Applying the Ruggie Framework in Canada

FOCUS H BUSINESSAND HUMANRIGHTS Applying the Ruggie Framework in Canada In2009 1 contacted JohnRuggie and suggested we worktogether to operationalise Freedomof Association in Canada ROY J. ADAMS is Ariel F.Sallows Chair of Human Rights (2009-2010) with the College of Law atthe University of Saskatchewan At Ruggie is present attempting is in UN a to phase Special operationalise of Representative hiswork his where 'Protect John he Ruggieis ina phaseofhisworkwherehe is attempting tooperationalise his 'Protect , Respect,Remedy' Framework.Developed in responseto businessreactionagainstdemands for thelegalregulation ofcorporate humanrights responsibilities, theRuggieframework saysthat although governments have primeresponsibility to promoteand protect humanrights, corporationsmusttake responsibility forhumanrights within their sphereofcontrol and influence. Eventhough he didnotrecommend legalcompulsionatthis point, Ruggie's effort hasgotten the attention ofthelegalcommunity. Ata recent conference onfreedom ofassociation that I organised in Saskatoon,Saskatchewan in February 2010, KevinCoon,a partner intheprominent management -sidelaw firmof Baker and McKenzie, reported to theaudiencethathisfirm was now advisingclientsto put compliancewithhuman rights standards highon their agendas. In its 2007 BC Health Services Case the CanadianSupremeCourtgrantedconstitutional protection tocollective bargaining andtheimpact of thatdecisionwas the centralfocus of the Saskatoonconference. Coon, however, told the audiencethat, inthelongrun, Ruggie's framework was likelyto have thebiggerimpact.His comments areonlineathttp://foa2010.blogspot.com. Sincetheend ofWorldWarII an increasingly strong globalhumanrights consensushas come intoexistence. Amongitsmostsacrednormsis thathumanrights are rights thatare held by human beings simplyas a function of their humanity. Theyare rights thatare universal and indivisible. Thereis no legitimate humanrights hierarchy. Each humanrightis equally sacred and deservesequal respect. Theexplication ofhumanrights is a complicated processthat occursviaa congeries ofinternationaland national organisations. Withregard to workers' humanrights, however,one organisationstandsoutas theprimesourceofstandards - theInternational LabourOrganisation. Sinceits founding in 1919ithasdevelopeda richbodyof principlesthat provide a relativelyexplicit roadmapto nationsand to corporations looking forguidanceregarding compliance withworkers' humanrights. In thespring of2009I contacted JohnRuggie and suggested thatwe worktogether to operationalise one human right, Freedom of Association, inone venue,Canada.Theobjective was to determine what Canadiangovernments hadtodo tofulfil their international obligation to promote and protect the right,and what Canadiancorporations had to do to respectthe rights oftheir workers toorganise andtobargain collectively. He declined,pleadinginsufficient resources tobother withconditions insucha rich and politically democratic country as Canada. The result, in myopinion,is to place injeopardythecredibility ofhisentire effort. Although human rightsare supposed to be universal, Ruggiehas focusedalmostentirely on human rights issuesindeveloping countries. Thatis not surprising since the recentsurgeof interest in business and human rightshas been led by NGOs demanding thatglobalisation benefit not onlycorporations, mostofwhichhave rootsin therichNorth, butalsothepeopleandnations of thepoorersouthern halfoftheplanet. Fairenough However, manydeveloping country leaderssuspect that recent concern for human rights expressedbyvoices based in highly developed countries is a ploytoimposeconditions that will hindertheirdevelopment. By refusing to apply hisframework universally to bothrichand poor nations;by,in effect, givingrichcountries and corporations operating from thema pass,Ruggie adds credencetothatsuspicion. The strategy offocusing exclusively on developingcountries also leavesunexamined thestatus of workers'rightsin advanced countries. Ruggie'sdismissalof myoffer was almostcertainly based on theunexamined assumption that Canada is largely freeofhumanrights problems or thatthosethatexist(such as lingering discrimination )are recognised and are being addressed. Ifso,with regard totheright toorganise and bargain collectively, thatassumption is,I submit, unfounded. Approximately 70 percent ofCanadianworkers have theirtermsof employment unilaterally imposedby theiremployers. Theycannotindividuallynegotiatethose termsbecause of an imbalanceof powerand because conditions in firms ofanysize are standardised and require a collectiveprocessto get at them.Questioning employer authority intheunorganised workplace is insubordination. Workers mustdo as theyare toldor facesummary dismissal. Atan unorganisedworkplace theemployer maychangeconditionsat will,putting workers in thepositionof abjectresignation to their fateorquitting. In the unorganised firm, there is no objective, independent workplace justice system.Discipline is metedoutaccording tothewilloftheboss. As theCanadianSupremeCourtstatedin BC Health Services,collectivebargaining deserves constitutional protection because it affirms and supports theCanadianCharter valuesofdemocracy , dignity, equality, and worker autonomy. In theunorganised Canadianfirm, thereis a deficit ofthosevalues. INTERNATIONAL union rights Page 14Volume 17Issue 22010 FOCUS □ BUSINESSAND HUMANRIGHTS As a member of theILO, Canada is constitutionally committed notonlyto permit butrather topromote collective bargaining - tofoster itand makeitsexercise easyandthenorm. Itsresponse tothat obligation istoprovide mostworkers with laws underwhichtheymay acquire collective bargaining rights iftheyareable to form unions and state-certify themas exclusivebargaining agents. But certifying a bargainingagent in Canada is noteasy.The pathto certification is strewn withobstacles. Despite Ruggie'sinjunction thattheyavoid infringing therights ofothers, Canadianemployers commonlydiscourage their unorganised workersfrommakinguse of the certification process. The prevailingnorm (fosteredby employers and condonedby the state)is that workers shouldacceptemployer authority unless subjected to extraordinary abuses ofthatunilateralpower .To unionisein Canada is, moreor less,understood tobe...

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