The History of Core Labour Standards
(1)
International Baccalaureate, Geneva, Switzerland
3.1 The History of the Linking of Labour Standards and Trade
The issue of whether or not a formal link could be established between trade and labour standards (core labour standards) is an issue that has a long history. Current events have demonstrated that it has not only managed to crawl its way back onto the multilateral trade agenda, but it has also created divisions between the developed and developing nations, the so-called North/South conflict. The discussions to date may lead to the perception that the linkage between trade and labour standards is a new issue, but this linkage is a century and a half old, dating from the earliest concern about the conditions of workers during the Industrial Revolution in Europe in the early 1900s. During that period, harmonisation of national labour laws was perceived as necessary in order to improve the condition of workers in every European country.1 As old as the issue is, it still needs to be taken seriously. The current dimensions of the issue and the wedge it has created between proponents of a formal link and its critics, both having valid arguments, make the issue one of the most difficult ever faced by policymakers as the twentieth century drew to an end and the world looked forward to the new millennium.
Why has the issue become so prominent in recent times? Lee (1997, p. 174) argues that the shift towards neoliberal views in economic and social policies since the 1970s has led to a questioning of the value of labour standards in general. These views have emphasised a smaller role for the State, including the regulation of market activity. Regulation is seen as essentially distortionary, impeding the efficient functioning of markets and causing inferior outcomes in terms of growth, employment, and even income distribution. Labour market regulation, in Lee’s view, has not escaped this neoliberal scrutiny.
In the industrialised countries, the view that labour market regulations and the welfare state are key causes of the rise and persistence of unemployment has become increasingly influential. They are seen as reducing the incentives for workers to seek work and for employers to create jobs. This has led to policy change, deregulation of the labour market, and a cutback in the welfare state in search of more flexible labour markets. A clear example is the neoliberal views of the Thatcher/Major governments in the UK from 1979 to 1997, a period that saw the deregulation of the labour market, a policy that the British Labour Government under Tony Blair and Gordon Brown followed and that the coalition government since 2010 also seems to be following. These views have also spread to many developing countries. This is seen in structural adjustment programmes prescribed by the International Monetary Fund (IMF) and the World Bank.2
Apart from the neoliberal argument, two other developments contributed to labour standards gaining prominence. First is the increasing globalisation of the world economy. A common view is that globalisation increases the pressures to cut costs (including labour costs) and to achieve greater flexibility in the production system. In addition, the growing mobility of capital is also believed to be increasing the bargaining power of employers vis-à-vis both governments and workers. Governments keen to retain and attract foreign direct investment have to make concessions, whilst workers are in a weakened bargaining position in the face of the threat of relocation.3 The other reason is that in spite of significant progress in improving labour conditions across the world over the past decades, there are still significant pockets of poor and morally unacceptable labour conditions in low-income countries.
Problems of child labour in inhuman conditions, of bonded labour, of physically taxing work processes, of discrimination in access to employment in the workplace, and of inadequate returns to work still prevail. As Anderson argues, the issue is gradually becoming more prominent, not just because of the declining trade and investment barriers that have meant cost-raising standards are more important determinants of international competitiveness.4 Enhanced communication networks have also meant that citizens of high-standard countries have more access to information on labour standards in other countries. That, together with the growing sense of a ‘global village’, allows concern for human rights to spread beyond national boundaries, a tendency that can be expected to continue indefinitely as global economic growth and integration proceed. He argues further that around that upward trend in concern will be fluctuations in the opposite direction to the business cycle: the worse the labour market is performing in high-wage countries, the more likely it is that imports from low-wage countries will be blamed, notwithstanding clear evidence that such imports are at most only a minor contributor.5
The global communications revolution and the tremendous growth of ‘Dot.com’ companies have brought to fore public awareness of appalling labour conditions, such as the exploitation of child labour and harsh labour processes for women workers in export processing zones. At the same time, the new wave of democratisation and the proliferation of nongovernmental organisations with social concerns across the world have brought about more active advocacy of action for dealing with morally unacceptable labour practices, reinforcing the traditional role of trade unions. In the industrialised countries, this has resulted in movements such as consumer boycotts of goods produced with child or forced labour. Product labelling and demands for multinational enterprises to avoid dealings with exploitative producers have been among the principal means of action.6 In order to understand why the issue has been with us for so long and is still on the world agenda, we turn our attention to its early development and the reasons behind the founding of the ILO.
3.2 Early Developments of the Linkage Between Trade and Labour Standards
The issue of the correlation between international trade and the rights of workers was first raised in Europe in the middle of the nineteenth century. At that time, the working conditions were appallingly bad in the industrialised countries of Europe. Concerns regarding child labour and working hours were raised. The response to this was the call for the adoption of treaties establishing common labour standards that, it was hoped, would be ratified by all European industrialised countries, as well as the establishment of an international organisation to supervise the treaties.7
The Industrial Revolution, which began in England in the 1800s, brought to fore the worst horrors of the new system, and the English took steps to curb that. An Act passed in 1802 limited to 12 h a day the employment of children in the textile factories. These child labourers were generally sent to the factories from the workhouses for the poor and were housed in such miserable conditions that the law also stipulated they should not sleep more than two to a bed in factory dormitories.8 This Act was the first law to introduce the principle of factory inspection, although the prevailing opinion at that time was in favour of economic laissez-faire or free-for-all economic development. Whilst some deplored its consequences, people generally felt it to be natural and inescapable.
The earlier medieval system of guilds and corporation, in which crafts workers had associated to regulate their profession and trade, was then widely believed to hamper technical progress and restrain economic growth. Although the new expansion of industry and trade was disorderly and costly in human suffering, it clearly produced greater wealth than ever before, and many people were firmly convinced that governments should do nothing to hinder or interfere with the seemingly natural process of competition in which the weak went to the wall and only the strong survived. Hence, the first efforts of workers to associate were condemned as a return to the system of guilds and corporations and a threat to free enterprise.9
Whereas the nineteenth century concern for the plight of workers appears to be genuine, the present-day concern lends itself to suspicions that the proponents of a linkage have a different agenda. Labour organisations and human rights activists in the United States and the Organisation for Economic Cooperation and Development (OECD) countries are concerned about the impact of globalisation on employment and income distribution.
As stated above, there is the fear that globalisation and free trade among nations may lead to a lowering of standards to the level of countries with inadequate labour standards and practices. This is because the growing proportion of world trade is between countries with different levels of labour rights and labour costs. It is felt that could lead to ‘social dumping’, i.e., the export of products that owe their competitiveness to low labour standards. This may also encourage a so-called race to the bottom. However, the present-day concern lends itself to suspicions that protectionism is hidden behind the rhetoric.
Irrespective of the arguments of both the proponents and critics of the labour/international trade linkage, the reference to labour standards in the UDHR UN Charter and its implicit reference in the WTO Agreement show how important the issue is to the overall debate. The linkage between labour standards and international trade reflects basic or universal human rights. An examination of the legal texts of both the ILO and the WTO indicates how explicitly and implicitly the linkage between core labour standards, better standards of living, and the right to decent work is entirely consistent with the objectives enumerated under the liberal trading regime.
Article II of the Marrakesh Agreement states that “[t]he WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters related to the agreements and associated legal instruments included in the Annexes to this Agreement”.10 The ‘common institutional framework’ cannot be achieved when the workers’ rights are not put on the same level as international human rights generally.
3.3 The Pioneers of the Interface Between Trade and Labour Standards
There were few thoughtful individuals in the first half of the nineteenth century; among them were some employers who shared the rising aspirations for justice of those at the bottom of the social heap. For various humanitarian, economic, and political reasons, they promoted such pioneering social legislation as the abolition of child labour and worked towards the adoption in England of the Factory Act of 1833, which created a corps of four inspectors to supervise factory conditions. Further, a Swiss banker, Jacques Necker (1732–1804), who served as Minister of Finance in France both before and after the French Revolution was the first proponent of international agreements for worker protection. But the proposal received little support.
The owner of a Scottish cotton mill, Robert Owen, the so-called grandfather of British trade unionism, was the chief inspirational force and lobbyist behind a Bill passed by the British Parliament in 1819 to limit working hours in the mills. Owen had set an example at his own factory, where he improved working conditions and provided housing and educational and leisure facilities for the workers and their children. Other employers protested at such measures, which they thought would make their goods too costly to meet the competition in world markets from goods made more cheaply in countries that had no social legislation.
Robert Owen, referred to as a pioneer in international labour legislation, is credited as writing two memorials in 1818. These memorials were presented to the representatives of the major European powers of the day—Austria, France, Prussia, Russia, and the United Kingdom, then meeting at the Congress of Aix-la-Chapelle (Aachen), to suggest that the Congress set up a Labour Committee to discuss social and economic questions. But the Statesmen ignored Owens’s proposal, just as they had rejected Necker’s.11
However, according to Follows, the honour should rather go to Charles Frederick Hindley, a member of the British Parliament from 1835 to 1857.12 Hindley in 1833 is said to have proposed a foreign treaty on labour legislation. Hindley is referred as the founder of the idea of international labour legislation and described as having “a clear insight into the interdependence between nations that was created by foreign trade and international competition”.13 The working conditions that were raised in Hindley’s proposal dealt with hours of work.
In 1838, a French liberal economist, Jérome Blanqui, wrote to advance the trade argument for international labour legislation. He wrote of the need for European countries to harmonise their labour legislation:
There is only one way of accomplishing it [the reform] while avoiding its disastrous consequences: this would be to get it adopted simultaneously by all industrial nations which compete in the foreign market.14
Another pioneer, the French manufacturer Daniel Le Grand, made insistent appeals to British, French, German, and Swiss politicians and civil servants for international labour laws covering working hours, a day of rest, night work, unhealthy or dangerous occupations, and child employment, after he had been told by the French Government that it could not promulgate workers’ welfare legislation because of international competition.15
Le Grand warned that if governments did not co-operate to make such reforms, they would face a growing tide of popular unrest. Based on concrete studies of the actual conditions of work and the existing labour legislation in various industrial countries, Le Grand’s proposals were a precursor of the work of the ILO. His ideas found other advocates through private initiatives, such as the International Benevolent Congresses (held in 1856 and 1857). They proposed international legislation for the regulation of industrial labour and worker’s protection.16
In the latter half of the nineteenth century, a series of European congresses, promoted by different organisations of labour leaders, socialists, reformers, professors, and economists, took up the issue of labour law reforms, with many pointing out that labour reform was not solely a national issue.17 The main concerns of these congresses related to child labour, hours of work, weekly rest for children and adult female workers, and, eventually, what we would refer to today as occupational safety and health—referred to then as “hygiene in the workplace”.
Concern over international competitiveness was a recurrent preoccupation. The long-awaited conference on international labour law, which had first been proposed by the Swiss Federal Council, was eventually held in Berlin in March 1890 and was attended by representatives of a dozen European governments. During the 2 weeks of discussions, a series of detailed recommendations were produced. Among them were suggestions that children under 12 should not be permitted to work at all and that women and children under 14 should not be allowed to work in the mines or to work anywhere for more than 6 h at a stretch. All workers were to be given weekly day of rest. Questions of workers’ health and safety in the workplace and accident insurance were also discussed.
The recommendations were sent to the governments, but they had no immediate practical effect. What was important was that the Berlin international factory and mine conference marked the first occasion on which governments met to study the social consequences of the Industrial Revolution and to envisage drafting international legislation to improve labour standards.18
The seeds for the eventual adoption of international labour conventions and international labour organisation were immediately laid in 1897. Delegates representing workers in 14 countries met at an International Congress on Labour Protection in Zurich in 1897 and urged the Swiss government to invite other governments to set up a labour office. Also, in 1897, a conference of professors, economists, and politicians from Belgium, France, England, etc. met in Brussels to discuss various issues relating to labour legislation in the European countries and set up a committee to establish an international association for labour protection, aiming, inter alia, at the adoption of international labour legislation. Statutes of the International Association for Labour Legislation were adopted in Paris in 1900 and an International Labour Office was opened in Basel in 1901. For instance, Hansson19 points out that in the pre-World War I period, a number of bilateral agreements were also negotiated dealing with common conditions of work.
A Franco-Italian treaty of 1904 required Italy to regulate working conditions in line with conditions in France and gave Italian workers in France the same treatment as domestic workers regarding compensation for industrial accidents and pensions. By 1914, European countries had negotiated 28 bilateral agreements, relating mainly to the treatment of migrant workers.20
In 1913, at a conference in Berne, delegates adopted two new conventions: one related to hours of work for minors and women and the other on prohibition of night work for minors. These developments were overtaken with the advent of the First World War. As a result, the diplomatic conference at which the conventions were to be signed never took place. However, the post-war developments led to a new era in the development of harmonisation of labour law with the founding of the International Labour Organization.21
3.4 The ILO and the Link Between Labour Standards and International Trade
The founding of the International Labour Organization (ILO) by Part XIII of the Treaty of Versailles in 1919 and the subsequent adoption of multiple international labour conventions by the Organization are turning points in the history of the relationship between workers’ rights and trade. The establishment of the ILO could be seen as a logical development from the century-old concern about the relationship between international trade and labour standards. The setting up documents of the ILO made explicit reference to the link. The 189 ILO Labour Conventions serve today as reference for the meaning of “internationally recognised core labour standards”.22 It might appear surprising that a treaty that was focussed on issues of peace after a major war also led to the creation of a labour charter and the ILO. But then the situation in post-war Europe made the perception of a link between peace and labour understandable.
Whilst in the intervening years, the link between achieving peace and workers’ rights had not been invoked, there are many references to the link between democratic values and achievement of peace. However, the social upheavals in Greece in 2013 and the negative social impact of the financial crisis that started in 2008 tend to bring up memories of the events that led to the founding of the ILO. In a period that has seen the rise of economic policies that have “overvalued the capacities of markets to self-regulate, undervalued the role of the State, public policy and regulations …, the dignity of work and the social service and welfare functions in society”23 and also policymakers having profoundly underestimated the long-term effects of globalisation that have led to challenges with regard to jobs, incomes, and poverty, the importance of the ideals of the ILO needs to be reignited, in what the Director General calls as a new era of social justice that he believes should be inspired by a vision of sustainable development.24
The link between international competitiveness and labour conditions was at the forefront of the founding of the ILO. The objective behind the establishment of the ILO was to undertake joint international action to improve labour conditions worldwide. The Preamble of the ILO Constitution expressly refers to the link between conditions of workers and harmonisation of labour conditions.25 It relevantly states:
Whereas universal and lasting peace can be established only if it is based upon social justice; and whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled. Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries …26
According to Lee (1997), there were several interrelated motives reflected in the Preamble. The first motive was social justice and humanitarian concern over the existence of conditions of labour that cause hardship and deprivation to large numbers of people. The second motive was prudential: to stave off unrest that would imperil the peace and harmony of the world. The Russian Bolshevik Revolution, with its emphasis on the rights of workers, was very much on the minds of Western European diplomats. The third motive rested on the notion of the need to eliminate the negative cross-border externalities generated by countries, which failed to observe humane conditions of labour.
The method chosen by the ILO to establish a certain degree of harmonisation of conditions of labour is the adoption of international labour conventions by the annual International Labour Conference to be accepted by states through ratification. Nonbinding recommendations are adopted containing more detailed standards. These Conventions have the force of international law on ratifying countries backed up by supervisory machinery. The rate of ratification varies from country to country. The system has weathered the challenges of the Great Depression, the rise of fascism and the Second World War, the decolonisation of the developing world, and, more recently, the collapse of communism.27
Although conceived in the colonial era, it has evolved into a system with universal coverage, reflected in the ILO’s present 185-member governance structure by virtue of the tripartism that is enshrined in the ILO’s Constitution. There has in fact been, for some time, a functioning global system of international labour standards.28 The ILO tripartism nature helps bring together representatives of employers’ groups and governments, as well as workers’ groups. The ILO is the only international body where workers can make their voices heard officially and can negotiate on an equal footing with employers and governments about matters that affect their economic and social well-being.
At the time of the founding of the ILO, the focus was on the industrialised countries of Europe, which were then at a relatively equal state of economic development, few countries (United States, Britain, France, Germany, etc.) were independent at that time or active participants in the international community. Early ILO Conventions made exceptions for states then at a different state of economic development, in particular India and Japan. Later, ILO Conventions contained “flexibility clauses” that took account of the varying economic development of countries.29
In the drafting of detailed technical labour conventions, the ILO has been conscious of the need to take account of differences in economic development. At the same time, it has emphasised that differences in economic development should not excuse violation of the fundamental human rights embodied in such conventions as those relating to freedom of association and collective bargaining, forced labour, discrimination in employment, and child labour.
3.5 The ILO Supervisory and Enforcement Mechanism
The ILO has developed a supervisory system to support its labour standards. The purpose of this system, which is unique internationally, is to ensure that the ILO Members implement the conventions they have ratified. The ILO, through this system, regularly examines how countries are applying the standards and points out to countries the areas where the application would be more effective. Where the ILO finds that countries are facing problems in their application of the standards, it provides assistance through social dialogue and provision of technical assistance.30
The main supervisory bodies are the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts) and the Conference Committee on the Application of Standards (Conference Committee). There are also other bodies involved in the supervisory process: the Governing Body, the International Labour Office, and the International Labour Conference. The Governing Body is built on a tripartite system (comprising of representatives of government, employers’ associations, and workers’ organisations) and oversees the work of the International Labour Office, the ILO Secretariat, and the International Labour Conference.
The ILO’s system of supervision is diversified, and there are two kinds of the supervisory mechanism: (1) regular system of supervision and (2) special procedures. In this section, we will analyse the two supervisory mechanisms and the enforcement systems the ILO uses.
3.5.1 Regular System of Supervision
When an ILO Member ratifies a convention, it has the obligation to report on a regular basis the measures it has taken to implement the convention. In respect of the application of the eight fundamental and four priority conventions, governments are required to submit reports every 2 years outlining the measures they have taken in law and practice in their application. With respect to other conventions, the reports must be submitted every 5 years.
The ILO constitutional basis for Members to report on ratified conventions is Article 22 of the ILO Constitution:
Each of the Members agrees to make an annual report to the International Labour Office on the measures which it has taken to give effect to the provisions of Conventions to which it is a party. These reports shall be made in such form and shall contain such particulars as the Governing Body may request.
The ILO Constitution also obliges Members to report on non-ratified conventions. This is governed by Article 19 (5e) of the ILO Constitution:
If the Member does not obtain the consent of the authority or authorities within whose competence the matter lies, no further obligation shall rest upon the Member except that it shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention.
Members are similarly obliged to report on Recommendations. This is governed by ILO Constitution, Article 19 (6d):
Apart from bringing the Recommendation before the said competent authority or authorities, no further obligation shall rest upon the Members, except that they shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of the law and practice in their country in regard to the matters dealt with in the Recommendation, showing the extent to which effect has been given or is proposed to be given, to the provisions of the Recommendation and such modifications of these provisions as it has been found or may be found necessary to make in adopting or applying them.
At the same time, governments are required by Article 23 of the Constitution to provide copies of their reports to employers’ and workers’ organisations, who may, if they so wish, comment on the reports and can also send their comments concerning the application of the conventions directly to the ILO. Article 23 refers to the communication of reports on ratified and non-ratified instruments:
1.
The Director-General shall lay before the next meeting of the Conference a summary of the information and reports communicated to him by Members in pursuance of articles 19 and 22.
2.
Each Member shall communicate to the representative organizations […] copies of the information and reports communicated to the Director-General in pursuance of articles 19 and 22.
3.5.1.1 Committee of Experts on the Application of Conventions and Recommendations
A major pillar of the ILO regular supervisory system is the Committee of Experts on the Application of Conventions and Recommendations (CEACR) (the Committee). This body is not referred to in the ILO Constitution but was set up in 1926 by the Governing Body of the ILO to examine government reports on the application of Conventions and other obligations relating to international labour standards set out in the ILO Constitution. The Committee was also established to examine reports from governments on conventions that Members have ratified, pursuant to Articles 19, 22, and 35. This was in response to the growing number of reports that governments provided to the ILO, their complexity, and the technical nature of the reports. The same resolution that created the Committee of Experts also created the Conference Committee.31
The Committee has evolved since its first meeting in 1927, composed of eight members to its present composition of 20 members (eminent jurists: judges of supreme courts, professors of law, legal experts, etc.), from all parts of the world acting independently of the ILO. The Committee members are appointed by the Governing Body to serve for a period of 3 years. The Committee’s role is to review the reports and provide an independent or impartial and technical assessment of the state of application of the ratified labour standards.32 The Committee meets annually in private sessions, and its deliberations are confidential.
In its examination of the application of the labour standards, the Committee of Experts makes two types of comments: (1) observations and (2) direct requests. The observations contain the Committee’s comments on essential questions as a result of the state of application of a convention in a Member state. The Committee of Experts publishes its observations in its annual report. The Committee’s direct request concerns technical questions or requests for governments to provide further information. These requests are communicated directly to the governments in question and are not published.33
The Committee of Experts has, over the more than 80 years of its existence, had an impact on all fields covering all the Conventions adopted by the ILO. But it is the Committee’s impact on the eight fundamental Conventions covering the core labour standards that this study is confined.
Based on its examination of the reports provided by governments to the Committee, and in line with its operating procedure, the Committee refers in its comments to cases by expressing either its satisfaction or interest at the level of progress achieved in a country’s application of the respective Conventions. The identification of cases of progress started in 1964, when the Committee submitted its report to the 48th Session of the International Labour Conference, and has since then been following the same general criteria.
The Committee expresses satisfaction in cases in which governments, in response to the Committee’s comments on a specific issue, have made changes, either through the adoption of an amendment to the country’s legislation or the making of a significant change in its national policy or practice in order to fully comply with its obligations under ratified Conventions.
The Committee has stated that the reasons for identifying cases of satisfaction are twofold: “to place on record the Committee’s appreciation of the positive action taken by governments in response to its comments, and to provide an example to other governments and social partners which have to address similar issues”.34 The Committee, through the expression of its satisfaction, indicates that the specific matter in its view has been resolved.
In 1979, the Committee formalised within the cases of progress the distinction between the cases of satisfaction and the cases of interest. On the whole, the cases of interest relate to measures taken by a government that are adequately advanced in order to justify the expectation that further advancement would be made in the future. The Committee has, for example, listed some of such measures: draft legislation before parliament or even proposed legislative changes not communicated to the Committee; consultations within the government and with social partners; new policies; activities developed and implemented within the framework of technical assistance programmes; judicial decisions, depending on the level of the court; etc.35 In the view of the Committee, what is of great importance is that the measures taken by the government would make an impact in achieving the aims of a particular Convention.
Since the Committee started listing cases of progress in its report in 1964, the Committee has expressed satisfaction at the progress achieved in a total of 2,669 cases. From the period 2001–2005, the Committee noted 208 cases of progress, with most of the cases concerned with fundamental rights at work, which in most instances involved major changes.36 For the 2001–2005 period, the Committee noted with satisfaction 107 cases of progress with respect to fundamental rights at work, which accounted for approximately 52 % of the total number of cases of progress. Between 2007 and 2009, the Committee noted 145 cases of progress and 335 cases of interest. The cases of progress on the fundamental rights at work for this period accounted for almost 37 % of the total number of cases of progress registered. These cases covered
freedom of association and effective recognition of the right to collective bargaining,
the elimination of all forms of forced or compulsory labour,
the effective abolition of child labour and a prohibition on the worst forms of child labour, and
the elimination of discrimination in respect of employment and occupation.
It is interesting to note that a greater number of the countries that have signed FTA agreements with the United States are included in the 2007–2009 cases of progress. In addition to these countries are the countries within the Africa, Caribbean and Pacific (ACP) group of countries, which are in the process of negotiating economic partnership agreements with the European Union. For example, in the 2009 Committee of Experts report, four countries that have signed FTAs with the United States (plus Colombia—its FTA with the U.S. is pending before the U.S. Congress) were listed among the 40 cases of progress, and also 10 ACP countries were listed. Among the 103 cases of interest, 12 countries that have signed FTAs with the United States were listed (as were Colombia and Korea—yet to be approved by the U.S. Congress). In the case of the ACP group of countries, 28 were listed.
In spite of the number of cases of progress noted by the Committee, the complaints before the Committee on Freedom of Association indicates that much more progress need to be made under the freedom of association and effective recognition of the right to collective bargaining Conventions (Conventions 87 and 98).
The number of cases of satisfaction and interest listed by the Committee of Experts indicates that the ILO supervisory system is working towards the global promotion for the core labour standards. The Committee, through its work of analysing the legislation of Member States, sends direct requests to governments seeking clarification; the dialogue it establishes with governments and also the measures that governments take in response to the comments of the Committee so the failure of the Member State is not discussed in public all go to show the relevance of the Committee’s work. However, the cooperation mechanisms and monitoring systems that have been built into FTAs to ensure compliance with the core labour standards show the important role these FTA mechanisms and inclusion of labour clauses in other bilateral agreements are playing in promoting adherence to the ILO principles.
3.5.1.2 The Conference Committee on the Application of Standards
The Conference Committee is a political body and standing committee of the Conference. It is a tripartite committee made up of government, employer, and worker delegates. Its terms of reference are set out in article 7 of the Standing Orders of the Conference, which reads:
1. The Conference shall, as soon as possible, appoint a Committee to consider:
(a) the measures taken by Members to give effect to the provisions of Conventions to which they are parties and the information furnished by Members concerning the results of inspections;
(b) the information and reports concerning Conventions and Recommendations communicated by Members in accordance with article 19 of the Constitution, except for information requested under paragraph 5 (e) of that article where the Governing Body has decided upon a different procedure for its consideration;
(c) the measures taken by Members in accordance with article 35 of the Constitution.
2. The Committee shall submit a report to the Conference.37
The report of the Committee of Experts produced annually is submitted to the International Labour Conference for it to be examined by the Conference Committee on the Application of Standards. In its examination of the Committee of Experts report, this Committee selects some of the observations for further discussion. The governments that are the subject of the discussion are requested to appear before the Committee and respond to queries and also provide information on the situation being discussed. The Committee’s sessions are open to the public, and it publishes its discussions and conclusions in its report.38
3.5.2 The Special Procedures
The ILO Constitution has provisions for Members to make a representation or a complaint. Below we discuss the three procedures for such submissions.
3.5.2.1 Procedure for Representation in Applying Ratified Conventions
This representation procedure is governed by Articles 24 and 25 of the ILO Constitution. Article 24 states:
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement and may invite that government to make such statement on the subject as it may think fit.
Article 24 grants employers’ or workers’ associations the right to make a representation or submit allegations to the ILO of the failure of an ILO Member State to adopt satisfactory measures within that Member’s legal system for the application of a Convention that it has ratified. Upon receipt of such a representation, the Governing Body may set up a three-member tripartite committee to examine both the representation of the organisation and the government’s response to the allegations. This ad hoc Committee submits a report to the Governing Body stating the legal and practical facets of the case and the steps taken in its examination of the information received and provides recommendations.
Article 25 of the ILO Constitution states that where a government fails to respond within a reasonable period of time or where its response is not deemed to be satisfactory, the Governing body has the right to publish the representation and the response.39 Should a representation be made with respect to ILO Convention Nos. 87 and 98, these are referred to the Committee on Freedom of Association, discussed below.
3.5.2.2 Procedure for Complaints Concerning Ratified Conventions
The complaints procedure is regulated by Articles 26–34 of the ILO Constitution. Under this procedure, a Member State is allowed to file a complaint against another Member State when, in its opinion, the other Member State has not adopted the necessary measures needed to give proper effect to a Convention it has ratified. When the Governing Body receives such a complaint, it may form a Commission of Inquiry, made up of three independent members. The Commission is then tasked with carrying out a complete investigation of the complaint. The Commission gathers all the facts of the case through the information received not only from the complaining party but also from third parties and organisations.40
3.5.2.3 Procedure for Complaints with Respect to Freedom of Association
Given the importance of freedom of association and collective bargaining as among the core conventions of the ILO, the ILO realised that the principle of freedom of association required further supervisory procedure to ensure compliance in countries that had not ratified the relevant conventions.41 At the initiative of the Governing Body, the Committee on Freedom of Association (CFA) was established in 1951 as a tripartite body of the Governing Body.
The CFA is composed of independent chairperson and three representatives each of governments, employers, and workers. The purpose of the CFA is to examine allegations of non-compliance of freedom of association, irrespective of whether or not the country in question has ratified Conventions 87 and 98.42 Employers’ and workers’ organisations can bring a complaint against a Member state. Should the CFA decide to receive a case, it first establishes the fact in dialogue with the government concerned. Should it find that the government has violated the standards and principles of the Convention on freedom of association, the CFA issues a report through the Governing Body. The CFA also provides recommendations as to how to remedy the situation. The concerned government is then required to provide a report on how it is implementing the recommendations. In a case where the country concerned has ratified the conventions, the legislative aspects of the case may, if the CFA so wishes, refer to the Committee of Experts.43 The CFA also has the option of using the “direct contacts” approach. Though this is not a supervisory procedure, its purpose is to facilitate a representative of the Director General of the ILO to directly contact the government concerned to examine ways on how to address the issues raised, together with the social partners in the country.
3.6 Evaluation of the ILO Supervisory Mechanism
Is the ILO supervisory and enforcement mechanism the most effective? Certainly not. It could be argued that no international system for protecting the rights of people is yet good enough.44 However, the ILO supervisory and enforcement mechanism can, by international comparisons, be said to be effective.45 The ILO’s supervisory roles, also compared to other international organisations, are more highly developed for two reasons. First is its tripartite nature—comprising of representatives from government, employers’, and workers’ organisations. The second is due to the independence and expertise of the members of the supervisory bodies. These experts are, as pointed out above, appointed not by governments but by the Governing Body of the ILO, upon recommendation of the ILO Director General.46