A. Introduction

1. In accordance with article 7 of its Standing Orders, the Conference set up a Committee to consider and report on item III on its agenda: "Information and reports on the application of Conventions and Recommendations". The Committee was composed of 239 members (112 Government members, 38 Employers' members and 89 Workers' members). It also included 17 Government deputy members, 49 Employers' deputy members and 117 Workers' deputy members. (Endnote 1) In addition, 21 international non-governmental organizations were represented by observers.

2. The Committee elected its Officers as follows:

Chair: Mr. S. Gopalan (Government member, India).

Vice-Chairs: Mr. A. Wisskirchen (Employers' member, Germany), and Mr. W. Peirens (Workers' member, Belgium).

Reporter: Mr. J. van Blankenstein (Government member, Netherlands).

3. The Committee held 20 sittings.

4. In accordance with its terms of reference, the Committee considered the following: (i) information supplied under article 19 of the Constitution on the submission to the competent authorities of Conventions and Recommendations adopted by the Conference; (ii) reports supplied under articles 22 and 35 of the Constitution on the application of ratified Conventions; and (iii) reports requested by the Governing Body under article 19 of the Constitution on the Termination of Employment Convention (No. 158) and Recommendation (No. 166), 1982. (Endnote 2) By decision of the Governing Body and the Conference, the Committee was also called on to examine the report of the Sixth Ordinary Session (July 1994) of the Joint ILO-UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers.

5. As usual, the Committee began its work with a discussion of general aspects of the application of Conventions (particularly ratified Conventions) and Recommendations and the discharge by member States of standards-related obligations under the ILO Constitution. It then discussed the report of the Joint ILO-UNESCO Committee of Experts. The last part of its general discussion dealt with the General Survey made by the ILO Committee of Experts on the Application of Conventions and Recommendations, on protection against unjustified dismissal. Finally, the Committee considered various individual cases relating to the application of ratified Conventions or compliance with the obligations to supply reports and to submit Conventions and Recommendations to the competent national authorities.

6. The examination of those cases, which was the essential work of the Committee, was based principally on the observations contained in the report of the Committee of Experts and on the oral and written explanations provided by the governments concerned. The Committee also referred to its discussions in previous years, comments received from employers' or workers' organizations and, where appropriate, the reports of other ILO supervisory bodies. In view of the short time available, the Committee made a selection among the Committee of Experts' observations and thus discussed a limited number of cases. The necessity of making this selection in no way affects the conclusion of the Committee of Experts in other cases that, in view of the problems encountered, it would be appropriate to ask the governments concerned to supply information. The Committee trusts that those governments will pay close attention to the requests of the Committee of Experts and will not fail to take the measures required to ensure fulfilment of the obligations they have undertaken. A summary of the information supplied by governments, the discussions in the present Committee and any conclusions it has drawn is set out in Part Two of this report.

7. The Employers' members stated that, as in previous years, there could never be an ideal list of individual cases as long as a selection had to be made. They had the impression that certain countries regularly appeared before the Committee. Next year it would be appropriate to examine attentively how the system could be improved. However, at this point the Employers' members stated that they could agree to the adoption of the proposed list. The Workers' members indicated that the list of countries in respect of which Government members were invited to provide information to the Committee was the result of a balanced choice, which allowed for discussion of the circumstances of countries of all regions of the world, regarding different Conventions, and covering numerous points of view. The choice was determined not by the desire to draw up a "blacklist", or to treat only the most flagrant violations. The Committee should also discuss some new developments, technical Conventions, the situation in industrialized countries and cases of progress. Being on the list is not a condemnation. The Government member of the Netherlands, on behalf of several Government members, requested that in the future there be greater transparency in the process of choosing the individual cases. He considered that it would be necessary for the Committee to be quite tolerant with regard to those who were submitting information for the first time and that it would be appropriate to set out more clearly the reasons for including them on the list of cases to be examined.

B. General questions relating to international labour standards

Introduction

8. The Committee paid tribute to two distinguished members of the Committee of Experts, Judge José Maria Ruda and Judge Roberto Ago, who had died since the last session of the Conference. Judge Ruda was remembered in the present Committee particularly for attending its two previous sessions, in his capacity as Chair of the Committee of Experts, and for his contribution to improved understanding between the two bodies. Judge Ago had an extremely long and invaluable period of service in various capacities in the ILO, including as Chair of the Governing Body Committee on Freedom of Association. The members of the present Committee recorded their respect for the memory of both men, their gratitude for the contribution they had made to the standards-related work of the ILO, and their condolences with the families of each of them.

9. The Committee welcomed Sir William Douglas to its current session and congratulated him on his appointment to the Chair of the Committee of Experts. Sir William thanked the Committee, on behalf of the Committee of Experts, for the invitation extended to him to attend this session as an observer. The report of the Committee of Experts was an integral part of the whole scheme of the international supervision of standards prescribed in ILO Conventions and Recommendations. He referred to the monograph on methods of international supervision of human rights Conventions by Professor N. Valticos in which the author had emphasized that a balance should be maintained between the system of periodic reports and the complaints procedure. Both were essential in carrying out the supervisory function of the Organization. By reason of the sheer volume of reports, adjustments had to be made to how often a report was required on a specific Convention, but the intention remained to subject to periodic review the application of all Conventions, depending on their subject-matter and whether serious problems of application had arisen. By gaining a better understanding of the concerns of the Conference Committee, the level of communication between the two Committees would be raised for the benefit of the Organization which they both serve.

10. The Employers' members recalled that for various years the Experts, in their report, had been emphasizing the excellent cooperation with the Conference Committee. In this respect, they referred to paragraph 10 of the General Report which stated, amongst other things: "A spirit of mutual respect, cooperation and responsibility has consistently prevailed in the Committee's relations with the International Labour Conference and its Committee on the Application of Standards, whose proceedings the Committee takes fully into consideration, not only in respect of general matters concerning standard-setting activities and supervisory procedures, but also in respect of specific matters concerning the way in which States fulfil their standard-related obligations." However, the Employers' members noted that the Experts had about nine months to take note of the Committee's report. As a result, they did not think it was inappropriate to say that the Experts were not contradicting them as a number of their comments had not been the subject of criticism or reference. The Employers' members did not completely agree with the Workers' members' definition of the complementary role of the two Committees. They thought that, although the roles of the Committees in the supervisory system complemented each other, this however did not describe exhaustively the role of the Committee on the Application of Standards. This Committee had also its own independent role and mandate as laid down in article 7 of the Standing Orders.

11. The Workers' members emphasized that the two Committees were complementary to each other, as the Committee of Experts had demonstrated in an in-depth manner in its previous reports. By its composition and its working methods, the latter had brought a harmony and impartiality that were indispensable for the interpretation of Conventions and the evaluation of national situations. From its side, the Conference Committee, in view of its tripartite nature, ensured that the sensitivities of the parties directly concerned were taken care of. This complementarity should never fail to be underlined especially during the discussion of individual cases. Thus, the Workers' members regretted that the report of the Committee of Experts was silent with respect to the problems faced by the supervisory machinery, especially the differences of opinion concerning the respective roles of the two committees. The Experts could have contributed greatly by giving their point of view on the differences of opinion that persisted between Workers' members and Employers' members, especially regarding the right to strike.

12. The Workers' member of the United Kingdom stressed that the views of the Committee of Experts, based on the principles of objectivity, impartiality and independence, should not be treated merely as interesting observations in a wider debate, but as definitive for the formulation of the conclusions of the present Committee. He noted that the Committee of Experts had to operate under difficult circumstances during the cold war, but had always spoken courageously in favour of universal standards. It would be regrettable if the Committee of Experts were asked to renounce that role now.

13. Several Government members expressed satisfaction that any misunderstandings or differences of opinion between the present Committee and the Committee of Experts about their respective roles had been completely cleared up by paragraph 10 of the Committee of Experts' report. The Government member of the United States noted that the Conference Committee had a responsibility to continue the partnership of mutual respect, cooperation and communication that it had forged with the Committee of Experts.

International labour standards in a global context

14. The Committee considered the position of the ILO's standard setting and supervisory system taking into account the international debate on the so-called social clause and the question of human rights, and the phenomenon of "globalization".

15. The Workers' members noted that since the 75th anniversary of the ILO and the World Summit for Social Development, there had been a renewed interest in international labour standards. However, the discussions concerning the methods and procedures regarding the strengthening of the application of these instruments were often difficult. A considerable difference could be noticed in some countries between the ratification of an instrument, its application from a legal point of view, and its practical application, demonstrating an incoherent attitude on the part of these governments. International labour standards, fundamental values and the role of the ILO were discussed several times in the commitments and programme of action which were annexed to the Declaration by the Heads of State and Governments of the World Summit. Point (i) of the Third Commitment stated that the Heads of State and Governments "would pursue the goal of ensuring quality jobs, and safeguard the basic rights and interests of workers and, to that end, promote respect for relevant International Labour Organization Conventions, including those on the prohibition of forced and child labour, and freedom of association, the right to organize and bargain collectively and the principle of non-discrimination ..." . The statement also highlighted the importance of social protection, the respect and protection of all human rights and the objective of full, productive and freely chosen employment, in accordance with ILO standards. They considered that, in order to reach these goals, the ratification by all member States of at least the Conventions of fundamental importance and their full application in law and in practice were necessary. The Workers' members further recalled the final paragraphs of the last report of the Conference Committee in which it was stated that "workers' protection is the main purpose of international labour law" and the "importance of standard-setting activity in promoting development balanced in justice and freedom and inspiring social policies is still recognized". The Workers' members were convinced that the interest of governments remained in a universal and concerted approach, allowing them to exercise a political and democratic control over economic and social development so that this development was not subject to the requirements of the market forces, to speculation and to the sole interests of international and financial groups.

16. The Workers' members said that, as the World Summit of Copenhagen had pointed out, greater coherence in the objectives and in the giving of technical and financial assistance by different organizations and international institutions, especially the World Bank and the International Monetary Fund (IMF) on the one hand, and the ILO on the other, would be necessary. The Workers' members were in favour of collaborating with other international organizations in order to reinforce the application of human rights and international standards in social and employment policy. This was the case especially with the globalization of the economy. They wanted the ILO to be closely associated with the follow-up to the Social Summit in Copenhagen and hoped the Governing Body would adopt the necessary decisions in this connection, attaching greater importance to standard setting, which should remain the priority activity of the ILO. At the same time, the Workers' member of the Netherlands expressed some fears as to a gradual marginalization of the ILO within the United Nations system: the value and importance of the ILO had been consistently underestimated in the preparations for the Social Summit; tripartism, which was considered within the ILO as one of its strengths, was seen differently by other United Nations organizations; and he regretted both that the Commitments were not binding and that no key follow-up role was given to the ILO.

17. The Employers' members observed that the ILO did not only have its own instruments and procedures to supervise and to promote compliance with its rules and standards; it also was in close contact with other international and regional organizations with whose work it became involved. For example, this was the case concerning important issues of general human rights, or specific matters, such as children's rights. The Employers' member of the Netherlands commented that the Employers were willing to discuss the promotion of human rights Conventions and were not very pleased when they were told the discussion would be conducted in the context of the follow-up of the World Summit for Social Development. She was of the opinion that the promotion of human rights Conventions was within the mandate of the Governing Body Committee on Legal Issues and International Labour Standards. However, she was pleased that in November a discussion would start on that issue and promised that the Employers would submit a paper reflecting their points of view.

18. The Employers' member of Sweden stated that it was indeed important for the ILO and this Committee to draw the right conclusions from the United Nations Social Summit. Some speakers seemed to consider the outcome as something of a victory for the ILO. However, the ILO has not been given a key role and now risked to be marginalized. In fact, the adopted Declaration and Programme of Action only mentioned the ILO in one sentence, which gives the ILO the rather self-evident task to follow up within its own borders. Why this negligence towards the ILO? First, in the 100 pages adopted by the Summit, there was not the faintest hint at a social clause, in spite of trade union pressures during the two years of preparations. The great majority of governments were totally opposed. The Group of 77 even stubbornly refused to accept a recommendation to ratify the seven so-called fundamental ILO Conventions. They feared that it could be referred to as a first step towards a social clause. The final compromise was that the governments only were recommended to "strongly consider ratification". Thus the opposition of governments to a social clause became directed against the ILO and its standards. The second observation was that the United Nations Social Summit Declaration and Programme of Action proceeded from the idea that social development must be based on economic growth and that this could only be achieved through market economy, free trade, competition, entrepreneurship, private enterprises (small and big), privatization, decentralization, deregulation, more flexibility and higher productivity. There was nothing which the Employers would not be able to subscribe to. If the Social Summit policies were widely adopted, the world would have a brighter future. The authors of the United Nations Declaration, and not least the developing countries, were of course aware that the ILO, or rather the International Labour Office, as its views are reflected in the Director-General's Report and now the World Employment 1995 report, advocated nearly the opposite policies marked by negative attitudes towards market forces, privatization, decentralization, deregulation and flexibility. The outcome of the United Nations Social Summit could have been more favourable for the ILO if the Organization as a whole had had somewhat better control of the policies presented as those of the ILO.

19. The Government members of Belgium, France, Germany, Iceland (speaking on behalf of the Nordic countries), Italy, Portugal, United Kingdom and United States drew attention to the positive conclusions of the World Social Summit, particularly as regards the ILO's role in devoting special efforts to promotion of the fundamental rights including the rights of children within its mandate. The Government member of Belgium praised the recent action of the Director-General in calling on all member States to address themselves to the basic human rights Conventions.

20. The Workers' members noted that the Governing Body would continue its discussions on the social dimensions of economic growth and the globalization of the economy. They stated that the debate on the social clause was far from over, even if the discussions on sanctions had been suspended. This suspension allowed the ILO to advance in other fields such as the strengthening of the capacity of the Organization to ensure the full respect of workers' fundamental rights. They recalled that the social clause, as they perceived it, had nothing to do with protectionism. They were worried by repercussions of the changes brought about by globalization of the economy, continuing poverty and social exclusion on standards and the supervisory machinery. They considered that only the respect of fundamental rights and the application of standards could reinforce democracy and social justice, stimulate economic activities, and bring about a better distribution of the benefits of growth. They welcomed the conclusions of the Social Summit as well as the recent studies of international organizations with an economic vocation (for example, the Organization of Economic Cooperation and Development (OECD), the World Bank) which concluded along the same lines. In this context, they were favourable to both the ratification of fundamental Conventions and the reinforcement of the supervisory machinery, since the Committee of Experts and the Conference Committee too often faced an inertia which ended up by calling into question the credibility of the supervisory machinery. The Workers' members also drew attention to the fact that several countries, during the revision of their Labour Code or other legislation, invoked the need to adjust to the consequences of the globalization of the economy or structural adjustment programmes imposed by the Bretton Woods institutions in order to make their labour markets more flexible and to "deregulate". The Workers' members expressed their concern over this tendency which threatened to render meaningless national legislation as well as the impact of international standards. They invited the Committee of Experts to pay attention to these developments.

21. The Employers' members described the different elements of globalization of the economy which was a fact of life. A characteristic feature of globalization was the increased specialization of firms. This had resulted in considerable competition especially between countries themselves. The attractiveness of individual locations for investments depended of course on several factors. There was the political stability of the country to be considered. The stability of the currency was another factor as were the quality of the educational and professional training system, the infrastructure existing in a country, the level of taxation, labour costs and productivity. It was inevitable that capital and know-how were important factors in the creation of jobs. However, capital and know-how were very mobile, a tendency which had been increased by the opening up of markets and the new forms of communications technology. These new technologies had inevitably led to structural changes. If old structures were nevertheless propped up with subsidies then resources would definitely be lacking for building up more promising structures which were in line with these new technologies. All of these factors were what "globalization" was about and which could be advantageous to all concerned. Finally, the Employers' members noted that there was less discussion of the social clause than last year. They thought this appropriate because, while they did not wish to call into question the social targets that were trying to be achieved, they doubted whether such targets could in fact be reached through the social clause. Moreover, they considered that there were dangers inherent in the social clause which were rather important and which could be the cause of new forms of protectionism.

22. The Government member of the Russian Federation suggested better coordination between the ILO and other international organizations, especially in disseminating information on labour standards and human rights. The Government member of Italy recommended further consideration in the Committee of the relation between social concerns on the one hand and international trade and economic and financial policies on the other. She pointed to the need for clearer relationships between the different international organizations concerned and called in particular for improved contacts between the ILO and the Bretton Woods institutions, given the importance of tripartism and the ILO's standards for economic and social development. The Government member of the United Kingdom also encouraged the ILO to link its technical cooperation activities more closely with those of the Bretton Woods institutions. The Government member of the United States said that the ILO had a critical role to play in ensuring that economic growth and expansion of international trade were accompanied by social justice and the implementation of fundamental labour standards.

23. The Workers' member of Zimbabwe observed that the structural adjustment programmes imposed on African countries by the IMF and the World Bank had caused the disintegration of African society, at a time when those countries especially needed to observe international labour standards in order to address their social problems and strengthen both their democracies and their economies. The Workers' member of Zaire said that his union had recommended to his Government the rejection of any structural adjustment programme that was contrary to workers' interests, since it was up to the country to determine its own objectives. The Workers' member of New Zealand supported a continuing examination of the relationship between trade and human rights: the ILO should work with the IMF and the World Bank to promote social justice and the basic Conventions, but the nature of the global economy demanded honest reconsideration of what incentives might be necessary to ensure the respect of basic human rights, including the right to form free trade unions and bargain collectively, the right to safe and healthy working conditions and the rights of children subjected to bonded and forced labour. The ILO should in particular recognize the urgency of the plight of indigenous peoples, the United Nations General Assembly having declared 1994 to 2004 the International Decade of the World's Indigenous People, and the Committee should respond accordingly.

24. As regards the European Union, the Workers' members noted that the Economic and Social Committee had underlined, in an important document, the respect for tripartism and the need to ratify Conventions, including those on occupational safety and health, and working and rest time in road transport. With the consolidation of European directives in this domain, the Workers' members thought member States should be in a position to ratify the corresponding Conventions. In this respect, the Government member of Italy noted that the ILO's standards were an inspiration for the European Union; and, whilst the Government member of Germany pointed out that there were difficult questions of competence involved, the Workers' member of the Netherlands considered that these should not be raised as a pretext for not ratifying the Conventions.

25. The Government member of Iceland (speaking on behalf of the Nordic countries) remarked that ILO standards had been included intact or slightly amended in various international and regional arrangements, and he encouraged the ILO to participate fully in the supervisory work involved. In this sense, the European Social Charter had recently been revised in line with international labour standards. The Workers' member of Germany asked the governments concerned to ensure formal adoption and ratification of the revised European Social Charter.

Questions concerning the application of particular Conventions

Economic and social policy issues arising especially in relation to the Employment Policy Convention, 1964 (No. 122)

26. The Employers' members reaffirmed what they had stated in detail in 1994, i.e., that an improvement in the employment situation was a central, indeed a vital, task of all those responsible in politics, economics and social affairs, and required a common strategy in which governments, employers and trade unions had to be involved together. However, in paragraph 63 of their report, the Experts criticized the extension of employment relations which they considered to be precarious. Without giving a general definition of precarious, it was clear that the Experts were referring to working relations or contracts which were limited in time. While the Employers' members also wanted it to be possible to employ more people as a result of economic growth, costs and other problems entailed by unavoidable staff adjustments could not be forgotten about. The desired employment dynamics were often held up by institutional barriers and regulations in the labour market system, and also in labour and social law. This had to be overcome. A number of other forms of employment were also being denounced as precarious. However, the Employers' members considered that new forms of employment were the expression of initiative and mobility and would bring about further developments in a modern, working society which would otherwise stagnate if things were to become fixed in a traditional sense. This was why, in a majority of member States, there were rules for employment contracts of a limited duration. In this respect, an employment policy was most decisive when those who were seeking jobs had no chance of actually obtaining a job and were not given an opportunity to prove their worth. However, when these workers had the necessary ability, employers had to have the possibility of recruiting them without entering immediately into long-term financial obligations. Therefore, a period of probation was something that could eventually integrate temporary workers into an enterprise. Thus, work contracts which were limited in time, part-time contracts or various other forms of employment were certainly not in contradiction with the idea of a progressive integration of young trainees. In fact, these different forms of employment had led to positive experiences for employers.

27. The Employers' members noted that, while the Experts had stated in paragraph 62 of their report that their general comments on employment policy were only to be made in December 1995, they also referred in very general terms in paragraph 64 to their report to World Employment 1995 and in this year's Report submitted by the Director-General to the Conference and entitled The promotion of employment. The Employers' members had considerable reservations on some of the statements made in these reports and also the way in which the World Employment 1995 report was produced. First of all, as far as the World Employment 1995 report was concerned, the Employers' members pointed out, as they had in the Governing Body, that this report was not produced in a way that corresponded with the tripartite nature of the Organization. Regarding the substantive issues, they agreed with the positive evaluation made in the report of globalization trends and with the assumed positive effects of foreign direct investment. For instance, this applied to developing countries. They also thought it was correct to mention the necessity for greater flexibility when it came to the duration and distribution of working time. However, they did not at all share the support for regulated labour markets which they saw throughout these reports. There was still too much faith in state intervention and subsidies. The clearly contradictory experience of the last few decades was simply not given sufficient attention and there was also insufficient differentiation between structural and cyclical unemployment. The Employers' members also considered that the excessive protection from dismissal, mentioned in paragraph 64 of the Committee of Experts' report, might be misunderstood, whereas other factors such as a very efficient educational system and a worthwhile training system are forgotten about. They felt that comments of this kind were inappropriate and disagreed with them.

28. The Employers' member of Argentina thought the development of flexibility did not reflect the destruction of the right to work, but rather the adaptation to new economic and social realities that are not always compatible with lifetime labour contracts. The Committee of Experts was pleased that the World Employment 1995 report underlined that deregulation did not have the effects on the level of employment that had been assumed. Unemployment in Latin America and Eastern Europe was not the consequence of adjustments, but was the necessary consequence of the crisis caused by excessive state employment (which amounted to a hidden subsidy) and of closed economic models. Nevertheless, without such adjustments the levels of unemployment would not only increase but explode. Deregulation or, rather, adequate regulation, was a consequence of the adaptation to reality. For example, temporary work was a form of entry into the labour market and was not "precarious". If a realistic focus was not adopted or measures taken to adapt the labour market, the situation would worsen and the levels of unemployment and irregular work would increase.

29. The Workers' members observed that, although the Committee of Experts did not this year make general comments concerning the application of Convention No. 122 on Employment Policy, 1964, it still dealt in its report with the fundamental question of the relation between employment and the regulation of work. The Committee of Experts underlined the importance of workers' rights for making social progress. This conclusion can also be found in its General Survey on termination of employment, in the Report of the Director-General on the promotion of employment, in the ILO's World Employment 1995 report, and in the work by the International Institute of Labour Studies regarding the role of labour standards in industrial restructuring. The Declaration by the Heads of State and Governments at the Social Summit also connected full employment to the respect of ILO standards. The standards on security of employment benefit the good functioning of enterprises, the economy and society as a whole. Security of employment encourages the enterprises to invest in the training of workers and to improve their capacity for innovation and adaptation, thus enabling the workers to be better involved in the development of the enterprises. On the contrary, the proliferation of new forms of temporary contracts, subcontracting or self-employment tended to exclude an important portion of workers from the protection offered by contracts without the limit of time and from protection against dismissal. These would have the consequence of aggravating the risks of social exclusion and poverty which the Social Summit precisely wished to fight against. It was appropriate to recall the negative consequences of liberalism pushed to the extreme. If the Employers did not see a worrying development in new sorts of employment contracts, such as temporary contracts, and if a social regulation of this type of work contract was conceivable, it was appropriate to point out that in practice the temporary workers in several countries were not covered by labour legislation. The Director-General had underlined in his Report on the promotion of employment that the advantages of a judicious regulation of the labour market were often underestimated. Thus employment security motivated enterprises to ensure that workers were trained as much as it encouraged the latter to improve their qualifications. One could not expect workers to be experienced in several fields and then to leave when demand or profits decreased. As the Director-General had pointed out, deregulation which had been adopted to ensure a greater labour market flexibility threatened to aggravate inequalities and poverty, which is what the Social Summit wished to combat.

30. Several Workers' members spoke of the negative impact on employment of recent "neo-liberal" economic changes. The Workers' member of Spain noted that such policies had been unable to make unemployment decrease and had instead raised levels of precarious employment: this meant that workers were more and more lacking in experience and training, which results not only in poorer quality and uncompetitivity of the goods produced but moreover in higher levels of occupational accidents - as, for example, in Spain. The Workers' members of Egypt, the Republic of Korea and the United Kingdom also referred to the harm caused by deregulation not only in terms of unemployment and security of employment but also as regards wages, protection of trade union activities and criminality. The Workers' member of Singapore said that the economic changes should not only benefit employers, which would in any event be a short-sighted policy: vigorous tripartite consultations would certainly help to minimize hardship. The Workers' member of Pakistan supported the role of the ILO described in the World Employment 1995 report: labour was not a commodity, and an appropriate social safety net must be provided. The Workers' member of China called for concentration on economic development as the means to address unemployment and expressed Chinese unions' willingness to cooperate with unions worldwide to safeguard the interests of workers. The Workers' member of Zaire noted that the informal sector may provide employment for many workers. The Workers' member of Turkey observed that in the absence of a formal employment relationship - which is the basis for most national and international labour standards - informal sector, "pseudo-self-employment", clandestine and "black" employment, as well as much of what is presented as "flexible working arrangements" might be used to evade protective provisions. The Workers' member of Argentina said that in Latin America, precarious employment went hand in hand with structural adjustment policies, the cost being borne by the workers.

31. The Government members of India and Kenya stressed the need to promote the employability of workers through improved education and training. Employee protection standards, in the view of the former, should not demand too much from enterprises, and national provisions were in fact often more rigid than ILO Conventions. The Government member of Germany understood the Employers' members' reservations as to the notion of precariousness, but did not share their criticism of paragraph 64 of the Committee of Experts' report as regards employment promotion: he warned against the "fetish" of deregulation.

Paid Educational Leave Convention, 1974 (No. 140)

32. The Workers' members raised the Committee of Experts' comments on this Convention also in the context of employment policy. Those comments showed how stability and flexibility were interdependent. The indication that paid educational leave had been used more for the purpose of education in the wider sense than vocational training should be noted: the same view had been expressed by the Workers' members during the discussion of the General Survey in 1991.

33. The Employers' members noted that the Experts referred to four ratifications that had taken place over the last three years. However, the global number of ratifications had only reached the level of 28. The Employers' members considered that there was still a considerable number of problems concerning the practical application of this Convention. Although economic development in the future would require more properly trained workers, the considerable resources for comprehensive retraining could only be borne by a prospering economy. Moreover, demands for paid training leave were very often confronted with a lack of understanding and were not realistic. In addition, in the more developed States workers were entitled to more leisure time which could be used for further training.

Conventions concerning migrant workers

34. The Employers' members referred to the part of the Committee of Experts' report concerning standards that were applicable to migrant workers, particularly the Migration for Employment Convention (Revised), 1949 (No. 97), and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143). The Experts had reported an increase in the number of migrant workers, particularly in the countries of South-East Asia and especially as concerned domestic migrant workers. The Experts had listed the difficulties of the situation of migrant workers whom these Conventions were designed to protect. However, the number of States that were bound by these Conventions had not particularly increased. Convention No. 97 had been ratified by 40 States and Convention No. 143 by only 17 States. While there could be no doubt that there were problems in the situation of migrant workers, they were partly also the consequence of economic crises and destitution. These could not just be dealt with by standards, however well they were formulated. In fact, what was needed was a real economic policy which could bring about economic growth and create jobs. In this respect, the application of the Employment Policy Convention, 1964 (No. 122), played an important role.

35. The Workers' members fully shared the concerns of the Committee of Experts as regards the situation of migrant workers. The Committee of Experts first noted the increase in the migratory flows within South-East Asia as well as the persistence of migration toward the Middle East. Most of the receiving countries in these regions have ratified neither Convention No. 97 nor Convention No. 143. One could note at each session of this Committee the difficulties of working conditions and of life for migrant workers, as regards the restrictions on their freedom of association - if it was not completely denied - the insufficient protection of their wages, their working conditions, the discrimination against them, the unfair practices inflicted by employment agencies, or inhumane working conditions of migrant workers on board ships flying flags of convenience. The problems raised for many years in the application of the Equality of Treatment (Social Security) Convention, 1962 (No. 118), should also be highlighted. Governments should be urged to respect international labour standards concerning migrant workers and to make them respected by employers. The situation of domestic workers was particularly hard, especially when they were victims of a network of clandestine labour. The police and the courts of the receiving countries had the tendency to chase them rather than their employers and the networks of clandestine labour, who take advantage of their situation. The Committee of Experts also stressed that practices of massive expulsions were not in conformity with the Migration for Employment Recommendation (Revised), 1949 (No. 86) or the Conventions on basic rights relevant to migrant workers. Migratory flows could not be controlled without the full respect of human rights and consultation of employers' and workers' organizations. It was indispensable to listen to the appeal of the Committee of Experts to examine the ratification of Conventions concerning migrant workers. The ILO and other international organizations should be encouraged to continue their action of sensitization in this field and the debate should remain on the agenda.

36. The Employers' member of Turkey particularly pointed to the international instruments and resolutions adopted with regard to human rights, labour law, social security, education, and the cultural and health rights of migrant workers. He drew attention to the invitation from the Committee of Experts to governments to examine periodically the possibility of ratifying these two instruments. The protection of migrant workers against discrimination would not be guaranteed by legislation on the equality of opportunity and treatment alone. He called for international solidarity and frank and loyal cooperation between countries of emigration and countries of immigration in order to solve the root causes of migration. These actions should be based on economic, social and humanitarian considerations and should be carried out taking into account employment goals and in the context of Third World development aid. Ending illegal immigration for employment required international cooperation, as well as the protection of illegal migrant workers, in particular to ensure respect for fundamental rights and rights which form part of the employment relation, as migrants are often forced to accept clandestine work in conditions which would exploit them, as is the case with household migrant workers. It would be preferable to encourage the movement of capital and technology rather than that of workers, which would contribute to the improvement of the global employment situation.

37. The Workers' member of New Zealand supported the statement of the Employers' member of Turkey on the basic human rights of migrant workers even if they were illegal: migrant workers were especially vulnerable victims of the present economic environment. The Workers' member of the Republic of Korea described the labour shortage in countries such as his own, which had sucked in sometimes illegal foreign workers to do the most dangerous, dirty and demanding jobs, creating a potentially divided workforce: he too supported the commitment in Article 1 of Convention No. 143 to the respect of basic human rights for all migrant workers, regardless of their situation.

38. The Government member of Egypt agreed that there should be some means of guaranteeing wages and other rights to migrant workers, whilst the Government member of India recalled the need to create employment for workers preferably where they live. The Government member of the Russian Federation called for cooperation between the ILO and the United Nations High Commission for Refugees (UNHCR), the migrant workers question being related to the question of refugees.

Conventions concerning child labour and minimum age for employment

39. Both the Employers' and the Workers' members referred to the important issues of human rights in general and children's rights in particular, and the ILO's mandate to pursue its activities in this area.

40. The Government member of Kenya agreed with the Committee of Experts' call on States to ratify the Minimum Age Convention, 1973 (No. 138): he expressed his Government's sincere appreciation to the ILO and the Governments of Germany and Spain in particular for the International Programme on the Elimination of Child Labour (IPEC) and urged countries with child labour problems to seek the ILO's assistance. The Workers' member of Singapore also endorsed the ILO's technical assistance activities in this regard. The Government member of the Belgium welcomed the continuing cooperation between the ILO and the United Nations Committee on the Rights of the Child.

41. The Workers' members of India and Pakistan underlined the need to devote greater resources to children's education. The former also considered that for historical reasons more time may be required to eradicate child labour: millions of children are involved, and in his country the Government was working with unions and employers to see that it was gradually eliminated.

42. The Government member of the United Kingdom questioned whether there was currently an adequate instrument to deal with child labour. Any difficulties in this area tended to be examined under the Forced Labour Convention, 1930 (No. 29). Convention No. 138 was not a suitable instrument to use for the investigation of this complex issue, as it had a very low ratification rate in comparison with other fundamental Conventions and clearly did not meet the needs of member States. It was flawed because it was not directly concerned with the exploitation of child labour. The speaker suggested something more focused, that took the form of a new promotional Convention or a radical revision of Convention No. 138.

Conventions relating to seafarers and offshore work

43. The Workers' member of Argentina regretted that the Committee of Experts' report contained no reference to work on offshore installations, as it had done previously. On the other hand, he welcomed the fact that it had addressed comments to more than 20 countries regarding seafarers or the fishing industry.

Standard-setting policy: Revision of standards

44. The Employers' members considered that there was a need for changes to be made in the standard-setting procedures. This was demonstrated by the fact that the average ratification rate per country had been decreasing for several years. The Conventions that had been adopted over the last 15 years had been ratified by only about 7.5 per cent of member States. So even revised versions of existing Conventions had only been ratified to a small extent. They therefore believed that it was time to take specific steps on the basis of the results of the discussion on reforms. Obsolete standards, of which there were many, should be rendered null and void. New standards should be elaborated in the future only when it became indispensable in the light of the already voluminous list of standards. The emphasis had to be the revision of older Conventions that had now become outdated. The revised standards had to be drawn up taking into account the different levels of development, legal traditions and cultures of ILO member States and consequently it was necessary to forego complex and over-detailed provisions. Their contents needed to be very clearly worded in order to avoid any future interpretations which would extend the scope of these Conventions.

45. The Employers' member of the Netherlands (who also speaks for the Employers' group in the Governing Body Committee on Legal Issues and International Labour Standards) said the Employers were willing to discuss the subject with an open mind and thought consensus was within reach. She emphasized the need to set criteria when talking about the revision or creation of standards. Standards should above all be universal, applicable to all countries, and not of such a high standard that most member countries would not be able to implement them. Rigidity, complexity, and ambiguity in the texts should all be avoided. She described her surprise whenever she heard governments express the need to revise Conventions because they are not good: after all, they are adopted by the Conference and there are very rare occasions when governments do not vote in favour, even when they know in advance that they are not going to ratify. She believed that a vote to adopt at the Conference, although it does not impose a legal obligation on governments, clearly places a moral obligation on governments. The speaker referred to the "Sir John Forbes Watson list" (containing information, in particular, on the numbers of Conventions ratified by each Member and the numbers which governments had voted for on their adoption by the Conference but not subsequently ratified) and thought that this list should be revived. Furthermore, governments were not always careful before ratifying to make sure that application of the Convention was possible. Governments should not just ratify for the sake of ratification, but they should ask for advice beforehand, in particular from the Office, to see if their national legislation is in compliance. She referred to the Working Party set up by the Governing Body with a carefully drafted mandate laid down in paragraph 52 of document GB.262/9/2.

46. The Employers' member of Sweden emphasized the urgent need for a revision of ILO Conventions. One example concerned the Employment Injury Benefits Convention, 1964 (No. 121), which has placed the ILO in the centre of Swedish politics. This Convention allows a country to have up to three waiting days for the payment of benefits, but only to the extent that the country had waiting days at the time of ratification. Unfortunately Sweden had no waiting day when it ratified this Convention. Because of Sweden's extremely serious economic crisis the previous Government introduced one single waiting day in the sickness insurance which also covers injury indemnities. After complaints by the Swedish unions, the Committee of Experts found that Sweden seriously violated Convention No. 121. The Committee's report expressed satisfaction that the new Government will abolish the waiting day from 1 January 1997. It should be informed, however, that the new Government afterwards has changed its first decision. The waiting day will be preserved in Sweden, which will continue to violate this Convention until Sweden has the possibility to denounce it in four or five years. Rigid and detailed provisions of this kind are detrimental not only to member countries, but also to the reputation of the ILO, which should be well aware of its responsibility to point out such possible difficulties to new member countries.

47. The Workers' members recalled the discussions in the Governing Body on the strengthening and the updating of the supervisory machinery, the promotion of standards and the possible updating of some of them. For the March-April session of the Governing Body, the Office had prepared a document in which it analysed at length the trends of ratification and the policies followed in the field of the revision of standards. This document showed that the rate of ratification of instruments classified by the Ventejol report (1987) as standards requiring priority promotion was slower than expected. General surveys published recently showed, however, that these standards, which defined basic principles, left countries with considerable room for manoeuvre and took account of the differences between countries, thus offering real ratification prospects, to the extent that there was a political will. It was indispensable to take account of the following criteria for the revision of a Convention: the existence of a climate of confidence between the groups; the revision should not serve to weaken or suppress the protection of workers; the revision should be based on an in-depth study; a consensus should emerge on the serious problems that ratification could bring about in a certain number of countries and that the supervisory bodies could not resolve; the emergence of a new situation on the economic and social levels. An objective approach and a climate of confidence were absolutely necessary. Furthermore, they considered that the attitude of the Employers' members in this respect was more objective and realistic than that of certain governments.

48. The Workers' member of Canada (who also speaks for the Workers' group in the Governing Body Committee on Legal Issues and International Labour Standards) referred to the report presented last March to the Governing Body Committee and emphasized the difficult question of evaluation with regard to updating some standards and elaborating new ones in an Organization with more than 170 member States. The report of the Committee concluded that an evaluation can be made only on a case-by-case basis through an in-depth examination of each Convention or Recommendation, and that no general criteria can be established for this purpose. With regard to the ratification of Conventions, the same report stated that the revising Conventions had, on the whole, been less widely ratified than the initial Conventions, and in some cases initial Conventions continued to receive more ratifications than the revising ones, which clearly showed that the content of a Convention should not supersede the lack of political will either to ratify Conventions or to implement them. Taking the example of federal Canada, where 13 governments have to agree in order for a Convention to be ratified, many elements having nothing to do with the content of the Conventions interfere in the process. There were various other reasons why governments did not take the steps necessary to create a better world for the human race, to help women in particular, to eliminate poverty, or simply to implement Conventions. However, no compromise should be made in the content of the ILO's Conventions, which should address the real situation of workers who often have no standards to protect them. He welcomed the fact that the Working Party established by the Governing Body had agreed to look at the recommendations included in the report, which meant looking into the whole issue of the revision of Conventions.

49. The Workers' member of Tunisia considered that the call for the revision of standards was inspired above all by the desire to dilute the effectiveness of these instruments: this procedure was aimed at ensuring flexibility in the implementation of these Conventions, which would result in the setting up of societies based on the new world economic order. The Workers' members of Singapore and Zimbabwe stressed that revision should be aimed at strengthening the effectiveness of standards and the protection offered to workers, while addressing some of the concerns of practicality and relevancy which had been raised: it should not result in the erosion of the substance or impact of a standard so as to render it meaningless.

50. The Government member of Egypt said there was a need to review certain Conventions in order to adapt to contemporary developments throughout the world and to make sure that Conventions are more modern, more appropriate and easier to apply from the point of view of member States, so as to achieve what the Director-General mentioned in his Report, that is, a new feeling of vigour, a new breath of life with regard to the ratification of Conventions. The Government member of Kenya believed that future standards should be so designed as to encourage countries at different stages of development to ratify them: flexibility was lacking even in such revised standards as the Plantations Convention, 1958 (No. 110), with its Protocol of 1982. The Government member of Portugal called for greater participation by member States in standard setting, as regards selection of topics and replies to Office questionnaires, so as to ensure standards are sufficiently universal and flexible. The Government member of China underlined the value of a tripartite approach to standard setting, as well as the need to take account of regional differences and levels of economic development. The Government member of France favoured further consideration not only of the revision question but of all aspects of standards in the future: the Governing Body Working Party should be both moderate and daring in its proposals; the positions of the three groups would not converge spontaneously. The Government member of the United Kingdom proposed an early critical examination of the key Conventions, to confirm whether they could be regarded as embodiments of human rights, universal in scope and acceptable to a large proportion of the membership; there should also be an audit of all existing instruments to see whether Conventions could be consolidated and identify candidates for revision or ones which were obsolete, taking account of levels of ratification and over-complexity.

Ratifications and denunciations

51. The Employers' members observed that genuine difficulties in connection with revision of Conventions were manifested by ratification levels. However, it was not just the global overall figures that should be looked at. These did not give a very realistic picture of the situation since the number of Members of this Organization had increased dramatically in the last few years. It was necessary to establish a link between the rate of ratification and the individual member States and the individual Conventions with regard to the figures expressed as global figures or as a percentage; then this would give a completely different, rather negative picture. They also agreed with the Workers' members that there was a growing number of representations and complaints submitted to the ILO which was indicative of the difficulties in applying ratified Conventions. With reference to paragraphs 15 and following of the Experts' report regarding ratifications and denunciations, the Employers' members were of the view that ratification and denunciation did not formally require any detailed indication of grounds. However, it was opportune for a government to mention as a rule the most important reasons for a denunciation, since in this way one could gain useful knowledge for the future. This appeared to be the case concerning the declaration of the United Kingdom in relation to a denunciation of the Minimum Wage-Fixing Machinery (Agriculture) Convention, 1951 (No. 99), and the Holidays with Pay (Agriculture) Convention, 1952 (No. 101). As indicated in paragraph 17 of the Experts' report, the Government of the United Kingdom believed that the requirements of the Conventions restricted its scope for action in the field of agriculture. The Employers' members considered that the denunciation procedure of ten years was too restrictive since member States sometimes denounced a Convention as a precaution, although these member States had not necessarily set up a time-schedule to draw up their own regulations in the matter. The long cycle of ten years, therefore, often obliged member States to have recourse to this procedure while it was open. As a result, the Employers' members believed the standard denunciation period of ten years should be reduced to five years, since this would bring about the necessary flexibility. The Employers' member of the Netherlands considered that human rights Conventions should continue to be denounceable only every ten years.

52. The Workers' members noted that the number of ratifications had increased during the course of the last two years and averaged over 100 per year since 1955. This illustrated concretely and directly the support of member States and organizations of workers and employers for ILO principles and values. They nevertheless deplored the fact that a large number of countries had not yet ratified the fundamental Conventions. The Conference Committee and the Committee of Experts had launched an appeal during the last session to each country to ratify at least the Conventions on fundamental rights. The Social Summit reached similar conclusions. However, considerable differences appeared between regions of the world with respect to the rate of ratification and, in the follow-up to the 75th anniversary of the ILO and the Social Summit, governments were invited to ratify a larger number of these instruments and to apply them in practice. The Workers' members noted that the total number of "pure" denunciations, that is to say, without ratification of a revising Convention, were actually rather limited, after a wave of denunciations of the Night Work (Women) Convention (Revised), 1948 (No. 89). Tripartism, as exemplified in the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), required an in-depth consultation of employers' and workers' organizations before deciding upon a denunciation. The Workers' members considered furthermore that a government which denounced a Convention without ratifying a revising Convention should provide information to the Conference. In this respect they considered that the arguments presented by the Government of the United Kingdom as grounds for denunciation were not convincing. Convention No. 101 enumerated in very flexible terms the principles concerning minimum paid leave in agriculture; the minimum length of service required and the duration of annual leave were only specified in the accompanying Recommendation. And Convention No. 99 defined in loose terms the principles concerning the methods of fixing minimum wages in agriculture. In this perspective, the explanations given by the Government of the United Kingdom in Part II of the Committee of Experts' report seemed even less well founded. The Workers' members considered that the attitude of the Government of the United Kingdom risked contravening the fundamental values of the ILO. The Workers' member of Singapore pointed out that a ten-year denunciation period ensured a certain stability.

53. The Government member of the United Kingdom said that when modern legislation might be introduced resulting in a Convention no longer being observed it was right for governments, after consultation, to denounce; the existing procedure was too inflexible, since Conventions could become prejudicial to the State's interests, and all restrictions on denunciation should be swept away. The Government member of Germany was against having a Conference discussion in cases of denunciation.

54. The Government member of India noted that inability to ratify did not mean a government did not intend to deal with the concerns of a Convention: the problem was often one of enforcement; unless the level of workers' organization and collective bargaining were taken into account it would not be possible for the supervisory bodies to assess the intent of member States.

The supervisory system

55. Several members of the Committee (the Government members of Iceland (speaking on behalf of the Nordic countries), Kenya and the Russian Federation and the Workers' member of Tunisia) stressed the importance of the ILO allocating adequate resources for international labour standards and human rights activities.

56. The Workers' members recalled that the reform of the supervisory machinery and especially the new provisions concerning the procedures for requests of reports on ratified Conventions were discussed at length during previous sessions. The new machinery was to enter into force next year and the Workers' members would monitor the way in which it was applied. This year, the Committee of Experts had indicated that incomplete reports had been submitted, in spite of an increase in the number of reports received. The Workers' members recalled that it was possible, where there were serious problems, to ask for reports outside the normal reporting cycle in order to examine cases during the Conference. The Committee of Experts was often led to use this possibility. The Workers' members considered that the cases of progress noted showed that the supervisory machinery had a real impact for workers. These cases of progress seemed to be relatively constant even if the report showed a certain decrease: 32 countries and 44 cases in 1993, 30 countries and 42 cases in 1994 as opposed to only 22 countries and 36 cases for this session. The Workers also remained vigilant with respect to the purely formal cases of progress which did not have any real impact in practice. The 2,070 cases of progress which were recorded illustrated that, even in the absence of a binding force, some countries finally adapted their legislation and practice. The close involvement of organizations of employers and of workers contributed a good deal to this success. The accumulated effects of technical assistance, the perseverance of the supervisory bodies and of tripartite dialogue thus led to positive results. The Workers' members nevertheless considered that the supervisory machinery should be reinforced. Very often the Committee of Experts, the Conference Committee and the Committee on Freedom of Association were forced to reiterate constantly their observations or conclusions, and this negative attitude on the part of certain countries weakened the authority of the supervisory bodies. It was inadmissible that the interests of workers and their organizations be harmed during an entire generation. When neither dialogue nor persuasion worked, the social clause should be applied to guarantee the actual respect of the principles of dialogue, collaboration, assistance and social justice.

57. The Employers' members were very concerned about the large number of shortcomings by member States in meeting reporting obligations. For instance, 43 governments had not fulfilled their obligation to report on ratified Conventions and overall there were 337 cases where no reply was given to direct requests for observations. They considered that this was a challenge for the supervisory system as a whole, and hoped that the modified reporting system would facilitate the situation for member States.

58. The Workers' member of the Netherlands remarked on a certain lack of continuity as regards the examination of cases by the supervisory bodies: some cases discussed previously in the Conference Committee did not appear in the Committee of Experts' report. The Workers' member of Tunisia considered that the Committee of Experts' report was too lenient and ambiguous in some cases when it came to violation of Conventions.

59. The Government member of Iceland (speaking on behalf of the Nordic countries) thought that governments should be involved in the selection of cases for examination in the present Committee; he noted also that an increasing number of Government members of the Committee now took part in the discussions of individual cases. The Government member of the United Kingdom stated that, if the work of the Committee was to be truly tripartite, the selection of cases should be more transparent and tripartite, according to clear criteria.

60. As regards obligations to report on ratified Conventions, the Workers' member of Japan emphasized that in the streamlined arrangements with a more selective approach, sight of the basic objectives of supervision should not be lost: there should be no greater flexibility in application, only in the formulation of standards. The Workers' member of the Netherlands observed that, while the preparation of first reports might not be easy, reporting in general was not so complicated, especially for governments of industrialized countries with access to modern information technology: in these conditions, poor reporting reflected lack of interest, and the new reporting system might not be a solution if this were true.

61. The Government member of France saw in the numbers of reports not received and the insufficiency of others - as well as in what he considered a small increase in numbers of ratifications - a slow decline of the system of standards. The Government member of the United Kingdom thought the changes in the reporting system overdue and felt they should be evaluated in a couple of years. On the other hand, the Government member of Germany noticed a slight improvement in reporting over the last two years. The Government members of Bangladesh and India stated that failure to report was not necessarily wilful, but was often due to real administrative and political difficulties, with various government agencies, as well as employers' and workers' organizations, involved in policy decisions: this was, as the former remarked, particularly the case in respect of the obligation to report on submission of Conventions and Recommendations adopted by the Conference to the national competent authorities. The Government members of Kenya and Portugal recommended recourse to the Office, which offers technical assistance to member States experiencing problems in fulfilling their reporting obligations.

62. The Government member of Portugal pointed out the usefulness of general surveys under article 19 of the Constitution as a means of evaluating the application of Conventions and Recommendations. The Government member of the United Kingdom thought there should be a "rolling review" of human rights instruments by this means. The Employers' member of the Netherlands said that general surveys could be used to obtain an idea of what might be included in future standard setting.

Role of employers' and workers' organizations

63. The Employers' members noted that all governments had sent in their reports to the ILO after consultation with employers' and workers' organizations. There had also been new progress achieved in this field; moreover, this year's report also showed that both social partners were fully involved in the ILO's work. This was reflected through the submission to the ILO of the largest number of comments by employers' and workers' organizations. Referring to paragraphs 20 and following of the Experts' report concerning the complaint, representation and other procedures available under the ILO Constitution, the Employers' members felt that considerable use was now being made of all the opportunities afforded under the Constitution.

64. The Workers' members welcomed the fact that certain Government members had underlined the importance of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). As indicated in paragraphs 20-40 and 78-83 of the report of the Committee of Experts, the numbers of observations, complaints and representations of workers' organizations were increasing, which, on the one hand, reflected the interest of workers and their organizations in standards, but, on the other hand, illustrated the extent of the problems with respect to application. The importance of the number of complaints, representations and observations proved that the system was working and close to the realities of the field. The Workers' member of Pakistan hoped the principles of tripartism and Convention No. 144 would be fully applied at the national level as well.

Sanctions

65. The Employers' members stated that, with respect to the Experts' request for the enforcement of sanctions in the event of non-compliance with obligations under the Conventions, they felt that such sanctions were a possibility for ensuring such compliance. However, there was an obligation to establish a sanction only if it was explicitly mentioned in a Convention and this was seldom the case. In the majority of cases the enforcement of sanctions was a domestic affair and not an international one. The Government member of Germany supported this position, whilst observing that an obligation to lay down sanctions could be included in a Convention.

Standards and technical cooperation

66. The Employers' members noted that, with respect to technical assistance in the field of standards, the Experts had listed the various measures that had been adopted by the ILO in order to acquaint member States with existing standards. The multidisciplinary teams (MDTs) were an example of such a measure and they were supposed to work in a more integrated form. The Employers' members welcomed this measure last year. They hoped that the MDTs would provide a better feedback for an improved and more realistic preparation of standard-setting activities. The work of these teams would bring about greater knowledge of the practical problems in the field and the rapid changes that were taking place in the day-to-day world of work. They hoped that this new knowledge would be fully taken into account.

67. The Workers' members considered that technical assistance in the field of standards was an important instrument and suggested using it regularly in individual cases. They deplored the fact, however, that certain countries had recourse to this solution as a manoeuvre. A constructive attitude on the part of governments vis-à-vis the ILO and organizations of workers and employers was an essential condition. It was within this framework that tripartite consultations had to take place at the national level. The Workers' members welcomed the establishment of multidisciplinary teams including standards specialists. They insisted however that this new system also worked in the interests of workers' organizations. The effectiveness of the supervisory machinery depended to a large extent on the ability of organizations of workers to have recourse to it. The changing in the procedures for requesting reports reinforced their role. The number of observations from organizations of workers and employers was increasing each year. The Office should support efforts to inform and assist organizations of workers, especially in the form of seminars. The Workers' members also suggested organizing a seminar on standards for new members of the present Committee. The representative of the Secretary-General stated that this would be done next year.

68. The Government members of China and Saudi Arabia drew attention especially to the need for technical assistance in relation to labour legislation, in order to make the implementation and ratification of ILO Conventions possible. The former wished the role of international labour standards to be strengthened in this respect, and referred to his own country's experience as regards workshops and seminars at the provincial and national levels, particularly on occupational safety and health.

69. The Government member of Egypt and the Workers' member of Argentina called for the strengthening of all multidisciplinary teams by the inclusion of a standards specialist.

70. The Workers' member of Pakistan stated the need for technical assistance to translate international labour standards into national languages. The Workers' member of Italy pointed out that economic and financial assistance were also wanted. And the Workers' member of New Zealand noted that some industrialized countries would benefit from technical assistance to ensure that economic growth is translated into social development.

C. Report of the Sixth Ordinary Session of the Joint ILO-UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers

71. The representative of the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO) explained that the report of the Joint Committee (CEART) had drawn its conclusions not from a questionnaire methodology like the previous ones, but from a series of activities using an integrated approach, with the intention of making a normative instrument better known and applied. In conducting four subregional activities, the ILO and UNESCO had brought together representatives of governments, teachers' unions and the private sector to examine the 1966 Recommendation within the socio-economic and cultural context of the countries concerned. UNESCO had also adopted a tripartite methodology in examining certain aspects of the Recommendation of concern to it through 16 national case-studies. The validity of the 1966 Recommendation was examined by CEART at the request of the Executive Board and the General Conference of UNESCO on the basis of a paper on current trends affecting education and the status of teachers. The Joint Committee recommended that the 1966 Recommendation remained valid but suggested that the joint commentaries on its 146 articles elaborated with the ILO should be updated, work which UNESCO intended to pursue in collaboration with the ILO over the next term. The Joint Committee also examined the status of teachers in relation to the initial and continuing education and training that is provided to them, on the basis of a number of country case-studies. It concluded that the teacher education curriculum continued to be inadequate, that more coherent national policies to update teachers' knowledge in relation to rapid scientific, technological and societal changes were needed, and that directors of schools had to learn how to build partnerships with the community to reflect the changing role and functions of schools. UNESCO hoped to team up with the ILO during the next six years to build partnerships. The Executive Board of UNESCO had examined the Joint Committee's report and called for enhanced cooperation with the ILO, continuing the new working methodology without excluding the questionnaire methodology, and looking at ways and means to apply the Recommendation as a standard-setting instrument in keeping with the social, cultural and economic conditions of each country. The Executive Board had also invited the Director-General of UNESCO to examine, with the Director-General of the ILO, means of cooperating during the next International Conference on Education (ICE) in 1996 whose theme will be teachers. The Director-General of UNESCO is also authorized to invite the Joint Committee to attend the ICE, thereby providing more attention to the application of the Recommendation. The speaker concluded by emphasizing the importance of teachers as educators in meeting the challenges of education for tolerance and peace stressed by UNESCO and of improving schools for the children of tomorrow.

72. The Employers' members noted that the document concerns the meeting held in July 1994, whilst the Governing Body of the ILO decided to refer it to the Conference Committee only this April. The point of holding this discussion, last held in 1989, was that the status of teachers affected their activities and tasks the passing on of knowledge and education in the form of lifelong training to which the Employers' members attached the greatest importance. It is only this particularity of their role that justified a specific standard with its own supervisory system, since for the rest they were like other workers. The report before the Conference Committee was largely a report on activities endeavouring to disseminate the Recommendation and bring about practical implementation of its provisions. To ensure better observance, certain survey methods to obtain empirical data, including a new questionnaire methodology, were being developed, and case-studies had been carried out. The recommendations of this independent monitoring system based on a joint committee raised a number of interesting points, namely the surprising spread of illiteracy. A number of the Recommendation's provisions did not require revision for the moment, but improvements were required in teacher training and other areas. The Employers' members supported these proposals. In their view, status questions such as labour law and pay should be viewed against the background of what was best for education; according priority to material conditions of teachers over these concerns would gravely endanger future generations. Given their special functions to pass along knowledge and education, it was difficult to understand why the Committee on Freedom of Association of the ILO Governing Body had not considered the work of teachers as an essential service in which the right to strike could be restricted since the interruption of educational services would have future consequences more serious than the interruption of any other public service because it put the future of the next generation at risk. Moreover, such a strike was an extreme example of kidnapping; it hardly put the employer, the real opponent in such a strike, under pressure, while the students who were in principle unconcerned about it had to suffer. It was hoped that the ILO supervisory bodies would soon review their interpretation of this point. The Employers' members nevertheless agreed that teachers should enjoy conditions that matched their important functions, in particular proper training, and that their status should be improved in all fields. They fully supported the basic concerns expressed in the Joint Committee's report and hoped that the current discussion would contribute to improvements.

73. The Workers' members shared the concerns expressed in the Joint Committee's report. Although everyone agreed on the importance of education for human resource development, for enterprises and in the fight against social exclusion, and the Social Summit's conclusions had reaffirmed the international community's commitment to extending basic and general education, structural adjustment measures and public financial crises had diminished educational investments. This had impacted on the objectives of appropriate education for all children and on teachers' conditions and motivation. Financial difficulties and restructuring also hampered respect for international labour standards, as witnessed by violations of teachers' trade union rights, collective bargaining and employment and occupational discrimination. Conventions Nos. 87 and 98 concerning freedom of association, the right to organize and collective bargaining and Convention No. 111 concerning equal opportunities and treatment were applicable to teachers, as made clear by ILO supervisory organs. The number of allegations by teachers' organizations before the Joint Committee and the cases brought to the Committee on Freedom of Association were increasing, aggravated by the decentralization of organizational responsibility in education which considerably weakened collective bargaining. The general application of fundamental ILO Conventions should not be undermined by a specific standard for teachers. The ILO/UNESCO Recommendation supplemented basic rights guaranteed by these Conventions. Teachers took strike action as a last resort, not just to improve their own status but also over concern with the impact of economic policies on education as a vital investment for educational development and social justice. The Workers' members supported the Joint Committee's position that the principles of the Recommendation remained valid, and no revision should be undertaken for the time being. Though the Recommendation particularly provided for consultation with teachers and their organizations on educational issues, the report of the Joint Committee pointed out the frequent absence of consultation with teachers with regard to budgetary restrictions and structural adjustment measures which nevertheless had repercussions for educational quality and teachers' working conditions. The Workers' members supported the conclusions and proposals for future action contained in the report, in order to effectively promote the application of the Recommendation. To this end, the ILO and UNESCO should closely collaborate, respecting the ILO's mandate, tripartite structure and the viewpoints of its supervisory organs. Education deserved special attention from the ILO because of its strategic importance for employment, for the world of work and for society.

74. The Workers' member of Greece pointed out that teachers' conditions had deteriorated to the point where many sought additional jobs outside teaching, and that, if access to basic education of quality was to be ensured, governments would have to allocate the necessary resources. The Workers' member of Germany noted: first, that the increased number of allegations showed a deterioration of conditions in the teaching profession; second, the steps taken by the Joint Committee to deal more rapidly with allegations were positive, since the present interval of three years between meetings was far too long; and third, that his country was an example of the lack of consultation or collective bargaining in relation to teachers' working hours which had been increased in several Länder by legislative means. The Workers' member of New Zealand strongly opposed the suggestion by the Employers' members that teachers be denied the right to strike; she noted the positive example of collaboration among international organizations and thought that the innovative approaches shown in the Joint Committee's report might have benefits for the ILO supervisory bodies, since they reconciled systems of information in a way that reflected country realities.

75. The representatives of Education International welcomed the change in the Joint Committee's methodology and its view that the 1966 Recommendation remained as relevant as when it was prepared. The principles of the Recommendation largely depended on the rights to freedom of association and collective bargaining which were still denied to teachers in many countries. Without such rights teachers could not play their full role in the formulation of educational policies and ensuring the success of education reforms. As the Joint Committee's report outlined, the impact of restructuring in industrialized countries caused concern - collective agreements were overridden by legislation or extended beyond expiry - and new challenges had to be faced by the teaching profession as increased numbers of students, changing family structures and new information technology greatly modified teachers' activities. Ongoing studies were designed to elaborate strategies to address the issue of stress and burn-out among teachers. The impact of restructuring in developing countries had been disastrous, however. Teachers' salaries were in arrears or not paid at all. Low salary levels had contributed to a greater feminization of the teaching profession, while the Joint Committee's report also dealt with the necessity to focus attention on discrimination against women particularly with regard to their representation in scientific and technical fields and their access to posts of responsibility. Lessons should be learnt from failures in the policies of the Bretton Woods institutions which resulted in demotivation of teachers, and from decentralization policies which were used to lessen responsibility for state funding of education and to strip away collective agreement benefits. Free compulsory education was the most potent tool in the fight against child labour. Education International fully supported the recommendations of the Joint Committee and the work of the ILO and of UNESCO to promote the principles enshrined in the Recommendation, and it intended to participate actively in the work of the ILO's Standing Technical Committee for Educational Personnel in October 1995, and in the International Conference on Education to be held in October 1996.

76. The Committee took note of the report of the Joint Committee.

D. Reports requested under article 19 of the ILO Constitution

Termination of Employment Convention (No. 158) and Recommendation (No. 166), 1982

77. The Committee had an in-depth discussion on the General Survey of the Committee of Experts on the Termination of Employment Convention (No. 158) and Recommendation (No. 166), 1982. The Committee of Experts based the General Survey on the reports submitted under article 19 of the Constitution, as well as on the information provided in reports supplied under article 22 of the Constitution, by governments who have ratified the Convention. The General Survey also took account of the observations received from a considerable number of employers' and workers' organizations which were communicated with the governments' reports in accordance with article 23(2) of the Constitution.

Introductory statements

78. The Employers' members noted that the General Survey prepared by the Committee of Experts on the basis of reports supplied under article 19 of the ILO Constitution, showed as always, great variation of the regulations which were relevant to this field in the individual member States of the ILO. They had the impression, however, that the spectrum on this occasion was much greater than on many other subjects. However, that was not very surprising since the question of protection against dismissal was indeed an essential field of labour law. The majority of member States had some form of protection in this field, but the provisions of the relevant rules and regulations varied considerably. These provisions generally were beneath rather than above the standards set by the Convention.

79. First, the Employers' members noted in positive terms that the General Survey prepared by the Committee of Experts was a lengthy, empirical report. The survey made it possible to view the factual situation in many of the ILO's member States, measured against Convention No. 158. However, the Employers' members believed that the survey gave an incorrect impression that all the requirements of the Convention existed somewhere - indeed, everything demanded by the Convention did exist somewhere in the world in approximate form. But to conclude from this situation that there was real protection against unjustified dismissal as provided for by the Convention everywhere and across the board would be incorrect because the manner in which the member States were compared with their regulations showed that in fact hardly any State had actually done everything demanded by the Convention. Otherwise probably many more member States indeed would have ratified the Convention. The Employers' members also noted that in the area of unjustified dismissal, diverse traditions existed and a number of different developments had left their mark. Consequently, the results that had arisen differed considerably from member State to member State. An analysis of the Convention in particular on the basis of the interpretation given by the Committee of Experts, showed that the Convention did not just set minimum standards, but much more. The Convention as a whole set very high requirements. The Employers' members believed it was obvious that many member States do not or could not meet these high requirements. This inability was due to various reasons.

80. First, with regard to the low level of ratification of the Convention, the Employers' members referred to the example of one important member State in which only relatively little legal protection against dismissal existed. In that particular country, the trade unions were much more powerful than they had now become. In their powerful past, these unions could indeed have achieved such legislation, even forced it, if this had actually been seriously demanded by political circles. But the trade unions did not want to do so, because they did not wish for legislative regulations for all workers since they wanted collective agreements to provide minimum protection against unjustified dismissal. Legislation therefore would have extended this protection mechanism to all workers and would thus have reduced the incentive for people to join trade unions. More generally, protection against dismissal which goes beyond the simple prohibition of arbitrary dismissals, would complicate the capacity of enterprises to adapt to operational or general economic changes. These complications could result from delays due to certain mandatory procedures prior to dismissals. Furthermore, protection against dismissal increased operating costs for enterprises and the national economy in general. In the context of globalization and of increasing competition, flexibility and speed of adaptation were vital to the survival of enterprises. This flexibility for enterprises was not possible if the priority of personnel policy was to protect currently employed workers. An excessively rigid protection against dismissal would give rise to certain preventive action because it impaired the ability and willingness of enterprises to recruit new workers. Such an effect would occur especially when the duration of manufacturing or service industry orders was uncertain, or during subsequent periods when order books remained empty and long-term employment commitments could not be possible. The Employers' members believed that the counter-arguments were not convincing. The employers of course had an interest in keeping a well-experienced workforce and skilled workers, especially if they had invested in their training. The Employers' members believed that this was quite correct and thus a common interest existed between workers and employers. Consequently, there was no need for any regulations where employers and workers had the same interest since intentional voluntary self-detrimental action was really an exception. It was exactly because the employer and worker had a common interest that a regulation was superfluous.

81. The Employers' members found in this General Survey a general problem that they had been pointing out many times as regards others instruments of the ILO: there was a tendency to make extensive interpretations. It was legitimate to lay down fundamental principles of a general character for a market economy with social responsibilities, but when it came to giving expression to them in the labour laws of member States, the individual characteristics of the internal system should be respected. The interpretations given by the Committee of Experts did not go in this direction. Given the different circumstances of each member State, the Employers' members believed that it was very difficult to interfere in a State's system of labour legislation with over-detailed regulations. Such interference gave rise to contradictions and a rupture in the social structures of each country. Furthermore, hardly any country was willing to give up its own traditional order or impose a regulation originating from a foreign body. This applied to ILO regulations and standards and even more to the extensive interpretations of ILO texts. For example, it appeared superfluous to replace relatively clear terms by more complicated sub-terms. In paragraph 283 of the General Survey, the Committee of Experts explained what should be understood by the term "the opportunity for consultation". The Employers' members believed that the term "consultation" was so clear that it did not need any further interpretation. However, the Committee of Experts divided up this term by making a distinction between "an exchange of views" and "the establishment of a dialogue". The Committee of Experts then referred to paragraphs 60 and 61 of the General Survey, which alluded to the explanation given to the term "consultation" in the 1992 General Survey concerning minimum wages. In the 1992 General Survey, paragraph 191 referred to the 1982 General Survey concerning Convention No. 144 on Tripartite Consultations (International Labour Standards). These references did mention something about consultations but provided no real explanation for the distinction between an exchange of opinions and the establishment of a dialogue. Moreover, totally different Conventions were alluded to which dealt with completely different issues. The Employers' members therefore wondered why this term "consultation" had to be divided up into the terms "an exchange of views" and "the establishment of a dialogue". The Employers' members also considered that these sub-categories could indeed be translated into other languages, but they did have a traditional meaning only in one country. They questioned why these terms used in a particular national context were subjected to the term "consultation" for the whole world. The Employers' members believed that if compliance with Convention No. 158 was to be examined in the future in a particular case, reference would be made to paragraph 283 of this year's General Survey and there would be a conclusion that this particular term "consultation" must mean an exchange of opinions and the establishment of a dialogue. If, in a specific case, one element was missing, this would no doubt be considered as non-compliance with the Convention.

82. In the Employers' view the General Survey provided other more serious examples of questionable interpretations. Paragraph 56 notes, once again, the well-known mistrust by the Committee of Experts of self-employment, which was regarded only as a means to escape the protection of the Convention. However, new forms of employment were developing all over the world, and not only in the 24 countries that had ratified the Convention. They corresponded to structural changes of great magnitude and there was no point in systematically meeting such developments with distrust or in being confined to the idea that a uniform labour law should be applied to a uniform category of employees.

83. The Employers' members considered that some other passages of the General Survey attested the mistrust of the Committee of Experts regarding any form of flexibility. The Convention provided that the dismissal should be based on a valid reason and then refers to certain reasons which are not considered as being valid. The Committee of Experts dealt with these reasons extensively in the General Survey and indicated finally, in paragraph 93 of the General Survey, that dismissal should only be used as a measure of last resort. Another example existed where the Convention stipulates that the temporary absence from work because of illness or injury should not constitute a valid reason for termination. But the Committee of Experts in paragraph 137 of the General Survey gave such an interpretation to the notion of temporary absence that it could be without limit of time. Another extensive interpretation was the wish of the Committee of Experts expressed in paragraph 117 of the General Survey that effect be given in practice to Article 5(c) of the Convention in a certain manner, while admitting that the Experts were not talking about requirements made in the Convention.

84. The Employers' members considered that a key to some misinterpretations might be found in paragraph 203 of the General Survey. There the clear provision of Article 9 relating to the burden of proof was made unclear by the statement that the Convention distanced itself from traditional contract law and was based on common law. Such a statement could only make sense if the intention was to consider as well the other rules of a certain legal system when interpreting the Convention. They clearly opposed such an attempt. Otherwise, in the future, not the terms of a Convention, but the domestic law system actually or supposedly used as a model would decisively influence the interpretation of the provisions of a Convention. Such a result went, however, completely against legal certainty. The most serious misinterpretation could be found in the last sentence of paragraph 203 of the General Survey, stating that "in labour disputes legal provisions must be interpreted in favour of the worker". Such an interpretation was contrary to legal criteria because it would mean that, in all cases, the legal provisions were to be interpreted in favour of the workers.

85. In their view, aside from interpretations which were dubious or erroneous, it would be favourable in the general surveys to evaluate the experience acquired through the adoption of the Convention and, above all, the practice followed in countries. A realistic criteria of evaluation was examination of the modest number of ratifications of Convention No. 158, which contrasted with the fact that two-thirds of Conference delegates had voted in favour of its adoption. This ought to have been an object for reflection and to have served as the basis of the conclusions. In this sense the positive statements of the General Survey concerning the prospects of future ratifications clearly had limited validity.

86. With regard to the measures considered in the General Survey to avoid dismissals (paragraphs 315 et seq.), the Employers' members noted that certain ones were obvious and were practised by enterprises. But reading those paragraphs left an illusory impression that with enough good will and efforts it was possible to avoid dismissals even in situations in which it was necessary.

87. The Employers considered likewise that the General Survey presented certain economic notions that did not correspond to reality, above all when dismissals were necessary for economic reasons. At times it was necessary to take immediate measures to save those jobs which could be saved. Concerning the point of view of the labour market and of experience, the simplistic idea of sharing work between those affected in the enterprise as a solution when there were problems present did not correspond to reality. Similarly, expecting that in case of justified dismissals a severance allowance should be paid (Article 12 of the Convention) constituted an example of an inadequate provision of the Convention which was unrealistic about the allocation of resources. This static image contrasted with recent changes in the market of goods and services, and was prejudicial to workers.

88. The Employers' members regretted having to take such a critical position but indicated that they had only selected a few points for illustration. The General Survey included details and interpretations which established a level of protection for workers beyond that which was provided for in the Convention. As a final analysis, the Employers concluded that this Convention was one which ought to be revised as soon as possible.

89. The Workers' members took note with great interest of the General Survey. Although job security was a crucial aspect of the right to work, governments and employers had strong reservations against establishing employment security systems.

90. The Workers' members considered that the logic of the labour market theory had inspired certain governments, under pressure from the Employers and the Bretton Woods institutions, to weaken or to consider weakening laws concerning individual or collective dismissal. At the same time, such governments reduced the protection of unemployment benefits and related social measures which would favour the workers. Following this logic, the laws and regulations concerning employment security had negative effects on employment, since the costs of dismissal dissuaded hiring and excluded necessary restructuring. The defenders of this simplistic thesis also attempted to discredit labour standards or international standards as a whole. None the less, as had been concluded in the General Survey, both the Convention and Recommendation took into account national differences, contained flexibility clauses and emphasized the right of employers to dismiss workers for recognized and valid reasons.

91. The Workers' members did not accept any of the simplistic rationalizations which were based on prejudices. The critics of national and international standards did not base their analyses on the possibilities or limitations of the standards. Neither had these critics taken into account interrelationships and balances between the different elements of the different systems of employment security. For example, it was less appropriate to criticize the length of the dismissal process if a social security system did not provide - or provided only in a limited manner - for unemployment benefits or benefits for suspension of work.

92. The Committee of Experts had further noted in paragraph 274 of the General Survey that 163 countries had established social security schemes but that only 63 of them had created unemployment benefit systems. The Workers' members confirmed that a substantial number of countries still did not have a system of unemployment benefits, in spite of it being an essential element for guaranteeing income. In addition, in many of those countries that had introduced a system, including some which had the financial resources to establish a more developed system, it was only embryonic.

93. They noted that various recent reports demonstrated the importance of standards concerning employment security for the efficient functioning of economic enterprises and of society. The General Survey of the Committee of Experts and the Report of the Director-General on the promotion of employment both underlined the positive impact of standards on employment stability, as much for employers as for workers, and for the economy in general.

94. Concerning the introductory observations of the Experts, the Workers' members drew the Committee's attention to the following three points. First, the General Survey highlighted the important role the present Committee played in the adoption of the two instruments. After examining the General Survey on Recommendation No. 119 (the old standard on the termination of employment), the Committee concluded that the Conference should elaborate a new instrument on termination of employment (paragraph 4). This Committee also believed that the promotion of employment security was an essential aspect of the right to work. Second, the Committee of Experts recalled the fundamental standards concerning the termination of employment. It emphasized that the exercise of discretionary power had disparities in consequence for the various parties concerned in the termination of a contract (paragraph 2). The termination of the contract by the employer could result in the worker and the worker's family finding themselves in a situation of insecurity and poverty, especially in periods of massive unemployment. The structural changes in the international economy and structural adjustments of national economies had important repercussions for many workers and their families. The Convention and Recommendation concerning dismissals guaranteed income protection and assistance for affected workers and their families. Lastly, there was (paragraph 16 of the General Survey) a close interdependence between the Convention and the Recommendation and various fundamental standards, e.g. the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), in particular as regards protection against anti-union discrimination, as well as discrimination in employment and occupation, envisaged in the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). Those instruments completed and reinforced the general guarantees against unjustified dismissals. The Committee of Experts highlighted the great importance of these instruments concerning collective bargaining, including the one relating to dismissals. Collective agreements, together with the lawmakers, were the engine and source of labour relations. Upon analysis of the different situations, it was clear that collective agreements reinforced and complemented the basic legislation concerning dismissals.

95. Concerning the different methods of application and scope of application, the Workers' members recalled four points:

(i) The Convention only covered the termination of the employment relationship at the initiative of the employer and not termination at the initiative of the worker, or termination as a consequence of an agreement freely negotiated between the parties (paragraph 19 of the General Survey). However, often terminations that apparently were at the initiative of the worker or due to force majeure were in reality dismissals provoked by the employer. The Committee of Experts had called attention to these disguised dismissals (paragraph 22). National legal systems should also protect workers against these disguised dismissals.

(ii) The Convention and the Recommendation granted national systems wide latitude to decide the methods and sources of law for the application of the provisions. None the less, both instruments established a coherent system which included, in particular, individual and collective labour contracts, the protection of wages, and the promotion of an active employment policy. The application of the Convention and the Recommendation required a system that did not limit the payment of compensatory awards in the case of either unjustified or justified dismissal (paragraph 25). Governments, employers' and workers' organizations must develop a coherent and active policy.

(iii) The Committee of Experts rightly called attention to the principle that workers should be covered by the various provisions, subject to the flexibility clauses. The scope of application of the Convention was wide, but permitted at the same time important exceptions (paragraph 34). For the Workers' members, the erosion of protection by exploiting these exceptions must be avoided at all costs. Numerous countries had adopted, for example, provisions tending to avoid recourse to successive contracts of fixed duration. But the Workers' members felt that more countries should reinforce the mechanisms of control and sanctions to avoid abuses (paragraph 46). During the last meeting of the present Committee, an individual case was presented which illustrated clearly the importance of introducing mechanisms to avoid abuses. In that case - Spain - one-third of the workers were on temporary contracts. This by far exceeded the normal level for this type of contract, even taking into account sectors of a seasonal character such as agriculture and tourism. The Committee of Experts also was concerned over the proliferation of new varieties of contracts of fixed duration, the utilization of excessively long training periods, invoking the status of self-employed, the questioning of the presumption of contracts of indefinite duration, and the liberal and practically total use of temporary contracts in export processing zones (paragraphs 56 and 42). Above all, when there were no collective agreements, flexible measures had tended to exclude the protection of large groups of workers. The Workers' members estimated that an external flexibility, gained through excessive recourse to temporary contracts, or by reducing protection against dismissals, would impair the ability of enterprises to be innovative, and would aggravate social marginalization and poverty. The workers affected feared vulnerability due to the considerable impairment of both fundamental rights and rights relating to freedom of association. The number of temporary contracts should be limited and compensatory measures should be taken to guarantee a level of protection at least equal to that provided by the Convention and Recommendation. During the general discussion, the Employers' members drew attention to the fact that temporary contracts did not necessarily exclude protection of the right to work and to social security. A certain number of countries had instituted mechanisms for protection which were relatively efficient for temporary workers. Unfortunately, the great majority of countries had not done so, and those were precisely the countries which at times made use of this type of contract to promote employment.

(iv) The Workers' members also emphasized the importance of in-depth consultations with workers' and employers' organizations concerning both the use of flexibility clauses and the regular revision of their application.

96. As to the obligation that dismissals be justified by a valid reason, the Workers' members emphasized that the need to justify dismissals was fundamental, indeed the cornerstone of the provisions of the Convention and Recommendation. This was evident from the preparatory work, as well as the drafting and the structure of the instruments (paragraph 76 of the General Survey). The Workers' members agreed with the Committee of Experts that a large number of countries had implicitly or explicitly introduced protection against unjustified dismissals, independently of whether they had ratified the Convention (paragraph 80). The Committee of Experts had also noted that protection against dismissal due to certain motives, as well as protection against reprisals or the protection against discrimination, had been reinforced in the last few years. There had been at least a certain parallel between national practices and the principles of the instruments. None the less, the influence of the two instruments was negligible in the national systems of numerous countries which had not introduced a general obligation to justify dismissals. Justification was a component of the dignity of the worker and was the fundamental aspect of the right of workers to defend themselves. Also, the real impact of a system of protection against termination of employment should be assessed taking into account the interdependence of the various elements: as well as the length of notice, the amount of severance allowances, social security, the social measures connected, and consultation procedures. All of these made the justification for dismissal indispensable. When workers ran the risk of incurring a penalty as great as dismissal, which could also affect their professional future, they had the right to defend themselves (paragraph 93). Furthermore, the Workers' members noted that the Recommendation completed and specified the reach of the Convention, and numerous countries had been inspired to modify, supplement, or interpret their legislation accordingly. They also referred to the protection against dismissal in case of temporary disability due to sickness or accidents, particularly in relation to persons infected with HIV and AIDS (paragraphs 136-142).

97. Referring to the procedures for dismissal, the Workers' members noted in particular the provisions of the Convention which set forth guarantees concerning defence before the decision to dismiss and the right of appeal after the decision. Allegations should be clearly formulated and presented to the worker. The possibility to defend oneself must be real. The General Survey also pointed out in paragraph 156 that certain governments and employers criticized the length and the cost of the dismissal procedures. Without being able to evaluate the procedures in each case, it was clear that a correct defence of the worker facing unjustified dismissal or suspension needed to take account in each case of the dissuasive effects of procedures and sanctions. The position of the Committee of Experts, that the protection against unjustified dismissal provided in the Convention should not be denied to workers simply because of such costs, should be upheld (paragraph 156). On the other hand, effective procedures were not necessarily costly or elaborate, rather the contrary. Many countries had introduced administrative tribunals or specialized commissions into labour relations. Access in these cases was easy, making the procedures flexible, rapid and of limited cost. At times the legislation or collective agreements had instituted assistance to workers through delegations, unions, or personal representatives. The international instruments were not the cause of high costs or complicated procedures. On the other hand, individual cases had been discussed in previous sessions in more detail concerning anti-union discrimination (Convention No. 98) in countries where there were violations of the right to freedom of association; here long procedures existed which were complex and not very comprehensible.

98. Concerning prevention and measures related to the social dimension of dismissals (Chapters V, VI and VIII), the guaranteed protection of the two instruments provided a combination of preventive measures that eliminated or reduced dismissals and reparation measures of a social character. The basic national systems of protection against dismissal had been brought into focus even though there were considerable differences regarding the methods and levels of protection and concerning the importance of the preventative and compensatory measures. The Workers' members firmly underlined the strategic importance of the principle of prevention of individual and collective dismissals. The Committee of Experts often recalled this principle, for example in paragraph 320. Only in the last instance should recourse to dismissals be used to resolve problems. The Convention foresaw that every other measure possible should be considered first to avoid dismissals. Without over-generalizing, it could be said that enterprises increasingly practised the inverse policy. In such enterprises dismissals were conducted in a preventive manner (anticipated dismissals) with the object of preserving higher profits or distributing large dividends to stockholders. At the same time, the enterprises wanted to limit the length of advance notice and reduce the level of contribution to the system of unemployment benefits. These trends ran the risk of provoking an unprecedented proliferation of marginalization and poverty. This was true for all countries, regions, sectors and occupations facing important restructuring as a consequence of both the globalization of the economy and technological changes. The opposite policy, one of prevention guaranteeing social measures of reparation as well as a certain level of income and retraining of workers who were in danger of losing their jobs, or who already had lost their jobs, was more realistic. Collective bargaining and consultation were excellent measures to prevent dismissals or to counteract the social costs. None the less, recourse should be made to these tools before the decision to dismiss is taken. The public authorities also had an important role to carry out by supporting placement services for workers, mediating, financing and co-financing guarantees of wages, etc. The General Survey mentioned good examples of national legislation and national collective agreements which provided measures for prevention, reparation and relocation of workers. The Workers' members referred in particular to provisions made for previous notice, internal relocation, relocation in a subsidiary or related enterprise, work sharing, reducing work hours, partial unemployment, early retirement, etc.

99. Concerning the difficulties of application and the prospects for ratification, the Committee of Experts concluded its General Survey by stating that the two instruments were as relevant now as ever before (paragraph 371). The Workers' members completely shared this point of view, above all because no points in need of revision had been identified. Employment security, as set forth in the Convention, did not impede adaptation, for either enterprises or the labour market. The absence of ratifications was due instead to particular situations at the national level, or from misunderstanding of the Convention. Ratification was not an impossible social objective and there were real prospects for ratification. As the Committee of Experts stated in paragraph 350, general surveys often became reference instruments. It should be stressed again that governments must respond to the questionnaires and provide information on the practical application.

100. Lastly, the Workers' members again emphasized that the relevance of the two instruments also illustrated that their impact had not diminished in the context of globalization of the economy, of restructuring of numerous sectors everywhere and of structural adjustments (paragraph 372). The advantages of fair regulation of the labour market had been underestimated. Security of employment stimulated enterprises to invest in the skills and the development of workers. Consequently, the enterprises reinforced their capacity for innovation and productivity, and for internal adaptability. The workers, for their part, were able to contribute to the development of the enterprise when they felt really involved. This constructive activity would result particularly when wages and stability of employment were guaranteed. These instruments also preserved the right of employers to dismiss. In this context the Workers' members concurred with the conclusions of the Committee of Experts that flexibility and stability were mutually interdependent (paragraph 379). The right to work and labour law were reconcilable. Both were essential to promote social progress (paragraph 382). The Workers' members believed that the Convention and the Recommendation also had a place in the Programme of Action and the Declaration concluded during the World Summit for Social Development in Copenhagen.

101. The discussion that followed after the presentation from the spokespersons for the Employers and Workers centred around several subjects essentially concerning the content and value of the General Survey, the flexibility or rigidness of the provisions of the Convention, and their current relevance in the context of challenges which have resulted from economic globalization and increased competition, as well as prospects for the ratification of the Convention. Numerous members took into account the national legislation and practice of their countries concerning protection against unjustified dismissal.

102. A large number of Committee members noted the quality of the General Survey and underscored its importance. The Government member of South Africa stated that the transitional Constitution currently in force protected workers against unfair labour practices. This protection was the result of jurisprudence which, since the early 1980s, has been inspired by ILO instruments on unfair dismissal. The General Survey, which provides a bridge between the general terms of the Convention and the specific language of domestic law, would play an important role as a source of interpretation for tribunals in the application of national legislative provisions. The General Survey will help in the future development of jurisprudence concerning protection against unjustified dismissal. He noted that currently his country had a complaints-based system which was moving towards codification in relation to protection against unjustified dismissal, and that the General Survey would be of great use in this process. In addition, the General Survey facilitated comprehension of the provisions of the Convention and helped governments in better understanding the consequences of ratification and in identifying the possible obstacles in domestic law. With reference to the General Survey's final remarks in which the Committee of Experts noted that flexibility and stability were mutually interdependent, he believed that the discussion on the General Survey should focus more on the issue of whether the Convention and its reflection in domestic law established an appropriate balance between efficiency on the one hand and fairness on the other. The Workers' member of Germany shared this view of the General Survey, which could serve in particular as a guide to national legislation and jurisprudence and which made a significant contribution to accelerate the application in practice of the Convention at the national level. The Workers' member of New Zealand likewise believed that the General Survey could play a useful role in focusing the attention of countries which had not yet ratified the Convention on the different issues raised, and in providing the discussion among tripartite parties with the examples of measures taken by different countries. The Government member of the Syrian Arab Republic noted the interest raised by the General Survey, notably, by the manner in which it dealt in detail with many topics, such as periods of notice and dismissal for technical or similar reasons. The Employers' member of Turkey also underscored the quality of the General Survey and the Workers' member of China recommended that it should be read as a comparative analysis of domestic laws and practices.

103. The Government member of Portugal noted the special interest which the General Survey presented given the extent of worldwide unemployment and the need to assess employment promotion policies. He believed that it would be helpful to have more information concerning the law and practice in 24 States which have ratified the Convention and the effect that employment protection had on the labour market as well as, in a very general manner, a comparison of the changes in employment in countries which protect workers against dismissal and in those which have reduced their systems of protection.

104. The Workers' member of Greece referred to the interventions from the Employers' members, and in particular, to paragraphs 60, 93, 117, 137 and 138 of the General Survey, and stressed that the matters dealt with in these paragraphs were not obligations. With regard to paragraphs 117 and 138, the Committee of Experts only expressed the desire for additional protection for certain victims of reprisals and where the period of absence from work because of illness or work-related injuries could be extended without any further obligations. Consequently, the pretext that Convention No. 158 was too restrictive and rigid was not a justified argument for not ratifying the Convention and applying the Recommendation, given the concessions made in 1982 and the language of the text adopted.

105. Some members of the Committee placed the General Survey in the context of the discussion on supervisory procedures and made certain suggestions. The Government member of Denmark believed that the general themes for discussion in the General Survey, which focused on individual Conventions, contributed to a better understanding of the implementation of the Conventions in different countries. This applied to the countries which had ratified the Convention as well as to those countries which had not ratified the Convention and which thus received the request for reports that gave rise to the present opportunity for discussion. She believed that the purpose of the reporting system was for Members to examine the reasons why a specific Convention could not be ratified. Awareness of these reasons probably would contribute more to achieving the objectives of the Convention than the discussion of individual cases, which were often specific to one country. The Government member of Germany believed that the General Survey provided very interesting comparisons of legal points of view among the practices of different member States. He recalled that during discussions in 1994 on the reform of the standard-setting work of the ILO, certain delegates made it known that the General Survey should be better used to detect the weakest links in the chain so that one could identify where intervention and alteration were required. This year's General Survey partly replied to this expectation, particularly Chapter VIII which highlighted the difficulties of certain countries with implementation. However, the report provided a selective approach as there was no systematic examination of problems which countries experienced.

106. The members of the Committee discussed the opportunity to adopt international standards on dismissal in the form of a Convention, as well as the timeliness of this topic and the prospects for ratification.

107. According to a Government member of the United States, who recalled the discussions on the adoption of Convention No. 158 and Recommendation No. 166, the effectiveness of these instruments should be measured against the original objectives to improve stability and quality of employment, to strengthen the system of protection against unjustified dismissal, and to discourage unwarranted governmental interventions in areas best left to private decision-making. In his view, superimposing a detailed, obligatory, and binding Convention on an unsettled and emerging topic had proven much less desirable than a promotional, principled instrument in a field simply not ripe for codification. He recalled the adoption, by consensus, of a United States amendment to insert the word "alone" in Article 9.2, which preserved an evenhandedness between employers and workers in proceeding with the burden of proof at various stages as an example of necessary reconciliation when conflicting details emerge in hotly disputed subject areas.

108. Several Workers' members intervened during the discussion to refute the arguments that the instruments under examination restricted the employers' freedom to end an employment relationship and due to this rigidness increased labour costs and resulted in inefficiency. In this regard, the Workers' member of Iceland noted that the principal standards set in the Convention were closely linked with the universal principle of due process and stressed the importance of the general principle contained in Article 4 of the Convention providing that any termination of employment must be based on a valid reason. The Workers' member of Singapore stressed that the provisions of the Convention did not present obstacles to the termination of employment, but rather prevented employers' abuse of this right and eliminated arbitrariness. She noted that the provisions do not restrict the employers' right to dismiss an employee for reasons such as those necessitated by operational requirements. The Workers' members of Spain and Greece also noted the Convention's flexibility; as a result of compromise, the Convention established a minimum balance between the employer and worker and based certain obligations on common sense.

109. The Employers' member of Turkey stated that nobody could negate the importance of the protection of workers in cases of termination of employment contracts, particularly in a period of massive unemployment. Many countries, irrespective of their level of development, were confronted presently with difficult economic conditions, high inflation, increased unemployment and low economic growth. The creation of new employment and the protection of workers in existing employment was of primary importance in such conditions, which was the aim of the instruments under examination.

110. Certain other Workers' members, including those of India and Pakistan, referred to economic globalization, policies of economic liberalization and structural adjustment, and the flexibility of the labour market. In this regard, the Workers' member of Nepal noted that the policies imposed by certain international financial institutions, had created in many developing countries problems in the legislation concerning export processing zones, job mobility, and anti-union policies which benefited the process of economic liberalization and structural adjustment policies. The Workers' members of China and India believed that it was necessary to oppose the pressure to reduce or eliminate protection against unjustified dismissal in aid of requirements of productivity and competitiveness. The Workers' member of Guatemala stated that, given the neo-liberal economic model's attempt to subject labour law to the rules of the market, it was vital to develop, reaffirm and apply effectively the instruments protecting workers against unjustified dismissals. The Workers' member of New Zealand referred to paragraph 379 of the General Survey which states that appropriate protection against unjustified dismissal is in principle not inconsistent with new forms of employment relations that allow enterprises to adjust their human resources to the changing economic environment. She believed that these two elements could be reconciled if adequate provisions existed or if appropriate measures were taken to help workers during the transition period with financial support, training and assistance in finding jobs. This required an active role for the State in the management of the labour market. She referred to the obligation of consultation set forth in the instruments as well as the interventions from the Employers' members on this subject. She believed that there was evidence that enterprises that respected this provision concerning consultation, far from being disadvantaged in the highly competitive economic environment, were able to make adjustments more effectively and with less disruption to production. She cited as examples two of the most competitive countries economically, which simultaneously had a high level of job security and protection against unjustified dismissal. In this regard, the Workers' member of Singapore believed that the measures suggested by the Recommendation, such as redeployment, reduced working hours, training, retraining and priority of rehiring, were not impossible to implement in practice with proper planning and would be expected of responsible employers.

111. In the context of deregulation and precarious employment, the Workers' member of France drew attention to the proliferation of fixed-term contracts, which, instead of encouraging recruitment, tended to make employment more precarious. Expressing the same concerns, the Workers' member of Guatemala believed that such forms of contracts threatened the right to work and freedom of association. Several other Workers' members also referred to the practice of subcontracting and voluntary retirement as a form of disguised dismissal, as well as the proliferation of contract work, casual employment and probationary periods. Several Workers' members referred to employment stability as a factor of social stability, as much inside enterprises as in society in general. The Workers' member of France believed that the ratification of the Convention was not an obstacle to the smooth running of enterprises, but rather ensured certain stability. According to the Workers' member of Pakistan, the principles of the Convention left workers with a sense of security which in turn led to a sense of participation in the enterprise which then generated team spirit which benefited productivity. The Workers' member of Guinea highlighted the deregulation trend in African countries and estimated that each job kept or created was an essential element in the quest for social balance.

112. The Government member of Portugal highlighted the General Survey's observation of the positive effects of employment stability, on social peace and investment in human capital by enterprises, while noting that such stability does not facilitate the awareness of workers and their trade unions of the need for internal flexibility.

113. The Employers' member of Panama believed that dismissal, whether justified or unjustified, represented a waste of resources by an enterprise. A detailed regulation concerning dismissal was not the best solution to the problem, which was caused by inadequate knowledge about the rights and obligations of workers as well as employers.

114. With respect to the prospects for ratification, a number of Committee members indicated the reasons why they believed that the Convention could not be ratified be it for the considerations connected to the employment relationship, inflexibility for or non-compliance of the national legislation with the Convention. Other members wished for a greater number of ratifications. The Government member of Denmark noted that in her country dismissal was governed by collective agreements, which were to a large extent in conformity with the Convention. She also noted that, however, there was no protection for workers not covered by collective agreements, while the Government preferred to leave the highest possible level of responsibility to the social partners. The Government member of Germany believed that, if the General Survey had dispelled the concerns of governments, it also proposed new a interpretation of the terms of the Convention which again raised obstacles to ratification.

115. The Employers' member of Panama recalled that in Latin America labour legislation contained detailed regulations on dismissal and as examples cited Brazil and Venezuela, which had ratified the Convention. He also discouraged the ratification of Conventions that were too detailed.

116. On the contrary, the Employers' member of Turkey hoped that the ratification of the Convention would be promoted and that measures to revitalize the national economy and organize restructuring which could be taken by member States would respect the principle of employment stability with the need for flexibility. He expressed this hope while noting that the Convention was very detailed and that only the general principles should be retained in an international instrument to permit ratification. The Workers' member of Greece was disappointed with the meagre level of ratification, and the Workers' member of Germany believed that governments should actively intervene to eliminate national obstacles to ratification. The Government member of Portugal and the Workers' member of Colombia shared the hope of the Committee of Experts that new States would be able to ratify the Convention in the relatively near future.

117. Several members of the Committee described the situation concerning employment security in their countries, while highlighting different aspects of this protection from the perspective of the standards contained in the Convention or while criticizing the situation in their countries. The Government member of Namibia believed that it was difficult to define the concept of unfair dismissal. The Government member of Lebanon indicated that the provisions of the Labour Code were in conformity with most of the provisions of the Convention. The Workers' member of New Zealand described in a detailed manner the situation concerning dismissal resulting from the adoption of the Employment Contracts Act of 1991. She indicated that the situation in her country represented an extreme amongst developed nations in terms of its open and deregulated economy and labour markets. In this respect, the Government member of New Zealand contended that since the adoption of the Act all workers had access to procedures against unjustified dismissal. With reference to invalid reasons for dismissal set forth in the instruments which were the subjects of the General Survey, the Government members of Denmark and Portugal and the Workers' member of Iceland indicated that in their countries there existed statutory provisions protecting workers against dismissal on the grounds of pregnancy and maternity. The Government member of Portugal highlighted in particular the difficulty of protecting women workers against dismissals on the grounds of pregnancy in cases of fixed-term contracts. In this respect, he noted the reference in the General Survey to a decision of the Constitutional Court in Spain which held that the failure to renew a temporary contract due to pregnancy constituted discrimination based on sex. A number of Workers' members referred to the need to protect workers against dismissal on the grounds of trade union participation or trade union activities. The Workers' member of Iceland was disappointed over the absence in the national legislation of his country of provisions prohibiting dismissal based on certain other specific reasons listed under Article 5 of the Convention. The Workers' member of Greece noted with interest that the General Survey dealt with the difficult situation of handicapped workers, who were a vulnerable category of people often insufficiently protected by society.

118. Some members dealt with the dismissal procedures in force in their countries, as well as the legal recourse available to workers. The Government member of Bangladesh described the numerous legal procedures detailed in the legislation of his country, particularly the law applicable in the case of worker misconduct. The Government member of the Syrian Arab Republic referred to the requirement of written notice to the worker in the case of allegations of misconduct as well as the mandatory administrative authorization prior to dismissal. The Workers' member of France noted that his country had in 1986 ended the administrative authorization required prior to dismissal, and the promise to create new jobs was not kept: instead the number of dismissals had risen. The Workers' member of China stressed that dismissal procedures should provide the minimum safeguards of consultation and notice and indicated that in his country the period of notice to terminate was 30 days.

Final remarks

119. The Workers' members welcomed the many interesting contributions to the discussion on the General Survey. They found particularly interesting the Government members' interventions revealing, in diverse ways, the situations in their respective countries. They also considered that these contributions were especially helpful in the sense that they brought practical and constructive experience to bear on the subject-matter. They concurred with the Government member of the Syrian Arab Republic, who indicated that the General Survey provided explanations and salient clarifications concerning the terms of the Convention. Furthermore, they considered that while ratifications were important, they were not the be-all and end-all. They shared the opinion of the Government member of South Africa, who indicated that the value of a Convention was in institutionalizing fundamental principles and that, although Convention No.158 had not been ratified, it had inspired the jurisprudence in his country. The Workers' members noted that the Employers' members, on the other hand, believed that in an increasingly competitive world costs had to be constantly reduced in order to compete in a global market. The Workers' members believed that if there was so much belief in this global market, there should be belief no less firm in global standards. They concluded by indicating that the general idea contained in the General Survey, which must be insisted on, was that employment stability was beneficial as much as for capital investment as for workers' skills and provided an incentive for social peace. The primary aim therefore was to avoid dismissals. They hoped that the employers would henceforth talk about hiring and not about more dismissals.

120. The Employers' members understood that, while Article 2(2) of Convention No. 158 permitted, in certain circumstances, the exclusion of contracts for a specified period of time from the effects of the Convention, Article 2(3) restricted this possibility to the effect that, where appropriate, such contracts should not be used or invoked to circumvent the protection arising from the Convention. It was always difficult to determine whether a contract for a specified period of time had this characteristic solely to avoid this protection. Moreover, due to the interpretation of the Committee of Experts, this exception was extended even further, leaving very little of the original principle which allowed such limited contracts to be excluded from the scope of application of the Convention. They did not agree with the Workers' members that ILO standards had a stabilizing effect on employment. They believed that if such reasoning were to be applied in the context of Convention No. 158 the argument would be very weak, since only 24 countries had ratified. Even in those countries, there were considerable doubts as to whether the provisions of the Convention could actually be implemented. The Employers' members considered that it was naive to assert that the protection against unjustified dismissal, such as that provided in Convention No. 158, was something positive for undertakings and employers. If this were true, then employers did not need any regulations because they would voluntarily adopt behaviour in line with the Convention. Moreover, the Employers' members believed that, while the concept of universality of the ILO's standards was important, it was not entirely in line with reality, since there was such a low level of ratifications, as was the case for Convention No. 158. The ILO's mission was not to enable only a small number of countries to ratify the Conventions. These countries were certainly capable on their own of regulating these matters. Moreover, the Employers' members were disappointed that a large number of countries, mostly developing countries, had not actively participated in the drafting of the Conventions and consequently could not comply with the Conventions. Finally, the Employers' members highlighted that the world had undergone profound and radical changes since the adoption of this Convention and suggested that the appropriate conclusions had to be drawn from this when it came to framing labour legislation. If the ILO failed to learn the necessary lessons from the changed circumstances, then the discrepancy between standards and the real world would become wider and wider.

E. Compliance with specific obligations

121. The Committee decided that, in examining individual cases relating to compliance by States with their obligations under or relating to international labour standards, it would apply the same working methods and criteria as last year, as amended or clarified in 1980 and 1987.

122. In applying those methods, the Committee decided, on the proposal of the Workers' members supported by the Employers' members, to invite all governments concerned by the comments in paragraphs 91 (compliance with reporting obligations), 97 (supply of first reports), 101 (lack of reply to comments of the supervisory bodies), 126 (special problems relating to submission) and 132 (lack of reports on unratified Conventions and on Recommendations) of the Committee of Experts' report to supply information to the Committee in one half-day sitting to be devoted to those cases. The Committee considered that this approach should in no sense be understood by governments as dispensing them from the need to take part in the Committee's discussions.

OBLIGATION_A Submission of Conventions and Recommendations to the competent authorities

123. In accordance with its terms of reference, the Committee considered the manner in which effect is given to article 19, paragraphs 5 to 7, of the ILO Constitution. These provisions require member States within 12, or exceptionally 18, months of the closing of each session of the Conference to submit the Conventions and Recommendations adopted at that session to the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action, and to inform the Director-General of the ILO of the measures taken to that end, with particulars of the authority or authorities regarded as competent.

124. The Committee noted from the report of the Committee of Experts (paragraph 119) that considerable efforts to fulfil the submission obligation had been made in certain States, namely: Belize, Benin, Israel, Swaziland.

125. The Committee was informed by various other States of measures taken to bring Conventions and Recommendations before the competent national authorities. It welcomed the progress achieved and expressed the hope that there would be further improvements in States that still experience difficulties in complying with their obligations.

OBLIGATION_B Failure to submit

126. The Committee noted with regret from paragraph 126 of the Committee of Experts' report that no indication was available that steps had been taken in accordance with article 19 of the Constitution to submit the Conventions and Recommendations adopted between 1986 and 1992 by the 72nd to 79th Sessions of the Conference (Endnote 3) to the competent authorities, in the cases of Algeria, Central African Republic, Djibouti, Ecuador, El Salvador, Guinea, Haiti, Jamaica, Lesotho, Libyan Arab Jamahiriya, Madagascar, Mozambique, Papua New Guinea, Paraguay, Saint Lucia, Seychelles, Solomon Islands, United Republic of Tanzania, Trinidad and Tobago, Zaire.

OBLIGATION_C Supply of reports on ratified Conventions

127. In Part B of this report (General questions relating to international labour standards) the Committee has considered amongst other things the fulfilment by States of their obligation to report on the application of ratified Conventions. By the date of the meeting of the Committee of Experts, the percentage of reports received was 68.7, which is the highest for four years. Since then, further reports have been received, bringing the figure to 82 per cent (as compared with 77.2 per cent in June 1994, 75.8 per cent in June 1993 and 76.8 per cent in June 1992). This year, the Committee of Experts noted that some 62.5 per cent of the reports on Conventions for which information on practical application was requested contained such information, compared with 67 per cent in 1994 and 56 per cent in 1993. The Committee emphasizes the importance of sending practical information, without which it is impossible to know if a Convention is actually being applied. The Committee joins the Committee of Experts in appealing to governments to make every effort to include the necessary information in future reports.

OBLIGATION_D Failure to supply reports and information on the application of ratified Conventions

128. The Committee noted with regret that no reports on ratified Conventions had been supplied for two years or more by the following States: Albania, Burundi, Chad, Equatorial Guinea, Haiti, Papua New Guinea, Saint Lucia, Sao Tome and Principe, Solomon Islands, Somalia, Zaire.

129. The Committee also noted with regret that no first reports due since 1992 on the following ratified Conventions had been supplied by Guinea (Convention No. 133), Liberia (Convention No. 133), Nigeria (Convention No. 133); or since 1993 by Luxembourg (Conventions Nos. 53, 68, 69, 73, 74, 92, 108, 147, 166) or Yemen (Convention No. 159). It stressed the special importance of first reports, on which the Committee of Experts bases its first evaluation of compliance with ratified Conventions.

130. In this year's report, the Committee of Experts noted that 35 governments had not communicated replies to most or any of the observations and direct requests relating to Conventions on which reports were due for examination this year, involving a total of 337 cases (compared with 354 cases last year and 318 two years ago). The Committee was informed that, since the meeting of the Committee of Experts, 21 of the governments concerned had sent replies, which would be examined by the Committee of Experts next year.

131. The Committee noted with regret that no information had yet been received regarding any or most of the observations and direct requests of the Committee of Experts to which replies were requested for the period ending 30 June 1994 from the following countries: Angola, Burundi, Central African Republic, Chad, Denmark (Greenland), Djibouti, Equatorial Guinea, Ghana, Haiti, Kuwait, Liberia, Madagascar, Mongolia, Papua New Guinea, Saint Lucia, Sao Tome and Principe, Solomon Islands, Somalia, Yemen, Zaire.

132. The Committee noted the explanations provided by the Governments of the following countries concerning difficulties encountered in discharging their obligations: Afghanistan, Algeria, Angola, Denmark, Ecuador, Ghana, Guinea, Haiti, Kuwait, Lesotho, Libyan Arab Jamahiriya, Madagascar, Mozambique, Nigeria, Papua New Guinea, Trinidad and Tobago.

133. The Committee stressed that the obligation to transmit reports is the basis of the supervisory system. It requests the Director-General to adopt all possible measures to improve the situation and solve the problems referred to above as quickly as possible. It expressed the hope in particular that the multidisciplinary teams would give top priority in their work in the field to the fulfilment of standards-related obligations. The Committee also bore in mind the new reporting arrangements approved by the Governing Body in November 1993, which will come into operation from this year.

OBLIGATION_E Application of ratified Conventions

134. The Committee noted with particular interest the steps taken by a number of governments to ensure compliance with ratified Conventions. The Committee of Experts listed in paragraph 107 of its report new cases in which governments had made changes to their law and practice following comments it had made as to the degree of conformity of national legislation or practice with the provisions of a ratified Convention. There were 36 such cases, relating to 22 States and three non-metropolitan territories in all regions of the world; 2,070 cases of progress have been recorded since the Committee of Experts began listing them in 1964. These results are tangible proof of the effectiveness of the supervisory system.

135. At its present session, the Committee was informed of other instances in which measures had recently been or were about to be taken by governments with a view to ensuring the implementation of ratified Conventions. While it is for the Committee of Experts to examine these measures, the present Committee welcomes them as fresh evidence of the efforts made by governments to comply with their international obligations and to act upon the comments of the supervisory bodies.

136. The Committee thought it appropriate to draw the attention of the Conference to various important cases which it had to consider.

OBLIGATION_F Cases of progress

137. The Committee noted with satisfaction that in a number of cases - including many involving basic human rights - governments have introduced changes in their law and practice in order to eliminate divergencies previously discussed by the Committee. It considers highlighting these cases, a positive approach towards influencing governments to respond to comments of the supervisory bodies. In this respect, it refers to the report of the Committee of Experts and the discussion of individual cases which appears in Part Two of this report.

OBLIGATION_G Special cases

138. The Committee considered it appropriate to draw the attention of the Conference to its discussions of the cases mentioned in the following paragraphs, a full record of which appears in Part Two of this report.

139. As regards the application by Myanmar of Convention No. 29, the Committee took note of the statement made by the Government representative that measures were under way for amending the Village Act and Towns Act which contained provisions contravening Convention No. 29. It recalled that the Government had been told about this for nearly 30 years. It also recalled the adoption in 1994, by the Governing Body, of the recommendations of its tripartite Committee for the repeal of the offensive provisions. The Committee could not find a way to agree with the position of the Government, as reported to the Committee of Experts, that what was being alleged to be forced labour was actually voluntary labour. The Committee further recalled the report of the United Nations Special Rapporteur on human rights in Myanmar and deprecated a situation in Myanmar as reflected in this report. In these circumstances, the Committee called upon the Government to urgently repeal the offensive legal provisions under the Village Act and the Towns Act to bring them into line with the letter and spirit of Convention No. 29, to terminate forced labour practices on the ground, to provide for and award exemplary penalties against those exacting forced labour, and to furnish a detailed report to the Committee of Experts on legislative and practical measures adopted to fall in line with Convention No. 29.

140. As regards the application by Myanmar of Convention No. 87, the Committee took note of the statement of the Government representative indicating his Government's commitment to harmonize law and practice with Convention No. 87. The Committee, however, felt serious concern that the Government had not acted on the observations of the Committee of Experts over many years despite mention of the matter in special paragraphs twice over, and that no trade unions in the true sense of the term existed. The Committee urged the Government to adopt, as a matter of urgency, the necessary measures to guarantee that in law and in practice workers and employers had the right to join organizations of their own choice and without previous authorization outside the existing structure, and that such organizations had the right to join federations and confederations and to affiliate with international organizations without impediment. The Committee expressed the firm hope that it would be in a position to register concrete and substantial progress in the application of the Convention in law and in practice, in the near future, considering the assistance of the ILO mission which had already taken place and it requested the Government to send a detailed report to the Committee of Experts about further developments on the matter. The Committee noted that a further request might be made for ILO technical assistance by the Myanmar Government, but it would leave the question of whether an ILO mission would be appropriate, and the timing of such a mission, to the Office.

141. As regards the application by Nigeria of Convention No. 87, the Committee took note of the statement of the Government representative of Nigeria. The Committee noted that though Nigeria ratified Convention No. 87 35 years back, there was considerable discrepancy between de jure and de facto conformity to the Convention. The Committee of Experts had also pointed out fundamental deviations in the national laws from the Convention. Legal stipulation for a single trade union system and governmental interference in the structuring of trade unions were matters of serious concern. The clarification of the Government representative that the Subcommittee of the National Labour Advisory Council was reviewing labour laws, was of a routine nature. The Committee further recalled the conclusions of the Committee on Freedom of Association regarding replacement of officers of certain unions of workers by government administrators and considered this governmental act to be a flagrant violation of Convention No. 87. The Committee therefore urgently demanded the Government to take the necessary measures to bring the legislation and practice into conformity with Convention No. 87, to repeal the decrees dissolving unions issued in 1994 and to restore to the organizations concerned the right to elect their representatives in full freedom without any interference from the public authorities. The Committee expressed the firm hope that the Committee of Experts would be able to note significant progress of these matters in the very near future.

142. The Committee trusts that the governments concerned will take all measures necessary to correct the deficiencies noted and invites them to consider appropriate forms of ILO assistance, including direct contacts, to ensure that real progress is achieved by next year in the observance of their obligations under the ILO Constitution and the Conventions in question.

OBLIGATION_H Continued failure to implement

143. The Committee recalls that its working methods provide for the listing of cases of continued failure over several years to eliminate serious deficiencies, previously discussed, in the application of ratified Conventions. This year the Committee made no mention in this respect.

144. The governments of the countries to which reference is made in paragraphs 139, 140 and 141 are invited to supply the relevant reports and information to enable the Committee to follow up the above-mentioned matters at the next session of the Conference.

OBLIGATION_I Supply of reports on unratified Conventions and on Recommendations

145. The Committee notes that 202 of the 315 article 19 reports requested on Convention No. 158 and Recommendation No. 166 were received at the time of the Committee of Experts' meeting, and a further five since, making 65.7 per cent in all.

146. The Committee noted with regret that over the past five years none of the reports on unratified Conventions and on Recommendations requested under article 19 of the Constitution had been supplied by the following: Afghanistan, Albania, Antigua and Barbuda, El Salvador, Haiti, Liberia, Libyan Arab Jamahiriya, Mongolia, Papua New Guinea, Paraguay, Saint Lucia, Sierra Leone, Solomon Islands, Somalia, Venezuela, Yemen.

OBLIGATION_J Communication of copies of reports to workers' and employers' organizations

147. Once again this year, the Committee did not have to apply the criterion "The government has failed during the past three years to indicate the representative organizations of employers and workers to which, in accordance with article 23(2) of the Constitution, copies of reports and information supplied to the ILO under articles 19 and 22 have been communicated".

OBLIGATION_K Participation in the work of the Committee

148. The Committee wishes to express its gratitude to the 46 governments which collaborated by providing information on the situation in their countries and participating in the discussions of their individual cases.

149. The Committee regrets that, despite the invitations, the Governments of the following States failed to take part in the discussions concerning their countries' fulfilment of their constitutional obligations to report: Albania, Burundi, Central African Republic, Chad, El Salvador, Jamaica, Luxembourg, Mongolia, Papua New Guinea, Paraguay, Sao Tome and Principe, Seychelles, Sierra Leone, United Republic of Tanzania, Venezuela, Yemen, Zaire. It decided to mention the cases of these States in the appropriate paragraphs of its report and to inform them in accordance with the usual practice.

150. The Committee notes with regret that the Governments of the States which were not or were no longer represented at the Conference, namely Antigua and Barbuda, Djibouti, Equatorial Guinea, Liberia, Saint Lucia, Solomon Islands, Somalia, were unable to participate in the Committee's examination of the cases relating to them. It decided to mention these countries in the appropriate paragraphs of this report and to inform the governments, in accordance with the usual practice.

151. Important questions of principle were discussed in the Committee, and there were some complex and even grave cases. But the spirit of the Committee was unfailingly constructive and the debates took place in good faith. All of this renews hope that solutions acceptable to all can be found. It should always be remembered that the legal instruments which it is the job of the supervisory bodies to see applied lead to the protection of the liberty, dignity and living conditions - even the life itself - of men, women and children everywhere.

152. The Committee noted that its discussions this year had shown there was consensus rather than conflict on many subjects: the place of the ILO in the international community in defending and promoting its principles and standards, the value of the supervisory processes, the complementary role of the Organization's technical cooperation activities, the undiminished need for vigilance and vigour in protecting and reclaiming basic human rights. In a world where security is generally less under threat from outside national borders than from within - both from the violation of human rights and from the fear and the reality of poverty and underdevelopment - it is in the final analysis by social progress that States and societies are to be judged.

Geneva, 20 June 1995. (Signed) S. Gopalan,

J. van Blankenstein,

Endnotes

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