Comments to PEFC on Use of ILO Conventions
Ben Gunneberg, Secretary General
Case Postale 636
CH-1215 Geneve 15
Dear Secretary General Gunneberg:
We are writing on behalf of the U.S. Chamber of Commerce to urge you to abandon your proposed plan to attempt to certify entities based on certain Conventions of the International Labor Organization.
The U.S. Chamber of Commerce (Chamber) is the world's largest business federation representing the interests of more than three million businesses and organizations of every size, sector, and region. Among our members are multinational companies as well as small businesses active in the forest products industry. Our membership also includes trade associations that, in turn, represent many more such employers.
To the best of our knowledge, we have not taken a position on any matters related to your Program for the Endorsement of Forest Certification in the past. However, we would have significant concern if your certification program embodied criteria from International Labor Organization Conventions, especially those that are very controversial in countries such as the United States.We offer these comments in hopes that you will reconsider this approach.
As we have only recently learned of this initiative, the purpose of this letter is not to offer a comprehensive response to your proposal, but instead to highlight some of the more important reasons why you should reconsider the proposed approach. In these comments, we take issue with the characterization of ILO Conventions as "norms," address complexities posed by the fact that ILO Conventions are binding on governments, not companies, and stress that the ILO is the only organization competent to assess compliance with its conventions.We also address some confusing matters raised by the proposal and discuss the potential for the proposal to be used for protectionist purposes.
ILO Conventions Are Not Norms
It is our understanding that the PEFC chain of custody working group based its draft on the principle that "Requirements are based on the Fundamental ILO Conventions as the internationally recognized 'norms' for securing labor issues."1 We strongly disagree with the statement that the all eight of the fundamental ILO Conventions represent internationally recognized norms. For example, consider the approach of the United States in comparison with ILO Convention 87 and 98 related to freedom of association and collective bargaining.
The National Labor Relations Act, which applies to most private sector businesses in the United States, has recognized and protected these rights for more than 75 years. In some industries, protections have been in force for even longer. However, while U.S. law includes strong protections for the right of freedom of association and the right to collectively bargain, it differs from the approach taken by the ILO in Conventions 87 and 98. One major difference stems from the fact that in the United States, freedom of association is a right that belongs to individual employees. Employee freedom of choice to join or refrain from joining organizations is protected. This is less true in the approach adopted by the ILO and many other countries where freedom of association rights apply first to organizations, such as trade unions, and only to employees secondarily.
As another example, consider the strong freedom of speech rights in the United States, as recognized by the First Amendment to our Constitution. Similarly, the National Labor Relations Act contains explicit language referencing employer free speech rights during union campaigns. However, free speech rights in many other countries must take a back seat when it comes to union organizing.
This is not to say that any one country has the perfect model when it comes to implementing the freedom of association and right to collectively bargain. Merely that there are alternative approaches to recognizing these rights and it would not be appropriate to penalize or reward employers simply because the countries in which they do business have adopted one approach or another or because the company chooses to act in accordance with the law where it does business.
Application to Governments, Not Employers
A further problem with the use of ILO Conventions for certification purposes is the fact that these instruments are designed to apply to governments and not to employers. Indeed, there are many provisions of the Conventions that are simply irrelevant to private sector employment. If the proposal were adopted, would a U.S. employer be at a disadvantage because the U.S. had not ratified Conventions 87 or 98? Would it be at a disadvantage because some U.S. states do not permit collective bargaining for some of their own public sector employees? How can these questions be relevant to certification?
Likewise, while the goals of Convention 29 related to forced labor are laudable, it is generally recognized that the United States has not ratified this convention because the United States permits prison labor that may, in some cases, be overseen by private companies. Should a forest products company be at a disadvantage because of the U.S. policy in this area?
ILO Conventions Should Be Enforced By the ILO
ILO Conventions are detailed and nuanced treaties that have been adopted through a unique tripartite process involving governments, worker representatives, and employer representatives. This does not mean that they represent a consensus approach--indeed, some are quite controversial. However, the ILO has also adopted tripartite mechanisms to review compliance. Member states of the ILO are required to complete detailed reports each year with respect to Conventions that they have ratified. A committee of experts reviews these reports as well as other information and issues an annual report on
the extent to which countries are fulfilling their obligations. The tripartite Committee on the Application of Standards reviews these reports along with an examination of cases alleging a country's failure to comply with its obligations. The Committee issues its own report on these matters each year at the International Labor Conference. In addition, the ILO contains other supervisory machinery. For example, the ILO's Governing Body has a tripartite Committee on Freedom of Association that considers complaints against any ILO member country.
The ILO institutional supervisory mechanisms have evolved over time and are both complex and nuanced. To be sure, they are not perfect. However, stakeholders have experience operating within the ILO process and in addressing relevant issues and this process has proven to be the best mechanism for reviewing compliance with ILO Conventions. It would be highly inappropriate for another body to pass judgment on compliance with one particular ILO Convention or another.
The proposal is confusing for a number of reasons, making it difficult to ascertain the intent of the proposal and to offer complete comments.
There seems to be great confusion with respect to exactly what requirements the fundamental ILO Conventions contain. For example, the proposal describes its scope as including "requirements relating to health, safety, and labor issues that are based on fundamental ILO Conventions." This is confusing because there simply are no ILO Conventions deemed "fundamental" by any definition that we are aware of relating to health and safety. This confusion is heightened by the Definitions section which includes explicit reference to eight ILO Conventions, none of which address safety and health issues. However, to further complicate matters, paragraph 3.2(e) explicitly contains reference occupational safety and health issues. How are we to interpret these provisions?
The complete lack of detail on how compliance must be demonstrated is also highly confusing. Some materials suggest that compliance will be developed at a later date. Yet, it is impossible to properly comment on the proposal without knowing precisely what mechanisms for compliance are contemplated. What kinds of practices must employers adhere to in order to remain compliant? What practices will constitute a violation?What level of investigation will be conducted when compliance questions arise? To what extent will routine business decisions be second guessed? What due process rights will employers have before losing certification? These are just a few questions raised by the proposal's lack of detail. It is exceedingly difficult to offer well informed comments about the proposal without any sense of how compliance will be determined.
Susceptible to Protectionist Abuse
Finally, we note that there is significant concern that the process envisioned in the proposal could be used for anticompetitive and protectionist purposes. It is hard to offer many specifics on this point without knowing how compliance will be assured. However, we would note that there is consensus at the ILO that "labor standards should not be used for protectionist trade purposes."2 We have heard concern from some employers that the current proposal might be used to disadvantage employers from North America in relation to other companies from countries that have adopted more ILO Conventions. We strongly oppose any measure that would permit such protectionist and anticompetitive use of labor standards.
Likewise, as we have heard through the process of U.S. efforts in recent years to negotiate bilateral trade agreements, we suspect that forestry companies in the developing world will raise similar concerns regarding the extent to which the certification process could be used as an inappropriate barrier to market access.
For these reasons, we urge you to withdraw consideration of compliance with ILO conventions from your chain-of-custody standard.
Thank you very much for your consideration of these concerns. If the Chamber may be of further assistance to you as you consider these important issues, please do not hesitate to contact us.
Randel K. Johnson Senior Vice President, Labor, Immigration, and Employee Benefits
Michael J. Eastman Executive Director, Labor Law Policy
1 See http://consultations.pefc.org/consult.ti/coc_social/consultationHome.
2 ILO Declaration of Fundamental Principles and Rights at Work, SS5.