Facebook 'unfriending' can constitute workplace bullying - Australian tribunal finds

A woman in Australia who unfriended a colleague on Facebook after a dispute at work was found by a tribunal to have committed workplace bullying.

The Fair Work Commission, a workplace tribunal, said the decision by Lisa Bird, a real estate agent sales administrator, to unfriend her colleague Rachel Roberts showed a "lack of emotional maturity" and was "indicative of unreasonable behavior."

The incident occurred after Ms Roberts, a property agent, complained to the agency principal that her properties were not being adequately displayed in the store window.

Mrs Bird, the wife of the principal, then accused Ms Roberts of being a "naughty little school girl running to the teacher."

Ms Roberts left the office crying and then checked to see if Mrs Bird had commented on the incident on Facebook, only to discover that Mrs Bird had instead unfriended her.

Ms Roberts said she had been bullied and was left with depression and anxiety – a claim the tribunal accepted.

“This action by Mrs Bird evinces a lack of emotional maturity and is indicative of unreasonable behaviour,” the tribunal ruled.

“The ‘schoolgirl’ comment… is evidence of an inappropriate dealing with Ms Roberts which was provocative and disobliging. I am of the view that Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts on 29 January 2015, when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her.”

Ms Roberts listed other claims of unfair treatment by Mrs Bird, who was accused of failing to say hello in the morning and of delivering photocopies and print-outs to all staff but Ms Roberts. The commission has issued an order to stop the bullying.

Legal experts said the case did not mean that unfriending a colleague on Facebook would automatically constitute bullying.

"The Fair Work Commission didn't find that unfriending someone on Facebook constitutes workplace bullying," Josh Bornstein, a lawyer at the firm Maurice Blackburn, told ABC News.

"What the Fair Work Commission did find is that a pattern of unreasonable behavior, hostile behavior, belittling behavior over about a two-year period, which featured a range of different behaviors including berating, excluding and so on, constituted a workplace bullying." (Telegraph)

Goldman Sachs restricts intern workday to 17 hours - in the light of the EU labour law

As many of you may remember, in 2013 a 21-year-old Bank of America Merrill Lynch intern was found dead in a shower at his London flat after working for 72 hours in a row, died of an epileptic seizure.

Goldman Sachs is quick to answer back.

Go home before midnight, and don’t come back before 7am. The new rules, introduced for this summer’s crop of investment banking interns, have been introduced “to improve the overall work experience of our interns”, a Goldman Sachs spokesman said. All of its summer interns across the world were informed of the new working hours rule on their first day in the office earlier this month. (Guardian)

The EU's Working Time Directive (2003/88/EC) stipulates minimum standards applicable throughout the EU. The Directive requires the member states to guarantee certain working conditions to the employees. One of them is the rule of daily rest. Article 3 reads that 'Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.'  It seems that Goldman Sachs would fail this test - at least concerning its branches within the EU.

One can argue that Goldman Sachs' new rule concerns only summer interns who are not employees of the company. But in the context of the European labour law I beg to differ. The notion of 'worker' in the EU legislation, and notably in the Working Time Directive, has a large scope of application. The concept of 'worker' must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and obligations of the persons concerned (Blanpain).

The Karl Robert Kranemann case (Case C-109/04, Karl Robert Kranemann v Land Nordrhein-Westfalen) has ensured us that a trainee lawyer is covered by the protection as a  'worker' within the scope of the EU law, and such, is concerned by the stipulations of the Working Time Directive.  According to the case law, the term 'worker' has a specific Community meaning and it is not to define narrowly. The essential feature of an employment relationship is, the Court said, is the fact that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.

At least, Goldman Sachs pays for its interns. However, it puts them within the scope of the Working Time Directive in the EU.

Child Labour in the Developed Countries V. - Conclusions and Suggestions

 We conclude that contrary to the popular myth child labour exists in the developed countries aswell. To achieve a better world free of child labour by 2016 further steps are necessary. This article intends to take a few suggestions for this purpose.

Apply stricter criminal sanctions against the users and facilitators of any form of child labour with special regard to the child pornography, prostitution and trafficking. Since our children interests are – at least – as important as the right for data protection of sexual crime committers a much more effective protection is needed. It would worth to find possibilities how to deny these criminal’s access to the Internet which is a hub for these type of crimes.

Penalize sex tourists who committ crime against children in third countries. Implement effective co-operation with travel agencies, hotels and other service providers to reduce the opportunity to participate in sex tourism. The most developed countries shall support their poorer counterparts to eliminate child labour not only with money but with self limitations.

Exclude companies from public procurement which have ever been affectuated by child labour, notwhistanding was it the mother company or some of its subsidiary. Extend this prohibition for private persons and his interests who were in charge of such a company.

Ensure early education and care for children. Maintain quality education and/or vocational training for everyone. It is well documented that quality education and child labour negatively correlate. New surveys show that inequalities in children’s development commence early therefore early education and care is equally important that school education.

Promote women’s work. Families in which there is only one breadwinner are more fragile therefore we can find a working child here two times more frequently than in families with two working parents. Additionally, in lone mother families the work is a must for women.

These are only but a few examples how to ameliorate the current situation.

Historically, the first provisions against child labour were conceived in 1788 in Britain banning climbing boys and chimney sweepers under the age of 18. More than two centuries after the first legislation there are many things to do have been left.

A previous version of the whole study can be found here

Child Labour in the Developed Countries IV. - Current Situation

In this paper we consider developed countries the member states of the European Union and the OECD. It makes totally 34 countries (the EU-28 and Australia, Canada, Korea, New-Zeeland, Turkey and the USA). Obviously, not all of the EU members are joined to the OECD as well, whereas some OECD country exists without EU membership.

The mainstream public opinion would say there is no point to deal with child labour concerning these countries since this issue has marginal significance and obviously it is worth much better to cater for the developing world. We do think it differently. Even if developed countries’ figures are seemed to be irrelevant in comparison with those from converging and emerging states, some good reasons are to be mentioned on the other hand.

First of all, the well developed and industralized states must act a role model in the eyes of the rest of the world therefore any alteration from the benchmark can hardly be acceptable. A further reason, that the IPEC itself is highly optimistic about the total elimination and where else would be more self-evident to achieve this ambition than in the economically best situated countries. And finally, the seriousness of the topic may give an explanation as well since even one child within deplorable conditions shall be too much, consequently, we are supposed to be strict with the developed world.

The EU and the USA has introduced provisions on a new Generalised System of Preferences, banning – among others – the import of products from industries using child labour. The question is what kind of actions are to be taken to avoid child labour in the internal markets.

In 2004 the total number of children were 1566 million in which 218 million was working, so the 14 % of total children. This number shows a slight decrease compare to 2000’s data since the percentage was 16 % - 245 million working children from totally 1531 million. In accordance with the geographical distribution, the figures represent a strongly unequal share between continents. Asia takes responsability for almost the two-third of child workers while the second biggest chunk is belonged from Africa. The reasons of the overrepresentation of the two said continents are quite obvious, the relative underdevelopment and the vast proportion of the world’s children. One would say that the developed countries’ role is deemed to be marginal but the 1 % share means more than 2 million children at work.

Understanding the above number it is striking how developed countries are negligent about the problem. In New Zeeland for example there are not any relevant statistics about but child labour is certainly exists since there is annually one child victim in work related accidents in this roughly 3.6 million’s country.

Recent surveys show there is a strong correlation between child labour and child poverty and lack of education. In the industrialized countries 3,7 % of school age children are out of school. It means 2.6 million children in other words approximately equal with the number of working children in these countries.Parental unemployment constitutes another aspect of disadvantages which could lead to child labour. Children who are growing up in a family in which one or both parents are unemployed very often are supposed to contribute family income. A derivated cross-effect that men unemployment is negatively correlate with marital stability which can also impact children’s well-being.And not to underestimate to role of social exlusion. Ethnic minorities like gypsies in Europe, aborigines in Australia, maories in New Zeeland, inuits in Canada, natives, african-americans and latinos in the United States are specially vulnerable by child labour as they are out of the scope. The situation is similar with migrants, among which child laborers are well overrepresented.

The alteration amongst the developed countries concerning child labour is significant. Taken into account the ratio between the total number of children and working children, Romania and Bulgaria are legging behind the others. In these countries ethnic minorities are particularly involved in child labour, especially in remote, agricultural territories. Child trafficking constitutes a major problem also and Romania „exported”many  child street vendors and beggars through Europe. In absolute numbers the USA considers the worst example. In the USA 16 % of children live below the poverty line and only in agriculture we can find more than 200.000 child workers. As we expected, among the „old” EU members the highest rates are in Spain, Portugal and (Southern-) Italy. In Spain and Portugal child poverty and consequently child labour have remained on the same level despite of the economic boom of the ’90’s and 2000’s. It proves that concerning child labour is not only money matters but other, mainly cultural factors. That is why this tackle is harder than simply compress the inequalality gap.

Furthermore, it constitutes a huge problem that companies and citizens of the developed countries „export” child labour to the emerging states. Due to the Generalised System of Preferences, the situation has become better in business life but amongst private persons sex tourism to third countries is still a significant troublesome phenomenon.

Concerning the partition among the sectors, similarly to the developing world the agriculture represents the major ground for child labour. Child workers plant and harvest crops, spray pesticides and tend livestock very often from sun up to sun down. Surprisingly enough, agriculture is deemed to be one of the three most dangerous sectors along with construction and mining. The major defavorable circumstances which facilitate child labour are the remoteness of the rural territories, the lack of the schools and the traditionally underregulated agricultural sector.

Subject to the share of various sectors in which child labour exists, apart from agriculture which role is considered as the strongest one, we can see serious differences between developed countries and the rest of the world. While in the emerging and converging countries mines, ceramics and glass factory work, matches and firework industry, deep sea fishing and slavery are just a few examples of the several grounds of child labour, in the developed countries domestic works, street vendors and beggars and unfortunately child prostitution and pornography and the related trafficking activities are the main responsible factors for child labour.

From the differences it is obvious that whereas in the developing countries child labour on the one hand is an integral part of the (informal) economy, though on the other hand is changeable with other workforce. By contrast in the developed world child labour is mainly related to illegal activities therefore the total annulation will be extremely difficult and full of challenges.

To be continued.

A previous version of the whole study can be found here

Child Labour in the Developed Countries III. - The Practical Framework

The International Programme on the Elimination of Child Labour (IPEC) was launched in 1992. It is considered the biggest technical cooperation of the ILO . 

The Program operates in 88 countries on 190 field projects with the financial support of member states and private sponsors (companies and natural persons). The original main goal of the IPEC is more than ambitious: eliminate the worst forms of child labour by 2016 at the latest. The IPEC’s approach is revolutionnary, it breakes the traditional role of an international organisation to verify and apply sanctions against member states which are not able to comply with the conventions but try to help them to implement policies in the reality. And quick and efficient implementation is crucial while children at work are much more exposed to biological and chemical hazards than their not working counterparts and the risk of verbal and sexual abuse is more common among them as well.

To pursue its mandate, IPEC relies on tripartite cooperation. Apart from trade unions and employer’s organizations, the Programme co-works and communicates with other international and national institutions, NGO’s, universities and the media. Among the countries targeted by IPEC we hardly could find other developed countries than Bulgaria and Romania. It is seems that the main asset in the fight against child labour in developed countries is not the IPEC but national policies.

To be continued.

A previous version of the whole study can be found here

Child Labour in the Developed Countries II. - The Legal Framework

The fight against child labour is not solely an ILO issue but much more widespread and structured. First of all, we have to mention the UN’s Convention on the Rights of the Child from 1989. This Convention describe the legal notion of „child”, order to ban any work which is likely to be hazardous, interfere with the education, or to be harmful to the health or physical, mental, spiritual, moral and social development of children. The document requires the member states to take legislatives about the minimum age, working hours and other working conditions, and to apply sanctions against the facilitators of child labour.

The International Covenant on Civil and Political Rights (1976) has established the protection of minors and prohibits slavery and compulsory labour. Other international conventions prohibit

furthermore human trafficking, forced labour and the exploitation of the prostituion – factors which are related to child labour. Apart from the ILO many other UN agencies and founds – among others the UNICEF, UNESCO and the FAO – and numerous NGO’s are involved in the prohibition of child labour as one of the most important elements of children welfare.

According to Jean-Michel Servais (Working conditions and Globalization’ in Blanpain R. /ed/, International Labour Law and Globalisation /Textbook, Tilburg, 2010/), we can classify the ILO’s labour standards into three categories. The first one concerns the fundamental rights, the second one covers standards of a programmatic nature and the third one relates to the technical provisions. Without any doubt, the legal norms against child labour have fallen into the first group.

Pertaining to the ILO legislation, two declarations and two recommendations deal with child labour.

The so-called Minimum Age Convention (Convention No. 138) was adopted in 1973. This Convention unifies and simplifies the previous conventions which was made sector wise – as separate minimum age conventions existed for agricultural, industrial and fishing work, just to mention but a few. The aggregated new Convention applies a double norms: a stricter one for developed countries and another one for member states whose „economy and educational facilities are insufficiently developed” (Art. 5 of the Convention). According to the general rule, minimum age may not be less than the age of completion of compulsory schooling and in any case not less than 15 years. By contrast, developing countries under the above mentioned definition may stipulate 14 years as a minimum age. For this alteration the Convention only requires a consultation with employer’s and worker’s organisations – where such exist.

This article intends to focus on developed countries but we cannot be reluctant about this provision. Firstly, the criteria of developing nations is so broad and dim that almost every country could define itself as a developing one. Secondly, the Convention requires only a consultation and not a co-decision with concerned organisations. Thirdly, in absence of these organisations – which would be sharply controversial with ILO’s tripartism – such weak consultation is not mandatory either. In these circumstances practically every country can decrease the minimum age to 14 years.

Furthermore, the Minimum Age Convention stipulates that for jobs which are likely to jeopardise the health, safety or moral of young person shall not be less than 18 years.

The Minimum Age Recommendation (Recommendation No.146) – among others - refers to the most vulnerable groups: migrant children and children without family, providing that a special attention is required to take towards them. Education and vocational training as solutions to prevent child labour are also mentioned. The Recommendation urges the member states to raise the minimum age to 16 years – or 15 years in developing countries.

The Convention on the Worst Forms of Child Labour (C No. 182) stems from another mindset. Whereas the Minimum Age Convention accepts the variety of the countries and supports solutions on long term, the Worst Forms Convention applies zero tolerance and aims to prohibit immediately the worst forms indeed.

This Convention declares all forms of slavery, trafficking, forced and compulsory labour, prostitution, pornographic performance, any illicit activities, and all kind of works which are likely to harm the health, safety or morals of children as activities to prohibit and eliminate immediately and effectively concerning all children under the age of 18.

The ratifying member states are obliged to monitor the implementation of the Convention’s provisions. Action programs and penal sanctions are to be taken since active policy is required on behalf of the members. The ratifying countries are supposed to ensure the access to a free elementary education in order to avoid child labour.

Likewise to the minimum age provisions, the Worst Forms Convention was followed by a recommendation as well. Similarly again, the Recommendation introduce the most vulnerable groups: younger children and the girl child. This ILO standard contains guidelines about which type of abusive activities are deemed to be criminal offences.

The acceptance of Worst Forms Convention is one of the biggest success story of the ILO. Within a decade 90 % of its member states have ratified the Convention while Minimum Age Convention counts 151 ratifications or 80 % of members. It is considered as the quickest and almost unanimous ratification int he long history of the ILO.

As for developed countries, in the European Union child labour is explicitly banned in the Charter of Fundamental Rights. Subject to the Art. 32, the employment of children is prohibited and the minimum age of admission to employment may not be lower than the minimum school leaving year. The Council Directive 94/33/EC classifies young workers in three categories: young people under the age of 18, children under the age of 15 or still in full-time compulsory education and adolescent between the age of 15 and 18 who are no longer in full-time compulsory education. Apart from the ban of the work of children the Directive applies regulations about the working time of young labourers and a number of general obligations for the employers from the point of view of safe and healthy.

By contrast, due to its inter-governmental and not supranational nature, the OECD does not apply legaly binding instruments for its member states. However, self-evidently OECD members do accept the other international regulations and maybe duplicate them is not necessary within this organization. In addition, we have to notice that OECD differs from other international organizations from the point of view of control and feedback mechanism. Due to the homogenity of the member states, instead of institutionalised regulatory mechanisms, peer review and peer pressure are to designate to supervise member’s practices. It can be another reason for the absence of own legislation in this field. On the other hand, OECD Guidelines for Multinational Enterprises worths a notice since the Guidelines requires companies to contribute to the effective abolition of child labour (OECD Guidelines 2011, V. 1. c).

To be continued.

A previous version of the whole study can be found here

Child Labour in the Developed Countries I. - Introduction

Without any doubt, the International Programme on the Elimination of Child Labour (IPEC) - which was created in 1992 - is considered as one of the most ambitious program of the International Labour Organization. The program’s main goal has been to eliminate the worst forms of child labour at all until 2016. 

The roadmap adopted in The Hague Global Child Labour Conference (2010) somehow refined the aim into 'substantially increasing global efforts to eliminate the worst forms of child labour by 2016. Then, the III. Global Conference on Child Labour (2013) faced the realities, saying: 'The global number of child labourers has dropped from 246 million to 168 million over the last decade. But even the  latest improved rate of decline is not enough to achieve the goal of eliminating the worst forms of child labour by 2016.' One year before the original 'deadline' it is not without reason to overview the current situation - this time from a special angle: what is about child labour in the so-called developed countries.

According to the public opinion child labour is deemed to be one of the Third World’s issues far away from the everyday life of developed countries. By contrast, this article takes an attempt to show how the elimination of child labour is going on in the developed world. First of all, we introduce the relevant international legal sources of the abolition of child labour. In addition, the article presents the IPEC agenda and its ambitions. Subsequently, we intend to go on to describe the current situation concerning child labour in the developed countries. This article considers the 28 member states of the European Union and the members of OECD as developed countries. Finally, we conclude the article with suggestions: how it would be possible to reduce and eliminate child labour in the developed world. 

To be continued.

A previous version of the whole study can be found here