of labour

standards. Before the financial crash in 2008 leaders within the financial system began to realize

some of the risks that led to the crash. Paulson, the head of the Treasury, knew that the financial

institutions would not be able to rein themselves in and prevent a financial catastrophe. In one

remarkable example of cross-sectoral governance thinking, the CEO of Citigroup, one of the

largest banks in the world, admitted this. At a dinner a year before the crisis this CEO asked

Paulson, “Isn’t there something you can do to order us not to take all of these risks?” (Sorkin,

2009, p.81). This is an interesting look into a private sector actor who was trying to think about

what would normally be of concern to the public sector, yet did not act on these concerns

himself.

It is for reasons such as these that there continues to be a role for regulators with legal authority –

either national regulators on their own or in partnership with others. These partners could include

private governance bodies such as NGOs, private sector inspectorates, global solutions networks

or the ILO through the provision of technical and funding assistance (MMSD, 2002, pp.xxii-

xxiii).


Trade law as well, even if resisted by bodies such as the WTO, can and will play a role. The

WTO already includes non-trade issues under its purview such as the protection of intellectual

property rights and phyto-sanitary rules for food safety; therefore there is precedent for the

inclusion of societal goals beyond the purely economic. We have discussed successful examples

such as the labour side agreements attached to NAFTA and the novel Cambodia – United States

trade deal which included labour standards monitoring. Such examples show that trade will

likely play a continuing role in improving labour standards in a globalized world.

While there is still much resistance to this, the example of the trade agreement between US and

Cambodia shows that partnered governance is possible. In that example US unions and NGOs

convinced US legislators to ratify a treaty that held a foreign state to international labour

standards that were audited by an international body, the ILO, which led to positive trade

incentives (the carrot) and enforced by TNCs through the cancellation of contracts (the stick).

The only thing missing in the Cambodia example was a truly effective stick beyond that of lost

contracts (Hall, 2010, pp.458-459). Given this example it is conceivable that other nation states

would be willing to partner with outside groups on issues that are legally their own concern.

States in the past have considered this – in the negotiations after World War II that created the

World Bank and the International Monetary Fund serious consideration was given to creating a

trade organization with a fair labour standards clause. This proposed clause was even planned to

have a dispute resolution procedure and remedies available to it – such an idea may find that its

time may come eventually (Banks, 2011, p.141).

Partnered governance is not a challenge to authority, but rather a way for governments to extend

their reach in a world where available resources are finite. In addition, by including business

through partnered arrangements such as the Global Compact, what is being done is that those

who are actually morally responsible for labour standards, the employers, are being both held to

account and supported in their implementation (Midttun, 2008, p.416). Partnered governance

does not raise the concerns of a dominating global government, disconnected from the people it

controls. Instead it recognizes the complexity of global society and the diversity of cultural

differences. By bringing all relevant parties to the table partnered governance can get us not only

to mere compliance, but potentially beyond the lowest common denominator (Midttun, 2008,

p.416). Such a world would still allow the freedoms we cherish to exist, while also striving for a

more equitable world (Coase, 1960, p.68-69).

Mining Sector

In the specific case of mining, the industry provides both opportunity and risk. While on the one

hand it provides revenue that can fund development, it also can result in mineral extraction done

in an unsustainable way that does not respect human rights or the environment (Marcano, 2013,

p.6). While the incentives behind participating in CSR are different for different groups they can

result in benefits as different incentives, combined with an audit function with some teeth can

result in positive change (Marcano, 2013, p.17).

One way to eliminate injuries, illness and fatalities in the mining sector would be to prohibit

mining, but this is of course unreasonable. Mineral products are a key resource behind our

contemporary society and many basic needs would be unmet without them. However, the sector


must at minimum meet legislated standards, and increasingly it needs to secure so-called social

license in order to operate. If done within such a framework, mining can play an integral and

vital role in society (MMSD, 2002, p.xiv). The challenge before the mining sector, as with all

sectors is how to ensure that we integrate economic activity into a framework of sustainable

development (MMSD, 2002, p.xvi). Unfortunately, to date, this is not occurring. Instead the

extractive industries are failing to meet the full suite of societal demands, and it this is becoming

a business risk as resistance to projects continues to grow (Franks, Davis, Bebbington, Ali,

Kemp, and Scurra, 2014, pp.7576, 7581).

There are some examples of positive approaches appearing in the sector though. The Extractive

Industries Transparency Initiative (EITI), which opens up financial transparency with respect to

money paid to national governments and other groups in the country of extraction, is one such

potentially positive initiative in the mining sector. Another is the Kimberly Process, which

attempts to stop the purchase and sale of conflict diamonds (Marcano, 2013, p.22). Yet another

initiative is the Responsible Mineral Development Initiative (RMDI), that seeks to create

guidance on what should be done to address these challenges” (Marcano, 2013, p.23).

Development agencies are beginning to focus on how to create a sustainable mining sector as

well. The former Canadian International Development Agency (CIDA) has in recent years been a

champion of CSR in the mining sector. Promotion of the mining sector ties into other Canadian

government goals. CIDA has funded partnerships between civil society and mining companies in

order to ensure that sustainable outcomes that respect human rights are a goal, in concert with the

goal of promoting mining and Canadian mining companies (Coumans, 2012, p.8). It is not only

the former CIDA which has focused on mining, however. The World Bank has also recognized

the fact that ensuring sustainable development in this sector is a key goal, one that supports

development while at the same time supporting economic growth (World Bank, 2002, p.2). As

always though, the caution is who is watching these initiatives to ensure that real change is

occurring.


Conclusion

At the beginning of this research I asked:

What is the role for global governance in decent working conditions for all workers?, and

Is a transformation of norms and values enough or is some form of a global regulator

required and who can play this role if necessary?

Having reviewed the relevant literature, and analyzed the data it is my conclusion that a

transformation of norms and values is not enough and that some form of a global regulator is

required. Yet from a simple conclusion some complexity arises when one asks who should be

this global regulator. Unfortunately, there is no one approach and it is only through a multiplicity

of actors that labour standards can be improved across the globe. The key to success may be that

it will take actors from all the three sectors of society, private, public and civil and newer entities

that combine a portion of all three in order to make positive change in a complex global world.

Even during the time this paper was being written, there have been some encouraging

developments that indicate that a world of better labour standards is possible. These include the

following:

The announcement that the UN Human Rights Council has passed a resolution on

creating internationally legally binding instruments applicable to TNCs (TWN, 2014);

Barrick Gold creating the first ever co-president responsible for social license (Kosich,

2014);

The Indian government mandating CSR (Afsharipour and Rana, 2014);

The Initiative for Responsible Mining releasing a draft global standard for socially

responsible mining (IRMA, 2014); and

The International Council on Mining and Metals in a surprising act of transparency is

releasing publicly aggregated safety data on fatalities and injuries (ICMM, 2014).

These developments show that multiple actors are working to address issues of labour standards

in the mining sector and other sectors are experiencing similar developments. Especially

interesting is the release of safety data by the ICMM, an action that is legislated in well-

developed regulatory regimes allowing regulators to post such data but the fact that this was

done by the companies themselves is a fascinating development.

In conclusion, cooperation is a basic human attribute – and carrots work better than sticks.

Despite this, an independent audit function with sanction power is required to balance the

tendency for some actors to game the system. Such an audit function should include more than

just legislation since laws without norms are doomed to failure, it is only through the power of

norms that true change can be made, an internalized norm with audits and sanctions is even more

powerful than a law.


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http://www.twnside.org.sg/title2/unsd/2014/unsd140605.htm

http://www.workplacesafetynorth.ca/about-us

Appendix A – Mining Fatality Rate in Select Countries in Detail

Chart 31 Mining Fatality Rate in Select Countries (without Peru)


0.00

0.02

0.04

0.06

0.08

0.10

0.12

0.14

0.16

0.18

1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Year

Australia

Brazil

Canada

China

France

Germany

India

Russian Federation

South Africa

Sweden

Turkey

Ukraine

United States

Zimbabwe


Chart 32 Mining Fatality Rate in Select Countries (without Peru, with trendlines)


1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

-0.02

0.00

0.02

0.04

0.06

0.08

0.10

0.12

0.14

0.16

0.18

Year

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Australia

Brazil

Canada

China

France

Germany

India

Russian Federation

South Africa

Sweden

Turkey

Ukraine

United States

Zimbabwe


Chart 33 Mining Fatality Rate in Select Countries (Western Hemisphere subset)


0

0.05

0.1

0.15

0.2

0.25

0.3

0.35

0.4

0.45

0.5

1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Year

Brazil

Canada

Peru

United States


Chart 34 Mining Fatality Rate in Select Countries (Western Hemisphere subset with trendlines)


1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

-0.2

0

0.2

0.4

0.6

0.8

1

1.2

1.4

Year

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Brazil

Canada

Peru

United States


Chart 35 Mining Fatality Rate in Select Countries (OECD Subset)


0.00

0.01

0.01

0.02

0.02

0.03

0.03

0.04

0.04

1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Year

Australia

Canada

France

Germany

Sweden

United States


Chart 36 Mining Fatality Rate in Select Countries (OECD Subset with trendlines)


1994 1996 1998 2000 2002 2004 2006 2008 2010 2012

0.00

0.01

0.01

0.02

0.02

0.03

0.03

0.04

0.04

0.05

Year

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Australia

Canada

France

Germany

Sweden

United States


Chart 37 Mining Fatality Rate in Select Countries (Europe Subset)


0

0.02

0.04

0.06

0.08

0.1

0.12

0.14

0.16

0.18

1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Year

France

Germany

Russian Federation

Sweden

Turkey

Ukraine


Chart 38 Mining Fatality Rate in Select Countries (Europe subset with trendlines)


1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

0

0.02

0.04

0.06

0.08

0.1

0.12

0.14

0.16

0.18

Year

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

France

Germany

Russian Federation

Sweden

Turkey

Ukraine


Chart 39 Mining Fatality Rate in Select Countries (English speaking subset)


0.00

0.01

0.02

0.03

0.04

0.05

0.06

1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Year

Australia

Canada

India

South Africa

United States

Zimbabwe


Chart 40 Mining Fatality Rate in Select Countries (English speaking subset with trendlines)


1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

-0.01

0.00

0.01

0.02

0.03

0.04

0.05

0.06

Year

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Australia

Canada

India

South Africa

United States

Zimbabwe


Chart 41 Mining Fatality Rate in Select Countries (BRICS subset)


0

0.005

0.01

0.015

0.02

0.025

0.03

1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Year

Brazil

China

India

Russian Federation

South Africa


Chart 42 Mining Fatality Rate in Select Countries (BRICS subset with trendlines)


1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014

-0.005

0

0.005

0.01

0.015

0.02

0.025

0.03

0.035

Year

Fa

tali

ty F

req

ue

ncy

Ra

te (

pe

r 1

00

FT

E)

Brazil

China

India

Russian Federation

South Africa


Appendix B – Orders Issued Pursuant to the Ontario OHSA in the Mining Sector

2004-2013 Categorized by Occupational Health and Safety (OH&S) System

Framework

OH&S System Framework OH&S System Element Relevant Legislation Number of Orders Issued Pursuant to the Act

1 Commitment, Leadership and Participation

Policies have been prepared and are reviewed as required and a program has been developed and maintained to implement the policies

25.(2)(j), 32.0.1 (1), 32.0.2, 32.0.6

132

2 There is evidence if such exist, that the owner or directors and officers of a corporation comply with their duties under the Act

29.(1), (2), (3), 32., Any regulatory contravention where an owner, constructor, licensee, director or officer of a corporation is the contravener.

72


3 There is evidence that the H & S Rep / Committee is functioning as required and that workers participate in workplace health and safety issues as required

8.(1), (2), (3), (4), (5), (9), (11), (14), (15), (16), 9.(1), (2), (3), (3.1), (3.2), (3.3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18)(a), (d), (e), (f), (19), (22), (23), (24), (25), (29), (30), (31), (32), (33), (34), (35), (36), (37), (39), 10.(1), (2), (3), (5), (6),11., 43.(4)

230

4 Planning An assessment program is in place to support the policies

26.(1)(f), (h), (i), 32.0.3 (1), (2), (4), 39.(1), 45.(1), (2), (3), 47.(4), 48.(1)

5

5 A job hazard control program is in place

25.(1), 26.(1)(a), (b), (g), (j) 1609

6 Implementation A system or method is in place for the reporting of hazards and contraventions

43.(6), 51.(1), 52., 53. 86

7 Necessary documents and information are available as required

12.(2), 23.(2), 25.(2)(b), (i), (k), (l), (m), 26.(1)(c), (d), (e), 29.(4), 30., 32.0.1 (2), 32.0.3 (3), (5), 33.(3), 37.(1), (5), 38.(1), (5), (6)(a), (b), 39.(2), 41., 57.(10)(a), 59.(1), (2), (3)

315


8 There is evidence that workers have been acquainted with hazards and have received information and instruction in health and safety, that there is a general understanding of what the Internal Responsibility System (IRS) is and how it works, and that workers are aware of their rights

25.(2)(a), (d), 26.(1)(k), (l), 27.(2)(a), (b), 32.0.5 (2), 32.0.7, 37.(3), 38.(6)(c), 42.

904

9 There is evidence that the employer, constructor or licensee complies with their duties under the Act

23.(1), 24., 25.(2)(c),(f), (g), (h), 26.(3), 32.0.4, 32.0.5 (4), 37.(4), 39., 41., 43.(5), (10), (11), (13), 45.(5), 48.(2), 50.(1), 51.(2), 54.(3), (5), 58., 63.(2), Any regulatory contravention where the employer, constructor or licensee is the contravener.

3420

10 There is evidence that supervisors comply with their duties under the Act and ensure workplace standards are followed

27.(1), (2)(c), Any regulatory contravention where the supervisor is the contravener.

114


11 There is evidence that workers comply with their duties under the Act and with the workplace standards

28., Any regulatory contravention where the worker is the contravener.

155

12 There is evidence that persons comply with their duties under the Act

37.(2), 62., Any regulatory contravention where a person is the contravener.

5

13 There is evidence that suppliers, architects or engineers comply with their duties under the Act

31., Any regulatory contravention where a supplier, architect or engineer is the contravener

8

14 Evaluation and Corrective Action

The workplace is inspected as required

8.(6), (7), (8), 9.(26), (27), (28)

95

15 The effectiveness of the IRS is monitored

8.(10), 9.(18)(b), (c), 10.(4), 25.(2)(e)

6

16 The employer responds to reports of occupational health and safety issues as required

8.(12), (13), 9.(20), (21) 4

Total Orders Issued 7160


While not an element considered as stop work orders are companion orders to contraventions enumerated above they are an indication on their own of the failure of the IRS to identify a serious hazard so they are counted here

57.(6), (8) 4285

(MOL, 2014a).

Jules Arntz-Gray MA Thesis

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