Ten Trade Union Actions - Inclusive Cities


Ten Trade Union Actions - Inclusive Cities

FOREWORDDecent work 1 for everybody. The World Confederation of Labour (WCL) links theessence of all its activities to this basic aim. Also and particularly for people employedin the informal economy, the majority of the workers worldwide, the WCL wants to seekconcrete answers to the in many cases difficult questions and concerns.More and more people are seeking, sought or were compelled to seek salvation in theinformal economy. For most of them it is an economy without security, expansion,profit or future. Without any protection they set to work with the ultimate end in view of'subsisting'. Today, manifold forms of informal work are present in each trade sector.The challenge to the trade union movement in its search of decent work for all the workersis enormous. There are no simple answers because of the need to structure the informaleconomy workers so to achieve optimum protection.The formal economic systems have shown for a long time already that they are unableto call a halt to the growing informal economy. In the meantime, the 'informal economy',result of an ultra-liberal, flexible and regulation-free economy, has proven above allthings that it is one of the sources underlying poverty and degrading working circumstances.So, deceived are those who believe that the answer lies there.Trade unions, employers and authorities will have to combine forces to formulate a constructiveand efficient response to this major social and economic challenge.1. For the WCL’s definition of decent work we refer to: International Labour Standards at the Service of Social Justice,chapter 3.4.4

The integration of the informal into the formal economy as put forward in the recentreport of the World Commission on the Social Dimension of Globalization 2 raises thematter of the weak legal status of the informal economy workers to begin with. A realisticintegration is inconceivable without a solid legal protection. Without this status anoverall change-over is out of the question.Legal instruments are available, but they are often not applied to workers in the informaleconomy. This manual is intended to support trade unions in their mission and zealto obtain a better legal status for the informal economy workers. Practical workingmethods have gone to show that solutions are possible and that there exists a fullfledgedplace for the informal economy worker on the economic map.With this practical manual the WCL also wants to give a clear response to the challengesof the ILO Conferences. It extends its hand to everybody who wants to join in its strugglefor fully decent work.Willy ThysSecretary General2. A fair globalization. Creating opportunities for all, Final Report 2004, no. 261-268.5

WHY THIS MANUAL ANDIn an era in which the informal economy is growing worldwide and poverty and exploitationare the order of the day, the trade union movement is facing an important new challenge:to organise the informal economy workers so to struggle together for theimprovement of their legal status, working conditions and working circumstances.Attempts at getting hold of the informal economy issue soon give rise to an endlessseries of questions. We enumerate a few of them by way of example:• What is ‘informal economy’ understood to mean?• What are the causes of this phenomenon?• What groups of workers can be distinguished in the informal economy, and what isthe best way to organise these groups?• What are their priorities (job security, fair wages, shorter working hours, social security,prevention of industrial accidents and occupational diseases, etc)?• What rights and obligations are in force or should be in force in the informal economy?• What legal and other instruments are available to improve the situation of the informaleconomy workers?• To whom must the action be directed?• What are the obstacles to the application of the labour standards?• What is the best way to deal with these obstacles?• How do we recruit new members without losing the old followers?•…During the Informal Economy seminars of the Trade Action of the World Confederationof Labour in 2003 and 2005, several strategies were discussed to organise the informaleconomy workers and to improve their situation. One of these strategies is of a legalnature, a subject that is elaborated in this manual.6

HOW TO USE IT?By legal strategy we mean two things:1. to promote the application of existing national and international labour standards and2. to acquire new rights for workers in the various sectors of the informal economy.We have divided this subject into three parts:1. A theorical part, in which we distinguish between various groups of workers andexamine what legal instruments are available to them.2. A practical part, in which we give information on the reality of the informal economyin a few of the participating countries and sectors.3. A strategic part, in which we give ten suggestions to develop a legal strategy.The manual is intended for trade unionists who commit themselves to organising informaleconomy workers and for trade union leaders who endeavour to improve the legalstatus of the workers in their sector. The manual provides no concrete solutions for concretelegal problems. The subject is too complex, and the informal economy too extensivefor that. The aim is to contribute to the discussion and to provide an insight intoone of this century’s important trade union items: the rights of the informal economyworkers.The manual has been written in such a way that parts of it can be used for lectures, presentationsand training. The exercises and questionnaire will induce people to take anactive part in the reflection on this subject.When drawing up the manual, we have made use of the information provided by tradeunionists from various countries and sectors within the framework of the InformalEconomy programme of WCL Trade Action. Annex 1 provides the list of participants.Dr. Claire BosseUniversity of TilburgWim De GroofWCL Informal Economyprogramme coordinator7

Chapter 1The theory9

| Chapter 1 | THE THEORY |1 BackgroundThe existence of informal economicactivities is not new. We are dealing herewith an age-old phenomenon that weencounter all over the world. 3 In times ofeconomic and social progress it is possibleto formalise and regulate part of theseactivities, provided that the governmentpursues a purposeful policy aimed atemployment, equal opportunities for alland special attention to the weaker insociety.In times of crisis the informal economywill gain ground. Privatisation, mass dismissals,low prices of raw materials,indebtedness, export restrictions, lowtraining levels, HIV/AIDS… have a disastrouseffect on employment. More andmore people seek salvation in informaleconomic activities to provide for themselvesand their families. Those who cannotwork due to illness, old age or incapacityare dependent on help from familyand neighbours. This social safety nethas grown less strong in recent decades.In the past twenty years the informaleconomy has been marked by a spectaculargrowth. It has penetrated all thesectors of the economy and affected allthe sections of the population. In manydeveloping countries more than half theactive population is working on an informalbasis, in some countries this rateexceeds even 80 percent. The informaleconomy has become a reality the tradeunion movement cannot get round anymore.Yet, the extent and diversity of the informaleconomy make it difficult to work outcut-and-dried solutions. This is not ourambition anyway. A trade union or tradefederation that wants to take action in theinformal economy will have to start smalland discover gradually the legal andother means by which it can improve thesituation in its country and sector.Theoretical knowledge is an indispensablelink in this.The trade union movement has a longtradition. It was born in England, in themiddle of the 19th century, in reaction tothe bad working circumstances in theBritish industry. Child labour, low wages,long working hours, unsafe and unhealthyworking circumstances were theorder of the day at the time. As the industrialrevolution advanced, more and moreworkers revolted. They protested againstpoverty, exploitation and social injustice.Their situation really improvedfrom the moment they acquired the right3. See for a better insight into the scope and backgrounds of the informal economy: ILO, Decent work and the informaleconomy, Report VI, International Labour Conference 90th Session, Geneva 2002. See also: A.V.Jose (ed.), OrganizedLabour in the 21st Century, Geneva: IILS 2002.10

to vote, collective bargaining was introducedand laws were adopted to offer theworkers protection. The first labour lawsdealt with child labour. Later laws offeredprotection in the field of wages, workinghours, and safety and health at the workplace.But times have changed. Old industrieswere closed, and new production centresemerged in countries where the wagecost is low, the trade unions have littleexperience with collective bargaining andthe labour legislation is still in its infancy.This coincided with the growth of theservices sector, which is marked bystiff competition, in which many peoplework for their own account and newforms of work come into being. That iswhy the international trade union movementis in search of new strategies toprotect workers all over the world.Exercise 1Mapping out the situation of the informal economy workers is a first step onthe way to their recognition, respect and protection.Please find below a few characteristics of informal work that were noted downduring one of the seminars. Indicate which of these characteristics apply to theinformal economy workers in your country and sector.❍ Low training level❍ Not registered❍ Living in poverty❍ Long working days❍ No job security❍ No right to pension❍ Weak bargaining position❍ Not aware of labour rights❍ No protection against industrialaccidents and occupation diseases❍ No legal recognition❍ No social security❍ Not organised❍ Low wages / incomes❍ No medical facilities❍ No employment contract❍ No (paid) holidays❍ No payment of taxes❍ …11

| Chapter 1 | THE THEORY |2 What are wetalking about?2.1 Employed or self-employed?Those who commit themselves to improvingthe legal status of informal economyworkers will first have to answer afew questions:1. Do these people work for their ownaccount and risk or for the account andrisk of someone else?2. In the first case: what are the needs,and to whom can one direct possibleactions (local authorities, tradespeople,landowners, …)?3. In the latter case: is one familiar withthe labour laws? Which laws areobserved and which are not? How canthe application of the labour laws beapproved?The first question is of major importancefrom a legal point of view. People whowork for their own account and riskcome basically under civil law or commerciallaw. It is assumed in this casethat the parties involved are in an equalbargaining position, so that the one whodoes the work is capable of reachinggood agreements on the level of remunerationand further working conditions.Those who work at the service ofothers, however, come under the protectionof the labour law. This law hasalways assumed that the worker as theweaker party to the contract needs protection.Labour law ‘compensates’ for theunequal position of power betweenemployer and worker by means of bindingprovisions such as a minimum wageand the right to maternity leave. The partiesmust not deviate from this. If they do,the worker can claim his or her rightbefore the court. In that case the law takesprecedence over the content of theemployment contract.So, the protection by the labour law isrestricted in many cases to those whowork on the basis of an employmentcontract. 4 An employment contract is anoral or written agreement between twoparties, under which one party works fora remuneration under the authority of theother party. In theory this definition isbroad enough to cover dependent informaleconomy workers. In reality, however,this concept has faded away and theknowledge of rights (and obligations) islimited.Those who run their own small businessor supply certain services independently4. See ILO, Meeting of experts on workers in situations needing protection, The employment relationship: scope, Basic technicaldocument, Geneva 5-19 May 2000, p. 4: 'Labour law is the answer of society to the unequal position of the workerin the labour relations, and the existence of international labour standards indicates to what extent countries agreewith this. Labour law, as the realisation of the basic workers’ rights, as a means to regulate competition and as aninstrument of social harmony, has changed the way society functions.'12

have basically no access to protection bythe labour law. The basic labour standards,such as the freedom of associationand the right to be free from slavery andchild labour, apply to them too, of course.For the rest, however, the labour law-relatedclaims of the self-employed are limited inmany cases. The same goes for social security,which in many cases is better developedfor employed than for self-employed people.Exercise 2.1Give examples of employed and self-employed workers and check to whichcategory the people you are trying to organise belong.2.2 Grey zoneThe distinction between employed andself-employed workers is made more difficultby the existence of a grey or twilightzone between both categories. 5 In thistwilight zone we find labour relations thatshow characteristics of both categoriesand therefore risk escaping the workingof the labour law. We give a concreteexample to illustrate this:Example:When the textile sector in Paraguaywas confronted with growing competitionand decreasing profits, manyfactories decided to close down. In ashort time hundreds of women textileworkers lost their jobs. Their employmentcontract was ‘exchanged’ for ahomework contract that provided thatthey would purchase their own machinesfrom the factory, take everyweek part of the production homeand receive for this a fixed price perproduct.At first sight this contract is not a bad idea,for those who work hard can earn morethan before. Only in course of time thedisadvantages for the workers appear:• loss of income security;• unlimited working hours;• growing use of child labour;• mutual competition between formercolleagues;• bad working circumstances and anunhealthy environment;• loss of protection against dismissal;• loss of social security rights (noincome in case of illness, pregnancy,industrial accident, unemployment andold age);• higher price of production materials;• loss of solidarity with co-workers;•…5. A. Perulli, Economically dependent/quasi-subordinate (parasubordinate) employment: legal, social and economic aspects, ECJune 1993, p. II.13

| Chapter 1 | THE THEORY |The only one to benefit from this situationis the entrepreneur. An entrepreneurwho is not bound by the labour law:• can reduce his fixed labour costs (he isnot bound by the legal minimum wageanymore and does not need to payemployers’ contributions);• can deploy only those who work bestand complain least;• does not need to maintain, rent or buyfactories and machines anymore andcan therefore invest his money elsewhere;• does not need to fear strikes anymore;• does not need to enter into collectivebargaining;• does not need to pay dismissal compensations;• does not need to bother about thelabour inspectorate anymore;•…In this example all the acquired labourrights are thrown overboard in onestroke. And this is the first step towardsthe informal economy, because the averagehomework contract can be cancelledfrom one day to the other, without furtherobligations. Even if it is understandablethat people prefer homework to unemploymentin times of economic crisis,we consider it a task of the trade unionto inform people of the advantagesof labour law. The same goes for othercontracts (subcontracts, freelance contracts…)under which one party iseconomically fully dependent on theother.2.3 SubordinationWhat many people do not know, is that thename and content of the new contract arenot decisive. If the woman textile worker inour example still works according to thedirections and instructions of her formeremployer and he has the power to leadand supervise, there is in fact still anemployment contract. The judge will lookat the facts, not at what has been put onpaper.So to claim protection by the nationallabour law, there must be an authorityrelation between the worker and theemployer. This means that the worker iscompelled to obey reasonable directionsfrom the employer. The employer maycontrol the work and give instructionsabout the way it must be carried out. Theworker is legally subordinate to theemployer.Subordination is a legal concept that isfurther developed in the national case lawand literature. The judge will decide caseby case if authority and subordination areinvolved. He does so on the basis of factsput forward by the parties.14

The worker will advance facts that areindicative of the existence of an employmentrelationship. The employer or contractorwill advance facts that are indicativeof self-employment. If the judgeestablishes subordination, the labour lawapplies. In that case the worker is protectedby the labour law.Exercice 2.3By means of the checklist below, the trade union can help workers determinetheir legal status. It make sense to complete or refine this list on the basis of thenational jurisprudence and literature. Lawyers and academics from the owncountry can help with this.Check for a concrete group of workers if the aforementioned elements apply tothem. One or more indicators combined can point to the existence of an employmentcontract. In that case it is possible to plead for application of the nationallabour law.❍ The worker is part of the organisation of the employer.❍ The worker runs no personal financial risk when carrying out the work.❍ The worker receives a fixed remuneration.❍ The worker has no own materials or equipment at his or her disposal.❍ The employer determines the working hours.❍ The employer gives instructions about the way the work must be carriedout.❍ The employer controls the work and is able to punish shortcomings.❍ The employer supervises the work.❍ …If none of these indicators apply, we are dealing with self-employed work. Inthat case the labour law offers hardly if any protection. Other forms of protection(e.g. civil law or commercial law) are possible, however.15

Example:An example of this can be found in theThai wood-processing industry, whereparts of furniture are manufactured inseveral workshops outside the company.When these workshop in turn put out thework to other contract workers, thelabour relation between the principalcontractor and the worker becomesunclear. In that case the chain runsthrough several contractors and subcontractors.Moreover, production chains can extendover several countries. If the wages arenot paid on time or an industrial accidenthappens, it is in many cases unclear whois liable for the damages: the subcontractoror the contractor? Or are all the contractorsand subcontractors in the productionchain liable?Exercise 2.4Which party or parties are in your view responsible (or should be responsible)for observing the labour law-related regulations and standards?Draw a production chain and indicate where the responsibility lies: the maincontractor, the subcontractors, the informal workers and / or the consumers?For more information on this subject, please consult the website of the InternationalLabour Organisation: http://www.ilo.org/public/english/dialogue/index.htmHere you can find documents and country studies in preparation of an internationalrecommendation on the employment relationship (scheduled for June 2006). Seealso: The Employment relationship: a standard discussion in 2006, Report V(I),International Labour Conference 2006.17

| Chapter 1 | THE THEORY |3 What legalinstruments dowe have?3.1 ObservationThere is no doubt that globalisation hasyielded more losers than winners. In manycountries privatisation and mass dismissalshave had a disrupting effect. Inother countries the economic growth hasfailed to get off the ground or the profitshave disappeared in the pockets of the rulingelite. The power of the trade unionmovement and the protection of the labourlaw have crumbled away. Because manyinformal economy workers work for theirown account, they view the labour law asirrelevant and expect no good from tradeunion membership.This is not our point of view, of course.The trade union movement has struggledfor years to achieve that the labour law isrecognised and improved. We do not wantto throw the labour law overboard just likethat. To offer protection to dependentworkers without an employment contract,we have to:1. adapt the existing legislation (labourlaw, civil law, social law, commerciallaw, public law, tax law, criminallaw…);2. seek new forms of protection, eg collectiveagreements and voluntary codes ofconduct (such as the OECD Guidelines);3. try to achieve that the informal economyworkers are represented in the socialdialogue.We obviously cannot do this on our own.ILO experts have been discussing foryears how people needing protection canbe brought under the scope of the labourlaw. 6 In the year 1997 and 1998, theythought to have found the solution with aconvention on contract labour. The proposalsdid not make it because it is hard todefine contract labour and it was notdeemed indicated to create a new, lessprotected group of workers. The debate onthis subject is by far not over, however,and has been included in the agenda of theInternational Labour Conference in 2006. 7In brief, we should not accept the idea thatinformal economy workers have no labourrights or cannot exercise their rights anyway.8 On the contrary, the trade union movementjointly with governments and employerswill have to see to it that workers needingprotection actually get it. The successof this action will be partly decisive for thefuture of the trade union movement.6. See: ILO, Report of the Meeting of Experts on Workers in Situations Needing Protection, doc. MEWNP/2000/4.www.ilo.org/public/english/dialogue/ifpdial/publ/mewnp/mewnp.htm7. See: ILO, Contract labour, Report V, 86th Session, Geneva 1998; ILO, Resolution concerning decent work and the informal economy,90th Session, Geneva 2002; and ILO, The scope of the employment relationship, Report V, Geneva 2003.8. See for ILO instruments: ILO, Decent Work and the informal economy, Report VI, International Labour Conference 90thSession, Geneva 2002, pp. 44-47.18

The labour law derives from severalsources: international treaties and conventions,national laws and decrees, collectiveagreements between employersand workers, individual agreements, customand habit. In the following paragraphswe will give a survey of some ofthese sources.Exercise 3.1The trade union takes action to improve the status of the informal economyworkers.Think of a suitable slogan.3.2 Human rightsIn this paragraph we are dwelling on thebasic labour rights (called also basicsocial rights) that emanate from theUniversal Declaration of HumanRights (1948) and the InternationalTreaty on Economic, Social and CulturalRights (1966) of the United Nations.These labour rights are reckoned amongthe human rights and therefore apply toeveryone who works. This implies that nodistinction must be made betweenemployed and self-employed workers orbetween formal and informal economyworkers. The basic labour rights are atthe root of many labour laws worldwide.The United Nations member states haveundertaken reciprocally to recognise andapply the following basic labour rights:• the right of everybody to constitutetrade unions and to join a freely chosentrade union;• the ban on slavery;• the protection of children and youngpeople against economic and socialexploitation;• the right to equal pay for work of equalvalue, without any distinction;• the right to a fair wage enabling theworker and his/her family to lead adecent existence;• the right to safe and healthy workingcircumstances;• the right to rest and leisure time, a reasonablereduction of the working timeand periodic paid holidays;• the right of working mothers to paidleave during a reasonable periodbefore and after the birth of their child;• the right to social security, includingprovisions in case of unemployment,illness, disablement, old age or anotherlack of income resulting from circumstancesindependent of the worker’swill.19

| Chapter 1 | THE THEORY |Exercise 3.2Indicate how in your country the above-mentioned basic labour rights arerecognised and applied to workers in general and to informal economy workersin particular.Use a scale from 0 (very bad) to 10 (very good).3.3 Basic ILO conventionsThe International Labour Organisation(ILO) has occupied itself since 1919 withthe protection of workers by means ofconventions and recommendations in thelabour field. The ILO is part of the UNfamily and is based in Geneva.It is a tripartite organisation, in whichgovernments, employers’ organisationsand trade unions from all over the worldcooperate from the conviction thatsocial justice is essential for peace. Inthe opinion of the ILO, economic growthis essential but insufficient to guaranteeequality and social progress and to eradicatepoverty.The International Labour Code contains185 conventions and 195 recommendations.Annex 2 gives a survey of the conventions.It is not expected that many newsubjects will be added.Under the ILO Declaration 9 the memberstates are under the obligation to respect,promote and put into practice four basicprinciples. These principles apply toall the workers regardless their legalstatus and regardless the fact whetherthey belong to the formal or in the informaleconomy. 10 This becomes even clearerwhen we place them together with theeight core conventions:Freedom of association and effectiverecognition of the right to collectivebargaining(Conventions 87 and 98)• The Freedom of Association andProtection of the Right to OrganiseConvention, 1948 (C. 87) calls therecognition of the principle of freedomof association essential for improvingthe working circumstances and achievingpeace and sustainable development.Workers and employers, withoutdistinction whatsoever, shall have theright to establish and join organisationsof their own choosing withoutprevious authorisation.• The Right to Organise and CollectiveBargaining Convention, 1949 (C. 98)is aimed to protect workers againstacts of anti-union discrimination relatedto their work.9. ILO, Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the International LabourConference at its Eighty-sixth Session, Geneva, 18 June 1998.10. ILO, Decent work and the informal economy, Geneva 2002, p. 39.20

Abolition of all forms of forced orcompelled labour(Conventions 29 and 105)• The Forced Labour Convention, 1939(C. 29) instructs the member states toban all forms of forced or compulsorylabour within the shortest possibleperiod.• The Abolition of Forced LabourConvention, 1957 (C. 105) prohibitsthe use of all forms of forced or compulsorylabour for political or economicpurposes, as a disciplinary measureor as a means of discrimination basedon race, social origin, nationality orreligion.Abolition of work- or occupationrelateddiscrimination(Conventions 100 and 111)• The Equal Remuneration Convention,1951 (C. 100) guarantees the applicationof the principle of equal remunerationfor men and women for work ofequal value to all the workers. This canbe achieved by means of national lawsor regulations, legally recognisedmechanisms to fix wages, collectiveagreements between employers andworkers or a combination of these variousmeans.• The Discrimination (Employment andOccupation) Convention, 1958 (C. 111)defines discrimination as follow: anydistinction, exclusion or preference onthe basis of race, colour, sex, religion,political opinion, social origin, whichharms the principle of equal opportunityor equal treatment in employmentor occupation. Member states ratifyingthe Convention must pursue a nationalpolicy of equal opportunity and equaltreatment at work and prohibit discrimination.Effective abolition of child labour(Conventions 138 and 182)• The Minimum Age Convention, 1973(C. 138) induces the member states topursue a national policy aimed at theeffective abolition of child labour andat raising the minimum age for accessto employment. It bears pre-eminentlyupon employment in the informal sector.• The Worst Forms of Child LabourConvention, 1999 (C. 182) providesfor taking measures to put an end tothe worst forms of child labour (prostitution,exploitation…).Despite the broad field of application ofthese conventions it is not easy for theinformal economy workers to exercisetheir rights, the freedom of associationand collective bargaining in the firstplace. In some countries it is prohibitedor practically impossible to organiseinformal economy workers. In othercountries trade unions have not enoughadherents, so that they fail to be heard atthe national and the international level. Inmany cases collective bargaining is difficultbecause the labour relations areunclear. The informal economy is generallycharacterised by a low rate of unionisation,so that trade unions have littleinfluence on the policies of employersand governments.The exercise of other basic labour rightsproves to be not easy either in practice.21

| Chapter 1 | THE THEORY |Child labour and discrimination occur ata large scale in the informal economy. Itis difficult to change this without a thoroughknowledge of the historical, culturaland religious context.Nevertheless, it is important that basiclabour rights violations in the informaleconomyare effectively denounced. Thetrade union can call in the WCL’sStandards Department or the ILO for this.International pressure can undoubtedlyhelp improve the situation of the informaleconomy workers.3.4 Other ILO conventionsApart from the basic ILO conventions wehave just discussed, there are dozens ofother conventions that can apply to informaleconomy workers. Invoking theseconventions is only possible if the countryconcerned has ratified them. A ratifiedconvention can have a direct effectbetween the authorities and the citizensand/or a horizontal effect among citizens.This depends on the nature andcontent of the convention and on the provisionin the Constitution. In cases ofdoubt the judge will have to decide.ILO conventions can contain technicalstandards (e.g. the Benzene Convention,1971), protect certain groupsof workers (e.g. the Indigenous andTribal Peoples Convention, 1989) or containpolicy standards (e.g. the SocialPolicy (Basic Aims and Standards)Convention, 1962).Some conventions can be introduced gradually,so that a country’s level of developmentcan be taken into consideration.Conventions and recommendations supplystarting points and contain legalinstruments to improve the situation ofthe informal economy workers. It is notnecessary to know all the conventionsand recommendations by heart. The titlecan help determine which conventionsare relevant for the sector one isemployed in. The ILO’s InternationalLabour Code contains useful materialfor workers in v for many situations andmany workers. It is important to be awareof this material and to be able to use orapply it.A few priority conventions deserveour special attention:• Labour Inspection Convention,1947 (C. 81)Labour inspectors must secure theenforcement of the legal provisionsrelating to working hours, wages, safety,health and welfare and the employmentof children; report violations tothe competent authorities; and adviseemployers and workers on the applica-22

tion of these legal provisions. TheConvention establishes standards for aproperly functioning labour inspection.A protocol was adopted in 1995.• Social Policy (Basic Aims andStandards) Convention, 1962 (C. 117)This Convention establishes a stronglink between economic growth andsocial progress. The main purpose ofeconomic development is to improvethe living standard of the population,according to Article 2 of the Convention.The government must takemeasures to guarantee all the workersa minimum living standard. This supposesa broad social policy: measuresin the field of health care, housing,nutrition, education, child care, equaltreatment, working conditions, minimumwage, protection of migrant andagricultural workers, social securityand publicservices. In brief, theConvention supplies various startingpoints for trade union action in favourof the informal economy workers.• Employment Policy Convention,1964 (C122)This Convention compels the memberstates to pursue an active policy aimedat full, productive and freely chosenemployment. When developing thispolicy, the stage and level of the country’seconomic development and therelation between employment andother economic and social goals maybe taken into account.• Labour Inspection (Agriculture)Convention, 1969 (C. 129)Under this Convention the labourinspection system applies to all theagricultural workers regardless the waythey are paid and regardless the type,form and duration of their contract.Enforcement of labour laws, adviceand information to employers andworkers and reporting labour standardsviolations are among the coretasks of the labour inspection(see also C. 81).• Labour Administration Convention,1978 (C. 150)This Convention is about extendingtasks and activities of the labouradministration to groups of workerswho are not, in law, employed persons,such as agricultural workers,self-employed workers occupied inthe informal economy and members ofco-operatives. The government cancall on trade unions and employers’organisations to carry out these activities.23

| Chapter 1 | THE THEORY |Exercise 3.4Suppose that you work with migrant workers and want to invoke the MigrantWorkers Convention, 1975 (C. 143).Read the Convention. Write a leaflet for the migrant workers in which youexplain the rights and standards contained in this Convention.Observation: check if the government has ratified this Convention and insist,if necessary, on its ratification and application.3.5 SurveyBelow you find a chronological survey ofother conventions that may be useful alsofor informal economy workers. You canfind the complete text of each conventionon the website of the ILO. 11 Here we havelimited ourselves to the essence.• White Lead (Painting) Convention,1921 (C. 13)The Convention limits the use of whitelead or lead sulphate when painting theinterior of buildings. Workers in thissector, particularly youths under 18and women, must be protected againstthe health risks of working with thesesubstances.• Migration for Employment Convention(Revised), 1949 (C. 97)Under this Convention the governmentmust supply free assistance and informationto migrant workers. In cooperationwith other member states it must takeaction against misleading propagandaon emigration and immigration, supplyhealth care and fight discrimination.• Social Security (Minimum Standards)Convention, 1952 (C. 102)This Convention establishes minimumsocial security conventions. It encouragesgovernments to provide facilitiesin case of unemployment, illness,employment injury, invalidity, pregnancyand old age. The facilities can begradually introduced and extended.• Plantations Convention, 1958 (C. 110)With this Convention the ILO wanted toextend the application of existing conventionsto commercial plantations.The Convention can be graduallyintroduced and contains provisions ona variety of subjects such as migrants,minimum wage, annual holiday, weeklyrest, maternity protection, compen-11. See www.ilo.org/ilolex/english/index.htm.24

sation for industrial accidents, freedomof association and collective bargaining,labour inspection, housing andhealth care. In 1982, the Conventionwas partly revised by a protocol.• Guarding of Machinery Convention,1963 (C. 119)This technical Convention compels thegovernment to establish regulations toprotect workers against the risks relatedto the use of dangerous machines.• Maximum Weight Convention,1967 (C. 127)This Convention, which covers all thebranches of economic activity, protectsworkers who regularly transport freight.The freight must not be so heavy that itharms the workers’ safety and health.The government must arrange foradapted training and instructions.Women and young workers enjoy specialprotection.• Minimum Wage Fixing Convention,1970 (C. 131)A government that ratifies this Conventionmust arrange for a minimumwage system covering groups of wageearners that are specified in consultationwith representative employers’ andworkers’ organisations. The minimumwage level is dependent on:- the needs of workers and their families,the living costs and living standardof other social groups;- economic factors such as the requirementsof economic development,production levels and employment.• Benzene Convention, 1971 (C. 136)The production and use of benzeneentail high health risks for the workers.The government that ratifies thistechnical Convention must take thenecessary measures to prevent theserisks. This applies to all activities inwhich workers are exposed to benzene.• Rural Workers’ OrganisationsConvention, 1975 (C. 141)Rural workers’ organisations can playan important role in the country’s economicand social development. Thegovernment that applies this Conventionundertakes to pursue an activepolicy aimed at the creation andgrowth of rural organisations. The term‘rural workers’ refers to workersengaged in agriculture, handicrafts ora related occupation in a rural area.Rural workers have the right to createand to join trade unions of their ownchoice without prior consent. Theirlegal status is not important in this: theConvention applies to wage earners aswell as to self-employed persons (Art.3). Rural workers’ organisations mustbe able to operate independently andon a voluntary basis.• Human Resources DevelopmentConvention, 1975 (C. 142)Under this Convention the governmentmust adopt and develop training programmesenabling workers withoutany discrimination to develop and usetheir skills in their own interest and inthat of society as a whole.25

| Chapter 1 | THE THEORY |• Migrant Workers (SupplementaryProvisions) Convention, 1975(C. 143)With this Convention the ILO tries tocall a halt to the uncontrolled and unlimitedmigration of workers. Governmentsmust provide information,regulation and control of abuses anddiscrimination. Cooperation with otherUN organisations is encouraged.• Working Environment (Air Pollution,Noise and Vibration) Convention,1977 (C. 148)This Convention, which basicallyapplies to all branches of economicactivity, is aimed at the gradual introductionof measures to prevent, andprotect against, occupational risksresulting from air pollution, noise andvibrations. The measures must be laiddown in national laws or regulations.The implementation and applicationoccur in close consultation with themost representative organisations ofemployers and workers.• Occupational Safety and Health(Dock Work) Convention,1979 (C. 152)The Convention protects all workersinvolved in loading and unloadingships, though the government canallow exceptions. The implementationof the Convention requires a wholeseries of measures: measures to preventfire and explosions on the ship,sanitary facilities, medical supervision,transport of workers, loading andunloading of dangerous substances,etc.• Occupational Safety and HealthConvention, 1981 (C. 155)Under this Convention the governmentmust pursue, in consultation with themost representative employers’ andworkers’ organisations, a coherent policywith regard to safety and health atwork.• Workers with Family ResponsibilitiesConvention, 1981 (C. 156)This Convention protects workers incharge of the care for their children orother dependentfamily members. Thegovernment must take measures toarrange for equal treatment and equalopportunities of men and women onthe labour market. The Conventionapplies to all branches of economicactivity and to all groups of workers.• Vocational Rehabilitation andEmployment Convention (DisabledPersons) Convention, 1983 (C. 159)Under this Convention the governmentmust pursue a policy to improve theaccessibility of the labour market fordisabled persons and to create equalopportunities.• Occupational Health ServicesConvention, 1985 (C. 161)A government that ratifies this Conventionmust see to the gradual developmentof health care services forworkers in all sectors of the economy.• Asbestos Convention, 1986 (C. 162)Asbestos is a dangerous substancethat can produce deadly forms of lungcancer. The Convention applies to all26

activities in which workers are exposedto asbestos. The government mustestablish laws and regulations to protectworkers against the dangers ofasbestos. The ILO published on thisissue a Code of Practice (1984).• Safety and Health in ConstructionConvention, 1988 (C. 167)The government must enact nationallaws and regulations to compelemployers and self-employed workersto observe the measures regardingsafety and health at work. Workers inthe building sector must be enabled togive their opinion on working proceduresthat influence the safety andhealth at work. They must be given theright (and the obligation) to committhemselves to safe working circumstances.• Indigenous and Tribal PeoplesConvention, 1989 (C. 169)The Convention provides measures toput an end to the discrimination of acountry’s indigenous population.Together with the population the governmentmust develop programmes toprotect their rights. Respect for theown identity, culture, language andreligion comes first in this regard. TheConvention is very broad and providesthe introduction of social security,training and equal remunerationamong other things.• Night Work Convention, 1990 (C. 171)The government must take measuresto protect night workers in fields suchas safety and health, pregnancy pro-tection and an adapted remuneration.The Convention applies to all workersemployed by somebody else, except insome sectors like agriculture andfishery.• Home Work Convention,1996 (C. 177)With this instrument the ILO wants toensure a better application of the conventionsand recommendations tohomeworkers. The definition of homework contains the following elements:- work that is carried out by a person inhis or her house or in another houseof his or her choice other than theemployer’s workshop;- for a remuneration or compensation;- resulting in a product or service asdemanded by the employer;- no matter who uses the materials,equipment or other supplies, unlessthis person has a level of autonomyand economic independence that isnecessary to be considered a selfemployedworkers by the nationallaws, regulations and courts.Homeworkers’ organisations can insiston ratification of the Convention andcooperate on a national policy toimprove the situation of the homeworkers.• Private Employment AgenciesConvention, 1997 (C. 181)The ILO recognises the importance ofprivate employment agencies, but atthe same time points out the need toprotect workers against abuses. Thegovernment must therefore regulatethe working of these agencies in order27

| Chapter 1 | THE THEORY |to prevent discrimination and protectmigrant workers and children amongothers. Employment agencies must notcharge workers who make use of theirservices.• Maternity Protection Convention,2000 (C. 183)The Convention applies to all pregnantworkers, including those in atypicallabour relations, but the governmentcan exclude certain groups. In thatcase the protection must be graduallyextended. Women workers can claimmaternity and delivery leave, socialsecurity, protection against dismissal,etc.• Safety and Health in AgricultureConvention, 2001 (C. 184)Under this Conventions governmentsin consultation with representativeworkers’ and employers’ organisationsmust formulate a coherent policyaimed at the safety and health of agriculturalworkers.Exercise 3.51. Look up which conventions your country has ratified(www.ilo.org/ilolex/english/index.htm) and check which conventions can beused to improve the situation of the informal economy workers in yoursector.2. How are these conventions being applied in practice?3.6 Other instruments• National laws and regulationsAs has been said before, labour rightsnot only emanate from internationaltreaties and conventions, but also fromnational laws and regulations TheConstitution of a country, its LabourCode, Labour Decrees and SocialSecurity legislation contain numerousprovisions in the field of minimumwage, working hours, holidays, safetyand health at work, social security, etc.Those committed to improving theworking circumstances of the informaleconomy workers can derive fromthem the necessary starting points.Rights and obligations do not onlychange in time, but differ also from28

country to country, region to regionand occupational group to occupationalgroup. In the textile sector otherarrangements will apply than in thetransport sector, in Bolivia other than inBangladesh. Moreover, equality andsocial justice do not have the samemeaning everywhere. A good knowledgeof the national law and practise istherefore essential in the preparation ofa legal action. In the next chapter wegive a few examples of this.• Collective agreementsCollective agreements between employersand workers contain arrangementsin the field of wage, workinghours, social security, workers’ participation,etc. They are concluded betweenrepresentative workers’ and employers’organisations in a given sector.The arrangements are in force forthe duration of the agreement and arelegally binding upon the parties.• Trade agreementsInternational trade agreements containin many cases arrangements in thefield of labour law. A example of this isthe trade agreement between theUnited States and Cambodia, in whichthe export of textile products is conditionalupon respect for the core labourstandards. This is a big stick in thehands of the government and theemployers.• OECD guidelinesFinally we draw attention to the guidelinesfor multinational companies of theOrganisation for Economic Cooperationand Development (OECD). 12The so-called Code of Conduct datesback from 21 June 1976 and wasmodified in June 2000. It is aimed tohelp prevent conflicts on the basis ofa number of accepted principles andto create an atmosphere of trustbetween multinational companies andthe societies in which they operate. 13The guidelines have moral authoritybut are not legally binding. In somecases the OECD’s reports play a rolein national debates on the socialpolicy.Exercise 3.6Are you familiar with these instruments? Check to what extent they existand can be used for the informal economy workers of your sector in yourcountry.12. See www.oecd.org/daf/investment/guidelines/mnetext.htm.13. W.Van Eeckhoutte, Arbeidsrecht, Antwerp: Kluwer 2002, p. 14.29

2Chapter 2The practice31

| Chapter 2 | THE PRACTICE |1 IntroductionIn this practical part we are going into thelegal status of informal economy workersin three participating countries: Ghana,Colombia and Sri Lanka. This informationis going to be supplemented andcorrected in the course of the programme.The data below largely come from theparticipants in the programme. Duringthe Informal Economy seminars questionnaires(see Annex 3) were used tomap out the situation of the informaleconomy workers. A set of country studiesare available on the website of theILO. 142 GhanaGhana has a large and growing workingpopulation and a relatively low officialrate of unemployment. The formal sectoraccounts for roughly a mere 14% of thetotal employment. The informal economyis by far the most important source ofemployment.Nearly 90% of all workingGhanaians earn a living in this sector 15 .According to the statistics there are fourtimes more wage earning men thanwomen. On the other hand, twice as manywomen as men work self-employed or asunpaid domestic staff. In urban areas oneout of three runs a ‘business’. No lessthan 49% of the women in the cities workin ‘business’. 16In a report of 2003 on trade unions inGhana, the Danish Trade Union Councilfor International Development Cooperation(DTUC) states that incomes inagriculture, mining & quarries and inproduction sectors are particularly low.These three sectors employ about 65% ofthe total working population and contributevery much to the export earnings.A wage increase in one of these sectorswould mean a considerable improvementfor a large part of the Ghanaian workers. 17Workers in the formal sector earn onaverage four times more than informaleconomy workers. According to a nationallabour market assessment, carried outin 2000, there are even huge differenceswithin these formal and informal sectors.14. See: http://www.ilo.org/public/english/dialogue/ifpdial/ll/er_back.htm15. Danish Trade Union Council for International Development Cooperation (LO/FTF Council), Profile of the Labour Marketand Trade Unions in Ghana, Copenhagen 2003, p. 8 and 32. http://www.lo-ftf-council.dk16. DTUC 2003, p 33 and p 34.17. DTUC 2003, p 38.32

A male worker in the formal services sectorearns most, whereas a female agriculturalworker has almost no income. In theinformal economy workers in transportand communication sectors earn most,workers in commercial sectors least. 18In Ghana, sixty-five companies employingin all about 8,700 workers (March2002), operate under the Free ZonesScheme. This number is expected torise in the coming years. The Free ZonesAct 1995 (FZA) recognises labour rights,including the freedom of association. Onthe recommendation of the Free ZonesBoard the Chairman can declare any areaor building a free trade zone by publishinga message in the Commercial andIndustrial Bulletin.Paragraph 34 (i) of the Free Zones Actprovides what follows: ‘Developers andcompanies in free zones are free to bargainover and conclude employment contractswith workers, which contain agreementson wage scales, minimum workinghours, suspension and dismissal ofworkers, settlement of disputes betweenemployers and workers, and other workingconditions that are consistent withILO conventions on workers’ rights andworking conditions.’ Some companiesemploy a large number of temporarystaff, trying that way to escape the pressureto improve the usually very badworking conditions in the free zones. 19Ghana has been a member of the ILOsince 1957 and it has ratified 46 conventions.In October 2003, the Parliament of theRepublic of Ghana adopted a newLabour Act (Act 651). The Act applies toall the workers and all the employers,except for the army, the police, the prisonsystem and the security and intelligenceservices (art. 1). The Labour Act recognisesthe fundamental principlesand rights as embedded in the ILODeclaration on the FundamentalPrinciples and Rights at Work (1998).• Freedom of associationEvery worker has the right to form orjoin a trade union of his or her choicefor the promotion and protection of theworker’s economic and social interests(art. 79 (1)). Two or more workers of asame company can create a tradeunion (art. 80 (1)). Trade unions mustturn to the Chief Labour Officer to registerand to obtain a certificate for collectivebargaining. In practice, this canbe an obstacle to the principle of freedomof association and collective bargaining.• Elimination of forced labourA person shall not be required to performforced labour (art. 116 (1)).Though forced labour is not very widespread,slavery practices occur in severalethnic groups along the coast ofGhana (DTUC, p. 68).• Elimination of child labourChild labour is regulated by theChildren’s Act, 1998 (Act 560). ThisAct provides that children must not beemployed for exploiting work that18. DTUC 2003, p 37 and p 38.19. DTUC 2003, p. 30.33

| Chapter 2 | THE PRACTICE |harms their health, education or development(paragraph 87). Though educationis free and compulsory until theage of 14, quite a lot of children, particularlygirls, leave school under economicpressure. UNICEF reports that80% of the girls employed as domesticworkers are between 10 and 14years old (DTUC, p. 67). Child prostitutionand trafficking occur as well,even if they are prohibited.• Elimination of discriminationArt. 10 (b) of the new Labour Actrecognises the right to equal remunerationfor equal work. Anti-union discriminationis prohibited by law (art.14 and 127), but in practice lots ofcompanies keep discriminating tradeunions and the government cannotstop this (DTUC, p. 66).According to Art. 10 of the Labour Act theworkers’ rights include:- the right to work insatisfactory, safeand healthy conditions;- the right to receive equal pay for equalwork without any distinction of anykind;- the right to have rest, leisure and anreasonable limitation of working hoursand period of holidays with pay as wellas remuneration for public holidays;- the right to form or join a trade union;- the right to be trained and retrained forthe development of his of her skills;and- the right to receive information relevantto his or her work.There are a few special provisions onthe employment of disabled people(art. 45-54), the employment of women(art. 55-57) and the employment ofyoung persons (art. 58-61). The LabourAct prohibits the employment of youngpersons (between 18 and 21 years of age)in hazardous work (i.e. work that couldexpose them to physical or psychologicaldangers).Developing a legal strategy for informaleconomy workers on the basis of the newLabour Act requires the examination ofthe field of application of the Act.Article 1 of the Act provides that it appliesto all workers and all employers, but whoare these workers?A ‘worker’ is a person employed undera contract of employment whether on acontinuous, part-time, temporary ofcasual basis (Art. 175). This implies that-in theory- dependent informal economyworkers can demand the application ofthe rights embedded in the Labour Code.Yet, the Labour Code contains some seriousrestrictions: the provisions relatedto working and rest hours, for instance,do not apply to piece-workers anddomestic staff (art. 44). And the specialprovisions on temporary and occasionalworkers do not apply to piece-workers,part-time workers, tenants, apprentices,wage-earners in the fishing industry andall persons who work less than 24 hoursa week (art. 73).As a consequence, informal economy34

workers are in many cases excluded fromlegal protection.The improvement of the living standard ofall the workers, and not only of thoseunder an employment contract, must beconsidered the basic aim in the planningof the economic development (art. 2 ofthe Social Policy (Basic Aims andStandards) Convention, 1962). Ghanaratified the Social Policy Conventionin 1964. Forty years later, the informaleconomy (which employes 90% of all theworkers) has become one of the mainstakeholders in the development ofGhana. The government, however, makeslitte efforts to protect these workers. Thelow incomes, an insufficient level oftraining and gloomy prospects limit theability of the informal economy workersto contribute to economic growth.Improving the situation of the informaleconomy workers requires more than justlegal action. Other strategies must betaken into consideration:- to stress the importance of educationand vocational training for men andwomen;- to improve the access to credit facilitiesfor small farmers and entrepreneurs;- to pay special attention to women andtheir role in the economic and socialdevelopment;- to create decent jobs;- to improve the access to ICT andadapted technologies;- to promote the core labour standardsand full-fledged work for all;- to improve the access to social security;- to create an environment of democracy,flexibility and creativeness.Participants in the WCL seminar inTogo (February 2004) pointed out thenecessity of adequate protection for theworkers in their respective sectors, particularlycar mechanics, batik producers,tailors and vendors of lottery tickets.The main obstacles to the applicationof the labour standards and rights in theinformal economy are according to theparticipants: ignorance, lack of money totake legal proceedings and distrust of thepublic bodies involved. Workers musthave an employment contract, enjoy protectionagainst dismissal and fall underthe social security system to have a‘decent’ job.The participants stress the need foreffective sanctions to promote theapplication of the Labour Act. Informaleconomy workers must be recognised bylaw, so that they can enforce their rights.35

| Chapter 2 | THE PRACTICE |3 ColombiaIn Colombia 50 to 65% of the active populationis reckoned to work in the informaleconomy. We find there workers fortheir own account, subcontractors, workersin small and medium-sized companies,etc. Women account for 60% of theinformal economy workers, and there is ahigh percentage of child workers. Anaverage working day in the informaleconomy varies between twelve and sixteenhours.In his report on the informal economy inColombia, Cristobal Camargo of theFederación Nacional de Trabajadores delComercio (FENATRAC, CGTD) writes thatthere are no legal rights protecting theinformal economy workers and that thegovernment has developed no policy tostimulate the economic and socialdevelopment of Colombia. The wagesin the informal economy fluctuatebetween 40 and 50% of the legal minimumwage, and 32% of the workers areoutside the scope of social security. Thegovernment regularly seizes the merchandiseof street vendors, and agreementswith the local authorities to compensatethe vendors are not observed.In Colombia the core labour standardsare recognised, but not alwaysrespected. One of the participants speaksof a ‘culture of exploitation’. It is true thatthe Colombian labour law contains specialprovisions for homeworkers, domesticstaff and agricultural workers, butthese provisions are not applied. Thesame goes for the protection of the publicservice workers. The Nueva ReformaLaboral (December 2002) means for theColombian workers a ‘great leap backward’.For a targeted legal action to be successfulit is important to have a possibly completepicture of the legal status of theworkers one wants to protect. Thus, art.89 of the Código del Trabajo (LabourCode) provides: ‘There is an employmentcontract with the person who suppliesat home, whether alone or with thehelp of family members, paid services ona regular basis and for the account of anemployer’.According to the Colombian LabourCode, homeworkers have the samerights as other workers. The condition forconcluding an employment contract witha home worker is that the employer hasthe prior consent of the labour inspectoror the mayor of his domicile (art. 90). Thegovernment probably hopes to supervisethat way a form of work that otherwiseeasily remains hidden. If the homework-36

ers organised themselves, they couldalso claim their rights themselves.There is, for instance, the right to a minimumwage, about which art. 145 provides:‘The minimum wage is the wage towhich every worker has a right so to satisfythe basic needs of himself and hisfamily, and this at the material, the moralas well as the cultural level’. The LabourCode supplies some relevant instrumentsto stand up for better working conditionsfor the informal economy workers.In the agrarian sector there is need foran adequate protection of the workers.Social security, education and job securityare basic requirements for decent work.According to the participants, the legalstatus of the informal economy workerscan be improved by training and organisingthem and by supplying means toexercise their rights. More supervisionand support from international organisationscan result in a better application ofthese rights.In the public sector there is need for anadequate protection of workers under acontract of limited duration or under acontract for supplying services. For thetime being, their rights are very limited.Before we can speak of decent work, theemployees must at least be entitled to afair and decent salary and to social securityin the field of health care and pensions.The participants suggest that theLabour Code should be adapted to protectworkers in the informal economy. Inthe view of the participants, unionisationand training are the best means to guaranteedecent work.37

| Chapter 2 | THE PRACTICE |4 Sri LankaIn an inquiry into the active population ofSri Lanka, carried out in 2000, the economicallyactive population was estimatedat 6.7 million, 6.17 million of whomworking and 0.53 million unemployed.Nearly 57% of the workforce wasemployed and 28.6% was self-employed.20This means that the majority of the activepopulation are dependent (employed)workers. Workers in the private and thesemipublic sector are covered by theLabour Code. In practice the applicationof the Labour Code leaves much to bedesired, for lack of staff, instruments andgovernment control. The employers canbe classified in a formal category and aninformal category of small entrepreneurs.By and large, the formal categoryobserves the Labour Code with a greatsense of responsibility. This is often notthe case in the second category (SurechChandra 2001, p. 4 and 14).As far as the dependent workers are concerned,some employers try to disguisesuch relations by using common lawconcepts such as ‘contract labour’, ‘hiringof labour’, etc. Yet, such concepts haveproved to be unsuccessful before thecourts. Courts in Sri Lanka look at thereality and pass judgment in favour of theworker. The most recent trend in thisrespect is the outsourcing concept, underwhich activites are put out to third personson the basis of a contractual agreement(Surech Chandra 2001, p. 4 and 7).Sri Lanka has no laws on self-employment,though there have been occasionalattempts to introduce welfare regulationsfor this group. The Labour Codedoes not apply to self-employed workersbecause they are ‘their own boss’. Thelaw offers them no protection, except incases where the contract with theiremployers gives some protection, butstrictly speaking this comes under thelaw of contract, for which the ordinarycivil court is competent. There are nolegal instruments for the self-employed(Surech Chandra 2001, p. 4 and 19).The report contends, further, that the lackof legal instruments regulating selfemployedwork makes it impossible to a‘discussion on working conditions,wages, safety and health at work, socialsecurity, freedom of association, collectivebargaining, access to the court, etc.’(Suresh Chandra 2001, p. 19).In our view this is not true, because mostof these points are relevant for self-20. RKS Suresh Chandra, The Employment Relationship (scope) in Sri Lanka, Sri Lanka 2001, p. 3.This document can also befound on the website of the ILO: www.ilo.org.38

employed workers as well. The questionis how this can be organised and howthese rights can be guaranteed if there isno direct employer to turn to.A field that needs clarification is that of‘contract labour’. Many employers resortto this concept in order to avoid permanentemployment (Surech Chandra 2001,p. 21). According to one of the participants,temporary workers can claim theirrights before the court if they can provethat they have supplied services.In the transport sector (trucks, taxis andrickshaws) the taxi or trycicle owner andthe driver have in many cases reached anagreement on profit-sharing. The expensesare deducted from the daily incomes,and the driver receives part of the net balance,usually one third. The rest is for theowner of the vehicle. In some cases thedriver must pay the owner a fixed amountat the end of the day, regardless his earningon that day. According to the report,there is a trend to create labour relationsby which the application of the LabourCode becomes possible. If this happens,many owners of vehicles will stop theiractivities (Surech Chandra 2001, p. 11).Most building workers belong to thegroup of dependent workers. In this sectora triangular relationship is sometimesfound, which is usually defined as ‘subcontracting’,but here too it is easy toidentify the employer by means of thedefinitions in several labour acts. If thesubcontracting is a mere façade, the maincontractor is regarded as the employerof the workforce of the subcontractor(Surech Chandra 2001, p. 20).Freedom of association is a basicright guaranteed by the Constitution ofSri Lanka. The Trade Unions Ordinanceregulates the creation and registration oftrade unions. In 1999, an amendment tothe Industrial Disputes Act placed theemployer under the obligation to recognisetrade unions for purposes of collectivebargaining. This Act has givenrise to a lot of discontent, and theCommissioner of Labour is not in a hurryto apply the provisions of the amendedAct (Surech Chandra 2001, p. 17).The report points out that appropriatelegal mechanisms must be introduced toensure a faster application of the relevantlegal provisions (on employment conditions,compensations, safety and healthat work, etc.). Public awareness of theprovisions would make the workersaware of their rights, which in turn wouldinduce them to draw the competentauthority’s attention to the need to takeaction (Surech Chandra 2001, p. 17).Since Sri Lanka has a strong trade unionmovement, the workers are fairly wellaware of the advantages offered by thevarious labour statuses. Ignorance ofsuch advantages occurs only in the nonorganisedsector of small companies.The only way to make them aware of suchadvantages are information campaigns,particularly in rural areas (SurechChandra 2001, p. 22).39

| Chapter 2 | THE PRACTICE |According to the participants, the mainobstacles to the application of thelabour rights of the informal economyworkers are ignorance of their rights,lengthy and cumbersome legal proceedings,fear of harassment and fear of dismissal.In the view of the participants, homeworkers,migrant workers and workers inthe private transport sector are the mostvulnerable groups and need adequateprotection. In Sri Lanka the transporttrade is a very temporary trade. Theowners of vehicles expect regular transportassignments (as we have alreadyseen). The owner can dismiss the driverin case of shortage. In many cases thetraffic police harass the drivers. It is thedriver who must pay the fines, even if theoffence is attributable to owner of thevehicle (e.g. if the vehicle is badly serviced).The application of the core labour standardsand the introduction of a minimumwage are necessary to guarantee ‘decentwork’ for all the workers. Improving thelegal status of the informal economyworkers requires that they are organisedand enjoy trade union rights. The participantsagree that the trade union movementmust step up its struggle to guaranteethat the granted rights are put intopractice. The ILO can collect informationthrough its local offices, so to see who isresponsible for the Labour Code violation(employer, government or trade union).The transgressor must then account forhis acts.The general conclusion of the participantsis that the employers do not seriouslyapply the ILO conventions and thelaws based upon them. The governmentdoes not seem keen on supervising theobservance of these laws.40

Chapter 310 possibleactions341

| Chapter 3 | POSSIBLE ACTIONS |1 ForewordAgain: those who commit themselves toimproving the working circumstances ofthe informal economy workers, can try toachieve this in several ways. In this manualwe have drawn attention to the legalstrategy, by which we understand:• promote the application of existingnational and international labour standardsto the informal economy workers;and• acquire new rights for workers in thevarious sectors of the informal economy.With this strategy we try to strengthen thelegal status of the informal economyworkers. This status includes all therights (and obligations) that apply to agiven group of workers, regardless thesource they emanate from. In Part 1,under 3, we gave a survey of the mainsources in this field.Recognition by law is insufficient toimprove the working circumstances ofthe informal economy workers. If rightsare not respected, they must be claimedor enforced. After the seminars we notethat a lot remains to be done in this field.Signing ILO conventions and participatingin ILO programmes does not guaranteethat basic labour rights are actuallyrespected.With the help of the trade union the informaleconomy workers can claim theirrights. This means that they must haveaccess to affordable legal assistance.That the labour inspection and the labouradministration work efficiently. Thatjudges are independent and pronouncejudgment in the interest of the weakerparty. That transgression of the rightleads to sanctions. Trade union actionwill therefore have to focus on that.It is necessary to take several factors intoconsideration when defining the rightstrategy: the social and economic situationof the country and sector one isemployed in, the historical, cultural andreligious backgrounds, the size and compositionof the target group, the availableresources, etc.42

2 ActionsAction 1Identify the target groupBefore defining the right strategy, we have to identify the target group. In part 1, under2, we distinguished between someone working for his or her own account and risk (selfemployed)and someone working for the account and risk of another (employed). It is inmany cases difficult to make this distinction, because we must consider sham contractsand triangular relationships.Nevertheless, this is a necessary first step. The question if someone has an employmentcontract (implicit or explicit, written or unwritten) indeed determines if he or she is protectedby the existing labour law and what further steps can be taken.ExerciseMake a cross-section of your trade sector (transport, textile, agriculture,public services, building…).Define who works self-employed (independent worker or entrepreneur),employed (dependent worker) under a sham contract or another contract.Give a few characteristics of the working conditions in each of these groups.What are their needs and priorities, and what do they expect from the tradeunion?43

| Chapter 3 | POSSIBLE ACTIONS |Action 2Map out the existing rightsIf you want to commit yourself to improving the working circumstances of the informaleconomy workers, you will have to make a survey of the rights that currently apply inthe sector. No matter how minimal these rights are, they constitute the starting point ofour action.ExerciseA textile union in Guinea receives the visit of a group of female homeworkerswho want to do something about their living standard. Since their dismissalthey have worked under a ‘subcontract’. They do the same work for lessmoney, must work longer to make ends meet, can be without work from oneday to the other, are no longer affiliated to a trade union and no longer coveredby social security.Play a role play in which you try to convince the homeworkers of their existingrights. Make also use of the ‘international’ instruments.Action 3Investigate gaps in the protectionWe know that protection by the law is deficient in many respects. Gaps in the protectioncan be attributable to a lot of causes: one operates outside the law, rights are notrespected, social, cultural and religious factors throw obstacles, authorities ignore theworkers’ interests, corruption of the police and the law, etc.Legal action is only meaningful if we have insight into the factors that cause and maintainthe lack of protection. National and local trade unions are in the best position to getto the bottom of these factors and to find creative solutions.ExerciseDraw up two lists: one of all possible impediments and obstacles, the other ofcreative solutions to deal with these problems.If possible, you can do this exercise also in two groups.44

Action 4Insist on ratification and application of relevant conventionsLots of conventions to protect, for instance, homeworkers, migrants and rural workersare lying ready for ratification and application by national authorities. The InternationalLabour Code (see chapter 1, paragraphs 3.3 - 3.5) contains a lot of useful material. Urgethe government to ratify relevant conventions.Take action for the (gradual) application of national labour laws and international conventionsto informal economy workers. Make sure that the existing protection is used inthe best possible manner.ExerciseDraw up a report for the WCL ‘Standards’ Department, in which you give anaccount of the extent to which the basic labour conventions of the ILO areapplied to the informal economy workers.Action 5Look for partisans (network)Those committing themselves to the protection or granting of rights to the informaleconomy workers will be able to count on (inter)national support. Cooperation withother people and bodies can help raise the impact of an action and the chance of success.So, seek allies in the ILO, the WCL Informal Economy network, NGOs, authorities,religious groups, media, etc…, who can help you prepare, implement or finance actionsin favour of the informal economy workers.So, when preparing a trade union action, it is important to examine what people andbodies are willing and able to cooperate on the improvement of the status of the informaleconomy workers. It may be useful to repeat this exercise after a while. Has thecooperation with local authorities, churches and non-governmental organisations beenfruitful? With which people or bodies do we, or do we not, wish to continue the cooperationrelations? Have new organisations become active in the field?Also research institutes and universities can play a role in that they offer their knowledgeand expertise.45

| Chapter 3 | POSSIBLE ACTIONS |ExerciseComplete the chart below with the people and bodies who can help prepareor take legal action in favour of the informal economy workers.Trade unionEmployer/contractorFamily/neighboursSchool/universitytarget groupReligious organisationLocal/national authorityNGOsInterest organisationColleagues/co-workersMediaAction 6Give information on labour rightsWe see that informal economy workers are in many cases insufficiently informed of theirrights and obligations. Here is an important task in store for the trade union. If we provideoral and written information, people grow aware of their situation. The best way toprovide this information depends on the target group. The same goes for the best timeand place to reach the informal economy workers.46

ExerciseDesign a campaign to make informal economy workers from your sectoraware of their labour rights. Make sure that the result is perceptible at shortnotice.Include in this campaign a street action in cooperation with various trade federations.Action 7Organise training for trade unionistsNot only informal economy workers, also trade unionists need correct information. Bymeans of training and further training they remain informed of the developments in thelegal field. Is there a social dialogue with the government to improve the legal status ofbuilding workers? Has the trade union in one of the neighbouring countries reached anagreement on working conditions in the textile sector? Has progress been made with theprotection of workers in export processing zones? Information, education and trainingof trade unionists are essential for a trade union to function. At the same time, the leaderswill have to listen very well to messages from the grass roots.ExerciseWork out a programme for a two-day course for trade unionists at the grassroots level. Make a rough calculation of the costs and see who can give thecourse.Is it possible to cooperate to advantage with universities or training centres?47

| Chapter 3 | POSSIBLE ACTIONS |Action 8Strengthen the social dialogueBy social dialogue we mean that trade unions must enter upon a dialogue with local andnational authorities, employers and employers’ organisations in the interest of informaleconomy workers. To do so, the trade union will have to be sufficiently representative.In some countries the trade unions meet with strong opposition, in others there is noproblem. The trade union will have to put forward concrete proposals to improve thestatus of the informal economy workers.ExerciseDebate: Do you have experience with social dialogue in your country?What went well? What went wrong? What can we learn from theexperience of others?Action 9Organise actions in favour of young people and womenBecause of their vulnerable position youths and women are overrrepresented in theinformal economy, but underrepresented in the trade union. Adequate action is necessaryto improve their situation. Creative and family-friendly ideas are required to attractthese groups of workers. Equal treatment is a basic legal principle, but in practice it islimited in countless ways.ExerciseLook at and analyse all the existing trade union materials (documents, publicationsposters…).Check (if possible together with youths and women) if the message appeals tothem.Design then together a means of action that is focused on youths / women.48

Action 10Give legal adviceGiving legal advice to trade union members is an important means to recruit new members.As setting up a legal service is costly, it is possible to choose in the initial stagefor cooperation with a lawyer or a legally skilled person at a fee that is fixed in advance.The trade union can advise members on their legal status, but also on the possibility ofmarket places, government subsidies, etc.ExerciseMake a prime cost analysis of the legal service to informal economy workers.Who can make use of these services? What is their contribution?49

4Chapter 4Annexes51


| Chapter 4 | ANNEXES |2 Survey ofconventions21C1 Hours of Work (Industry)Convention, 1919C2 Unemployment Convention,1919C3 Maternity ProtectionConvention, 1919(C4) Night Work (Women)Convention, 1919C5 Minimum Age (Industry)Convention, 1919C6 Night Work of Young Persons(Industry) Convention, 1919C7 Minimum Age (Sea)Convention, 1920C8 Unemployment Indemnity(Shipwreck) Convention,1920C9 Placing of Seamen Convention,1920C10 Minimum Age (Agriculture)Convention, 1921C11 Right of Association(Agriculture) Convention, 1921C12 Workmen's Compensation(Agriculture) Convention, 1921C13 White Lead (Painting)Convention, 1921C14 Weekly Rest (Industry)Convention, 1921(C15) Minimum Age (Trimmers andStokers) Convention, 1921C16 Medical Examination of YoungPersons (Sea) Convention, 1921C17 Workmen's Compensation(Accidents) Convention, 1925C18 Workmen's Compensation(Occupational Diseases)Convention, 1925C19 Equality of Treatment (AccidentCompensation) Convention,1925(C20) Night Work (Bakeries)Convention, 1925(C21) Inspection of EmigrantsConvention, 1926C22 Seamen's Articles of AgreementConvention, 1926C23 Repatriation of SeamenConvention, 1926C24 Sickness Insurance (Industry)Convention, 1927C25 Sickness Insurance (Agriculture)Convention, 1927C26 Minimum Wage-FixingMachinery Convention, 1928C27 Marking of Weight (PackagesTransported by Vessels)Convention, 1929(C28) Protection against Accidents(Dockers) Convention, 1929C29 Forced Labour Convention,193021. www.ilo.org/ilolex/english/index.htmNote: Conventions in parentheses are shelved or withdrawn.54

C30 Hours of Work (Commerce andOffices) Convention, 1930(C31) Hours of Work (Coal Mines)Convention, 1931C32 Protection against Accidents(Dockers) Convention (Revised),1932C33 Minimum Age (Non-IndustrialEmployment) Convention, 1932(C34) Fee-Charging EmploymentAgencies Convention, 1933(C35) Old-Age Insurance (Industry,etc.) Convention, 1933(C36) Old-Age Insurance (Agriculture)Convention, 1933(C37) Invalidity Insurance (Industry,etc.) Convention, 1933(C38) Invalidity Insurance(Agriculture) Convention, 1933(C39) Survivors' Insurance (Industry,etc.) Convention, 1933(C40) Survivors' Insurance(Agriculture) Convention, 1933C41 Night Work (Women)Convention (Revised), 1934C42 Workmen's Compensation(Occupational Diseases)Convention (Revised), 1934(C43) Sheet-Glass Works Convention,1934C44 Unemployment ProvisionConvention, 1934C45 Underground Work (Women)Convention, 1935(C46) Hours of Work (Coal Mines)Convention (Revised), 1935C47 Forty-Hour Week Convention,1935(C48) Maintenance of Migrants'Pension Rights Convention,1935(C49) Reduction of Hours of Work(Glass-Bottle Works)Convention, 1935(C50) Recruiting of IndigenousWorkers Convention, 1936(C51) Reduction of Hours of Work(Public Works) Convention,1936C52 Holidays with Pay Convention,1936C53 Officers' CompetencyCertificates Convention, 1936C54 Holidays with Pay (Sea)Convention, 1936C55 Shipowners' Liability (Sick andInjured Seamen) Convention,1936C56 Sickness Insurance (Sea)Convention, 1936C57 Hours of Work and Manning(Sea) Convention, 1936C58 Minimum Age (Sea) Convention(Revised), 1936C59 Minimum Age (Industry)Convention (Revised),1937(C60) Minimum Age (Non-IndustrialEmployment) Convention(Revised), 1937(C61) Reduction of Hours of Work(Textiles) Convention, 193755

| Chapter 4 | ANNEXES |C62 Safety Provisions (Building)Convention, 1937C63 Convention concerningStatistics of Wages and Hoursof Work, 1938(C64) Contracts of Employment(Indigenous Workers)Convention, 1939(C65) Penal Sanctions (IndigenousWorkers) Convention, 1939(C66) Migration for EmploymentConvention, 1939(C67) Hours of Work and Rest Periods(Road Transport) Convention,1939C68 Food and Catering (Ships'Crews) Convention, 1946C69 Certification of Ships' Cooks)Convention, 1946C70 Social Security (Seafarers)Convention, 1946C71 Seafarers' Pensions Convention,1946C72 Paid Vacations (Seafarers)Convention, 1946C73 Medical Examination (SeafarersConvention, 1946C74 Certification of Able SeamenConvention, 1946C75 Accommodation of CrewsConvention, 1946C76 Wages, Hours of Work andManning (Sea) Convention,1946C77 Medical Examination of YoungPersons (Industry) Convention,1946C78 Medical Examination of YoungPersons (Non-IndustrialOccupations) Convention, 1946C79 Night Work of Young Persons(Non-Industrial Occupations)Convention, 1946C80 Final Articles RevisionConvention, 1946C81 Labour Inspection Convention,1947P81 Protocol of 1995 to the LabourInspection Convention, 1947C82 Social Policy (Non-MetropolitanTerritories) Convention, 1947C83 Labour Standards (Non-Metropolitan Territories)Convention, 1947C84 Right of Association (Non-Metropolitan Territories)Convention, 1947C85 Labour Inspectorates (Non-Metropolitan Territories)Convention, 1947(C86) Contracts of Employment(Indigenous Workers)Convention, 1947C87 Freedom of Association andProtection of the Right toOrganise Convention, 1948C88 Employment ServiceConvention, 1948C89 Night Work (Women)Convention (Revised),1948P89 Protocol to the Night Work(Women) Convention (Revised),1948C90 Night Work of Young Persons(Industry) Convention (Revised),1948(C91) Paid Vacations (Seafarers)Convention (Revised), 194956

C92 Accommodation of CrewsConvention (Revised), 1949C93 Wages, Hours of Work andManning (Sea) Convention(Revised), 1949C94 Labour Clauses (PublicContracts) Convention, 1949C95 Protection of WagesConvention, 1949C96 Fee-Charging EmploymentAgencies Convention (Revised),1949C97 Migration for EmploymentConvention (Revised), 1949C98 Right to Organise and CollectiveBargaining Convention, 1949C99 Minimum Wage FixingMachinery (Agriculture)Convention, 1951C100 Equal RemunerationConvention, 1951C101 Holidays with Pay (Agriculture)Convention, 1952C102 Social Security (MinimumStandards) Convention, 1952C103 Maternity Protection Convention(Revised), 1952(C104) Abolition of Penal Sanctions(Indigenous Workers)Convention, 1955C105 Abolition of Forced LabourConvention, 1957C106 Weekly Rest (Commerce andOffices) Convention, 1957C107 Indigenous and TribalPopulations Convention,1957C108 Seafarers' Identity DocumentsConvention, 1958C109 Wages, Hours of Work andManning (Sea) Convention(Revised), 1958C110 Plantations Convention, 1958P110 Protocol to the PlantationsConvention, 1958C111 Discrimination (Employmentand Occupation) Convention,1958C112 Minimum Age (Fishermen)Convention, 1959C113 Medical Examination(Fishermen) Convention, 1959C114 Fishermen's Articles ofAgreement Convention, 1959C115 Radiation ProtectionConvention, 1960C116 Final Articles RevisionConvention, 1961C117 Social Policy (Basic Aims andStandards) Convention, 1962C118 Equality of Treatment (SocialSecurity Convention, 1962C119 Guarding of MachineryConvention, 1963C120 Hygiene (Commerce andOffices) Convention,1964C121 Employment Injury BenefitsConvention, 1964C122 Employment Policy Convention,1964C123 Minimum Age (UndergroundWork) Convention, 1965C124 Medical Examination of YoungPersons (Underground Work)Convention, 1965C125 Fishermen's CompetencyCertificates Convention, 196657

| Chapter 4 | ANNEXES |C126 Accommodation of Crews(Fishermen) Convention, 1966C127 Maximum Weight Convention,1967C128 Invalidity, Old-Age andSurvivors' Benefits Convention,1967C129 Labour Inspection (Agriculture)Convention, 1969C130 Medical Care and SicknessBenefits Convention, 1969C131 Minimum Wage FixingConvention, 1970C132 Holidays with Pay Convention(Revised), 1970C133 Accommodation of Crews(Supplementary Provisions)Convention, 1970C134 Prevention of Accidents(Seafarers) Convention, 1970C135 Workers' RepresentativesConvention, 1971C136 Benzene Convention, 1971C137 Dock Work Convention, 1973C138 Minimum Age Convention,1973C139 Occupational CancerConvention, 1974C140 Paid Educational LeaveConvention, 1974C141 Rural Workers' OrganisationsConvention, 1975C142 Human Resources DevelopmentConvention, 1975C143 Migrant Workers(Supplementary Provisions)Convention, 1975C144 Tripartite Consultation(International Labour Standards)Convention, 1976C145 Continuity of Employment(Seafarers) Convention, 1976C146 Seafarers' Annual Leave withPay Convention, 1976C147 Merchant Shipping (MinimumStandards) Convention, 1976P147 Protocol of 1996 to theMerchant Shipping (MinimumStandards) Convention, 1976C148 Working Environment (AirPollution, Noise and Vibration)Convention, 1977C149 Nursing Personnel Convention,1977C150 Labour AdministrationConvention, 1978C151 Labour Relations (PublicService) Convention, 1978C152 Occupational Safety and Health(Dock Work) Convention,1979C153 Hours of Work and Rest Periods(Road Transport) Convention,1979C154 Collective BargainingConvention, 1981C155 Occupational Safety and HealthConvention, 1981P155 Protocol of 2002 to theOccupational Safety and HealthConvention, 1981C156 Workers with FamilyResponsibilities Convention,1981C157 Maintenance of Social SecurityRights Convention,1982C158 Termination of EmploymentConvention, 198258

C159 Vocational Rehabilitation andEmployment (Disabled Persons)Convention, 1983C160 Labour Statistics Convention,1985C161 Occupational Health ServicesConvention, 1985C162 Asbestos Convention, 1986C163 Seafarers' Welfare Convention,1987C164 Health Protection and MedicalCare (Seafarers) Convention,1987C165 Social Security (Seafarers)Convention (Revised), 1987C166 Repatriation of SeafarersConvention (Revised), 1987C167 Safety and Health inConstruction Convention, 1988C168 Employment Promotion andProtection againstUnemployment Convention,1988C169 Indigenous and Tribal PeoplesConvention, 1989C170 Chemicals Convention, 1990C171 Night Work Convention, 1990C172 Working Conditions (Hotels andRestaurants) Convention, 1991C173 Protection of Workers' Claims(Employer's Insolvency)Convention, 1992C174 Prevention of Major IndustrialAccidents Convention, 1993C175 Part-Time Work Convention,1994C176 Safety and Health in MinesConvention, 1995C177 Home Work Convention, 1996C178 Labour Inspection (Seafarers)Convention, 1996C179 Recruitment and Placement ofSeafarers Convention, 1996C180 Seafarers' Hours of Work andthe Manning of ShipsConvention, 1996C181 Private Employment AgenciesConvention, 1997C182 Worst Forms of Child LabourConvention, 1999C183 Maternity ProtectionConvention, 2000C184 Safety and Health in AgricultureConvention, 2001C185 Seafarers' Identity DocumentsConvention (Revised), 200359

| Chapter 4 | ANNEXES |3 Questionnaire for the participantsin the seminars1. The ILO Declaration on FundamentalPrinciples and Rights at Work (1998)provides that all workers have theright to:• freedom of asoociation;• freedom of collective bargaining;• ban on each form of forced or bondagelabour;• ban on child labour;• ban on discrimination at work.Question:in your view, are these rights recognisedand applied in your country?(elaborate)2. Many international conventions andtreaties besides these basic rightsapply to the informal economy workers.Question:What treaties and conventions wereratified by your country and areapplied?3. What rights are recognised in yourcountry to protect the informal economyworkers?4. What is the general definition of anemployment contract in your country?5. Does the labour law in your countryprovide for a special clause on homework/ agrarian workers / subcontracting/ particular groups / …?6. What are in your experience theobstacles to the application of rightsto the informal economy workers?7. What workers are most vulnerable andneed most an adequate protection inyour trade sector?8. What are in your opinion the minimumconditions to ensure ‘decentwork’ for all the workers?9. What can we do to improve the legalstatus of the informal economy workers?10. What can we do to ensure that thegranted rights are effectively applied?60

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