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

Cross-border social dialogue and agreements
action for social dialogue between the parties. This leads to situations
where, although workers and GUFs are informed and consulted on
labour rights implementation, final decisions may ultimately rest in the
hands of the enterprise. In turn, compliance with the agreement is largely
the company’s responsibility.
The parties to IFAs have taken a pragmatic approach to the agreements’
implementation. GUFs generally recognize that changes in management
policy take place gradually and that compliance must be
regarded as an ongoing process. Still, there are some risks of IFAs failing
to meet their objectives. For instance, a firm could refuse to correct violations
that would generally be considered as unacceptable, such as the
use of the worst forms of child labour prohibited by the ILO’s Worst
Forms of Child Labour Convention, 1999 (No. 182). Moreover, while
the implementation of IFAs is an evolutionary process, the inability or
unwillingness of firms to change certain practices or to improve working
conditions at an acceptable pace would also jeopardize their credibility.
If companies are seen using IFAs as “window dressing”, this could have
an impact on the trade unions involved, which could face accusations of
turning a blind eye to the practices of non-compliant enterprises.
The need might therefore arise for certain forms of mediation or
adjudication mechanisms when social dialogue fails to deliver a solution
acceptable to both parties. The agreement concluded between the
IFBWW (now integrated into the BWI) and the Swedish construction
company Skanska is the only accord that contains a clear-cut procedure
for reporting complaints that can lead to a binding decision by an arbitration
board. 26 In the absence of an arbitration procedure tailored to the
parties’ wishes, could one of them seek redress for the violation of the
terms of an IFA by way of litigation before a national tribunal? This raises
the puzzling question, still not totally settled, of the legal status of IFAs
under different domestic legal regimes (Sobczak, this volume; Sobczak,
2006, p. 93). As interesting as this question is on a theoretical level, in
practice the parties do not generally envisage recourse to law to enforce
an agreement. In fact, many GUF representatives show a lack of interest
in legally enforcing IFAs.
26
The decision of the arbitration board is binding on both parties. So far, they have not resorted to
this arbitration procedure, which is reminiscent of traditional labour law and industrial relations approaches
to solving labour disputes.
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