ILO: ILO adds OSH to 1998 Declaration on Fundamental Principles and Rights at Work

On June 10, 2022, the International Labor Conference adopted the Resolution on the inclusion of a safe and healthy working environment in the ILO’s framework of fundamental principles and rights at work. This Resolution adds a fifth principle to the 1998 Declaration on Fundamental Principles and Rights at Work, as amended in 2022 – the right to a safe and healthy working environment.  The constitutional basis for including OSH in the 1998 Declaration is the same as that for the other four principles. Both the ILO Constitution and the Declaration of Philadelphia contain express references to protection against sickness, disease, and injury arising out of employment and adequate protection for the life and health of workers in all occupations. The Resolution recalls the 2019 ILO Centenary Declaration for the Future of Work, which promotes a human-centered approach to the future of work.

Per the Declaration, the Occupational Safety and Health Convention, 1981 (No. 155) and the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) shall be considered as fundamental as defined in the 1998 Declaration. The June 2022 Resolution specifically references the COVID-19 pandemic and its “profound and transformative impact on the world of work” as one of the important reasons for incorporating OSH into the 1998 Declaration. In addition, the 2013 Rana Plaza disaster could not be far from the minds of the governmental officials labor leaders, and employer representatives who voted to adopt the amendment to the 1998 Declaration. In June 2022, the ILO called for a workplace safety review after chemical-filled containers at a plant in southeastern Bangladesh combusted, leaving 49 dead and several hundred injured.

One of the concerns discussed by the Governing Body at its 343^rd session in November 2021 was what the possible legal effect a revised Declaration might have on existing bilateral and multilateral trade agreements. The NAFTA labor side agreement included OSH among its 11 labor principles. However, beginning with the 2000 US-Jordan FTA, many bilateral and multilateral free trade agreements contain references to the 1998 Declaration, which did not include OSH as a fundamental right at the time. According to the ILO, “The 1998 Declaration is now included in the United Nations Guiding Principles on Business and Human Rights and is expressly referred to in 70 bilateral or plurilateral free trade and economic partnership agreements.” Would the fundamental right to a safe and healthy working environment be “read into” all of these trade agreements? The ILO Governing Body decided to include a saving clause to “allay concerns that the additional fundamental principle could somehow be automatically introduced into existing trade agreements without the consent of the States parties to those agreements” (p. 6) Therefore, the June 2022 Resolution, “[d]eclares that nothing in this resolution shall be construed as affecting in any unintended manner the rights and obligations of a Member arising from existing trade and investment agreements between States” (pp. 12-13).

 Protection of workers’ minds and bodies at work is critical not only to the ability to earn a living but also to the exercise of basic human rights. As argued by Dabscheck (1997), there is a strong correlation between certain core labor rights and fundamental human rights – including the right to be free from slavery and forced labor; the right of women and other groups to be free from discrimination; the freedoms of speech and association; and the right to a safe and healthy workplace. There is also a strong argument that these fundamental rights constitute International Customary Law (see Brudney, 2021). Thus, while it may have been politically expedient for the ILO to declare that OSH may not be read into previously negotiated trade agreements, such a declaration may not be legally sound.