The International Labour Organization (ILO)

&International Labour

Standards (ILS)

Tim De Meyer,Specialist on International Labour Standards &

Labour LawInternational Labour Office, Bangkok Subregional

Office for East Asia (SRO Bangkok), Thailand

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Part IThe International Labour

Organization

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International Labour Organization (ILO)

Organization of Governments, Employers and Workers from 181 countries

Mandate to promote social justice through decent work as a matter of respect for individual dignity economic and social development international peace and stability

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ILO’s Decent Work agenda Decent work = work which does

not only provide men or women a pass-time and a short-term livelihood, but also rights, i.e. the power to choose and

negotiate accordingly protection against the uncertainties of

(working) life for workers and their families

participation in the workplace and the wider community

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Decent Work Strategic Objectives

To promote and realize fundamental principles and rights at work

To create greater opportunities for women and men to secure decent employment and income

To enhance the coverage and effectiveness of social protection for all

To strengthen tripartism & social dialogue

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ILO - ITUC Relationship

ILO is an international forum for G, E & W - ITUC gives a voice to Workers

ITUC is a consultative organization of the ILO, as is the World Federation of Trade Unions

(WFTU) the Organization of African Trade Union

Unity (OATUU) the European Trade Union Council (ETUC) the International Organization of Employers

(IOE)

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ILO - ITUC Relationship

Where independent trade unions are absent or weak, ITUC plays an important role in bringing representations or complaints information on the application of

ratified Conventions ITUC may endorse information

from NGOs such as Anti-Slavery International or the Global March

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ILO means of action

Setting and supervising the application of international labour standards

Providing technical cooperation to developing countries

Collecting and disseminating information (knowledge)

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Part IIInternational Labour

Standards

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Recommendations Not open to

ratification Same authority as

Conventions Contain good

practices, guidelines, higher standards or advice directly addressed to W & E organizations

Conventions (Protocols) States must

consider ratification, but do not have to ratify

If ratified, they are binding under international law

ILO does not accept reservations

If not ratified, they still do influence national law & policy

International Labour Standards

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International Labour Standards

Since 1919, the International Labour Organization has adopted 188 Conventions, 199 Recommendations and 5 Protocols fundamental human rights at work occupational safety and health social security employment policy...

Governing Body has extensively reviewed the relevance of the all ILS since 1995

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ILO Conventions in Asia Pacific

Ratification average at about 66 % of world average, 40 % of OECD average 60 – 40 – 24 - 15

East Asia ratifications significantly lower than in the rest of Asia

Many countries start to ratify again after long periods of « drought »

Ratification record dominated by older technical Conventions, but FHR Conventions are on the rise

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Governing Body Revision Policy Up to date : 79 C (+ 5 P), 79 R To be revised : 22 C, 14 R Outdated (including withdrawn,

replaced or shelved instruments): 60 C, 69 R

Requests for info : 5 C, 12 R Interim status : 24 C, 26 R No conclusion : 1 C, 1 R

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ILO : Organizational Structure International Labour Conference

Tripartite « world assembly » of labour (1 E + 2 G + 1 W) x 181 Adopts Conventions and Recommendations

Governing Body of the IL Office Tripartite executive council 14 E + 28 G (10) + 14 W Sets agenda of the Conference

International Labour Office Secretariat, headed by a Director-General

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IL Standards Terminology Adoption (= creation) Submission to the competent

authorities (= dissemination and orientation)

Ratification (= commitment) Denunciation (= cancelling

commitment) Application (= law and practice) Supervision (= monitoring

application by ILO)

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Submission : what is it ? to bring newly adopted Conventions

and Recommendations before the national authorities competent to legislate or take other action to give effect to the C. & R. Government must send Report of

Submission to the ILO Copy of government’s report must be

sent to most representative workers' and employers' organizations

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Submission : why ? obtaining a decision from the

competent authorities on action to take submission must be accompanied by a

statement of the government's view (C. 144 = consultation !) legislature should hold debate

informing and mobilizing public opinion, thus submission to the legislative assembly even when this assembly is not vested with legislative

power or the instrument does not require legislative

action

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Submission : when ? DG sends a certified copy of the authentic

text of the instruments to the Government labour and/or foreign affairs ministers

submission within 12 or, in exceptional circumstances, 18 months of adoption for unitary states federal states that consider the Convention or

Recommendation appropriate for federal action submission within 18 months for federal

states if constituent states are competent to deal with the matter

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Art. 19 Reports : Features in respect of unratified Conv’s &

Recom’s, by topic every year the ILO Governing Body

selects a different subject matter follows a report form from the GB Gov’t reports due by 1 April of the

year for which the GB has requested the report

Committee of Experts analyses reports with comments in a “General Survey”

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Art. 19 Reports : Purpose to document comparative law and

practice on a topic of current interest to renew interest in an important,

but forgotten standard to identify obstacles to ratification

e.g. verify if certain provisions are too prescriptive

to establish need for renewed promotion or revision of the instruments concerned

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Art. 19 Reports : Topics 2002 - Protection of Wages C., 1949 (No. 95) 2003 - Employment Policy C., 1964 (No. 122) &

R. 122, 169 & 189 (Job Creation in SMEs) 2004 - Hours of Work (Industry) C., 1919 (No.

1) & the Hours of Work (Commerce and Offices) C., 1930 (No. 30)

2005 – Labour Inspection C., 1947 (No. 81) & Labour Inspection C., 1969 (No. 129)

2006 – Forced Labour C., 1930 (No. 29) & Abolition of Forced Labour C., 1957 (No. 105)

2007 – Labour Clauses (Public Contracts), 1949 (No. 94)

2008 – Occupational Safety and Health C., 1981 (No. 155)

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Ratification Formal requirements: must clearly

identify the Convention, be an original document, signed by a person with authority to engage the State, and clearly convey the intention to be bound

Compulsory declaration to be included for certain Conventions

Optional declarations as to the use of permitted exclusions, exceptions or modifications

Entry into force: one year after ratification is registered

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Reports - Ratified Conventions Based on article 22 of the

Constitution Periodic reports:

Two-yearly reports: 8 fundamental Conventions, 4 priority ones

Five-yearly reports: other Conventions

Exemption from reporting for certain outdated Conventions

Must reach the Office between 1 June and 1 September

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Reports - Ratified Conventions First report due one year after the

entry into force form approved by the Governing Body Copies of relevant laws and

regulations Position on permitted exclusions,

exceptions or Detailed report Must reply to all questions set out in

the report Information on application in practice

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Reports - Ratified Conventions

Subsequent reports Simplified: indicate minor changes,

provides information on practical application

Detailed: in reply to comments made by the CEACR – can be out of reporting cycle in case of failure to report or to reply to earlier comments (« footnote » of the CEACR or the Conference Committee)

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Representation (art 24 Const’n) Can be filed by national or

international organizations of workers or employers

examination by a tripartite committee (3

members), reporting to the Governing Body (GB) on the basis of written information

representation reply, if any, of the Government

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Art. 24 Procedure (1) Office informs the Government and

sends the representation to the GB (2) Officers of the GB report to the GB

on fulfilment of conditions of receivability writing workers’ or employers’ organization reference to art. 24 ILO Constitution against an ILO member State...

(and ex-member State) ...that has ratified the Convention indication of violation of the Convention

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Art. 24 Procedure (3) tripartite Committee with GB

members OR reference to the Committee on Freedom of Association

(4) tripartite committee conducts private examination, and proposes to the GB conclusions and recommendations, but committee may hear complainant government may request

to be heard direct contacts

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Art. 24 Procedure (5) GB considers the matter in private in

the presence of the Government (6) GB decides on whether to publish

the representation and the reply, if any, in the Official Bulletin GB can at any moment decide to have the

representation further examined under the complaints procedure

e.g. C. 111 - Germany

(7) Office notifies the decisions of the GB to the Government and the complainant

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Complaint (art. 26 ILO Const’n) Can be filed by

(1) another ratifying Member State (2) a delegate to the Conference,

representing workers or employers (3) the Governing Body

Examination by Commission of Inquiry members are appointed by the

Governing Body in their personal capacity (not necessarily tripartite)

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Complaint (art. 26 ILO Const’n)

basisCoI establishes its own procedure (evidence, hearing, local visits)

result (a) report published with recommendations

(R) (b) gov’t accepts (R) or government does not

accept (R) within 3 months = International Court of Justice

(c) gov’t does not comply with (R) = any “appropriate measures”

proposed by GB

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Committee on Freedom of Association of GB Set up in 1951

originally to examine complaints for referral to Fact-Finding & Conciliation Committee

but involved without consent of States it began examining the substance of

cases composition : tripartite - 9 Governing

Body members meeting : 3 reports a year

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Committee on Freedom of Association of GB examines

documentary evidence from complaints and replies

sometimes "direct contacts" scope of action

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CFA - Receivability which organizations ?

national with direct interest international with consultative status (IOE, ICFTU,

OATUU, WCL, WFTU, ETUC) international for directly affiliated

NO RATIFICATION REQUIRED specific infringements, no purely political

allegations no exhaustion of national procedures required not bound by national recognition of “unions” not bound by withdrawal of complaint

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CFA – Scope of Action no general conclusions no interpretation of Conventions no conviction of Governments or

levelling of charges recommendations, to be approved

by the Governing Body no call for further examination interim or definitive conclusions request to keep informed of progress

on specific issues

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Involvement of Employers’ and Workers’ Organizations Constitutional obligation of the

Gov’t to communicate copies of information and reports sent to the ILO to the most representative organizations (article 23, paragraph 2, of the ILO Constitution)

Allows these organizations to transmit their own views, to the Government or to the ILO

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Involvement of Employers’ and Workers’ Organizations Under Convention No. 144, obligation to

consult these organizations on: Replies to questionnaire and comments on

proposed new instruments Submission of instruments to competent

authorities Re-examination of unratified Conventions

and Recommendations Reports on ratified Conventions

(according to Recommendation No. 152, on reports on unratified Conventions and Recommendations as well)

Proposals for denunciation of Conventions

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Involvement of Employers’ and Workers’ Organizations Any organization of employers or

workers (not only the most representative ones) can make comments on the application of ratified Conventions At any time Whether they have been consulted on the

Government’s report or not Without any formal requirements (just

indicate the Convention dealt with), by a letter to the Director General of the ILO

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Involvement of Employers’ and Workers’ Organizations When organizations make

comments on the application of ratified Conventions, these comments are Transmitted to the Government, which

is asked to provide its own views Submitted to the CEACR Mentioned in the report and often

reflected in the comments of the CEACR

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Part IIIThe ILO Declaration on

Fundamental Principles and Rights at Work (1998) &ILO Fundamental Human

Rights Conventions

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Declaration : Politics ? Builds on Berlin, Marrakesh, Copenhagen

and Singapore Reaffirms the constitutional value of ILO

FPR in the context of the global economy Does not change international labour

standards (ILS), but affirms the pivotal role of FPR in the promotion of ILS

Establishes an official dialogue on FPR channel in the absence of ratification

Mobilizes resources in support of FPR

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Declaration : economics ? “Economic growth is essential but not

sufficient to ensure equity, social progress and the eradication of poverty”

“In seeking to maintain the link between social progress and economic growth, the guarantee of fundamental principles and rights at work is of particular significance in that it enables the persons concerned to claim freely and on the basis of equality of opportunity their fair share of the wealth which they have helped to generate, and to achieve fully their human potential”

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Declaration and Constitution

All ILO Member States have an obligation to respect, promote and realize the fundamental principlesand rights.

This obligation derives from the ILO Constitution,which countries accept whenthey join the Organization.

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The Declaration andFollow-up: Key Features

Is promotional in nature

Is NOT to be used for protectionist purposes, nor to question comparative advantage of countries (para. 5 of the Declaration)

My Country

Supports member States in their efforts to realize principles & rights

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4 Categories of Fundamental Principles and Rights at Work

Freedom of association and effective recognition of the right to collective bargaining

Elimination of all forms of forcedor compulsory labour

Effective abolition of child labour

Elimination of discrimination inrespect of employment and occupation

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Part IVILO Fundamental

Conventions

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Year No. Official Title Ratifications

1930 29 Forced labour (172)

1948 87 Freedom of Association and Protection

of the Right to Organise (148)

1949 98 Right to Organise and Collective

Bargaining (158)

1951 100 Equal Remuneration (164)

1957 105 Abolition of Forced Labour (170)

1958 111 Discrimination (Employment (166)

& Occupation)

1973 138 Minimum Age (150)

1999 182 Worst Forms of Child Labour (165)

As of 1 September 2007 / ILO:181 Member States

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29 87 98 100 111 105 138 182

Brunei

Cambodia 1969 1999 1999 1999 1999 1999 1999 2006

Indonesia 1950 1998 1957 1958 1999 1999 1999 2000

Lao PDR 1964 2005 2005

Malaysia 1957 1961 1997 x 1997 2000

Myanmar 1955 1955

Philippines

2005 1953 1953 1960 1953 1960 1998 2000

Singapore 1965 1965 2002 x 2005 2001

Thailand 1969 1999 1969 2004 2001

Viet Nam 2007 1997 1997 2003 2000

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29 87 98 100 111 105 138 182

China (1919 / 25)

1990 2006 1999 2002

RoKorea(1991 / 22)

1997 1998 1999 2001

Japan(1919 / 48)

1932 1965 1953 1967 2000 2001

US(1934 / 14)

1991 1999

Canada(1919 / 30)

1972 1972 1964 1959 2000

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Ratification FHR Conv. in AP Ratification of all 8 FHRC consistently

well below world average, although > 50 % of ratifications since 1995 25 % child labour, starting 1997

Freedom of association & CB Conventions lag behind, in particular in terms of population (China, India, Viet Nam, Thailand, IR Iran, RoKorea…)

Forced labour Conventions lag behind in transition economies

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Freedom of Association C. 87 E & W should be free

to defend and further their interests through independent organizations

to select the type of organization they think is appropriate

to elect their representatives to join national / international federations not to see their organizations dissolved than by

an independent judicial authority to have their organizations protected against an

arbitrary application of law and order to organize the activities of their organizations

(including going on strike)

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Collective bargaining C. 98 the law must protect workers against

acts of anti-union discrimination by employers

the law must protect workers against acts of interference by employers

the Government must operate machinery to ensure that the law protecting workers against anti-union discrimination is complied with

the Government must promote collective bargaining to determine terms and conditions of work

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Collective bargaining C. 98

States must promote voluntary collective bargaining between employers and workers as a means of regulating terms & conditions of employment through collective agreements Bargaining (« the market ») not legislating

(« the Government ») is the proper way of determining price and contents of labour

Collective bargaining must be preferred over individual bargaining if workers so want

Further standards are laid down in the Collective Bargaining Convention (No. 154), 1981

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Forced Labour C. 29 Defined in C. 29, identical for C. 29 / C.

105 does not cover one specific situation, but a

qualitative characteristic of potentially every working (or even non-working) relationship

Contains three elements “all work or service … … which is exacted from any person under

the menace of any penalty … … and for which the said person has not

offered himself voluntarily”

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Is NOT Forced Labour (C. 29) compulsory military service for

work of a purely military character minor communal services normal civic obligations prison labour : work or service

exacted as a consequence of a conviction in a court of law (provided …)

emergency

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No Forced Labour, never (C. 105)

Forced labour for political “mainstreaming” Forced labour for purposes of economic

development “as a means of labour discipline” “as a punishment for having participated in

a strike” “as a means of racial, social, national or

religious discrimination”

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Equal Remuneration C. 100 1. To bring member States to

promote and to ensure equal remuneration for men and women workers for work of equal value

2. To promote acceptance that the contents of the job, and not the sex of the worker, is the correct basis for the calculation and payment of remuneration

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Equal Remuneration C. 100 C. 100 requires action &

acknowledgement that indirect and direct discrimination

does occur against women, that discrimination must be

eliminated, and that the correction entails an

analysis of pay systems and establishment of corrective mechanisms

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Equality at Work C. 111 States must declare & pursue a national policy designed to

promote equality of opportunity & treatment in employment & occupation

Promoting equality at work means promoting that people can fully develop their “human capital”, can allocate that capital where return is the highest, and that they effectively get that return without interference of criteria irrelevant to potential or performance (e.g. sex, religion …)

Employment & occupation essentially means the sphere of economic activity

access to vocational training access to credit access to employment or occupation conditions of employment remuneration for work of equal value career progression in accordance with experience, ability job security

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Equality at Work C. 111 C. 111 specifically requires national law to

prohibit discrimination based on race, colour, sex, religion, political opinion, national extraction or social origin

Discrimination is not any distinction, exclusion or preference based on

inherent requirements of the job justifiable suspicion of activities threatening the

security of the State (provided the suspect can defend him or herself)

special measures of protection or assistance provided for in other Conventions

“affirmative” measures for persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance

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Minimum Age System C. 138 Commitment towards gradual, but total

elimination of child labour Enactment & enforcement of a legal

system of minimum ages from which onwards children may be admitted to work System must be harmonized with the end of

compulsory schooling 3 benchmark minimum ages

General Light Work Hazardous Work

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C. 138 – Minimum Ages

General Minimum Age(Article 2)

Light Work

(Article 7)

HazardousWork

(Article 3)

Normally

End of compulsory schooling (minimum

15)

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(16 as an exception)

Developing

Countries14 12

18(16 as an exception)

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Priority for Worst Forms C. 182 Give priority to the prohibition & elimination of the

worst forms of child labour slave-like work (including trafficking) sexual exploitation illicit activities (e.g. drugs trafficking) hazardous work (to be determined)

Action must include monitoring mechanisms (e.g. data collection) programmes of action time-bound measures in three categories

prevention withdrawal rehabilitation

special attention for girls & the vulnerable (e.g. ethnic minorities)

international cooperation