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Author: adminvg59

Any government, employers’ or workers’ members can file a complaint while they are delegates at the International Labour Conference.

Written by adminvg59 on . Posted in Article 26, Special procedures, The complaint alleging non-observance is filed.

Any delegate to the International Labour Conference can file a complaint. This gives delegates representing employers and workers – as well as delegates representing governments, whether their countries have ratified the relevant Conventions or not – the opportunity to allege non-observance. According to the established practice, the complaint is read out by the delegate(s) during the plenary of the International Labour Conference.

The Governing Body then decides how to handle the complaint.

To date, the procedure has been initiated by each of the parties authorized by the ILO Constitution, although the majority of complaints have been filed by workers’ or employers’ delegates.

A complaint can be filed about ineffective observance of any ratified Convention.

Written by adminvg59 on . Posted in Article 26, Special procedures, The complaint alleging non-observance is filed.

Article 26 of the ILO Constitution permits a complaint to be filed by a member State with the Office where it is alleged that another member State is not effectively observing a Convention which both have ratified. A complaint can also be made by a delegate to the International Labour Conference.

Articles 26 to 29 and 31 to 34 of the ILO Constitution govern the procedure, giving the Governing Body the authority to consider the complaint and the choice of communicating with the member State which is the subject of the complaint.

At any time, either on receipt of a complaint or of its own motion, the Governing Body may decide to establish a Commission of Inquiry to consider the complaint and to report thereon. No further Standing Orders restrict the discretion of the Governing Body with respect to the time, form or substance in which it wishes to consider a complaint.

In practice, establishing a COI is the highest-level investigative procedure, considered as a remedial measure of last resort. See the box below on the nature of the procedure and the manner in which it is practically used.

Nature of the procedure

Over a period spanning 85 years (1934 – 2019) since the first complaint was submitted, the Governing Body has had before it 34 article 26 complaints. All but three complaints, including all complaints submitted in the last 40 years, alleged non-observance of at least one fundamental Convention.
Of these, 33 complaint procedures have been closed either as result of a Governing Body decision or the adoption of recommendations by a Commission of Inquiry. In one case, the complaint procedure is still ongoing.
A total of 13 Commissions of Inquiry have been established and delivered reports over time. This represents less than half of the article 26 complaints filed. In all cases the regular supervisory bodies have followed up on the recommendations of the Commission of Inquiry. In respect of the complaints which have been closed without investigation by a COI, the Governing Body has requested the regular supervisory bodies to follow up on the issues raised in the complaint.
Recourse to the complaint procedure has evolved over time. The first complaints featured individual member States seeking to resolve bilateral disputes over the observance of an ILO Convention that was not always the subject of extensive prior examination by the regular supervisory bodies. In recent decades, the procedure is more readily used by Employers’ and Workers’ delegates to raise cases of non-observance already examined by other supervisory bodies, but serious enough to warrant the close multilateral attention and legally binding determination afforded by the procedure.

In the absence of Standing Orders, no other receivability criteria than those apparent in article 26 of the ILO Constitution need to be met for the Governing Body to initiate its consideration of the complaint, i.e.:

  • the complaint must be filed with the Office by a member State which has ratified the Convention that is the subject of the complaint or by a delegate to the International Labour Conference;
  • the member State against which the complaint is filed must have ratified the Convention that is the subject of the complaint;
  • the complaint must provide an indication that the complainant “is not satisfied” that the member State against which the complaint is filed is “securing the effective observance” of a Convention it has ratified.

The Officers of the Governing Body determine the steps in the procedure for complaints on an ad hoc basis. In some cases, and particularly in recent times, this has afforded flexibility in charting an effective approach in pursuing a consensual and comprehensive response, combining normative guidance with technical support, to an alleged violation while securing the observance of ratified ILS without the establishment of a COI.

While decisions on the possible referral to a COI were taken rather rapidly in earlier decades, it appears that, in recent years, the Governing Body has taken a more active role in considering, as a first step, whether interim measures, such as high-level missions, direct contacts, conclusion of tripartite agreements, technical cooperation agreements or other MoUs would enable the resolution of the issues raised in the complaint before making a decision on the appointment of a COI. For example, progress reached through such interim measures in the cases of Bahrain, Fiji and Qatar resulted in the closure of the respective complaints without the establishment of a COI.

The interim measures are not as such sanctioned by the ILO Constitution, but derive their legitimacy from the discretion afforded to the Governing Body by its article 26 to either establish a COI or close the complaint procedure without establishing a COI. As such, interim measures should rest on consensus as the established decision-making practice in the Governing Body.

The same flexibility has also generated a level of uncertainty with respect to the procedure, in particular as regards boundaries to the Governing Body’s discretion to defer a decision to establish a COI.

In regard of the first complaints, the Governing Body decided to appoint a COI without discussion, suggesting such decision was perceived to result automatically from the receivability of a complaint submitted. Gradually, the decision to establish a COI has been based on information provided by the complainants as well as ILO constituents. This process of information exchange has sometimes deferred the decision to appoint a COI for several years, or indeed led to a decision to close the complaint procedure without the appointment of a COI.

To know more about the article 26 procedure, a flowchart presentation is also available.

The CEACR normally follows up on recommendations made by the ad hoc tripartite committee, as adopted by the Governing Body.

Written by adminvg59 on . Posted in Article 24, Follow-up of the representation through regular supervision, Special procedures.

Once the report of the ad hoc tripartite committee has been adopted by the Governing Body, usually at the end of its session, it is notified to the government concerned and the complainant organization, and the procedure is closed. The report is published in the Official Bulletin and on the ILO website, in the pages concerning the relevant session of the Governing Body.

In the context of the Standards Initiative, the Governing Body has recently asked for a regularly updated document on the effect given to the recommendations of the ad hoc committees in order to strengthen their follow-up.

The measures taken by governments pursuant to the recommendations of the ad hoc tripartite committee are examined through regular supervision. This provides the opportunity for the government to submit information on developments through reporting on the relevant ratified Conventions, the CEACR to monitor developments in light of recommendations, and the CAS to take the matter up as an individual case during a future session of the International Labour Conference. Click to know more about the regular supervisory machinery.

The complainant organization normally provides information.

Written by adminvg59 on . Posted in Article 24, Special procedures, The ad hoc tripartite committee examines, considering voluntary conciliation.

The employers’ organization that has made the representation will furnish further information to the ad hoc tripartite committee if it is asked to do so, within the time fixed by the committee. The complainant organization may also do so on its own initiative but this will most probably have an impact on the deadlines within which the representation will be examined. A representative of the complainant organization may also on rare occasions be invited by the ad hoc committee to furnish information orally.

The government concerned responds appropriately to communications from the ad hoc tripartite committee.

Written by adminvg59 on . Posted in Article 24, Special procedures, The ad hoc tripartite committee examines, considering voluntary conciliation.

When communicating the positive decision on the receivability of a representation to the government against which it is made, the Governing Body invites the government to provide observations on the representation. The ad hoc committee may ask the government for further information if it so chooses, and fix a time for its receipt.

The government may provide information in writing, ask that its representative be heard by the committee, or request that a representative of the Director-General visits the country to obtain information on the subject of the representation for presentation to the committee.

The government may also agree on the suspension of the procedure for exploring conciliation of the matter raised by the representation.

The complainant organization normally provides information.

Written by adminvg59 on . Posted in Article 24, Special procedures, The ad hoc tripartite committee examines, considering voluntary conciliation.

The workers’ organization that has made the representation will furnish further information to the ad hoc tripartite committee if it is asked to do so, within the time fixed by the committee. The complainant organization may also do so on its own initiative but this will most probably have an impact on the deadlines within which the representation will be examined. A representative of the complainant organization may also on rare occasions be invited by the ad hoc committee to furnish information orally.

The ad hoc tripartite committee examines the substance of the representation, with the possibility to suspend the procedure if the parties agree to optional voluntary conciliation, and reports back to the Governing Body.

Written by adminvg59 on . Posted in Article 24, Special procedures, The ad hoc tripartite committee examines, considering voluntary conciliation.

The representation is examined by an ad hoc tripartite committee, if the Governing Body has established one for that purpose. The ad hoc committee consists of three members chosen in equal numbers from the Government, Employers’ and Workers’ groups. No representative or national of the State against which the representation has been made and no person occupying an official position in the association of employers or workers which has made the representation may be a member of the committee. Ratification of the Convention concerned is a condition for membership of governments in these committees, unless no government titular or deputy member of the Governing Body represents a country which has ratified the Convention concerned.

The Standing Orders set out, among other things, the powers of the tripartite committee during its examination of the representation, essentially for communicating with the complainant organization and the government against which the representation is made.

The meetings of the committee are held in private and all the steps of the procedure are confidential.

During the examination of a representation, the CEACR suspends its examination of the issues covered by the representation until the Governing Body has taken a decision. Therefore, until the procedure comes to an end, this may preclude examination of the matter by the CAS. This should be taken into account in the decision to have recourse to a representation under article 24 of the ILO Constitution, or to make an observation to the CEACR under article 23 of the ILO Constitution.

The Governing Body has recently decided that 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 suspension will be subject to the agreement of the complainant organization, as expressed in the electronic form for the submission of a representation, and of the government.

A report on the examination of the representation by the ad hoc committee will be prepared for the Governing Body. It will contain information on the steps taken in examining the representation, its conclusions concerning the issues raised in the representation, and its recommendations as to the decision to be taken by the Governing Body. Prior to the 2000s, where the government’s response was not considered satisfactory, the Governing Body was entitled to publish the representation and the response. Over recent years, the reports of the ad hoc tripartite committees have been systematically made available to the public in the ILO website. It is possible to search in the NORMLEX database for the exact phrase “Report of the Committee set up to examine the representation” to find examples of these reports.

The complainant organization is informed of the Governing Body decisions on receivability and referral.

Written by adminvg59 on . Posted in Article 24, Special procedures, The Governing Body refers to an ad hoc tripartite committee or the CFA.

If the Governing Body decides that the representation is not receivable, a letter informing the complainant organization of the decision will be sent by the Office.

If the Governing Body decides that the representation is receivable and establishes an ad hoc committee, the decision will be communicated to the complainant organization, which will also be informed of the members of the ad hoc committee and the fact that any additional information on the representation submitted by the organization will be transmitted to the government concerned which will be invited to reply. The complainant organization will be informed also if the representation has been referred to the CFA or if a decision on referral has been postponed subject to follow-up on previous comments by the CEACR.

Representations covering more than one instrument, including Conventions dealing with freedom of association and collective bargaining, are usually examined separately, with one component examined by an ad hoc committee and another referred to the CFA, for examination in accordance with the modalities set out for representations. The complainant organization will be informed accordingly.

The government concerned is informed of the Governing Body decision on receivability and referral.

Written by adminvg59 on . Posted in Article 24, Special procedures, The Governing Body refers to an ad hoc tripartite committee or the CFA.

If the government concerned is not represented in the Governing Body, it will be invited to send a representative to take part in deliberations on receivability. If an ad hoc tripartite committee is ultimately set up and reports to the Governing Body on the substance of the representation, the government will likewise be invited to send a representative to take part in proceedings.
If the Governing Body decides that the representation is not receivable, a letter informing the government of the decision will be sent by the Office.

If the Governing Body decides that the representation is receivable and establishes an ad hoc committee, the decision will be communicated to the government, which will also be informed of the members of the ad hoc committee and be invited to submit any observations it wishes to make on the representation within the time-frame fixed. The government may ask the ad hoc committee for an extension of the deadline for its reply. In doing so, it should give a justification for the request.

The government will be informed accordingly if the representation has been referred to the CFA or if a decision on referral has been postponed subject to follow-up on previous comments by the CEACR.

Representations covering more than one instrument, including Conventions dealing with freedom of association and collective bargaining, are usually examined separately, with one component examined by an ad hoc committee and another referred to the CFA, for examination in accordance with the modalities set out for representations. The government will be informed accordingly.

The complainant organization is informed of the Governing Body decisions on receivability and referral.

Written by adminvg59 on . Posted in Article 24, Special procedures, The Governing Body refers to an ad hoc tripartite committee or the CFA.

If the Governing Body decides that the representation is not receivable, a letter informing the complainant organization of the decision will be sent by the Office.

If the Governing Body decides that the representation is receivable and establishes an ad hoc committee, the decision will be communicated to the complainant organization, which will also be informed of the members of the ad hoc committee and the fact that any additional information on the representation submitted by the organization will be transmitted to the government concerned which will be invited to reply. The complainant organization will be informed also if the representation has been referred to the CFA or if a decision on referral has been postponed subject to follow-up on previous comments by the CEACR.

Representations covering more than one instrument, including Conventions dealing with freedom of association and collective bargaining, are usually examined separately, with one component examined by an ad hoc committee and another referred to the CFA, for examination in accordance with the modalities set out for representations. The complainant organization will be informed accordingly.