1. TRADE UNION TRAINING ON ILS
The Special Procedures
for Supervising the Application of ILS-
The Role of Trade Unions
Turin, November 29th
Victor Hugo Ricco
ACTRAV- ILO

2. Objectives of the presentation
Describe the main provisions regarding the Special Supervisory Mechanisms and the role of trade unions.
Trigger the discussion on how trade unions can make a strategic use of the benefits linked to these mechanisms.

3. Describe the main provisions regarding the Special Supervisory Mechanisms and the role of trade unions.
Remember

4. Special procedures
Procedures based on ILO Constitutional provisions (Of general application)
A) Representations (Arts ILO Constitution)
B) Complaints (Arts ILO Constitution)
For ratified Conventions only.
Freedom of association procedure
C) Complaints to the CFA (ILO Constitution’s Preamble, etc..)
For allegations of violations of freedom of association standards and principles.
Regardless of ratification.

5. A) Article 24 Representations
Who can make a representation?
Any employers’ or workers’ organization. National and International.
In order to be receivable, the representation must:
Be in writing.
Emanate from an industrial organization of workers or employers.
Specifically refer to Article 24 of the ILO Constitution.
Concern a member of the ILO.
Refer to a ratified Conventions.
Indicate to what respect the member has not ensured the effective observance of the Convention within its jurisdiction.

6. The representation procedure (Art. 24)
Workers’ or
employers’
organization
INTERNATIONAL LABOUR OFFICE
COMMITTEE ON FOA
if the representation
involves FOA
GOVERNING BODY
decides on the receivability
AD HOC TRIPARTITE COMMITTEE
report with findings and recommendations
Decides whether to publish
the representation and any
government reply
GOVERNING BODY
examines the report and adopts it
Private sessions…
Decision communicated to the organization and government concerned

7. Suggestion for the strategic use of this mechanism.
Present the representation with all the documentation and information needed. Remember that there will be an ad hoc committee with members of the GB who are not necessarily experts on the topic of the ratified convention.
Consider the impact of the mechanism at the national level (no need to exhaust local remedies, – possibility to enable negotiations at the national level etc..)
If the problem involves FoA principles, the representation will be derived, as usual practice, to the CFA and then the time delay will be much longer…
Be clear on what you request in order to help the committee deliver.
Monitor the compliance with the recommendations of the ad hoc committee.
Report on the follow up of the case.

8. B) Article 26 Complaints Who can file a complaint?
Any ratifying member State
The Governing Body ex officio
One or more delegate to the Conference (government, employer or worker delegate)
Main characteristics.
Highly political.
Discussed during the GB.
Many actions prior to defining the commission of inquiry.

9. The complaint procedure (Art. 26)
Ratifying Member State
Governing Body ex officio
International Labour
Conference delegate
GOVERNING BODY decides if the CoI is established
or not
COMMISSION OF INQUIRY
(usualy composed by 3 jurists)
report with findings and recommendations
Very comprehensive report.
GOVERNING BODY
If the government accepts
the recommendations
If the government does not accept
the recommendations
CEACR
follows up on their implementation
may appeal to the
ICJ
for final decision
GB may take action
under art. 33 of ILO
Constitution

10. COMMISSION OF INQUIRY
Appointed by Governing Body under Constitution (Art 26) following complaint
3 members appointed (usually judges of high tribunals at national level or at the international);
Independent and impartial.
Function of commission to inquire, report and make recommendations (Art 28 of ILO Constitution).
Serious consequences of non-compliance (Art 33 of ILO Constitution).
Belarus COMPLAINT (article 26) BELARUS - C087, C098 (Closed)
Chile COMPLAINT (article 26) CHILE - C001, C111 (Closed)
Dominican Republic COMPLAINT (article 26) DOMINICAN REPUBLIC and HAITI - C029, C087, C095, C098, C105 (Closed)
Germany COMPLAINT (article 26) FEDERAL REPUBLIC OF GERMANY - C111 (Closed)
Greece COMPLAINT (article 26) GREECE - C087, C098 (Closed)
Haiti COMPLAINT (article 26) DOMINICAN REPUBLIC and HAITI - C029, C087, C095, C098, C105 (Closed)
Liberia COMPLAINT (article 26) LIBERIA - C029 (Closed)
Myanmar COMPLAINT (article 26) MYANMAR - C029 (Closed)
Nicaragua COMPLAINT (article 26) NICARAGUA - C087, C098, C144 (Closed)
Poland COMPLAINT (article 26) POLAND - C087, C098 (Closed)
Portugal COMPLAINT (article 26) PORTUGAL - C105 (Closed)
Romania COMPLAINT (article 26) ROMANIA - C111 (Closed)
Zimbabwe COMPLAINT (article 26) ZIMBABWE - C087, C098 (Closed)

11. Suggestions for the strategic use of this mechanism.
Mainly surrounded by political considerations.
Key role of the Workers Group at the GB and ILC.
Need to liaise with the unions at the international level.
Only 13 commissions of inquiry have been appointed in almost 100 years.
Pending cases on Venezuela (2), Guatemala, Qatar, Chile.
Guatemala of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), submitted by delegates to the 101st Session (2012) of ILC.
Qatar of the Forced Labour Convention, 1930 (No. 29), and the Labour Inspection Convention, 1947 (No. 81), made by delegates to the 103rd Session (2014) of ILC.
 Venezuela of No. 26, No. 87, and No. 144, submitted under article 26 of the ILO Constitution by several delegates to the 104th Session (2015) of the ILC ‎.
Chile of the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) the Right to Organise and Collective Bargaining Convention (No. 98) the Maternity Protection Convention (Revised) 1952 (No. 103) the Workers’ Representatives Convention 1971 (No. 135) and the Labour Relations (Public Service) Convention 1978 (No. 151) made under article 26 of the ILO Constitution by a delegate to the 105th Session (2016) of the ILC. 
 Venezuela of the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) the Protection of Wages Convention 1949 (No. 95) and the Discrimination (Employment and Occupation) Convention 1958 (No. 111) made under article 26 of the ILO Constitution by a delegate at the 105th Session (2016) of the ILC.
Support the follow up on missions or decisions under an Art 26.

12. C) THE COMITTE ON FREEDOM OF ASSOCIATION «CFA».
Preliminary concepts….
Why are «FoA» and «CB» so important?
Fundamental principles. Substantive right.
Enabling, instrumental rights.
Based on the constitution (Preamble and Declaration of Philadelphia) and other instruments
Linked to civil liberties and freedoms.
Why is important for the unions?

13. Which are the basis to support the respect of the principles of FoA in the ILO?
Constitution, 1919
Declaration of Philadelphia, 1944
Declaration on Fundamental Principles and Rights at Work, 1998
Declaration on Social justice for a Fair Globalization, 2008
C87 Freedom of Association and Protection of the Right to Organise, ratifications. Last ratification: Somalia (in March 2014)
C98 Right to Organise and Collective Bargaining, ratifications. Last ratification: Somalia (in March 2014)

14. Right of organizations to decide on their internal matters
C87 in a nutshell
Art. 2
Right of all workers and employers, without distinction, to establish and join organizations of their choosing, without previous authorization
Art. 3
Right of organizations to decide on their internal matters
Art. 4
Organizations not to be dissolved or suspended by administrative authorities
Arts. 5-6
Right of organizations to establish federations and confederations and to affiliate internationally

15. C98 in a nutshell
Arts. 1 & 3
Protection of workers against acts of anti-union discrimination
Arts. 2 & 3
Protection of workers’ and employers’ organizations against acts of interference
Art. 4
Promotion of collective bargaining

16. Committee on Freedom of Association

17. CFA: composition and meetings
Established in 1951 by the GB.
Governing Body tripartite organ, with 6 representatives from each group.
Chaired by an independent person.
Meets three times a year.
In March
In May
In October/November
Sittings are private.
Decisions are taken by consensus.

18. CFA: highlights Written procedure.
On-the-spot missions and hearing of the parties possible.
May examine complaints regardless of ratification.
Only cases based on the FoA principles.
Not subject to prior exhaustion of national remedies.
May examine complaints even without the government’s reply.

19. FOA complaints by… Employers’ or workers’ organizations:
national, having direct interest in the matter.
international, having consultative status with the ILO.
international, where allegations relate to matters directly affecting affiliated organizations.
also if exiled or dissolved organisations.

20. Checklist for FOA complaints
To the Committee on Freedom of Association (via the Director General).
In writing.
Date and permanent address of the complainant.
Against a government.
Information about the complainant.
The facts, with very detailed description: who, where, when, why.
Only about facts or legislation regarding FoA principles other topics will NOT be addressed.
Evidence (e.g. judicial decisions, pictures, media reports).
Signature.

21. The FOA procedure

22. CFA reports
Interim
Additional information is needed either from the government or from the complainant
Follow-up
The CFA wants to leave the matter open in order to follow developments before closing the case and asks the government to be kept informed about developments
Definitive
The case is closed, no further examination is needed

23. CFA documents CFA reports:
Digest of decisions and principles of the ILO Committee on Freedom of Association, ed New edition is being drafted…

24. Suggestions for the strategic use of this mechanism.
If there are many violations, present them in a single complaint.
Only related to FoA principles.
Put all evidence in the first presentation, avoid new contributions because each time you will trigger the mechanisms delaying the process much more.
Do not stay still if there is a special request. Follow the case to avoid the closure of the case.
Be active in implementing the CFA recommendations and keep reporting on the compliance or non compliance of the case.
Be aware that there is no need to exhaust the internal remedies and the recommendations of the CFA can be used in internal litigation should there be any…
Possibility to request the withdrawal if the case is solved or the situation changed but it is up to the CFA to decide so.

25. Direct interventions
Not a formal supervisory mechanism. Developed by practice of the Office to promote speedy actions on grave allegations against a State Member.
For serious and urgent violations.
Request the highest level possible. Cabinet. This is a political decision.
Request to the Norms department a follow up on the Direct intervention.
Request to be copied on the letter sent to the MoL.
Follow up with the MoL the impact of the intervention.
Include the findings in the comments on the reporting cycle.

26. Overall suggestions and reflection on the different ILO Supervisory machinery.
The choice of selecting or not a mechanism is a political decision and it has to be the outcome of an strategic assessment on their use on the particular case.
The options include:
Comments to the CEACR (always advisable).
Comments to Art 19 General Surveys. ( always advisable)
CAS.
CFA.
Representations under Art 24 of the ILO Constitution.
Complaints under Art 26.
Direct intervention’s request. (For grave urgent matters – not
leave it just like that but follow up on
other mechanisms)

27. Suggestions to take into account for the strategic use of the Supervisory Machinery.
Take into account the nature of the conflict, violation, threat, etc… and analyse the impact and consequences of the selection of a mechanism with respect to time and resources consuming, impact at the short and long term, feasibility of a positive strong outcome, etc.. (some mechanisms are stronger than others).
It is always advisable to try to find solutions at the national level, even more if there is a structure to deal with complaints.
Assess the political impact of the strategic selection of a mechanism. Sometimes the selection can be done only to promote negotiation, or to strengthen an ongoing case at the domestic level, etc…. Some complaints can be withdrawn.
Reach out support and assistance from other unions with expertise in the use of these mechanisms, as well as reach out for ILO support at the moment of going ahead with a mechanism, if there is need from the technical aspect. I.e. The Norms Department at the ILO, ACTRAV specialists in HQ and field, etc….

28. Workers GB members represent the interest of the Workers in the ILO and they play a key role in the:
Selection of agenda items for ILS setting process (agenda of the conference).
Promotion of ratification and implementation of ILS.
Adoption of questionnaires on the application of ratified conventions (article 22).
Identification of the subject and adoption of questionnaires on the effect given to recommendations and non ratified conventions (article 19).
Supervision, as members of the CFA and in ad hoc tripartite committees (article 24).
Decision on the establishment of commissions of inquiry (article 26).
Next year there will be elections of the GB members for the following 3 years period.

29. Many thanks for the kind attention!
And for not…
Víctor Hugo