June 2018 saw governments, employer organisations and trade unions from around the world gather at the United Nations in Geneva for the International Labour Organisation’s (ILO) annual conference to discuss a proposed global treaty addressing violence and harassment in the workplace. Currently, there is no law at a global level that sets a baseline for taking action to eliminate violence and harassment, including gender-based violence and harassment, in the workplace.
In advance of this discussion, the International Trade Union Confederation (ITUC) published a campaign toolkit in order to lobby governments and employer organisations to support the adoption of a comprehensive ILO Convention and Recommendation. Quite rightly, the ITUC reminded us that ‘All human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’. ILO Declaration of Philadelphia, 1944.
The ITUC’s toolkit highlighted that 'Whilst both women and men experience violence and harassment in the world of work, unequal status and power relations in society and at work often result in women being far more exposed to violence and harassment. Gender-based violence remains one of the most tolerated violations of workers’ human rights. According to statistics, 35 per cent of women – 818 million women globally – over the age of 15 have experienced sexual or physical violence at home, in their communities or in the workplace'.
The ITUC was clear that gender-based violence ‘encompasses violence against women and girls as well as against men and boys, people who are lesbian, gay, bisexual, transgender and intersex (LGBTI), and other individuals who do not conform to dominant perceptions of gender’. Therefore, it was no surprise when the ITUC called for the new treaty to include a ‘description of the workers disproportionately affected by violence and harassment in the world of work’. The description is to list ‘women, LGBTI workers, indigenous workers, migrant workers, racialised workers, workers living with HIV/AIDS and disabilities, workers in the informal economy and people trapped in forced and child labour’. Indeed, Cathy Feingold, director of the International Department at AFL-CIO, the umbrella body of US labour unions, commented on 29 May 2018 that ‘Women and sexual and gender minority workers have suffered because of a lack of legal frameworks and a severe power imbalance for too long. No worker should endure violence because the risk of speaking out is too great. No one should endure humiliations and abuse to keep a job’.
Nevertheless, on the employer side of the discussion, there was also strong lobbying in support of an ILO Convention and Recommendation. B Team* leaders Bob Collymore, Mats Granryd, Arianna Huffington, Mo Ibrahim, François-Henri Pinault and Paul Polman sent a letter to the International Organisation of Employers (IOE) urging employer organisations’ support of this proposal. Their letter expressed that ‘There can be no decent work with violence and harassment in the workplace. Gender-based violence is one of the most pernicious and widespread obstacles to gender equality and decent work. Studies from different countries and industries estimate that anywhere between 40 and 80 per cent of women experience unwanted sexual advances, physical contact or other forms of sexual violence or harassment at work. Without strong laws and government standards, employers not only suffer losses through reduced productivity and absenteeism, they may individually bear the cost of developing programs to ensure worker safety and access to remedy’.
Human Rights Watch also produced an important contribution to the lobbying efforts. It issued a 16-page report outlining key issues in advance of the discussion. This included highlighting that ‘Lesbian, gay, bisexual, and transgender (LGBT) workers also face particular risks of violence and harassment and barriers to accessing justice’.
The tripartite discussion that transpired in the ILO was, however, a difficult one despite the consensus that the discussion presented an important opportunity for governments, employer organisations, and trade unions to work together constructively, with the common goal of ending workplace violence and harassment. Employer organisations were clear that the discussions had to deliver a treaty that will be implemented in national law and practice, in as many member states as possible. However, the discussion ended without the draft Recommendation being fully considered and a number of problem areas in the draft Convention itself such as:
- the proposed scope for the ILO Convention includes a level of detail regarding employer responsibilities that does not take into account the size and available resources of the diverse range of businesses that would be required to meet them. Ratification of a Convention would lead to responsibilities not just to multi-nationals but also to small and medium sized enterprises, family owned business, and indeed public sector employers, so a prescriptive one size fits all approach is problematic;
- the proposed definitions, for example of ‘workers’ and ‘world of work’, are broad and in part politically aspirational. They will present material ratification problems for national governments if they remain as drafted because they conflict with existing definitions used in regional and national legal jurisdictions. Amending such laws risks justice for victims of workplace harassment and violence being further delayed, which will be justice denied;
- the inclusion in the proposed Convention of a list of the workers disproportionately affected by violence and harassment. Despite the lobbying efforts, the inclusion of LGBTI workers was not agreed. The discussion was particularly contentious. To their credit, the Employer Group and certain governments made it abundantly clear that they supported the inclusion of LGBTI workers in the text;
- the inclusion of employer protections from violence and harassment. The Employer Group’s efforts to extend essential protections to employers was rejected because of fears that it would interfere with industrial relations activities. This was despite the record of the discussion confirming that employers need protections from violence and harassment in the workplace too.
That said, the opportunity remains to address these problem areas heading into the ILO’s centenary year in 2019. The ILO Office will surely reflect upon this year’s discussion when it produces its forthcoming Brown Report, a summary of the discussion and the first draft of instrument. The report is expected by September 2018, if not sooner, and will be sent to governments, employer organisations and trade unions for comments before the Office then prepares a revised draft of the instrument via a Blue Report. This period will be a critical time for the ITUC, the IOE and other interested observers to reconsider the aforementioned problem areas. Hopefully a broad consensus will agree that it will be unacceptable if the new treaty is not widely ratified because it is poorly defined and legally unclear. After all, the employers were clear that they must know who to protect from violence and harassment in the workplace, where to protect them, and what to protect them from, so they are not shy about legal certainty being applied.
Given the progress of the #metoo movement and the fact that all parties are talking about protecting basic human rights, we should legitimately expect unambiguous legal definitions to be included in the final treaty text in June 2019. If the aim of eliminating violence and harassment, particularly gender based violence and harassment, in the workplace is to become a reality, then UN institutions, such as the ILO, have to produce ambitious treaties that are relevant to the times and promote social justice for all.
Chris Syder represented the UK employers in the ILO’s standard setting discussion concerning ‘Ending violence and harassment against women and men in the world of work’. He is a former ILO Governing Body Employer representative.