Once the government has provided observations on the allegation, only formal channels of communication are open to provide additional information or observations to the CFA, supported by documentary evidence. A hearing of the parties may exceptionally occur. Likewise, the CFA uses only formal communication channels to give its views or request additional information.
The members from the Workers’ group also bring the experience of representative organizations of workers to the deliberation of cases in the CFA. Nevertheless, they have been able to reach consensus on the decisions over the years. The role played by the independent chairperson of the CFA is important in this regard.
The CFA deliberates in private sessions, its working documents are confidential and, in practice, decisions are taken by consensus.
No representative or national of the State against which a complaint has been lodged, or person occupying an official position in the national complainant organization, or a member from the employers’ or workers’ group of the country concerned, may participate in the deliberations or even be present during the hearing of the complaint in question. Similarly, the documents concerning the case are not supplied to them.
Prescription
Despite there are no formal rules fixing any particular period of prescription in the procedure for examining complaints, the CFA has acknowledged that it may be difficult for a government – if not impossible – to reply in detail to allegations regarding matters which occurred a long time ago. It may in such cases choose not to examine the complaint.
Withdrawal of complaints
Any request for withdrawal of a complaint must come from the complainant organization concerned. Where a request is made, the CFA evaluates the reasons given to explain the withdrawal. This is done with a view to establishing whether the request has been made in full independence.
Where a request is made for the postponement of examination of a case, either by a complainant or the government, the practice followed by the CFA consists of deciding the question in full freedom when the reasons given for the request have been evaluated and taking into account the circumstances of the case. See the Procedures for the examination of complaints alleging violations of freedom of association for details.
The CFA report of a case is transmitted to the full Governing Body for approval, and ultimately published in the Official Bulletin and on the ILO website. CFA reports on each case have the following structure: allegations made, government’s reply, conclusions and recommendations of the CFA. Since case handling normally continues over several meetings, case reports use a particular terminology to reflect status and results.
Definitive report: The CFA determines that the case calls for no further examination, where no violation of freedom of association is found or where the issues have been resolved or the CFA states a principle or provides guidelines to be followed without requesting the government to keep it informed. The case will then be closed.
Interim report: The government concerned is asked to take specific action or to provide additional information to assist the CFA in examining the case further. The government may also be asked to remedy aspects of the case and report back to the CFA on the measures which have been taken.
The CFA normally re-examines the case when it receives the government and/or complainant’s additional information and will issue an “urgent appeal” if it has not received the information requested from the government after two postponements. After the re-examination, the CFA may make new interim conclusions and recommendations in light of any new information provided and continue to keep the case under full examination.
Report in which the Committee requests to be kept informed of developments: The CFA asks to be kept informed of developments, where it wants to follow the action taken by the government to implement its recommendations until all outstanding issues have been resolved.
The table below explains the terminology used for the status of cases before the CFA and that used to classify the CFA reports on a case.
CFA reports can also be found in the NORMLEX database, where cases appear by status in the country profiles.
The CFA has recently decided that any inactive cases, i.e. cases that have not received information from the parties for 18 months (or 18 months from the last examination of the case), will be considered closed. This practice would not be used for serious and urgent cases. The closure of inactive cases concerning countries that have not ratified the Conventions on freedom of association and collective bargaining will be decided on a case-by-case basis depending upon the nature of the case. Cases that are closed in this manner will have the following indication on the ILO website: “In the absence of information from either the complainant or the Government in the last 18 months since the Committee examined this case, this case has been closed.”
In handling an allegation, on-the-spot missions whereby a person entrusted by the Director-General – either an independent person or an ILO official – is sent to the country concerned in order to collect information on the facts relating to a case and/or to seek solutions to the difficulties encountered may take place.
Preliminary contacts may occur early on in the process of treating the matter. They are used for complaints of a particularly serious nature and require the prior approval of the Chair of the CFA.
Its possible purposes are:
Direct contacts may occur either during the examination of the case or at the stage of the action to be taken on the recommendations of the Governing Body. They can only be established at the invitation of the government concerned, or at least with its consent.
On certain occasions, and normally after in-depth examination of the case, the CFA may propose to the government concerned to accept a tripartite mission with the purpose to assist in the resolution of the outstanding issues.
Where an employers’ organization is the complainant, the Office may solicit further information from the complainant in the light of the observations from the government, once received. This is particularly the case where the statements contained in the complaint and the government’s reply merely cancel one another out but do not contain any valid evidence. See the “Rules concerning relations with the complainant” in the Procedures for the examination of complaints alleging violations of freedom of association.
If the complaint concerns the private sector, the government is requested to obtain the view of the enterprise concerned by contacting the employers’ organization. A summary of the views of the employers’ organization will be then included in the report.
Since the CFA meets only three times a year, the Office systematically seeks to have the relevant government make observations on the allegations. Follow-up special communications may sometimes be necessary.
ILO field offices may be called on to hasten the sending of government observations on complaints.
As clarified in the “Rules for relations with the government concerned” in the Procedures for the examination of complaints alleging violations of freedom of association, the replies from governments should not be limited to general observations, but they should be detailed.
Where a workers’ organization is the complainant, the Office may solicit further information from the complainant in the light of the observations from the government, once received. This is particularly the case where the statements contained in the complaint and the government’s reply merely cancel one another out but do not contain any valid evidence. See the “Rules concerning relations with the complainant” in the Procedures for the examination of complaints alleging violations of freedom of association.
If a complaint meets the basic admissibility requirements, the Office gives the complaint a case number, informs the government concerned of the complaint and asks for its observations on the allegations. To know more, see the “Rules for relations with the government concerned” in the Procedures for the examination of complaints alleging violations of freedom of association.
The CFA has recently decided to adopt a similar approach of optional voluntary conciliation for complaints as has been adopted with respect to representations under article 24 of the ILO Constitution. Upon acknowledging a complaint and transmitting it to the government, an additional paragraph will be included pointing to the possibility of optional voluntary conciliation which, if agreed to by both parties, would lead to a temporary suspension of the examination of the complaint for a period of six months. Such cases will be noted in a special paragraph of the introduction of the CFA report, demonstrating the willingness of the parties to attempt to find appropriate solutions at national level. The CFA will review the impact of this approach after a trial period.
In terms of information responding to the allegations, the CFA may hear the parties, or one of them, where:
In practice, face-to-face hearings occur very exceptionally.
The CFA has established criteria according to which a complaint can be deemed receivable. One of them relates to the complainant organization, in that allegations are receivable if they are submitted by:
Click to see the full checklist for receivability of complaints.
Furthermore, it is important that the complaint:
Click to see a checklist on the content of the complaint.
The CFA has recently requested the Office to develop an electronic form for filling complaints, including a question to facilitate the complainant’s consideration of the possibility of voluntary conciliation.
For more information, see also on the ILO website the page with publications on ILS, where resources specifically developed for employers’ organizations can be found.
Complaints are brought against governments. They are received and treated by the CFA regardless of whether the member State concerned has ratified any of the Conventions dealing with freedom of association and collective bargaining. This is because member States are deemed bound to respect the fundamental principles of freedom of association and the effective recognition of the right to collective bargaining contained in the ILO Constitution, including the Declaration of Philadelphia, by virtue of their membership in the Organization.
Governments are called to respond to allegations that legislation and/or practices have violated these principles. They are also called to answer to allegations over actions by employers or workers, or their organizations, that violate the above-mentioned principles, since governments are charged with promoting and assuring respect for them within their territory.