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2022 PUb2603 exam questions and answers
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Question 1Part 1.1.
Introduction
The essay seeks to identify and explain the broad principles by which government’s role
in deciding and regulating labour relations is determined and substantiate the answer
with relevant examples. The labour principles of the UN Global Compact may be among
the most specific of the initiative’s ten principles, but that does not mean that they are
the easiest to implement. Many companies face difficulties in knowing what is expected
of them and what more can be done to uphold these principles. There is thus much
scope for learning, dialogue and collective action, including partnerships, as ways to
complement other approaches aimed at bringing about responsible labour practices.
Body
To realise the principle of freedom of association and the right to collective bargaining in
practice requires a legal basis which guarantees that these rights are enforced. It also
requires an enabling institutional framework, which can be tripartite, between the
employers’ and workers’ organizations, or combinations of both. Individuals who wish to
exercise their right to have their voice heard also must be protected from discrimination.
And employers’ and workers’ organizations must accept each other as partners for
solving joint problems and dealing with mutual challenges. Governments have the
responsibility for ensuring that the legal and institutional frameworks exist and function
properly. They should also help to promote a culture of mutual acceptance and
cooperation. Where governments do not honour their international obligations, efforts
should be made to improve legislation and governance. In the absence of legislation
that conforms to international labour standards, employers and trade unions should
make every effort to respect the principles, at least in countries where honoring them is
not specifically prohibited. In countries in which legislation protects rights, but
implementation is poor due to inadequate enforcement, employers should,
nevertheless, obey the law. Freedom of association is a principle that has great impact
on the development and strengthening of democracy. It is an enabling right on which
the existence of real, independent civil society depends. Free trade unions and
employer organizations, as major and representative actors in society, open up the
space for others to freely engage with governments and to function without interference.
Industrial relations constitute an important element of “self-regulation” independent of
the State. For all of these reasons and more, freedom of association underpins and
supports the other nine UN Global Compact principles.
Large numbers of businesses are recognizing that their sustainability is linked to the
larger sustainability of society. Management policies and practices are determined at
different levels and can receive guidance from numerous sources.
,In addition to being a right, freedom of association enables workers and employers to
join together to protect better not only their own economic interests but also their civil
freedoms such as the right to life, to security, to integrity, and to personal and collective
freedom. As an integral part of democracy, this principle is crucial in order to realize all
other fundamental principles and rights at work. Collective bargaining is a constructive
forum for addressing working conditions and terms of employment and relations
between employers and workers, or their respective organizations. It is often more
effective and more flexible than state regulation. It can help in anticipating potential
problems and can advance peaceful mechanisms for dealing with them; and in finding
solutions that take into account the priorities and needs of both employers and workers.
Sound collective bargaining benefits both management and workers, and promotes
peace and stability which benefits society more generally. Collective bargaining can be
an important governance institution – it is a means of increasing the consent of the
governed by involving them in the decisions that affect them directly.
General principles
These Guiding Principles are grounded in recognition of:
(a) States’ existing obligations to respect, protect and fulfil human rights and
fundamental freedoms;
(b) The role of business enterprises as specialized organs of society performing
specialized functions, required to comply with all applicable laws and to respect human
rights;
(c) The need for rights and obligations to be matched to appropriate and effective
remedies when breached. These Guiding Principles apply to all States and to all
business enterprises, both transnational and others, regardless of their size, sector,
location, ownership and structure.
These Guiding Principles should be understood as a coherent whole and should be
read, individually and collectively, in terms of their objective of enhancing standards and
practices with regard to business and human rights so as to achieve tangible results for
affected individuals and communities, and thereby also contributing to a socially
sustainable globalization.
Nothing in these Guiding Principles should be read as creating new international law
obligations, or as limiting or undermining any legal obligations a State may have
undertaken or be subject to under international law with regard to human rights.
These Guiding Principles should be implemented in a non-discriminatory manner, with
particular attention to the rights and needs of, as well as the challenges faced by,
individuals from groups or populations that may be at heightened risk of becoming
vulnerable or marginalized, and with due regard to the different risks that may be faced
by women and men.
, States must protect against human rights abuse within their territory and/or jurisdiction
by third parties, including business enterprises. This requires taking appropriate steps to
prevent, investigate, punish and redress such abuse through effective policies,
legislation, regulations and adjudication.
Explanation
States’ international human rights law obligations require that they respect, protect and
fulfil the human rights of individuals within their territory and/ or jurisdiction. This
includes the duty to protect against human rights abuse by third parties, including
business enterprises. The State duty to protect is a standard of conduct. Therefore,
States are not per se responsible for human rights abuse by private actors. However,
States may breach their international human rights law obligations where such abuse
can be attributed to them, or where they fail to take appropriate steps to prevent,
investigate, punish and redress private actors’ abuse. While States generally have
discretion in deciding upon these steps, they should consider the full range of
permissible preventative and remedial measures, including policies, legislation,
regulations and adjudication. States also have the duty to protect and promote the rule
of law, including by taking measures to ensure equality before the law, fairness in its
application, and by providing for adequate accountability, legal certainty, and procedural
and legal transparency.
States should set out clearly the expectation that all business enterprises domiciled in
their territory and/or jurisdiction respect human rights throughout their operations.
Explanation
At present States are not generally required under international human rights law to
regulate the extraterritorial activities of businesses domiciled in their territory and/or
jurisdiction. Nor are they generally prohibited from doing so, provided there is a
recognized jurisdictional basis. Within these parameters some human rights treaty
bodies recommend that home States take steps to prevent abuse abroad by business
enterprises within their jurisdiction. There are strong policy reasons for home States to
set out clearly the expectation that businesses respect human rights abroad, especially
where the State itself is involved in or supports those businesses. The reasons include
ensuring predictability for business enterprises by providing coherent and consistent
messages, and preserving the State’s own reputation. States have adopted a range of
approaches in this regard. Some are domestic measures with extraterritorial
implications. Examples include requirements on “parent” companies to report on the
global operations of the entire enterprise; multilateral soft-law instruments such as the
Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation
and Development; and performance standards required by institutions that support
overseas investments. Other approaches amount to direct extraterritorial legislation and
enforcement. This includes criminal regimes that allow for prosecutions based on the
nationality of the perpetrator no matter where the offence occurs. Various factors may
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