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Practice on the use of article 33 of the ILO Constitution

Written by adminvg59 on . Posted in Article 26, Special procedures, The Governing Body may recommend action to the International Labour Conference.

The provisions of article 33 of the ILO Constitution do not stipulate the nature of the measures that the Governing Body may recommend for adoption by the International Labour Conference where a Member flagrantly and persistently fails to carry out its obligations. The provisions result from an amendment to the ILO Constitution adopted in 1946. The text of article 33 adopted in 1919 only provided for economic sanctions that could be imposed on a Member in the event of its failing to carry out the recommendations of a COI. The original provision had “been carefully devised in order to avoid the imposition of penalties, except in the last resort, when a State has flagrantly and persistently refused to carry out its obligations under a Convention.” (Click to read the Report presented by the Commission on International Labour Legislation, p. 266).

The amendment of 1946 broadened the range of measures that might be recommended, leaving the Governing Body full discretion to adapt its action to the circumstances of the particular case  (Report of the Delegation for Constitutional Questions, Part 1, para. 64).

It is understood that the Governing Body nevertheless has good reason for basing its decision on two criteria. The first ensues from the recommendations of the Commissions of Inquiry themselves: that the measure to be taken must correspond to the objectives of the COI’s recommendations. The second criterion ensues from article 33 itself and concerns the fact that the measures must be deemed by the Governing Body to be appropriate for securing compliance with the recommendations of the COI (Governing Body document GB.276/6, para. 19).

It is also understood that the Governing Body cannot propose a decision concerning the suspension or expulsion of a member State. This is to be concluded from the fact that the two constitutional amendments adopted by the International Labour Conference at its 48th Session in 1964 concerning the suspension or expulsion of a Member did not enter into force because the number of ratifications was too low (Governing Body document GB.276/6, para. 20).

The Governing Body has so far only once used the authority bestowed on it by article 33.

  • In 1999, it proposed action which would culminate in the International Labour Conference adopting two resolutions recommending restrictions on Myanmar’s participation in the Organization and the wider international community.
  • The COI set up by the Governing Body in 1997 to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), in response to a complaint against the Government of Myanmar made by 25 Workers’ delegates to the International Labour Conference, concluded its work in 1998. It found that there was abundant evidence of “the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military” and made several recommendations for action to improve the situation (Click to read the report of the COI appointed to examine the case of Myanmar, para. 528).
  • The Director-General subsequently reported back to the members of the Governing Body in May 1999 that there was “no indication that the three recommendations of the Commission of Inquiry have yet been followed”.
  • In view of the gravity of the situation, the International Labour Conference in 1999 adopted a resolution deeply deploring the continued infliction of “the practice of forced labour – nothing but a contemporary form of slavery – on the people of Myanmar”, and resolving “that the attitude and behaviour of the Government of Myanmar are grossly incompatible with the conditions and principles governing membership of the Organization”. It also decided “that the Government of Myanmar should cease to benefit from any technical cooperation or assistance from the ILO, except for the purpose of direct assistance to implement immediately the recommendations of the Commission of Inquiry” and “that the Government … should henceforth not receive any invitation to attend meetings, symposia and seminars organized by the ILO, except such meetings that have the sole purpose of securing immediate and full compliance with the said recommendations, until such time as it has implemented the recommendations of the Commission of Inquiry” (Click to read the Resolution on the widespread use of forced labour in Myanmar).
  • In March 2000, the Governing Body submitted a number of measures under article 33 to be considered by the International Labour Conference for adoption.
  • In June 2000, the International Labour Conference adopted a Resolution recommending (a) to ILO constituents to review their relations with Myanmar “to ensure that the said Member cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labour referred to by the Commission of Inquiry, and to contribute as far as possible to the implementation of its recommendations”; and (b) to international organizations to reconsider their cooperation with Myanmar “and, if appropriate, to cease as soon as possible any activity that could have the effect of directly or indirectly abetting the practice of forced or compulsory labour”.
  • While the restrictions remained in place, the CAS reviewed the situation with respect to the implementation of the recommendations of the COI every year “at a sitting of the Committee on the Application of Standards specially set aside for the purpose” (Click to read the Resolution concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the subject of Myanmar).
  • In 2012, the International Labour Conference resolved to lift the restrictions in light of progress made by Myanmar towards complying with the recommendations of the COI (Click to read the Resolution concerning the measures on the subject of Myanmar adopted under article 33 of the ILO Constitution). The substantive progress noted by the CAS and the CEACR in the same year included:
  • (i) the orders issued by the Commander-in-Chief of the Defence Services in March 2012 advising all military personnel that strict and stern military disciplinary actions shall be taken against perpetrators of military under-age recruitment, and those of April 2012 which make the new law prohibiting forced labour applicable to the military with perpetrators being prosecuted under section 374 of the Penal Code;
  • (ii) budget allocations made for the payment of wages for public works at all levels for 2012–13;
  • (iii) the progress made on the translation into local languages of the brochure on the complaints mechanism;
  • (iv) the statement made by the President on May Day 2012 committing the Government to acceleration of action to ensure the eradication of all forms of forced labour; and
  • (v) disciplinary measures taken against 166 military personnel and action taken under section 374 of the Penal Code against 170 other government officials and five military personnel. (Click to see in the NORMLEX database the CEACR observation, adopted in 2012 and published in the report submitted to the 102nd Session of the International Labour Conference (2013)).

 

Fact-Finding and Conciliation Commission on Freedom of Association

Written by adminvg59 on . Posted in Complaints to the CFA, Special procedures, The complaint alleging violation of freedom of association and collective bargaining is lodged.

Cooperation with the Economic and Social Council of the United Nations in respect of freedom of association

In January 1950, the Governing Body of the International Labour Office, following discussions with the Economic and Social Council of the United Nations (ECOSOC), established a Fact-Finding and Conciliation Commission on Freedom of Association (FFCC).  It defined its terms of reference, the general lines of its procedure and criteria for its composition, essentially the necessary qualifications to hold high judicial office or to evaluate evidence relating to violation of trade union rights and who, by reasons of their character, standing and impartiality, would command general confidence.

In February 1950, ECOSOC approved this decision. The Governing Body appointed the nine members of the FFCC in March and June 1950 and November 1952, and reconstituted the membership of the FFCC in May-June 1963, March 1965, and May-June 1965. The Governing Body envisaged that arrangements might be made, when appropriate, for the work of the FFCC to be done by panels of not less than three or more than five members.

Mandate

The Commission’s function is to examine cases of alleged infringements of trade union and employers’ organization rights, in particular alleged infringements by governments of member States that have not ratified Conventions concerning freedom of association or  collective bargaining. Such allegations may be referred to the FFCC by the Governing Body or the International Labour Conference acting on the report of its Credentials Committee.

It is also open to any government against which an allegation of infringement of trade union and employers’ organization rights is made to refer such an allegation to the FFCC for investigation.

The FFCC is essentially a fact-finding body, but it is authorised to discuss situations referred to it for investigation with the government concerned with a view to securing the adjustment of difficulties by agreement.

Consent required of the government concerned

Cases concerning countries that have not ratified Conventions concerning freedom of association or collective bargaining can only be referred to the FFCC with the consent of the government concerned.

If the Governing Body is of the opinion that a complaint should be investigated it must first seek the consent of the government concerned. If such consent is not forthcoming, the Governing Body has to give consideration to such refusal with a view to taking any appropriate alternative action designed to safeguard the rights relating to freedom of association and collective bargaining involved in the case, including measures to give full publicity to charges made, together with any comments of the government concerned, and to that government’s refusal to co-operate in ascertaining the facts and in any measures of conciliation. The consent of a government might be given either in an individual case or, more generally, in advance, for certain categories of cases, or for any case which might arise.

Allegations against the government of a UN member State which is not an ILO member State

Pursuant to the procedure agreed upon by ECOSOC and the Governing Body of the International Labour Office, all allegations regarding infringements of trade union and employers’ organization rights received by the United Nations from governments or employers’ or workers’ organizations against ILO member States are to be forwarded to the Governing Body for consideration as to referral to the FFCC.

Pursuant to a resolution adopted by ECOSOC on 9 April 1953 such complaints concerning ILO member States have, since that time, been transmitted automatically by the Secretary-General of the United Nations to the Governing Body without having first been examined, as previously, by ECOSOC. Allegations regarding infringements of trade union and employers’ organization rights received by the United Nations from governments or employers’ or workers’ organizations relating to States Members of the United Nations which are not ILO member States are transmitted to the FFCC through the Governing Body when the Secretary-General of the United Nations, acting on behalf of ECOSOC, has received the consent of the government concerned, and if ECOSOC considers these allegations suitable for transmission.

If such consent of the government is not forthcoming, ECOSOC will give consideration to such refusal with a view to taking any appropriate alternative action designed to safeguard the rights relating to freedom of association and collective bargaining involved in the case. If the Governing Body has before it allegations regarding infringement against a Member of the United Nations which is not an ILO member State, it will refer such allegations in the first instance to ECOSOC.

Preliminary examination by the CFA

For the purpose of making the preliminary examination of complaints received, the Governing Body in 1951 set up a Committee on Freedom of Association, consisting of nine of its own members, together with nine substitute members. When the CFA, after its preliminary examination, concludes that a case warrants further examination, it reports this conclusion to the Governing Body for a determination as to the desirability of attempting to secure the consent of the government concerned to the reference of the case to the FFCC. Click to see an example.

In every case in which the government against which the complaint is made has refused consent to referral to the FFCC or has not within four months replied to a request for such consent, the CFA may include in its report to the Governing Body recommendations as to the “appropriate alternative action” which the CFA may believe the Governing Body might take.  In certain cases the Governing Body itself has discussed the measures to be taken where a government has not consented to a referral to the FFCC.

Reports of the FFCC

The FFCC reports to the Governing Body on the results of its work and it is for the Governing Body to consider in the first instance whether further action should be taken on the basis of the report. Subject to the foregoing, the FFCC is left to work out its own rules of procedure.

The  reports of the FFCC on cases regarding States Members of the United Nations not ILO member States are to be transmitted to ECOSOC by the Director-General on behalf of the Governing Body.

Practical use of the procedure

The procedure has resulted in a report by the FFCC on six occasions in the past, the last time in 1992.

Key factors behind the relatively sparse use of the procedure include:

  1. the fact that today, Conventions concerning freedom of association and collective bargaining are much more widely ratified than when the FFCC was first constituted;
  2. the effectiveness of the CFA’s examination of allegations of infringement of principles of freedom of association and the effective recognition of the right to collective bargaining; and
  3. the fact that the membership of both the United Nations and the ILO has become more universal than when the FFCC was first constituted.

The procedure remains available to date.

The CFA examines the representation relating to a ratified Convention concerning freedom of association and collective bargaining.

Written by adminvg59 on . Posted in Article 24, Special procedures, The CFA examines the representation.

The representation that relates to a ratified Convention dealing with freedom of association and collective bargaining is examined by the CFA in accordance with the procedure for the examination of representations once it has been referred by the Governing Body. The matter is treated by an ad hoc committee of three CFA members, with one member from each group.

Subject to the agreement of the complainant organization and of the government, the examination of the merits of the representation may be temporarily suspended, for a maximum period of six months, so as to allow for optional voluntary conciliation or other measures at the national level.

The ad hoc committee in the CFA examines the merits of the representation in separate meetings. The entire case file is made available to the members of the CFA ad hoc committee and they can meet as many times as considered necessary for the conclusion of their work. Where allegations of non-observance of other Conventions are raised in the same representation, avenues are explored for ensuring effective communication between the two committees where appropriate.

The report as finalized by the three members is presented as a separate report to the Governing Body for approval. It is considered along with all other article 24 reports at the end of the Governing Body session.

The implementation of the recommendations of a COI falls under the mandate of the regular supervisory bodies.

Written by adminvg59 on . Posted in Article 26, Follow up of the complaint through regular supervision, Special procedures.

Linkages are established with the regular supervisory machinery in that the measures taken by the government pursuant to the recommendations of a COI are examined by the CEACR and the CAS. Click to know more about the regular supervisory machinery.

Click to see an example or search in the NORMLEX database for the exact phrase “Follow-up to the recommendations of the Commission of Inquiry”.

The Governing Body may recommend action to the International Labour Conference when a government fails to implement recommendations of a COI or the ICJ.

Written by adminvg59 on . Posted in Article 26, Special procedures, The Governing Body may recommend action to the International Labour Conference.

Under article 33 of the ILO Constitution, when a government fails to carry out the recommendations of a COI or the decision of the ICJ, the Governing Body may recommend to the International Labour Conference any action it deems wise and expedient to secure compliance.

The Governing Body has once availed itself of this authority, when the International Labour Conference then adopted the Resolution concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the subject of Myanmar to secure compliance with the recommendations of the COI established to examine the observance of the obligations in respect of the Forced Labour Convention, 1930 (No. 29). All constituents – governments, employers and workers – were asked to review their relations with Myanmar to ensure that the recommendations were applied in full, and follow-up to the recommendations was then secured by the CAS, which regularly discussed the item in a special sitting set aside for this purpose until 2012, and the CEACR.

Click to read more about the practice followed in this case.

Know More

 

If a complaint has been initiated by Employers’ or Workers’ delegates, their respective groups become consulting actors after the Governing Body has appointed a COI and the report is published.

Written by adminvg59 on . Posted in Article 26, Special procedures, The COI report is published and actions are required.

Once the Governing Body acts on a complaint lodged by Employers’ or Workers’ delegates to the International Labour Conference, these same delegates play no further role in the procedure. Employers’ and workers’ organizations having consultative status with the ILO may be invited by the COI to present information in relation to the work and report of a COI. The Employers’ and Workers’ groups in the Governing Body continue to inform the work of the Governing Body as constituents. A government that has initiated a complaint may refer it to the ICJ, but the ILO Constitution does not give complainant delegates the opportunity to refer their complaint to the ICJ.

The government concerned may accept the recommendations of the COI or propose referral of the complaint to the ICJ.

Written by adminvg59 on . Posted in Article 26, Special procedures, The COI report is published and actions are required.

Both the complainant government and the government against which the complaint has been lodged may propose to refer the complaint to the ICJ.

No government has ever referred a complaint investigated by a COI to the ICJ. Ultimately and at different paces, all governments against which complaints have been made have moved to implement recommendations.

If a complaint has been initiated by Employers’ or Workers’ delegates, their respective groups become consulting actors after the Governing Body has appointed a COI and the report is published.

Written by adminvg59 on . Posted in Article 26, Special procedures, The COI report is published and actions are required.

Once the Governing Body acts on a complaint lodged by Employers’ or Workers’ delegates to the International Labour Conference, these same delegates play no further role in the procedure. Employers’ and workers’ organizations having consultative status with the ILO may be invited by the COI to present information in relation to the work and report of a COI. The Employers’ and Workers’ groups in the Governing Body continue to inform the work of the Governing Body as constituents. A government that has initiated a complaint may refer it to the ICJ, but the ILO Constitution does not give complainant delegates the opportunity to refer their complaint to the ICJ.

Once the report of a COI is published, actions are required on it.

Written by adminvg59 on . Posted in Article 26, Special procedures, The COI report is published and actions are required.

The report of a COI is communicated by the Office, which has acted as its secretariat, to the Governing Body, which takes note of it, and to the government concerned. Once published in the Official Bulletin, the report is made available in hard copy and on the ILO website.

The report contains the recommendations by the COI and the timeframe for their implementation.

As prescribed in article 29 of the ILO Constitution, within three months the government concerned informs the Director-General whether or not it accepts the recommendations contained in the report of the COI, and if not, whether it proposes to refer the complaint to the ICJ.

Implementation of recommendations by a COI is followed up through regular supervision by the CEACR and the CAS. Click to see the regular supervisory procedure.