MELANIE JEANROY & VICTOR HUGO RICCO Introduction to the ILO, ILS and the supervisory mechanisms: Influence on national labour law INTER-REGIONAL COURSE: TRADE UNION STRATEGIES ON THE USE OF ILS IN LABOUR LAW REFORMS TURIN, 11-15 JULY 2016 MELANIE JEANROY & VICTOR HUGO RICCO ACTRAV

Objectives of the presentation Provide a brief overview of the ILO, its origin, structure and functions Describe international labour standards and the supervisory mechanisms and how they impact on national legislation

Part 1 - Introduction to the ILO QUIZZ: When was the ILO created? Is the ILO part of the UN system? What was the purpose of the creation of the ILO? Which characteristic makes it so unique? How many members States does the ILO have? What are the main bodies on the ILO? Who is the ILO Director General?

ILO past to present:

ILO today Only surviving major creation of the League of Nations First specialised UN agency in 1946 Nobel Prize in 1969 187 member States Director General: Guy Ryder (since 2012) 3 main bodies Unique tripartite structure

The ILO has four strategic objectives Promote and realize standards and fundamental principles and rights at work . Create greater opportunities for women and men to decent employment and income. Enhance the coverage and effectiveness of social protection for all. Strengthen tripartism and social dialogue .

Part 2- ILO standard setting system Adoption of International Labour Standards Supervision of their application

QUIZZ: How would you explain what is an International Labour Standard? Which are the different types of ILS? How many ILO conventions exist today? Which was the latest convention adopted? Which are the topics covered by the ILO fundamental conventions?

International Labour Standards: CONVENTIONS: International treaties open to ratification by Member States. When ratified, are legally binding. If not ratified, source of inspiration for domestic law. Total:189 RECOMMENDATIONS: Not open to ratification; not legally binding. Can complement Conventions or be adopted alone. Provide guidelines for national policy and action. Total: 204. PROTOCOLS: They need to be ratified. They relate to a specific convention Total so far: 6.

Subjects covered by ILS 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 Domestic workers Seafarers Fishers Dockworkers Indigenous and tribal peoples Other categories of workers

Fundamental Governance or Priority C029 - Forced Labour Convention, 1930 C081 - Labour Inspection Convention, 1947 C087 - Freedom of Association and Protection of the Right to Organise Convention, 1948 C122 - Employment Policy Convention, 1964 C098 - Right to Organise and Collective Bargaining Convention, 1949   C129 - Labour Inspection (Agriculture) Convention, 1969 C100 - Equal Remuneration Convention, 1951 C144 - Tripartite Consultation (International Labour Standards) Convention, 1976 C105 - Abolition of Forced Labour Convention, 1957 C111 - Discrimination (Employment and Occupation) Convention, 1958 C138 - Minimum Age Convention, 1973 C182 - Worst Forms of Child Labour Convention, 1999

Characteristics of ILS TRIPARTISM: The 3 constituents work together on an equal footing for the adoption of the ILS. MINIMUM PROTECTION: The ILO ILS fixes a minimum level of protection. UNIVERSALITY: The standards are set at the world level. FLEXIBILITY: The ILO takes into account the needs of all ILO member States in the process of adopting the standards.

Adoption of ILS Problem identified  Item put on the ILC Agenda (by GB) Item discussed at the ILC - twice: DOUBLE DISCUSSION - once: SINGLE DISCUSSION Instrument adopted with a 2/3 majority of delegates present at the ILC - Office prepares reports - Workers, employers and governments provide inputs and discuss  

ADOPTION OF ILS: DOUBLE DISCUSSION PROCEDURE Suggestions from governments, workers, employers, the ILOffice, UN Agencies, etc... Governing Body Participation I Office Report (White) Governments Consultation. Trade Unions can participate too. II Office Report (Yellow) Governments Consultation Tripartite Committee of the ILC FIRST DISCUSSION (First year) Participation III Office Report (Brown) Consultation Trade Unions can participate too Governments IV Office Report (Blue) Governments Consultation Tripartite Committee of the ILC SECOND DISCUSSION (Second year) Participation Conference Plenary Session. ADOPTION Participation

Submission of ILS A Constitutional obligation of member States to bring all newly adopted ILS to the attention of national authorities with power to legislate Timeframe: within 12 or, exceptionally, 18 months following adoption AIM: Bring to the knowledge of the public the newly adopted instument and promote measures at the domestic level for the implementation of those instruments (ie through enactment of legislation) and In the case of of a convention, promote its ratification.

Ratification of Conventions By ratifying a Convention an ILO member state commits to: give effect, both in law and in practice, to the provisions of a Convention and accept international supervision

Function of the ILO Supervisory Mechanisms Supervise the application of ILO Member States obligations stemming from ILS In so doing, clarify the meaning and scope of ILS provisions Through their action, a body of “case law” has been progressively built up

What are the ILO Supervisory Mechanism?

ILS regular supervisory process Governments submit reports Social partners may comment 1st June – 1st September INTERNATIONAL LABOUR OFFICE November & December COMMITTEE OF EXPERTS ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS Examines reports, comments and related in formation Direct requests sent to the government and available online for the social partners February Observations published in the CEACR’s Report March TRIPARTITE CONFERENCE COMMITTEE ON THE APPLICATION STANDARDS Examines the CEACR’s report and discuss a selection of cases Presentation of the Report to the INTERNATIONAL LABOUR CONFERENCE and adoption in plenary June www.ilo.org

The Committee of Experts on the application of Conventions and Recommendations (CEACR) Consists of 20 eminent jurists from different geographic regions, legal systems and cultures Appointed by the Governing Body upon proposal made by the Director-general Appointed for renewable 3 year term Independent, impartial and objective Elaborates a yearly report. Briefly mentions also GS (art 19)

Examination on the application of ratified conventions Constitutional obligation (art 22) Examines Government reports and comments from social partners on implementation in law and practice Reporting cycle : 3 years for the 8 Fundamental and the 4 Governance Conventions (since 2012) 5 years for the technical conventions. Makes 2 types of comments Observations Direct requests

The Conference Committee on the Application of Standards (CAS) Consists of well over 150 members From the three groups of delegates and advisers Charged with examination of the Committee of Experts’ Report and discussion of selected cases (24) Permanent tripartite Committee of ILC Follow-on work from the Committee of Experts General Report and General Survey Discuss over 24 individual countries that face allegations of breaches to ILO Conventions identified by Committee of Experts and selected by the Employers and Workers Groups and adopts conclusions. CAS report adopted by the ILC in plenary

Special systems of supervision REPRESENTATIONS (ART. 24) & COMPLAINTS (ART. 26) Require the allegation of the violation of a ratified Convention. FREEDOM OF ASSOCIATION Require the allegation of the violation of the principle on Freedom of Association regardless of ratification of related conventions. www.ilo.org

Article 24 Representations Who can make a representation? Any employers’ or workers’ organization 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

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 Decision communicated to the organization and government concerned

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) The complaint procedure is governed by articles 26 to 34 of the ILO Constitution. Under these provisions, a complaint may be filed against a member state for not complying with a ratified convention by another member state which ratified the same convention, a delegate to the International Labour Conference or the Governing Body in its own capacity. Upon receipt of a complaint, the Governing Body may form a Commission of Inquiry, consisting of three independent members, which is responsible for carrying out a full investigation of the complaint, ascertaining all the facts of the case and making recommendations on measures to be taken to address the problems raised by the complaint. A Commission of Inquiry is the ILO's highest-level investigative procedure; it is generally set up when a member state is accused of committing persistent and serious violations and has repeatedly refused to address them. To date, 11 Commissions of Inquiry have been established. When a country refuses to fulfil the recommendations of a Commission of Inquiry, the Governing Body can take action under article 33 of the ILO Constitution. This provision states that "[i]n the event of any Member failing to carry out within the time specified the recommendations, if any, contained in the report of the Commission of Inquiry, or in the decision of the International Court of Justice, as the case may be, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith." Article 33 was invoked for the first time in ILO history in 2000, when the Governing Body asked the International Labour Conference to take measures to lead Myanmar to end the use of forced labour. An article 26 complaint had been filed against Myanmar in 1996 for violations of the Forced Labour Convention (No. 29), 1930, and the resulting Commission of Inquiry found "widespread and systematic use" of forced labour in the country.

The complaint procedure (Art. 26) Ratifying Member State Governing Body ex officio International Labour Conference delegate GOVERNING BODY COMMISSION OF INQUIRY report with findings and recommendations 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

Committee on Freedom of Association

Committee on Freedom of Association Created en 1951 Tripartite committee of the Governing Body, comprised of six representatives for each group Meets three times a year (March, May and November) FUNCTIONS Ensures and promotes freedom of association among workers and employers Examines complaints against governments for violations of freedom of association principles – RATIFICATION NOT REQUIRED

Committee on Freedom of Association CFA CHARACTERISTICS Legislative and factual examination even without ratification or consent of the government concerned Not subject to the prior exhaustion of national remedies Decisions taken unanimously Written procedure, though direct contacts missions possible Not bound by national judicial decisions Examines complaints even without government reply Digest (jurisprudence) www.ilo.org

Complaints before the CFA May emanate from: National organization having direct interest in the matter International organization having consultative status with ILO (ITUC, IOE) International organization where allegations relate to matters directly affecting their affiliated organizations (e.g. IE, PSI) A government May emanate from exiled or dissolved organizations www.ilo.org

The FOA procedure Governments, workers’ or employers’ organization INTERNATIONAL LABOUR OFFICE transmits the complaint to the government concerned for observations COMMITTEE ON FOA reviews the complaint and prepares a report with conclusions and recommendations Direct contacts mission may be initiated GOVERNING BODY approves the CFA’ report Report communicated to government concerned for action and published If the Convention is ratified If the Convention is not ratified The case may be referred to the CEACR Follow-up by the CFA www.ilo.org

Complaints presented before the Committee on Freedom of Association (1951-2015)

Influence on ILS and their supervision on national legislation In the process for preparing ratification As a direct consequence of ratification Amendments as a consequence of a request from the ILO supervisory mechanism (regular or as a result of a complaint) Legislative changes inspired by non-ratified ILO conventions and recommendations Use of ILS by the domestic courts During labour law reforms processes through ILO technical assistance (analysis of draft legislation and conformity with ILS)

MANY THANKS FOR YOUR KIND ATTENTION! Mélanie Jeanroy (jeanroy@ilo.org) Victor Hugo Ricco (ricco@ilo.org)