Off-site interviews with workers are strongly recommended. Freedom of association is a sensitive issue in many places. It is particularly important for auditors to inform workers that all information is highly confidential, and that there are mechanisms available for workers to lodge confidential complaints outside the factory — through the auditors or other local organizations — if they experience any discrimination or retaliation afterwards.
Both management and workers should be informed that future audits will include reviews of the continued employment of workers who are interviewed. If there is a trade union in the facility, auditors should interview trade union leadership and membership on a regular basis. If strikes, walkouts, work stoppage, or any related labor conflicts occurred within a two-year period prior to the audit, auditors should give special attention to these issues and conduct separate interviews — preferably off-site — with particular personnel involved in the conflict.
In order to get a comprehensive understanding, auditors should separately interview trade union representatives, managerial staff, union members and non-members, those who supported the labor dispute with the management and those who opposed.
Considering the complex nature and crucial importance of these rights, we recommend that auditors use as many indirect and open-ended questions as possible. See the text box below for sample questions, to which auditors should try to find answers. Today, freedom of association and collective bargaining are considered fundamental human rights and recognized as cornerstone principles of the United Nations and the ILO.
These documents provide everyone with the right to freedom of peaceful assembly and association, the right to form and to join trade unions for the protection of their interests, and the right to bargain collectively. The vast majority of ILO member states have ratified Conventions 87 and 98,43 demonstrating increasing recognition of freedom of association and collective bargaining as the lawful rights of workers.
As mentioned in the previous section, however, there still exist direct and indirect restrictions on the exercise of these rights in practice, even within many ratifying states. Under the Declaration of Fundamental Principles and Rights at work adopted by the ILO in , all member states of the ILO — whether they have ratified the conventions or not — are required to report on national compliance with these eight core conventions which include C. Workers and employers have the right to establish and join organizations of their own choosing without previous authorization.
Workers and employers have the right to draw up their own rules, elect representatives in full freedom and organize their administration and activities and to formulate their own programmes. Article 2 prohibits interference of union activities by other members, including the domination of such organizations by employers through financial or other means.
Additional supplements designed to augment these conventions were adopted in and then again in Indonesia in Transition — Lessons for Auditing in Context44 In certain cases, such as times of rapid political transitions, auditors may need to conduct additional research to continue being effective SA auditors.
These consultations need to seek out an expert opinion and a balance of perspectives, while looking at both long and short-term historical context. The following is drawn from field research, which illustrates some of the complexities of industrial relations dynamics. Based on extensive interviews with workers and local NGO experts, this case illustrates how important it is for auditors to understand the local context and adjust their audits accordingly.
The incoming Habibie government ratified Convention 87 as an early act of the administration in June of However, it was slow to support this ratification by real changes in the Indonesian legislation. The ratification was more of a conciliatory gesture to buy time. A Trade Union Law was passed that allowed registration of trade unions other than the official state union, FSPSI, but supporting laws to protect the right to organize, to lay down laws for their recognition by employers or to give a legal basis to collective agreements were not passed.
Such legislation is still before Parliament to this day. The Suharto legislation was revoked, however. In practice the only law remaining is that used during the earlier Sukarno years, which dates back to This law also has many inadequacies as a means of supporting a modern industrial relations framework. Some arose from the activities of intellectuals and political activists who sought a base among the workers, others from workers themselves in the factories.
However, the prevailing institutional and legal situation still meant that most attempts to organize at factory level were heavily repressed. Several cases of severe repression and killings of union activists by army forces were brought into the public eye during this period — especially in the apparel industry.
Despite the existence of the new Trade Union Law under which Article 14 non-FSPSI unions were free to apply for registration, the Ministry of Manpower was resisting registration of any union in a plant where there was an existing branch of the FSPSI — effectively therefore in most existing plants, since the old official union had been a compulsory structure supported by a direct payroll tax on companies.
The wing led by the efforts of intellectuals e. However, such unions had a very limited base among blue-collar workers and comprised mostly teachers, journalists and the like. Its Chairman is still the Minister of Manpower. New unions that wish to challenge its presence at factory level by organizing must register via the Ministry of Manpower, which is given the role of arbitrating the decision.
Unions that wish to register in this way must submit to the Ministry of Manpower a list of the names of the members of their union at the factory. In the situation described above, trade union representation has polarized between those committed to fight through bitter institutional opposition and those seeking a quiet life of collaboration with the old state and employer- friendly structures of the SPSI. Observations by external observers that the alternative union activists are more strident than conciliatory have to be set in this context.
The familiar recourse to the law and the regulatory apparatus of a neutral administration are not generally available in Indonesia as they are in many liberal democracies. Since there was and still is no law that governs the process of trade union recognition or of trade union democratic legitimacy at the factory level, the law of the frontier has prevailed, with such institutional weight as exists firmly on the side of the old SPSI structures.
Despite this situation, the TSK breakaway is now the largest sector level union in Indonesia with some , members — mostly in East Java. It does have many collective agreements with major employers and its initially chaotic and untutored attempts have been improved as a result of supportive training of its officers via its international links.
Auditors should be aware of such context and the ways in which management might be taking advantage of the situation to ensure the presence of a compliant but unelected trade union on its premises. SA Requirements SA 5. SA 5. Definitions and Interpretations 1 Discrimination refers to any distinction, exclusion or preference, which has the effect of nullifying or impairing equality of opportunity or treatment.
Not all distinction, exclusion or preference constitutes discrimination. For instance, a merit or performance based raise or bonus is not by itself discriminatory. Positive discrimination in favor of people from certain underrepresented groups may be legal in some countries See examples below. Intent of SA SA seeks to ensure equal and respectful treatment for all workers in all matters. Employees shall be employed, trained, promoted and compensated solely on the basis of their job performance and they will be free from all types of indecent verbal, physical and sexual harassment and other discriminatory practices.
Auditors also need to look at the opportunities each worker has for promotion to higher paid work, access to overtime hours and other benefits. In some cases, forms of discrimination are culturally accepted, sometimes even by national law.
For example: it may be common practice to pay women less than men who are performing the same duties. However, this type of cultural norm violates international labor standards and SA Experience shows, however, that ensuring non-discrimination at work while respecting discriminatory religious norms is extremely difficult to verify. For that reason, auditors encountering such cases should conduct background research and broad-based, off-site interviews with workers and other community members to verify that female workers are earning comparable salaries, and comparable jobs and opportunities for advancement are available.
Such cases should be particularly well documented so as to facilitate SAI surveillance audits. Although such a social division of labor does not always indicate discrimination, it does merit further analysis. Three examples of positive discrimination, which are actually mandated by law include: i. Some countries, such as South Africa for example, require positive discrimination by law in order to help black South Africans to overcome decades of harsh discrimination.
Another example can be seen in the U. Dozens of countries have adopted legislation to enable lactating mothers adequate time to nurse during the working day. Reasonable adjustments based on individual needs or challenges may have to be made to ensure every worker has the same opportunity to perform his or her role well.
Auditors should be aware of these laws for each country where they work. One case, described in the text box below, comes from Eastern Europe; where gender discrimination appeared to correlate with expertise levels, but when consulted the women indicated that they did not have adequate opportunities to gain such expertise.
Another example is the skill of pruning a banana field — a skill traditionally handed down from father to son — where women have almost no chance to learn this skill unless the employer initiates, collaborates on or sponsors a training program for women or changes the gender division of labor to allow women to gain skills on the job.
In the department there was one on women relating to pregnancy, auditors should also be case of a woman being promoted better job aware of protections that should be given to pregnant position, higher remuneration as the result of women.
This tactic result in better job positions for them. The is often used to pressure women to resign and forfeit their case of the woman being promoted seems to indicate there was no discrimination by maternity leave benefits.
Though sexual harassment is illegal in many countries, it is widespread in workplaces worldwide. Examples of sexual harassment include but are not limited to: unwelcome sexual advances, unwanted hugs or touches, suggestive or lewd remarks, requests for sexual favors, and derogatory or pornographic posters, pictures or drawings as well as permitting a generally gender-harassing environment.
In order to ensure the safety and dignity of female workers, management should promote a culture of respect for women and zero-tolerance for mistreatment and degrading attitudes or behavior. Incidents of sexual harassment should be dealt with promptly and effectively, leaving no doubt about the willingness of management to discipline perpetrators in a way that would deter future incidents.
A discreet, effective complaint procedure should be in place for female workers. A trusted person, such as an appointed preferably female counselor, can encourage women to report incidents without fear of being dismissed or penalized.
Primary forms of investigation include checking records to determine whether any complaints have been lodged as well as interviewing complainants or victims of sexual harassment and peer workers.
Auditors should also determine: whether the company has an explicit policy and defined disciplinary measures in cases of sexual harassment; whether such policy and measures have been communicated to all personnel; and whether any cases have been processed and resulted in the appropriate discipline.
Immigrants and ethnic minority groups may not have equal access to legal protection, which may be available only to citizens or permanent residents. Poverty, lack of proficiency in the local language, and cultural misunderstanding may also invite prejudice and unfair treatment. If a company hires migrant workers, auditors should verify that the company has a policy and takes appropriate action to ensure equality of opportunity and treatment between migrant and local workers and members of all ethnic groups.
For instance, migrant workers should get equal treatment with respect to remuneration, career advancement, legally required social security, overtime arrangements, and trade union rights, among others.
Given that government and private benefits e. Older people are said to be less productive, more vulnerable to illness and injury and less adept at change and learning new techniques. Oftentimes these perceptions are not pertinent to the actual job requirements, nor do they reflect the actual abilities of the individual. When an employer imposes age limits on candidates that they will consider for a particular position, auditors can review if such limits are justifiable.
Of all the forms of action against employees, dismissal is the most obvious deterrent against worker organizing and carries the most serious consequences for workers. For instance, an employer may offer financial or other incentives to a group of workers to denounce their union membership.
Equality of opportunity and treatment for disabled men and women workers shall be respected. Special positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers.
As of June , 76 countries had ratified the convention, with Mauritius the most recent to have done so. Training should be provided to disabled employees in accessible formats; for example using large-print documents, making reasonable adjustments to rooms, etc. It may be necessary to conduct interviews anonymously, especially in cases where recent or past complaints have been lodged against the company. Announcements should also not be placed exclusively in single gender or ethnic group locations.
Worker Interview Strategy Questions related to discrimination can be incorporated into the general interview with workers. However, if auditors receive complaints or have reason to believe that discrimination is an issue, special interview sessions should be arranged. Auditors should study all relevant national laws and local regulations regarding anti-discrimination issues. Auditors should keep in mind that even when legislation does not address these issues, any company applying to be certified under SA is obligated to adopt an anti-discrimination policy and to put the necessary procedures in place.
The victims of workplace gender discrimination are often women. It helps if an auditing team includes female members, because women workers may feel more comfortable talking with a female interviewer about sensitive topics such as sexual harassment or abuse. Female, minority and disabled auditors are also extremely useful during management interviews; they are more likely to pick up on discriminatory attitudes than male, non-minority auditors. For example, during interviews in Latin America a disproportional number of supervisors were men, but the women reported that the men were promoted because they have more education.
Upon further review during management interviews, however, auditors found that the men who started with the same education levels as the women received additional training and had more opportunities to fulfill a greater variety of jobs in the facility — thus facilitating their promotion and confirming discriminatory training and promotion see text box in section II. Convention aims to eliminate wage discrimination between men and women through the application of the principle of equal pay for work of equal value.
Convention prohibits discrimination on the basis of gender in employment and occupation. Some countries have not ratified these conventions even though they already have national legislation prohibiting 50 Conventions and are two of the eight core ILO Conventions highlighted in the Declaration of Fundamental Principles and Rights at Work; all ILO member countries are accountable to these core conventions, whether they have ratified them or not see www.
Currently most labor legislation prohibits direct wage discrimination, yet only a few nations address the issue of unfair division of labor in their legal codes.
SA auditors should, however, seek to verify there is no such unfair division of labor. However not all workers are eligible for such protections. For instance, in some countries maternity leave only applies to workers in the private sector Malaysia ; and most countries have not yet extended the legal protection to migrant workers, part-time employees, or home workers. And only recently have some countries granted paternal leave e.
Despite a variety of legislative measures, discrimination in the workplace persists. Enforcement mechanisms set up by national governments are often inadequate, particularly regarding the application of national laws in the private sector. Case Study: African-American Employees vs. Coca-Cola52 April 22, , a group of African-American employees filed a class-action lawsuit accusing the Coca-Cola Company of discriminating against African-American employees in pay, promotions and performance evaluations throughout the United States.
This story illustrates some of the indicators that might be used to check whether discrimination exists or not. The suit cited the experience of at least one of the plaintiffs, Kimberly Gray Orton, a supervisor in Atlanta, who for two years was paid less than white employees who worked for her.
Another crucial accusation in the suit was that African-American employees consistently received poor evaluations from their supervisors. Alexis M. Herman, former US Secretary of Labor, was appointed jointly by both parties to chair the taskforce. SA Requirements and Interpretation A. SA Requirements SA 6. Procedures should be defined and followed for matters relating to employee performance evaluations and disciplinary action.
These procedures should be applied consistently and not arbitrarily to every employee. If disciplinary action is necessary, SA encourages a progressive course of action, beginning with verbal or written warnings before more serious disciplinary action is taken.
Fines or wage deductions for disciplinary purposes also violate SA However, this list is not exhaustive. In many workplaces around the world, however, disciplinary measures tend to take the form of harsh punishment and abusive behavior. There are documented cases of workers being hit over the head by their supervisors, having their mouths taped for talking, being forced to stand in the sun or kneel with hands in the air for extended periods, and female workers being stripped in theft investigations.
It is characterized by the intentional use of power, including verbal abuse, isolation, sexual or racial harassment, intimidation, threat of physical force, etc.
SA clause 8. Many employers habitually rely on it to deter or punish lateness, absenteeism, failure to complete quotas, mistakes during operation, and sometimes bathroom breaks longer than allowed. Though employers may choose to give bonuses to employees for outstanding performance, it is not appropriate for them to impose fines and wage deductions to prevent negligence or mistakes. For this reason SA and other voluntary workplace codes prohibits fines and wage deductions for disciplinary purposes.
Worker Interview Strategy Worker interviews regarding disciplinary practices can be incorporated into the general interview process, or can be treated as a separate session depending on the particular situation at the facility under auditing. For instance, certification bodies may invite local organizations to join the auditing team to conduct interviews with workers.
Questions should be asked in a way that will make the workers feel relaxed. For instance, some workers, particularly female workers, may find it hard to talk with auditors about any sexual harassment they may have experienced.
In this case, auditors may first ask if they saw or heard about any cases involving sexual harassment, physical or verbal abuses. Then the auditor might ask if they have experienced such abuses themselves. Auditors should make sure that the workers understand the meaning that the auditor is trying to convey before formal questions are asked.
Aiming to protect both the dignity and the physical and mental health of any individual, these instruments explicitly forbid torture or cruel, inhuman or degrading treatment or punishment anytime by any authority, even in situations of public emergency. Many countries have specific national legislation making abuse in the workplace a criminal offense.
Additional Notes on Disciplinary Measures As mentioned before, disciplinary measures are necessary for maintaining orderly operations. The primary objective of such measures should be to enable organizations to promote a high standard of employee conduct and performance, rather than to punish, humiliate, or intimidate. Following are some basic principles on this issue.
They do not constitute an exhaustive list of components of progressive disciplinary procedures. Employers may find them useful when setting up disciplinary procedures that can meet the intent of SA This may reduce the chances that the level and type of disciplinary action is arbitrarily decided, and may enhance the effectiveness of disciplinary measures in achieving company goals. Company policy and procedures should be well communicated to and well understood by all workers.
Training programs can be conducted upon hiring or during employment. These policy and procedures could also be included in a personnel handbook and be circulated among all employees. If the unsatisfactory performance or conduct continues or becomes more serious, managers should issue a written warning identifying the details of the infraction that led to the warning. The written warning may also contain a request for corrective action, a timeline for correction, and the consequences if the employee fails to comply with the request.
If the worker fails to improve, the manager may issue a final written warning, which may indicate the continued misconduct or poor performance by an employee and may point out the possibility of suspension or even dismissal. The worker, however, should be given reasonable prior notice and the opportunity to appeal the decision before such action is taken.
Disciplinary measures, if required, should be applied consistently and fairly among all personnel. Personal characteristics, such as race, national origin, religion, etc. Disciplinary procedures are a management tool to deter misconduct or poor performance by employees.
To guarantee the fairness and effectiveness of these procedures, the company should set up complaint or grievance procedures accordingly so that workers have the channels to express their concerns and redress their grievances. SA Requirements SA 7. The normal workweek 1 shall be as defined by law but shall not on a regular basis 2 exceed 48 hours. Personnel shall be provided with at least one day off in every seven-day period.
SA 7. Any such agreement must comply with the requirements of Section 7. For instance, in China, 40 hours per week should be regarded as the normal workweek. One day off should be interpreted as at least twenty-four consecutive hours per ILO Convention Senior management personnel are exempt from this requirement, but frontline management and operational, supervisory personnel are not exempt from this requirement.
If national law, local law, or a collective bargaining agreement restricts the normal workweek to less than 48 hours, the maximum weekly work schedule will be less than 60 hours e.
Intent of SA SA aims to limit the widespread abuse of overtime. Overtime hours must be voluntary, unless a collective bargaining agreement allows for required overtime under certain conditions, and are not to exceed 12 hours per week, even when the regular workweek is less than 48 hours.
Accordingly the 60 hours rule should be regarded as a guide only. This list of issues is neither exhaustive, nor is every item obligatory. In-depth interviews with workers are also important to verify that workers voluntarily signed the agreement. Equally important to determining the voluntary nature of overtime is a review of the system for distributing overtime hours. In some cases this system may be set up to penalize anyone who declines overtime hours on one or more occasions, thus, limiting the extent to which workers are actually working these hours voluntarily.
It is also important to ensure the system for distributing overtime is not susceptible to discrimination see chapter on Discrimination above. In cases where the company is party to a collective bargaining agreement freely negotiated with worker organizations as defined by ILO Convention 87 Article 10 , that agreement may allow for some overtime hours to be required by management as long as they are not required on a regular basis.
Where this is e Is there a transparent system for the fair distribution of overtime permitted by national legislation, the weekly limits hours, such that refusal to work overtime does not result in the set by SA still apply. For example, in China, this is permitted under the 2 Piecework Comprehensive Working Hours regulations. Employers Auditors should understand the mechanisms of piecework and how it is can seek permission from the managed in the workplace being audited.
Many factories use complex and local labor bureau to exceed often arbitrary systems of piece rate pay and incentives based on the total Chinese labor law limits of 36 hours overtime per month, production output.
When the production quota is unreasonably high and pay provided the monthly rates by piece are too low, excessive overtime may result and it may not be average of overtime during a voluntary in nature. Auditors can accept such averaging, Auditors should investigate whether any schemes for imposing excessive provided: hours and underpaying workers are in place. Production quotas should be 1 they verify the reasonable and allow the majority of workers to complete quota within eight legitimacy of the permit from the local labor hours.
Workers cannot be obligated to work more than the regular workweek, bureau; and even if they do not make quota. Auditors should distinguish between written 2 working hours do not policies on the extent to which such obligations exist and what the majority of exceed limits set by workers believe the repercussions will be if they leave before making quota. Because piece rate compensation varies according to the products being produced on a given day or at a given time, calculating overtime incentives can be difficult and cumbersome for managers.
Thus, some managers may use a simple incentive system such as a flat rate: e. Whatever system is being used, auditors should analyze the system to determine that there is some premium-rate for overtime work and that workers understand how this incentive rate is calculated.
Where a collective bargaining agreement is in place, auditors should verify that these rates have been agreed upon with workers through their elected representatives. Time cards or other records should be maintained whether workers are paid by the piece or by the hour and workers should understand how their wage is calculated.
Auditors should also investigate the extent to which workers may be taking piecework home, thus extending their hours beyond the allowable limit. The sub-contracting system poses a challenge to the implementation of any social compliance program. There is evidence that farther down the sub- contracting chain, there is an increased chance that workers work excessive hours, receive lower pay, obtain little or no payment of legally required benefits, and have little or no safety and health protection.
To make sure that a facility complies with SA requirements on working hours, auditors need a good understanding of the use of sub-contracting and homework by the facility. Possible ways to conduct such investigations include but are not limited to: a Review facility capacity and check it against production records and other capacity indicators. This should be done in cases where the auditor needs to clarify whether short-term contracts are given in response to fluctuations in business needs or are being used to avoid paying benefits.
It is advisable that certification bodies develop systematic, industry-specific criteria and procedures for evaluating production capacity in a given industry and region. When visiting the facility, auditors can review production records, monthly and daily averages and compare that to the production level on the day of the audit.
Auditors should seek to avoid auditing the facility on a slow production day. This may help the auditor evaluate the size of the workforce, the pace of production, and whether any work is subcontracted or completed as homework. In regions where extensive overtime work is the norm, auditors should seek to ascertain how management was able to reduce working hours. Also, because double sets of books are common, auditors should seek positive demonstration of how management was able to reduce working hours.
Auditors should also inquire as to how management is able to compete with neighboring workplaces and how workers have reacted to fewer hours of work. Before beginning the audit, auditors should obtain region- and industry- specific data on industrial accidents. This data will be helpful to auditors in determining whether the rate of industrial accidents within the facility is excessive for the type of industry and production activity.
Auditors should carefully review whether medical records and accident reports are properly maintained in the factory and assess whether any accidents are fatigue-related. This plan is executable and verifiable. Worker Interview Strategy The chief purpose of the interviews with workers is to make sure that overtime in the facility is voluntary, not excessive, and paid appropriately.
The strategy below is for reference only. Regarding company policy on working hours, it is recommended that auditors conduct interviews with the first-line supervisors who directly implement and convey policy issues to workers. Then auditors should interview shop-floor workers to see whether the same message has been communicated to them.
It is important for auditors to learn how working time is calculated and recorded, and whether time cards are used. If time cards are used, auditors should determine whether supervisors or workers themselves punch the cards. If no time cards are used, auditors should determine what method the facility uses to keep track of time worked. Auditors should draw their own conclusions based on their conversations with workers. To get a better sense of the average hours worked per day or per week, auditors may want to create a list of indirect questions.
Based on the answers they receive, auditors may be able to draw an accurate picture of the working hours situation. Below is a sample of possible questions provided for reference only: 1 When is your regular shift daytime or night? What do you like to do after work? When was that? It is important to determine if the workers are permitted to leave after a regular shift or if there is pressure to continue working.
Talking to line managers about filling orders and making production quotas can also help indicate whether or not workers are able to refuse overtime. Before and during the interview, auditors should also be cognizant of the differences in workload and demand between the peak season and the slow season.
When the interview is conducted in the slow season, auditors need to consider and ask questions about how the situation differs during the peak season. If the audit is during the slow season, auditors should seek to conduct a surveillance audit or unannounced spot check during the peak season. International Norms and National Legislation The International Labour Organisation has published dozens of conventions specifically addressing the issue of working hours, and applying to a variety of industrial undertakings and workplaces.
The general rule for working hours, as stated, is that workers shall not work more than 8 hours a day or more than 48 hours a week. For example, the general rule mentioned above does not apply to persons holding positions of supervision,59 nor does it apply to sailors.
Regarding the issue of voluntary overtime, the nine countries mentioned have specific requirements, though each differs somewhat. It could be countered, however, that workers choose to work overtime because their salary is so low that they can not make a living on their regular workweek pay. In addition, rush orders from buyers usually leave workers with little choice but to comply with overtime demands.
Some business and NGO groups in China believe that if provided with other choices, such as after-work training programs, workers would be less eager to work overtime. Two businesses in China reported positive gains after implementing SA; both state that reduced working hours led to significantly lower turnover rates, and thus training costs for new recruits were reduced.
Other benefits they found included higher product quality and better worker-management relations. There is, however, another category of working hour regulation, called Comprehensive Working Hours. This provision allows averaging and seasonal fluctuations for particular industries such as the postal service and public transportation. To make the situation even more complicated, exemptions to the Standard Working Hours are often issued by local agencies that do not actually have the authority to do so.
The validity of local variances to national laws must be verified carefully: 1 Not all local exemptions are valid or legal.
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