The regulation of the workplace environment through international labour standards has been a task entrusted to the International Labour Organization (ILO) since its foundation in 1919. Today, as the ILO marks its 100th anniversary, it is opportune to reflect upon the great changes that have arisen in the international regulatory regime of labour, and among them, most notably, the growing reliance on private initiatives for transnational labour regulation.

Transnational private labour regulations (TPLR) have been adopted to respond to pressures exerted from civil society and consumers concerned over employees’ working conditions. As a growing proportion of the economic system is operating across borders, companies often outsource from markets that are subject to weak regulatory oversight from either domestic or international institutions. Moreover, in such a transnational environment, the global supply chain management of multinational corporations has allowed these companies to displace costs and risks down the value chain, while also taking advantage of regulatory arbitrage to avoid liabilities. With an attempt to address this ‘regulatory gap’, a variety of private regulatory initiatives are constantly being introduced.

The effects of these initiatives on labour conditions experienced by workers around the world are significant. H&M’s corporate social responsibility code of conduct, the ‘Sustainability Commitment’, for example, outlines requirements that any supplier or business partner must agree to comply with before entering a business relationship with the H&M Group. These standards therefore apply throughout the Group’s supply chain, potentially affecting 1.6 million workers worldwide. Likewise, SA8000 Standards, the social certification standard established by Social Accountability International (SAI), is another example of transnational labour standards issued by private actors. There are currently 4,266 SA8000-certified organisations in 62 countries, resulting in over 2 million workers being potentially influenced by these standards. Undoubtedly, the widespread privatisation of international labour regulation cannot be overlooked. Such a dominant practice requires the examination of its implications for the content of international public norms. Is the content of international labour law norms altered when embedded in private regulatory initiatives? If so, do these alterations enrich or weaken the effect of these norms?

In a forthcoming article in the Industrial Law Journal, I address these questions and pursue a textual analysis of TPLR generated norms, focusing on the specific case study of freedom of association. The paper examines and evaluates TPLR provisions, ultimately shedding light on the directions in which these private initiatives are steering international labour regulation. The study looks at how the right to freedom of association, including collective bargaining, is regulated under five major transnational private regulatory initiatives: SAI’s SA8000 Standards; the United Nations (UN) Global Compact; H&M’s Sustainability Commitment; and H&M’s international framework agreements (IFA), from 2004 and 2015. These particular instruments represent a wide scope of private actors participating in regulatory roles, including transnational corporations, NGOs and global union federations. Each of these private regulatory initiatives affects millions of workers in dozens of countries around the globe. 

The findings of the article reveal that while TPLR instruments are generally perceived as merely implementing internationally accepted norms, they in fact hold a substantial norm-generating role, actively shaping the content of the public norms they apply. The study found some substantial variations in the way that the rights to freedom of association and collective bargaining were regulated, both between the different private initiatives that were examined and between these initiatives and norms of international labour law. As such, divergences were identified with regards to significant issues relating to these rights, including how these rights should be fulfilled in countries restricting the right to freedom of association; the regulation of industrial disputes and the right to strike; and the need for protection against acts of interference with these rights.

The evidence further indicates that such private influence can be both positive and negative from the point of view of promoting the values underpinning the public norms: offering at times innovative regulations while in other instances undermining the public interest. The results also shed light on the circumstances under which international labour law norms hold the risk of being undermined by private interests. Overall, by showcasing the influence of private actors on workplace regulations, this research contributes to the wider critical discussion on the design and management of public-private partnerships in global labour governance.

To read about these issues, as well as others, see: Maayan Menashe, ‘Private Actors as Transnational Regulators: The Case of Freedom of Association’, Industrial Law Journal (forthcoming).

Maayan Menashe is completing a PhD in law at the University of Cambridge.