Notes on Chapter 3: Supervision and interpretation of ILS
3.1: The Regular Supervisory Mechanism of the ILO
[Note: Additional Material: read pgs 100-119 of 2.1.1 for video 1 and 2]
- Combined system of reporting and complaints. There is a regular and special system. Regular Supervisory Mechanism
- Article 22 a. Governments have an obligation to send reports on ratified conventions in law and in practice. b. Workers and employer representatives may send comments on the government report and general comments on the implementation of ratified conventions [by 1st September]
- ILO Constitution: Annual reporting
- Governing Body has adopted cyclic reporting a. Every three years for fundamental and priority conventions b. Every five years for all other conventions March: Committee of Experts on the Application of Conventions and Recommendations
- An independent committee
- Scrutinizes Reports and Comments
- Approx. 20 experts from various nationalities and legal backgrounds. Reports of the Committee
- Reports made on independence, impartiality and objectivity
- Annual Report a. Assesses implementation of convention in a given countries and publish observations b. Specific provisions of law to be amended c. Policies that the government has to adopt d. Other measures that should be implemented to remedy violations of a convention
- Direct requests a. Similar to the observations but not published- sent directly to the government
- General Survey a. Overview of the law and practice with regard to a specific convention b. Across ratifying and non-ratifying member nations c. Based on reports submitted by the countries on the effect given to a convention, obstacles faced that prevented ratification, etc. June: ILC: Committee on the Application of Standards
- Tripartite committee
- Approx. 150 members
- Selects approx. 25 cases of the most serious violations to discuss covering the Annual Report and the General Survey
- Government is invited to explain to the committee the measures they have or intend to adopt to implement the ratified convention
- Workers and Employers can assess the situation and recommend specific measures
- Committee adopts ‘conclusions’ which are recommendations to the country; may also include an option for the government to avail of technical experts who may visit the country to assess the situation and provide further assistance in implementation.
- Conclusions are adopted by the Plenary of the Conference
- Implementation of Conclusions is tracked by the Committee of Experts
3.2: The Special Supervisory Mechanisms: Representations and Complaints
Article 24: Representation by workers’ or employers’ organisations to the Governing body
- For violation of a ratified convention
- Violation to be specified
- In Writing
- Tripartite ad-hoc committee appointed by the Governing Body [without going into the substance of the case] a. Three-member committee-one representative each of government, employers and workers organisations. b. Makes recommendations based on complaint and government response c. Recommendations adopted by the governing body [and published in most cases] d. Followed up by the Committee of Experts e. Freedom of Association and Collective Bargaining Complaints generally forwarded to the Committee on Freedom of Association.
- 170 representations till date, 10 of which are pending, recent one in Qatar Article 26: Procedure for more systematic violations
- Complaint to the Governing Body can be initiated by a. Ratifying member state b. Governing body ex-officio c. Delegate to the ILC: worker, employer or state Has generally been workers who have used this measure
- May lead to the appointment of a Commission of Inquiry a. Three independent judges b. If allowed, will visit the country and assess the ground situation, hear all stakeholders in formal hearings c. Detailed report on the situation and give recommendations d. Recommendations have a deadline for implementation
- Only 13 have been there in the history of the ILO, three are pending a. Refer mostly to freedom of association, one in Zimbabwe
3.3: The Special Supervisory Mechanisms: The Committee on Freedom of Association
[Note: additional Material: read pages 58-68]
- Est. in 1951
- Agreement between the ILO and UNECOSOC
- Tripartite committee of the Governing body
- 6 representatives per group with an independent president
- Meets three times a year; meetings are private
- Complaints may be made a. by workers [95%] or employers organisations, international organisations [check criteria] and governments. b. against any member state government for violations of the Freedom of Association, regardless of whether they have signed the Convention.
- India, USA, Brazil, China have not ratified Convention 87: Freedom of Association and Protection of the Right to Organise.
- Not subject to exhaustion of local or alternate remedies
- Complaints are forwarded to the government which has the option to respond
- Based on the complaint and response, the Committee comes to Conclusions and Recommendations
- Decisions are taken by consensus: not adopted by workers but tripartite recommendations
- Both the governments and Trade Unions have a responsibility to ‘follow-up’ and provide information to the Committee on the implementation of the recommendations
- Developed a jurisprudence over the years: the committee has considered over 3500 cases. a. 49%: Latin America b. 21% Europe c. 12% Asia d. 12% Africa e. 6% North America
- Highest number does not reflect more violation, but also strong trade unions
- Important effects of the committee’s action include legislative changes, protection of union leaders, release of union leaders and registration of unions.
3.4: The Role of Trade Unions in the ILO Supervisory Mechanisms
- Trade Unions are invited to send comments on the practical situation to the Committee of Experts on the implementation of the conventions and recommendations. a. Deadline is 1st September
- Comments on non-ratified conventions: a. Deadline is 30th June
- Unions should use the available complaint mechanism strategically a. Committee on Freedom of Association b. Article 24 Representation c. Article 26: a very drastic measure that generally should be taken only after consulting international trade union movement.
- Invited to follow up ILO supervisory mechanism bodies’ recommendations at the national level
- Any of these recommendations are meant to complement national action
- Use recommendations to a. Discuss with employer b. Judges hearing pending cases at the national/domestic level c. Regional courts: like the European Court of Human Rights, the Inter-American Court of Human Rights d. For legislative change e. Use the press, manifestations, strikes to follow up on implementation
- Follow up is extremely important
- Keep the ILO informed about the situation Video 5: Practical Experiences: An Inside View of the CFA [Note: 2 additional videos: not downloaded] Over 60 years, CFA’s actions have helped facilitate union leaders release from prison, reinstatement of union members, compensation, recognition of unions and collective agreements. Link between freedom of association and democracy. The work of the CFA has created a space for unions globally to fight against autocracy and dictatorships. In Poland [20 years ago] and Belarus [today] continuous review by the CFA has ensured that the unions have a space. For example, in Korea, hundreds of leaders were released from prison because of the action of the CFA. It has also had a substantial impact on jurisprudence in connecting the right to association and the right of collective bargaining, such as in Canada.