ILS and supervisory mechanisms: tools in labour law reforms

ILS and supervisory mechanisms: tools in labour law reforms
Maura Miraglio, 13 July 2016 International Training Centre of the ILO

International Training Centre of the ILO
Outline The fundamentals of the ILS system The ILO supervisory machinery ILS resources on the Net Crosscutting: The use of ILS and the ILO supervisory machinery by TUs International Training Centre of the ILO

The fundamentals of the ILS system
International Training Centre of the ILO

ILS forms and legal value
Conventions International treaties open to ratification by member States When ratified, legally binding If not ratified, a source of inspiration for domestic law and policy Recommendations Not open to ratification, not legally binding Give guidance on policy, legislation and practice Can accompany Conventions or be autonomous Protocols Partially and optionally revise or amend earlier Conventions International Training Centre of the ILO

ILS in numbers 189 Conventions 8 fundamental Conventions, 4 governance Conventions and 177 technical Conventions 83 up-to-date Conventions Most recent: C189 on Domestic Workers, 2011 204 Recommendations Most recent: R203 on Forced Labour (Supplementary Measures), 2014 and R204 on Transition from the Informal to the Formal Economy, 2015 6 Protocols Most recent: P029 on Forced Labour, 2014 International Training Centre of the ILO

Fundamental Conventions
ILO Declaration on Fundamental Principles and Rights at Work, 1998 C87 Freedom of Association and Protection of the Right to Organise, 1948 All ILO member States, even if they have not ratified one or more fundamental Conventions, have an obligation to respect, promote and realize the principles concerning the fundamental rights at work, because of their membership in the Organization C98 Right to Organise and Collective Bargaining, 1949 C29 Forced Labour, 1930 C105 Abolition of Forced Labour, 1957 C138 Minimum Age, 1973 C182 Worst Forms of Child Labour, 1999 C100 Equal Remuneration, 1951 C111 Discrimination (Employment and Occupation), 1958 International Training Centre of the ILO

Governance Conventions
ILO Declaration on Social Justice for a Fair Globalization, 2008 C144 Tripartite Consultation (International Labour Standards), 1976 These Conventions are significant from the viewpoint of governance C81 Labour Inspection, 1947 C129 Labour Inspection (Agriculture),1969 C122 Employment Policy, 1964 International Training Centre of the ILO

ILS subjects Freedom of association, collective bargaining and industrial relations Forced labour Elimination of child labour and protection of children and young persons Equality of opportunity and treatment Tripartite consultation Labour administration and inspection Employment policy and promotion Vocational guidance and training Employment security Social policy Wages Working time Occupational safety and health Social security Maternity protection Migrant workers HIV/AIDS Seafarers Fishers Dockworkers Indigenous and tribal peoples Specific categories of workers Non classified ILS International Training Centre of the ILO

ILS characteristics Tripartite Are the fruit of a tripartite consensus Minimum standards Fix a minimum level of protection Universal Are set at the world level Flexible Take into account the needs of all member States (Art. 19(3) of ILO Constitution) International Training Centre of the ILO

ILS use Traditional use In labour law (as targets when considering ratification; as models without ratification; after ratification, a result of the request by the ILO supervisory bodies or technical assistance), social policy, collective agreements Other types of use By domestic tribunals and courts to settle labour disputes In corporate social responsibility initiatives In international framework agreements In public procurement In bilateral and multilateral trade agreements and regional economic integration arrangements International Training Centre of the ILO

ILS elaboration and adoption
Problem identified Item put on the agenda of the International Labour Conference, by the Governing Body Item discussed at the International Labour Conference Twice (double discussion) or once (single discussion) The International Labour Office compiles the reports for the discussion ILS are adopted with a 2/3 majority of delegates present at the International Labour Conference TUs participate in each step of the procedure Consultation at the national level Participation at the international level International Training Centre of the ILO

ILS submission ILO member States have the obligation to submit all newly adopted ILS to the national authorities vested with the power to legislate (Art. 19(5-7) ILO Constitution) and inform the Director-General and the social partners Aims Promoting measures as to ILS application at national level For Conventions, promoting their ratification Bringing ILS to the knowledge of the general public Stimulating tripartite dialogue on ILS at national level Timeframe Within 12 months from the closing of the International Labour Conference or, in exceptional circumstances, within 18 months International Training Centre of the ILO

ILS ratification Is the formal commitment by a member State to be bound by the provisions of a Convention under international law Involves exposure to international control on the implementation of the Convention in law and in practice Reservations are not allowed Total ratifications registered as of today: 8,048 Entry into force Denunciation International Training Centre of the ILO

The ILO supervisory machinery

ILO supervisory systems
Regular machinery Is based on member States obligation to report on the application of each ratified Convention Special procedures Are based on specific allegations of violation against a member State (complaint-based) International Training Centre of the ILO

Regular supervision With periodic reports on ratified Conventions Governments shall submit reports (Art. 22 ILO Constitution) Social partners may comment (Art. 23 ILO Constitution) Periodicity of reports Every 3 years for fundamental and governance Conventions Every 5 years for technical Conventions, grouped by subject Deadline for submitting reports and comments: 1 September Bodies involved Committee of Experts on the Application of Conventions and Recommendations (CEACR) Conference Committee on the Application of Standards (CAS) International Training Centre of the ILO

CEACR and CAS Nature, composition and work CEACR Technical body, composed of 20 high-level legal experts from all parts of the world Appointed by the Governing Body upon proposal made by the ILO Director-General, for a 3-year renewable term Independent and impartial Its report is discussed by the CAS CAS Tripartite standing Committee of the International Labour Conference, consisting of representatives of governments, employers and workers Examines the CEACR report and 24 individual cases on which the CEACR has made observations: governments concerned are invited to provide responses; at the end of each case, the CAS draws up its conclusions Its report is submitted to the International Labour Conference and discussed in plenary International Training Centre of the ILO

CEACR comments Observations In more serious or long-standing cases of failure to fulfil obligations In cases of progress (“with interest” and “with satisfaction”) Reproduced in the annual report of the CEACR submitted to the CAS Direct requests Relate to technical questions or request for further information Not published in the annual report of the CEACR, but communicated directly to governments concerned and the social partners Don’t forget: All comments are available online in NORMLEX International Training Centre of the ILO

Regular supervisory process
Between 1 June and 1 September GOVERNMENTS SUBMIT REPORTS ON RATIFIED CONVENTIONS WORKERS AND EMPLOYERS MAY COMMENT November / December CEACR REVIEWS ALL INFORMATION March / April SENDS DIRECT REQUEST TO GOVERNMENTS, WORKERS’ AND EMPLOYERS’ ORGANIZATIONS February PUBLISHES OBSERVATIONS IN ITS ANNUAL REPORT June CONFERENCE DISCUSSES AND ADOPTS THE CAS REPORT IN PLENARY G W E CAS THE CEACR REPORT AND A SELECTION OF OBSERVATIONS International Training Centre of the ILO

CEACR General Surveys Present the state of legislation and practice in all member States on a subject chosen each year by the Governing Body Are issued by the CEACR using information coming from governments, workers’ and employers’ organizations, regardless of ratification of the Conventions concerned E.g. subjects 2018: Instruments on working time 2017: Instruments concerning occupational safety and health 2016: Instruments concerning migrant workers 2015: Right of association and rural workers’ organizations instruments 2014: Minimum wage fixing instruments 2013: Labour relations and collective bargaining in the public service 2012: Fundamental Conventions Don’t forget: all report forms are available online in NORMLEX! International Training Centre of the ILO

CEACR and CAS Reports CEACR Report (Report III(1A)) CEACR General Survey (Report III(1B)) (Report III(2)) CAS Report International Training Centre of the ILO

Special supervisory procedures
Of general application, for non-observance of any ratified Convention, and provided for under the ILO Constitution Representations (Art. 24 ILO Constitution) Complaints (Art. 26 ILO Constitution) For infringements of freedom of association Freedom of association complaints International Training Centre of the ILO

Constitutional procedures
Representations (Art. 24 ILO Constitution) Submitted by: workers’ or employers’ organizations Receivability criteria to be met Supervisory body involved: tripartite Committee, consisting of three persons among Governing Body members Relevant provisions: Arts ILO Constitution and Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labour Organization Complaints (Art. 26 ILO Constitution) Submitted by: any ratifying member State; one or more delegates at the International Labour Conference; the Governing Body of its own motion Supervisory body involved: Commission of Inquiry, consisting of three independent experts appointed by the Governing Body Relevant provisions: Arts , ILO Constitution International Training Centre of the ILO

Art. 24 representation checklist
In writing From an organization of workers or employers National or international Not necessarily affected by the matter Specific reference to Article 24 of the ILO Constitution Against a member State of the ILO On a ratified Convention Explain to what respect the effective observance of the Convention has not been ensured International Training Centre of the ILO

Art. 24 representation procedure
BY WORKERS’ OR EMPLOYERS’ ORGANIZATIONS IS SUBMITTED TO THE ILO GOVERNMENT CONCERNED IS INFORMED TO GOVERNING BODY GOVERNING BODY SENDS TO COMMITTEE ON FREEDOM OF ASSOCIATION BODY APPOINTS TRIPARTITE COMMITTEE BODY DECIDES NOT TO RECEIVE THE COMMITTEE ASKS FOR INFORMATION AND SUBMITS REPORT WITH CONCLUSIONS AND RECOMMENDATIONS ASKS FOR A COMMISSION OF INQUIRY TO DEAL WITH THE MATTER AS A COMPLAINT UNDER ARTICLE 26 ADOPTS REPORT, AND PASSES CASE TO CEACR FOR FOLLOW-UP International Training Centre of the ILO

Art. 26 complaint procedure
GOVERNING BODY MAY APPOINT A COMMISSION OF INQUIRY FORWARDS COMPLAINT TO COMMITTEE ON FREEDOM OF ASSOCIATION PASSES CASE TO CEACR FOR FOLLOW-UP COMMISSION OF INQUIRY INVESTIGATES COMPLAINT AND ADOPTS REPORT WITH FINDINGS AND RECOMMENDATIONS ILO PUBLISHES REPORT BODY MAY TAKE ACTION UNDER ARTICLE 33 MEMBER STATE OR INTERNATIONAL LABOUR CONFERENCE DELEGATE OR GOVERNING BODY INITIATES COMPLAINT GOVERNMENT ACCEPTS RECOMMENDATIONS OR MAY APPEAL TO THE INTERNATIONAL COURT OF JUSTICE International Training Centre of the ILO

Committee on Freedom of Association
Established in 1951 by the Governing Body 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 In private sittings Decisions are taken by consensus International Training Centre of the ILO

Committee on Freedom of Association (cont’d)
Written procedure On-the-spot missions and hearing of the parties possible May examine complaints regardless of ratification Not subject to prior exhaustion of national remedies May examine complaints even without the government’s replay International Training Centre of the ILO

Complainants Workers’ or employers’ 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 International Training Centre of the ILO

FOA complaint checklist
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 Evidence (e.g. judicial decisions, pictures, media reports) Signature International Training Centre of the ILO

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 There is no violation; or the case is closed and no further examination is needed International Training Centre of the ILO

FOA complaint procedure
GOVERING BODY ADOPTS THE REPORT DIRECT CONTACTS OR OTHER MISSIONS MAY BE INITIATED FOLLOW-UP BY CFA G W E CFA REVIEWS COMPLAINT AND ISSUES CONCLUSIONS AND RECOMMENDATIONS COMPLAINT IS SUBMITTED TO THE CFA BY WORKERS’ OR EMPLOYERS’ ORGANIZATIONS IF THE GOVERNMENT HAS RATIFIED RELEVANT CONVENTIONS, THE CASE MAY ALSO BE REFERRED TO THE CEACR FOR FOLLOW-UP International Training Centre of the ILO

Special procedures in numbers
Representations (Art. 24 ILO Constitution) 168 received 71 in Europe, 63 in Americas, 11 in Asia, 10 in Africa, 5 in the Arab States Approx. duration of procedure: 20 months Complaints (Art. 26 ILO Constitution) 30 received and 12 Commissions of Inquiry established Approx. duration of procedure: 19 months Complaints on freedom of association (6 examined by FFCC) over 3,100 examined by CFA 49% in Latin America, 21% in Europe, 12% in Asia and Africa, 6% North America International Training Centre of the ILO

Recap on ILO supervisory systems
Regular machinery Special procedures Ad hoc Tripartite Committee Art. 24 representations Art. 22 reports on ratified Conventions Constitutional procedures Committee of Experts on the Application of Conventions and Recommendations (CEACR) Observations from social partners (Art. 23) Art. 26 complaints Commission of Inquiry Art. 19 reports on unratified Conventions and on Recommendations Committee on Freedom of Association (CFA) Freedom of association procedures Conference Committee on the Application of Standards (CAS) Fact-Finding and Conciliation Commissions on Freedom of Association (FFCC) International Training Centre of the ILO International Training Centre of the ILO 34

ILS resources on the Net

Key publications on ILS
NORMES website: Including reports of the ILO supervisory bodies and ILS publications such as: CEACR General Surveys Digest of decisions and principles of the CFA (2006) Rules of the game: a brief introduction to ILS (2014) Guide to ILS (2014) Handbook of procedures on ILO Conventions and Recommendations (2012) International Training Centre of the ILO

ILS country profiles NORMLEX database: Including ILS info such as: Ratification information Reporting schedule Comments (observations and direct requests) by the CEACR Individual cases discussed by the CAS List of observations by employers’ and workers’ organizations on ratified Conventions, on unratified Conventions Freedom of association cases Representations (Art. 24) and complaints (Art. 26) International Training Centre of the ILO

Highlights on TUs use of ILS and supervisory mechanisms

Don’t forget Provide comments, via the government or directly to the ILO, on: the application of ratified Conventions (Art. 22 ILO Constitution) the effect given to non ratified Conventions and to Recommendations (General Surveys, Art. 19 ILO Constitution) Contribute to the identification of long list of cases to be discussed by CAS Contribute to the identification of short list of 24 cases to be discussed by CAS Contribute to the CAS discussion of individual cases International Training Centre of the ILO

Dont’ forget (Cont’d) Submit representations (Art. 24 ILO Constitution) Participate in Governing Body discussion on the receivibility of representations Participate in Governing Body discussion on the establishment of Commissions of Inquiry further to complaints (Art. 26 ILO Constitution) File freedom of association complaints Follow-up on the comments and recommendations of the ILO supervisory bodies and their implementation Participate in tripartite missions in the context of ILS supervision (CAS conclusions and CFA) International Training Centre of the ILO

THANK YOU FOR THE ATTENTION! Maura Miraglio ITCILO International Labour Standards, Rights at Work and Gender Equality Programme International Training Centre of the ILO

ILS and supervisory mechanisms: tools in labour law reforms

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