Skip to main content

Category: Article 26

When ratifying member States or delegates to the International Labour Conference file a complaint with the Office alleging that a member State has not observed a ratified Convention.

Each COI establishes its own working methods for examining a complaint and prepares a report with findings and recommendations.

Written by adminvg59 on . Posted in Article 26, Special procedures, The COI examines the complaint.

There are no Standing Orders for the procedure of a COI. In accordance with the established practice, the Governing Body leaves the matter to the COI itself, subject only to the provisions of the ILO Constitution, its own general guidance, and the practice followed by previous Commissions.

Commissions of Inquiry have most frequently adopted the following rules, some of which are mere formal expressions of what is already inherent in the judicial nature of the procedure:

  • the COI must perform its task with complete objectivity, impartiality and independence;
  • the COI must not be confined to the examination of the information provided by the parties, but takes all appropriate measures to obtain information that is as full and objective as possible on the questions at issue;
  • the complainants and the government concerned must designate a representative who shall remain at the disposal of the COI during the entire period of its mandate;
  • all information that comes to the notice of the COI is confidential;
  • the members of the COI, its secretariat and any person appearing before it are accorded the privileges and immunities pursuant to the 1947 Convention on the Privileges and Immunities of the Specialized Agencies;
  • the COI determines who may be present in any of its meetings, the schedule of any on-the-spot missions and whom it shall meet during such missions;
  • witnesses are designated by the parties, or invited by the COI, and make a solemn declaration “upon their honour and conscience to speak the truth, the whole truth and nothing but the truth”;
  • witnesses are heard in private sittings, may be cross-examined and the information and evidence presented is treated as fully confidential;
  • the COI may at any time address questions to witnesses and reserves the right to recall witnesses;
  • representatives of the parties may question one another; and
  • any questions of admissibility of evidence are determined by the COI itself.

In most cases, the rules for the hearing of witnesses are set out in a separate annex of the report of the COI.

The ILO Constitution requires the COI to prepare a report embodying findings on all questions of fact and containing time-bound recommendations.

A COI is duty-bound to “throw full light on the facts” (Click to read the report of the COI appointed to examine the case of Portugal, para. 15) in relation to the allegations in a complaint, including through:

  • collection of written submissions;
  • receiving evidence and cross-examining witnesses; and
  • a visit to the country concerned – if permitted by the government – and the hearing of parties.

The COI prepares a detailed report of its investigation.

The Employers’ and Workers’ groups are actively involved in deliberations within the Governing Body.

Written by adminvg59 on . Posted in Article 26, Special procedures, The Governing Body may refer the complaint to a COI.

An investigation by a COI takes up substantial resources. The decision to establish an independent COI typically takes into consideration the possibility of achieving the improved observance of ILS by other means. The Employers’ and Workers’ groups along with governments typically explore possible alternative measures before making the final decision of establishing a COI.

The government concerned may provide a statement if so requested.

Written by adminvg59 on . Posted in Article 26, Special procedures, The Governing Body may refer the complaint to a COI.

If invited by the Governing Body to provide a statement on the complaint, the government has the possibility of giving its view of the matter to the Governing Body. As a result, the Governing Body may decide that it will let the matter lie with regular supervision by the CEACR, closing the complaint without referring the matter to a COI. Click to see an example.

 

The Employers’ and Workers’ groups are actively involved in deliberations within the Governing Body.

Written by adminvg59 on . Posted in Article 26, Special procedures, The Governing Body may refer the complaint to a COI.

An investigation by a COI takes up substantial resources. The decision to establish an independent COI typically takes into consideration the possibility of achieving the improved observance of ILS by other means. The Employers’ and Workers’ groups along with governments typically explore possible alternative measures before making the final decision of establishing a COI.

The Governing Body has latitude in deciding how a complaint will be treated.

Written by adminvg59 on . Posted in Article 26, Special procedures, The Governing Body may refer the complaint to a COI.

Once the Governing Body has determined the receivability of the complaint, it may decide to communicate the complaint to the government concerned and invite it to make a statement on the subject as it may think fit. Click to see an example of a complaint which was subsequently closed.

The Governing Body may decide to form a COI consisting of independent members, tasked to carry out a full investigation on the complaint and report thereon. According to the established practice, the COI consists of three members appointed by the Governing Body at the proposal of the Director-General. Appointments are made considering their impartiality, integrity and standing. The parties play no role in the appointments. Members serve as individuals in their personal capacity.

The COI will ascertain all the facts of the case and make recommendations on measures to be taken to address the problems raised by the complaint. A COI is the highest-level investigative procedure. It is typically set up when a member State is accused of committing persistent and serious violations and has repeatedly refused to address them. In practice, the Governing Body does not automatically decide to establish a COI. To date, out of 34 complaints submitted, only 13 COI have been set up.

The question of the composition of COI is not regulated in the ILO Constitution. As a matter of practice, however, all COI so far established were composed of three members.

The members of the COI are selected among eminent personalities who serve in an individual and personal capacity. They may be judges or former judges of the International Court of Justice, members of the Permanent Court of Arbitration, former judges of higher-level national courts, professors of international law, labour law or human rights law, former senior UN officials and former senior ILO officials. They are appointed by the Governing Body upon the recommendation of the Director-General. Upon taking up their functions, they are invited by the Director-General to make a solemn declaration to “honourably, faithfully, impartially and conscientiously perform their duties and exercise their powers”. These terms correspond to those of the declaration made by the judges of the ICJ.

Seven COI established so far included at least one member of the Committee of Experts on the Application of Conventions and Recommendations. Click to see an example where all three members of the COI were serving members of the CEACR. On six occasions, COI included a judge or a former judge of the ICJ.

The Governing Body and the COI have traditionally recognized the procedure as one of a judicial nature. The first ever COI appointed by the Governing Body noted in its report: “The Governing Body in appointing the Commission placed special emphasis on the judicial nature of the task entrusted to it, indicated its desire for “an objective evaluation” of the contentions submitted by “an impartial body”, and required the members of the Commission before taking up their functions to make a solemn declaration in terms corresponding to those of the declaration made by judges of the International Court of Justice.” (Click to read the report of the COI appointed to examine the case of Portugal, para. 701). Commissions of Inquiry appointed to investigate subsequent complaints have routinely referred to “the judicial nature of the procedure provided for in article 26 and the following articles of the Constitution” (Click to read, for example, the report of the COI appointed to examine the case of Nicaragua, para. 5). In one of the most recently examined complaints, a COI noted “As earlier Commissions of Inquiry had stressed, the procedure provided for in articles 26 29 and 31 34 of the Constitution was of a judicial nature. Thus, the rules of procedure had to safeguard the right of the parties to a fair procedure as recognized in international law” (Click to read the report of the COI appointed to examine the case of Zimbabwe, para. 30).

If the Governing Body refers the complaint to a COI, a final report will be prepared by this body, in accordance with article 28 of the ILO Constitution.

The Governing Body may also decide to suspend a decision on referral pending developments.

The Governing Body treats each complaint individually, following developments with a view to progressing toward improved observance of the relevant ratified Convention(s). Click to see an example.

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.

For more information, see on the ILO website the page with publications on ILS, where resources specifically developed for employers’ organizations can be found.

 

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.

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.

  • 1
  • 2