ESS2 Labor and Working Conditions PDF

2 Labor and Working Conditions Introduction Objectives 1. ESS2 recognizes the importance of To promote safety and health at work. employment creation and income genera- To promo...

2 Labor and Working Conditions Introduction Objectives 1. ESS2 recognizes the importance of To promote safety and health at work. employment creation and income genera- To promote the fair treatment, nondiscrimina- tion in the pursuit of poverty reduction and tion and equal opportunity of project workers. inclusive economic growth. Borrowers can To protect project workers, including vulnerable promote sound worker-management rela- workers such as women, persons with disabili- ties, children (of working age, in accordance tionships and enhance the development with this ESS) and migrant workers, contracted benefits of a project by treating workers in workers, community workers and primary supply the project fairly and providing safe and workers, as appropriate. healthy working conditions. To prevent the use of all forms of forced labor and child labor.1 To support the principles of freedom of associa- tion and collective bargaining of project workers in a manner consistent with national law. To provide project workers with accessible means to raise workplace concerns. Scope of application 2.  The applicability of ESS2 is established during the environmental and social assessment described in ESS1.2 3.  The scope of application of ESS2 depends on the type of employment relationship between the Bor- rower and the project workers. The term “project worker” refers to: (a) people employed or engaged directly by the Borrower (including the project proponent and the project implementing agencies) to work specifically in relation to the project (direct workers); ESS2 Paragraphs 17 to 19 specify the circumstances in which a child 1 may be employed or engaged in connection with a project. In conducting the environmental and social assessment and 2 depending on the significance of the potential issues in the proj- ect relating to labor and working conditions, the views of repre- sentative workers’ and employers organizations may be sought. 31 1707130_Environmental_and_Social_Framework.indd 31 5/25/17 8:34 AM  (b) people employed or engaged through third Requirements parties3 to perform work related to core func- tions4 of the project, regardless of location A. Working conditions and management (contracted workers); of worker relationships (c) people employed or engaged by the Borrower’s 9. The Borrower will develop and implement writ- primary suppliers5 (primary supply workers); ten labor management procedures applicable to and the project. These procedures will set out the way (d) people employed or engaged in providing com- in which project workers will be managed, in accor- munity labor6 (community workers). dance with the requirements of national law and this ESS.9 The procedures will address the way in ESS2 applies to project workers including full- which this ESS will apply to different categories of time, part-time, temporary, seasonal and migrant project workers including direct workers, and the workers.7 way in which the Borrower will require third parties to manage their workers in accordance with para- Direct workers graphs 31–33. 4. The requirements of paragraphs 9 to 30 of this ESS will apply to direct workers. Terms and conditions of employment 10. Project workers will be provided with informa- Contracted workers tion and documentation that is clear and under- 5. The requirements of paragraphs 9 to 33 of this standable regarding their terms and conditions of ESS will apply to contracted workers, as specified in employment. The information and documentation Section E. will set out their rights under national labor and employment law (which will include any applicable Community workers collective agreements), including their rights related 6.  The requirements of paragraphs 34 to 38 of this to hours of work, wages, overtime, compensation and ESS will apply to community workers, as specified in benefits, as well as those arising from the require- Section F. ments of this ESS. This information and documenta- tion will be provided at the beginning of the working Primary supply workers relationship and when any material changes to the 7.  The requirements of paragraphs 39 to 42 of this terms or conditions of employment occur. ESS will apply to primary supply workers, as speci- fied in Section G. 11.  Project workers will be paid on a regular basis as required by national law and labor management 8.  Where government civil servants are working in procedures. Deductions from payment of wages connection with the project, whether full-time or will only be made as allowed by national law or the part-time, they will remain subject to the terms and labor management procedures, and project work- conditions of their existing public sector employ- ers will be informed of the conditions under which ment agreement or arrangement, unless there has such deductions will be made. Project workers will been an effective legal transfer of their employ- be provided with adequate periods of rest per week, ment or engagement to the project.8 ESS2 will not annual holiday and sick, maternity and family leave, apply to such government civil servants, except for as required by national law and labor management the provisions of paragraphs 17 to 20 (Protecting the procedures. Work Force) and paragraphs 24 to 30 (Occupational Health and Safety). 12. Where required by national law or the labor management procedures, project workers will receive written notice of termination of employment and details of severance payments in a timely man- ner.10 All wages that have been earned, social secu- ‘Third parties’ may include contractors, subcontractors, brokers, 3 agents or intermediaries. rity benefits, pension contributions and any other ‘Core functions’ of a project constitute those production and/or 4 entitlements will be paid on or before termination service processes essential for a specific project activity without of the working relationship, either directly to the which the project cannot continue. ‘Primary suppliers’ are those suppliers who, on an ongoing 5 basis, provide directly to the project goods or materials essential for the core functions of the project. To the extent that provisions of national law are relevant to 9 See paragraph 34. 6 project activities and satisfy the requirements of this ESS, the ‘Migrant workers’ are workers who have migrated from one 7 Borrower will not be required to duplicate such provisions in country to another or from one part of the country to another for labor management procedures. purposes of employment. 10 Entitlement to such payments will depend on the nature of the Such transfer will be conducted in accordance with all legal 8 employment relationship, including whether the project workers requirements and transferred workers will be subject to all are employed on a fixed term contract, or are full-time, part-time, 32 requirements of this ESS. temporary or seasonal. 1707130_Environmental_and_Social_Framework.indd 32 5/25/17 8:34 AM  project workers or where appropriate, for the bene- with information needed for meaningful negotia- fit of the project workers. Where payments are made tion in a timely manner. Where national law restricts for the benefit of project workers, project workers workers’ organizations, the project will not restrict will be provided with evidence of such payments. project workers from developing alternative mecha- nisms to express their grievances and protect their Nondiscrimination and equal opportunity rights regarding working conditions and terms of 13. Decisions relating to the employment or treat- employment. The Borrower should not seek to influ- ment of project workers will not be made on the basis ence or control these alternative mechanisms. The of personal characteristics unrelated to inherent job Borrower will not discriminate or retaliate against requirements. The employment of project workers project workers who participate, or seek to partici- will be based on the principle of equal opportunity pate, in such workers’ organizations and collective and fair treatment, and there will be no discrimi- bargaining or alternative mechanisms. nation with respect to any aspects of the employ- ment relationship, such as recruitment and hiring, B. Protecting the work force compensation (including wages and benefits), work- Child labor and minimum age ing conditions and terms of employment,11 access to training, job assignment, promotion, termination 17. A child under the minimum age established in of employment or retirement, or disciplinary prac- accordance with this paragraph will not be employed tices. The labor management procedures will set or engaged in connection with the project. The labor out measures to prevent and address harassment, management procedures will specify the minimum intimidation and/or exploitation. Where national age for employment or engagement in connection law is inconsistent with this paragraph, the project with the project, which will be the age of 14 unless will seek to carry out project activities in a man- national law specifies a higher age. ner that is consistent with the requirements of this 18.  A child over the minimum age and under the age paragraph to the extent possible. of 18 may be employed or engaged in connection 14. Special measures of protection and assistance with the project only under the following specific to remedy discrimination or selection for a particu- conditions: lar job based on the inherent requirements of the (a) the work does not fall within paragraph 19 job or the objectives of the project12 will not be deemed as discrimination, provided they are con- below; sistent with national law. (b) an appropriate risk assessment is conducted prior to the work commencing; and 15.  The Borrower will provide appropriate measures (c) the Borrower conducts regular monitoring of of protection and assistance to address the vulnera- health, working conditions, hours of work and bilities of project workers, including specific groups the other requirement of this ESS. of workers, such as women, people with disabilities, migrant workers and children (of working age in 19.  A child over the minimum age and under the age accordance with this ESS). Such measures may be of 18 will not be employed or engaged in connection necessary only for specific periods of time, depend- with the project in a manner that is likely to be haz- ing on the circumstances of the project worker and ardous13 or interfere with the child’s education or the nature of the vulnerability. be harmful to the child’s health or physical, mental, spiritual, moral or social development. Worker’s organizations 16. In countries where national law recognizes workers’ rights to form and to join workers’ organi- zations of their choosing and to bargain collectively without interference, the project will be imple- ESS2 mented in accordance with national law. In such cir- cumstances, the role of legally established workers’ organizations and legitimate workers’ representa- Work considered hazardous for children is work that, by its 13 tives will be respected, and they will be provided nature or the circumstances in which it is carried out, is likely to jeopardize the health, safety, or morals of children. Examples of hazardous work activities prohibited for children include work: (a) with exposure to physical, psychological or sexual abuse; The Borrower will consider, to the extent technically and finan- 11 (b) underground, underwater, working at heights or in confined cially feasible, reasonable measures to adapt the workplace in spaces; (c) with dangerous machinery, equipment or tools, or relation to project workers with disabilities. involving handling or transport of heavy loads; (d) in unhealthy For example, where the project or a component of the project 12 environments exposing children to hazardous substances, is designed to target a specific group or set of individuals, such agents, or processes, or to temperatures, noise or vibration dam- as in projects with a local hiring requirement, social safety net aging to health; or (e) under difficult conditions such as work for projects or work for peace projects. This may also include posi- long hours, during the night or in confinement on the premises tive affirmative measures as required by national law. of the employer. 33 1707130_Environmental_and_Social_Framework.indd 33 5/25/17 8:34 AM  Forced labor grievance mechanisms provided through collective 20. Forced labor, which consists of any work or agreements. service not voluntarily 14 performed that is exacted from an individual under threat of force or penalty, D. Occupational Health and Safety (OHS) will not be used in connection with the project. This 24.  Measures relating to occupational health and prohibition covers any kind of involuntary or com- safety will be applied to the project. The OHS mea- pulsory labor, such as indentured labor, bonded sures will include the requirements of this Section, labor, or similar labor-contracting arrangements. No and will take into account the General EHSGs and, trafficked persons will be employed in connection as appropriate, the industry-specific EHSGs and with the project.15 other GIIP. The OHS measures applying to the proj- ect will be set out in the legal agreement and the C. Grievance mechanism ESCP.18 21. A grievance mechanism will be provided for 25.  The OHS measures will be designed and imple- all direct workers and contracted workers16 (and, mented to address: (a) identification of potential where relevant, their organizations) to raise work- hazards to project workers, particularly those that place concerns.17 Such workers will be informed may be life threatening; (b) provision of preventive of the grievance mechanism at the time of recruit- and protective measures, including modification, ment and the measures put in place to protect them substitution, or elimination of hazardous conditions against any reprisal for its use. Measures will be put or substances; (c) training of project workers and in place to make the grievance mechanism easily maintenance of training records; (d) documenta- accessible to all such project workers. tion and reporting of occupational accidents, dis- 22.  The grievance mechanism will be proportionate eases and incidents; (e) emergency prevention and to the nature and scale and the potential risks and preparedness and response arrangements to emer- impacts of the project. It will be designed to address gency situations;19 and (f) remedies for adverse concerns promptly, using an understandable and impacts such as occupational injuries, deaths, dis- transparent process that provides timely feedback ability and disease.20 to those concerned in a language they understand, 26.  All parties who employ or engage project work- without any retribution, and will operate in an ers will develop and implement procedures to independent and objective manner. The grievance establish and maintain a safe working environment, mechanism may utilize existing grievance mecha- including that workplaces, machinery, equipment nisms, providing that they are properly designed and processes under their control are safe and and implemented, address concerns promptly, and without risk to health, including by use of appro- are readily accessible to such project workers. Exist- priate measures relating to chemical, physical and ing grievance mechanisms may be supplemented as biological substances and agents. Such parties will needed with project-specific arrangements. actively collaborate and consult with project work- 23. The grievance mechanism will not impede ers in promoting understanding, and methods for, access to other judicial or administrative remedies implementation of OHS requirements, as well as in that might be available under the law or through providing information to project workers, training existing arbitration procedures, or substitute for on occupational safety and health, and provision of personal protective equipment without expense to the project workers. Work is on a voluntary basis when it is done with the free and 14 27. Workplace processes will be put in place for informed consent of a worker. Such consent must exist through- project workers to report work situations that they out the employment relationship and the worker must have the possibility to revoke freely given consent. In particular, there can be no “voluntary offer” under threat or other circumstances of restriction or deceit. To assess the authenticity of a free and Section 2 of the General Environmental Health and Safety 18 informed consent, it is necessary to ensure that no external con- Guidelines (EHSGs) on Occupational Health and Safety applies straint or indirect coercion has been carried out, either by an act to all projects and can be found at http://www.ifc.org/wps/ of the authorities or by an employer’s practice. wcm/connect/9aef2880488559a983acd36a6515bb18/2%2BOccu Trafficking in persons is defined as the recruitment, trans- 15 pational%2BHealth%2Band%2BSafety.pdf?MOD=AJPERES. Each of portation, transfer, harboring or receipt of persons by means of the industry-specific guidelines addresses the OHS issues rel- the threat or use of force or other forms of coercion, abduction, evant to the particular industry. Links to each of these guidelines fraud, deception, abuse of power, or of a position of vulnerability, can be found at http://www.ifc.org/wps/wcm/connect/topics_ or of the giving or receiving of payments or benefits to achieve ext_content/ifc_external_corporate_site/ifc+sustainability/ the consent of a person having control over another person, for our+approach/risk+management/ehsguidelines the purposes of exploitation. Women and children are particu- These arrangements will be coordinated with the Emergency 19 larly vulnerable to trafficking practices. Preparedness and Response measures established under ESS4. For community workers, see paragraph 36. 16 Such remedies should take into account, as applicable, the 20 This grievance mechanism will be provided separately from the 17 wage level and age of the project worker, the degree of adverse 34 grievance mechanism required under ESS10. impact, and the number and age of dependents concerned. 1707130_Environmental_and_Social_Framework.indd 34 5/25/17 8:34 AM  believe are not safe or healthy, and to remove subcontracting, the Borrower will require such third themselves from a work situation which they have parties to include equivalent requirements and non- reasonable justification to believe presents an compliance remedies in their contractual agree- imminent and serious danger to their life or health. ments with subcontractors. Project workers who remove themselves from such situations will not be required to return to work 33. Contracted workers will have access to a griev- until necessary remedial action to correct the situ- ance mechanism. In cases where the third party ation has been taken. Project workers will not be employing or engaging the workers is not able to retaliated against or otherwise subject to reprisal or provide a grievance mechanism to such workers, negative action for such reporting or removal. the Borrower will make the grievance mechanism provide under Section C of this ESS available to the 28. Project workers will be provided with facilities contracted workers. appropriate to the circumstances of their work, including access to canteens, hygiene facilities, and F. Community workers appropriate areas for rest. Where accommodation 34. Projects may include the use of community services21 are provided to project workers, policies workers in a number of different circumstances, will be put in place and implemented on the man- including where labor is provided by the community agement and quality of accommodation to protect as a contribution to the project, or where projects and promote the health, safety, and well-being of are designed and conducted for the purpose of fos- the project workers, and to provide access to or pro- tering community-driven development, providing a vision of services that accommodate their physical, social safety net23 or providing targeted assistance social and cultural needs. in fragile and conflict-affected situations. Given the 29. Where project workers are employed or engaged nature and objectives of such projects, the applica- by more than one party and are working together tion of all requirements of ESS2 may not be appro- in one location, the parties who employ or engage priate. In all such circumstances, the Borrower will the workers will collaborate in applying the OSH require measures24 to be implemented to ascertain requirements, without prejudice to the responsibil- whether such labor is or will be provided on a vol- ity of each party for the health and safety of its own untary basis as an outcome of individual or com- workers. munity agreement.25 30. A system for regular review of occupational 35. Accordingly, where the project includes the pro- safety and health performance and the working vision of labor by community workers, the Borrower environment will be put in place and include iden- will apply the relevant provisions of this ESS in a tification of safety and health hazards and risks, manner which reflects and is proportionate to: implementation of effective methods for respond- (a) the nature and scope of the project; ing to identified hazards and risks, setting priorities for taking action, and evaluation of results. (b) the specific project activities in which the com- munity workers are engaged; and E. Contracted workers (c) the nature of the potential risks and impacts to the community workers. 31. The Borrower will make reasonable efforts to ascertain that third parties22 who engage contracted Paragraphs 9 to 15 (Working Conditions) and para- workers are legitimate and reliable entities and graphs 24 to 30 (Occupational Health and Safety) have in place labor management procedures appli- will be assessed in relation to community labor, and cable to the project that will allow them to oper- will be applied in a manner which reflects (a) to (c) ate in accordance with the requirements of this ESS, above. The way in which these requirements will except for paragraphs 34–42. apply in the circumstances of the project will be set out in the labor management procedures. ESS2 32. The Borrower will establish procedures for managing and monitoring the performance of such 36. In preparing the labor management proce- third parties in relation to the requirements of this dures, the Borrower will clearly identify the terms ESS. In addition, the Borrower will incorporate the and conditions on which community labor will be requirements of this ESS into contractual agree- engaged, including amount and method of payment ments with such third parties, together with appro- priate noncompliance remedies. In the case of For example, food-for-work programs and public works as 23 Those services might be provided either directly by the Bor- 21 safety nets programs. rower or by third parties. These measures will be documented in the labor management 24 See footnote 3: this may include contractors, subcontractors, 22 procedures. brokers, agents or intermediaries. See footnote 14. 25 35 1707130_Environmental_and_Social_Framework.indd 35 12/11/17 1:48 PM  (if applicable) and times of work. The labor manage- child labor, forced labor and serious safety issues ment procedures will also specify the way in which which may arise in relation to primary suppliers. community workers can raise grievances in relation to the project. The Borrower will assess the potential 40.  Where there is a significant risk of child labor or risks and impacts of the activities to be conducted forced labor related to primary supply workers, the by community workers and, at a minimum, apply the Borrower will require the primary supplier to iden- relevant requirements of the General EHSGs and tify those risks consistent with paragraphs 17 to 20 industry-specific EHSGs. above. The labor management procedures will set out roles and responsibilities for monitoring pri- 37.  The Borrower will assess whether there is a risk of mary suppliers. If child labor or forced labor cases child labor or forced labor within community labor, are identified, the Borrower will require the primary identifying those risks consistent with paragraphs supplier to take appropriate steps to remedy them. 17 to 20 above. The labor management procedures will set out roles and responsibilities for monitoring 41.  Additionally, where there is a significant risk of community workers. If cases of child labor or forced serious safety issues related to primary supply work- labor are identified, the Borrower will take appropri- ers, the Borrower will require the relevant primary ate steps to remedy them. supplier to introduce procedures and mitigation measures to address such safety issues. Such pro- 38. The review system established pursuant to cedures and mitigation measures will be reviewed paragraph 30 will take into account the provision periodically to ascertain their effectiveness. of labor by community workers in the project, and that adequate training is provided to such workers, 42. The ability of the Borrower to address these tailored to their particular needs and the potential risks will depend upon the Borrower’s level of con- risks and impacts of the project. trol or influence over its primary suppliers. Where remedy is not possible, the Borrower will, within a G. Primary supply workers reasonable period, shift the project’s primary sup- pliers to suppliers that can demonstrate that they 39.  As part of the environmental and social assess- are meeting the relevant requirements of this ESS. ment, the Borrower will identify potential risks of 36 1707130_Environmental_and_Social_Framework.indd 36 5/25/17 8:34 AM