CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

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Legal dimensions of international framework agreements – Sobczak companies and to guarantee all fundamental social rights, not just the most media-sensitive ones. Consequently, choosing consumer law and unilateral commitments as the basis for the legal value of IFAs would seem unsound. It would be better to develop a legal framework for transnational collective bargaining, at the level of companies and groups, which would rely on the experience of IFAs. Such a solution would allow the dynamics created by IFAs, with regard to their scope of application and their monitoring processes, to be used effectively, and would allow the courts to impose penalties if IFAs were not followed. Towards a legal framework IFAs are a new form of social regulation in the era of globalization and global supply chains. They allow recognition of a company’s social responsibility for its subsidiaries’ and subcontractors’ activities as well as the involvement of workers’ representatives in defining and implementing them. IFAs contribute to the social partners’ collective ownership of these social norms and thus to their greater effectiveness. It is even possible to see in them a certain legal nature, which should increase the attention they receive. However, IFAs continue to leave many legal questions open, leading to mistrust by the social partners and undermining their potential. The lack of legal certainty is a problem for trade unions, for which giving support to companies’ CSR strategies is new and represents an important challenge (Sobczak, 2006). It is essential for trade unions to be able to show that their support contributes to the creation of concrete advantages for their workers at a local level and that non-compliance with IFAs may lead to penalties. Otherwise, trade unions may be seen as being used in companies’ marketing strategies. The lack of legal certainty is also a problem for companies. A company that has signed an IFA may fear adverse court decisions if an action is brought against it because one (or more) of its subsidiaries or subcontractors has failed to abide by the IFA, even if the company itself has attempted to use its economic powers to force it to conform to the principles in the agreement. It is important for companies to evaluate the legal risk of signing an IFA. It is also essential that companies that sign an IFA and fail to follow it are sanctioned, to avoid discrediting all IFAs. 127
Cross-border social dialogue and agreements To guarantee greater legal certainty than at present, a legal framework for transnational collective bargaining is necessary. Ideally, it should be adopted at international level, but Europe-wide may constitute a first step and this seems more attainable in the medium term. The European Commission’s Social Agenda 2005-2010 gives, as one of its aims, the adoption of an optional legal framework for transnational collective bargaining, and a report by a group of labour lawyers appointed by the Commission has drafted its main elements (Ales et al., 2006). A legal framework for IFAs may only be optional, the social partners being free to choose its rules and to benefit from the security it offers or to continue to negotiate without one. It is indeed crucial not to limit the dynamics created by IFAs — and more generally by CSR norms — by a legal framework imposed in a general and uniform manner. IFAs prove that the lack of a legal framework can favour the emergence of interesting new forms of social regulation. But it is necessary to offer, both to companies and to workers’ representatives wanting to go beyond a voluntary commitment, a framework that defines the legal nature of the IFA. The social partners would thus have to state explicitly their willingness to benefit from this optional framework — an “opt-in” clause. If not, the current “rules” would continue to apply to their agreement. Such an optional framework should name the legitimate negotiators on both the employers’ and workers’ sides. It seems particularly important to set out the roles of ITUFs at sectoral level, of subsidiaries’ national trade unions and of the EWC during the negotiation and the implementation of the texts. This instrument might also impose on the social partners a certain minimum content as well as provisions for the scope of application and for the monitoring process, while leaving the social partners a wide margin of freedom as to defining the scope and the forms that monitoring is to take. Finally, the framework should define the legal value and impact of IFAs. The best solution would probably be to make it mandatory for the IFA to be transposed into legal texts in each country where the company has subsidiaries or even internally within each subsidiary, whether through unilateral management decisions or through collective agreements. The legal value of those texts would change according to national labour law, but this approach would avoid problems associated with determining which legislation to apply, because the text of the IFA would exist in each country and have a clear legal value under each country’s law. 128
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CROSS-BORDER SOCIAL DIALOGUE AND AG
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Published by the International Inst
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Cross-border social dialogue and ag
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Contributors Dominique Bé, an econ
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Contributors Nathan Lillie is Assis
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Acronyms BWI Building and Wood Work
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Introduction Konstantinos Papadakis
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Introduction - Papadakis each with
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Introduction - Papadakis above. Thi
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Introduction - Papadakis tices unde
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Introduction - Papadakis role of co
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Introduction - Papadakis veaux enje
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Chapter 1 International framework a
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International framework agreements:
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Chapter 3 International framework a
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International framework agreements
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International framework agreements
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Chapter 8 The ILO Maritime Labour C
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The ILO Maritime Labour Convention,
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Chapter 9 A report on the European
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A report on the European Commission
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Appendix
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