Part III. Highlights of the last decade. Ratification of Conventions: Difficulties and prospects

Chapter XII. Ratification of Conventions: Difficulties and prospects

I. Convention No. 87

New ratifications

284. The Committee notes with satisfaction that Convention No. 87 has been ratified by the following member States since 1983: Burundi, Latvia, Rwanda, San Marino, Sao Tome and Principe, Turkey. In addition, the following member States have officially informed the ILO that they remain bound by the Convention which was applicable to their territory: Azerbaijan, Belize, Bosnia and Herzegovina, Croatia, Czech Republic, Kyrgyzstan, Russian Federation, Slovakia, Slovenia, Tajikistan. This brings the total number of ratifications of Convention No. 87 to 109 as at 31 January 1994. (Endnote 1)

Ratifications in progress or considered

285. The Committee notes with interest that the Government of Estonia states that there are no obstacles to the application of the Convention and announced in May 1993 that it would be submitted to Parliament for ratification. The Committee welcomes this initiative and trusts that the formal process of ratification will be rapidly completed.

286. The Government of Cape Verde states that it has begun the process with a view to ratifying the Convention since the necessary conditions already exist in legislation. The Government of Iraq states that it intends to adopt the necessary measures to bring its legislation into conformity with the provisions of the Convention, which will be examined with a view to ratification. The Committee notes the intention stated by these Governments and invites them to pursue and speed up the process leading up to ratification, if necessary with the technical assistance of the ILO.

Other cases

287. The Committee notes however that several other countries state that they are not in a position to ratify the Convention, citing various difficulties, (Endnote 2) or do not take up any position on the question of ratification. (Endnote 3) In the latter group, some countries state that the provisions of the Convention will be considered at a later date, in some cases with the assistance of a body set up for that purpose, while others point out more generally that their legislation is, on the whole, compatible with the Convention or adequately governs the rights of workers' and employers' organizations.

Difficulties delaying or preventing ratification

288. Pointing out that freedom of association is enshrined in the country's Constitution, the Government of Botswana adds that it is also protected by legislation (the Trade Unions and Employers' Organizations (Amendment) Act, 1992) and by the guiding principles contained in certain documents outlining its policy in these matters (Government Paper No. 1 of September 1990). The latter provides, for example, that aspects of industrial relations legislation which may inhibit collective bargaining and the development of trade unions should be reviewed and abolished where necessary. Improvements have thus been introduced as regards the drafting of organizations' rules, the election of trade union officers, and affiliation to federations and international organizations; a provision entitling the Labour Minister's representative to attend every meeting of trade union federations has been repealed. However, the Government states that the Convention cannot be ratified at this time in view of the incompatibility of certain provisions of national legislation with Convention No. 87, in particular the power of the minister to dissolve trade unions, the need for unions to obtain previous authorization to affiliate with international organizations, and to observe certain guidelines in order to qualify for registration.

289. The Government of Brazil considers that two provisions of national legislation could give rise to difficulties with respect to the Convention, that is those prescribing a single trade union system at branch level and imposing the financing of trade union organizations by means of a compulsory contribution fixed by their general assembly (articles 8 II and IV of the Constitution).

290. According to the Government of Cambodia, the main difficulty preventing or delaying the ratification of the Convention is the absence of a law on trade unions, although the Labour Code and some Ministerial Regulations ("Prakas") give effect to some provisions of the Convention. It adds that the elaboration of a trade unions act is currently under study. The Committee recalls that the ILO may provide its technical assistance to the Government in this matter.

291. The Government of El Salvador raises the question of the armed forces and the police, which are governed by special legislation. As it had already emphasized in the General Surveys of 1973 and 1983, (Endnote 4) the Committee recalls that according to Article 9 of the Convention, the extent to which the guarantees provided for in the Convention apply to the armed forces and the police is to be determined by national law and regulations: consequently, States ratifying the Convention are free to decide on the extent to which such workers shall enjoy the right to organize, if at all. The Government also mentions that several provisions prohibit the right to strike in the public sector and in essential services, where the settlement of labour disputes may be imposed by means of compulsory arbitration; the Committee refers to its comments on this subject in this Survey. (Endnote 5) Noting in addition that El Salvador has recently received technical assistance from the ILO, including a direct contacts mission, on these matters in particular, (Endnote 6) the Committee trusts that this enabled the Government to identify the discrepancies with respect to the Convention and to envisage possible solutions.

292. Referring to the relative stability of its legislation concerning freedom of association, the Government of the United States essentially reiterates the information supplied for the previous General Survey. Constitutional provisions guarantee workers and employers the right to establish organizations, without prior authorization or government interference. The main machinery for the settlement of disputes lies in the obligation on both parties to bargain in good faith, with the option of seeking the assistance of the Federal Mediation and Conciliation Service. In general, workers have the right to strike, and employers the right to continue operations during the strike, if necessary by hiring workers not employed in the enterprise; if the strike is what is known as an "economic strike" the employer is not required to re-employ the workers at the end of the dispute, but only to place them on a preferential re-hire list. Federal employees generally do not have the right to strike, as this is considered to be against the public interest; federal employees who do strike are subject to termination of employment and possible criminal penalties. At the request of the President of the United States, a federal district court may impose an injunction if it finds that a strike or lock-out threatens an entire industry or a substantial part thereof, and will imperil the national health and safety. The Government states that although no recent in-depth tripartite analysis has been performed regarding this Convention, federal legislation appears to be in general conformity with the Convention: no additional measure is envisaged, including as regards ratification of the Convention. The draft report of the Government was reviewed by the Tripartite Advisory Panel on International Labour Standards (TAPILS).

293. The Government of Kenya states that the present level of social and economic development prevents ratification of the Convention. The Committee recalls in this respect that the Conventions on freedom of association are part of fundamental human rights and cannot be called into question for purely economic reasons. The Government also considers that a problem arises concerning the armed forces and the police; the Committee refers to its comments above in this respect. Among the other difficulties preventing it from ratifying the Convention at this stage, the Government of Kenya mentions that trade unions are subject to registration. According to the Government, other provisions of national legislation should be amended in order bring it into conformity with the requirements of the Convention, in particular: the discretionary powers of the Registrar to refuse registration or deregister a trade union and the provisions requiring that union officials, except the secretary-general, should be connected with a particular industry. The Government adds that it continues to encourage the development of a few, but strong, viable and independent workers' and employers' organizations.

294. The Government of Lebanon mentions the fact that trade unions must obtain previous authorization to be set up as a difficulty which may impede ratification of the Convention. It adds, however, that this authorization is not granted by the State in a discretionary manner but is dictated by the need to provide rules and authority for the organization of trade union activity, and points out that these provisions have not prevented a substantial number of workers' and employers' organizations from being set up. The Committee emphasizes in this respect that regulations concerning the establishment of organizations are not in themselves incompatible with the Convention, unless they impair the guarantees laid down in the Convention. (Endnote 7) Noting that in order to bring the Labour Code up to date, the authorities have recently set up a committee of specialists which should, among other things, study the possibility of taking the provisions of the Convention into account, including in the examination of a new planned trade union structure, the Committee reminds the Government that it may avail itself of ILO technical assistance for this purpose.

295. The Government of Malaysia mentions that the main difficulty preventing ratification of the Convention is that it would enable the formation of general unions which might be led by persons having nothing to do with the activities or interests represented by the unions and pursuing political or even subversive aims. According to the Government, the present system contributes to the orderly growth of trade unions, which in turn contributes to industrial harmony in the country.

296. According to the Government of Morocco, the Dahir of 1957 on organizations of employers and workers drew its inspiration to a large extent from the Convention and its provisions are mostly in conformity with it. However, the Convention has not been ratified due to provisions in legislation requiring that candidates to the executive committee and administration of trade unions be of Moroccan nationality and be in full possession of their civil and political rights. Noting that the Government had already raised this point in its report for 1983, (Endnote 8) the Committee refers to its remarks in this survey, (Endnote 9) pointing out that a formula which would allow a certain amount of flexibility would enable to overcome this minor difficulty.

297. The Government of New Zealand states that there have been substantial changes recently in the industrial relations legislation with the entry into force of the Employment Contracts Act 1991. As regards difficulties which may prevent or delay the ratification of the Convention, the Government mentions that the new Act leaves employers and employees free to choose whether they will associate collectively and if so, with whom. The Committee refers in this respect to its comments in the present Survey concerning trade union security. (Endnote 10) The Government adds that, although strikes and lockouts are allowed in support of negotiations for an expired collective agreement, a problem could arise relating to certain restrictions on the right to strike, such as strikes a trade union would like to hold in order to secure an employment contract covering more than one enterprise; according to it, this provision is intended to protect the right of employers and employees to choose the coverage of employment contracts. The New Zealand Council of Trade Unions considers that these prohibitions constitute a fundamental restriction on the right to organize and to bargain collectively.

298. According to the Government of Sri Lanka, the main difficulties preventing ratification of the Convention at this stage are restrictions imposed on public servants and their organizations (prohibition on setting up more than one public servants' trade union for the same government department or service, prohibition on such unions from being affiliated or federated with any other trade union, whether in the private or the public sector, prohibition on pursuing political objectives or having political funds, prohibition on public servants from joining a trade union admitting private sector employees, and prohibition on any person who is not a public officer being admitted to membership of any public servants' trade union), and the power conferred on the Minister of Labour to refer any dispute for compulsory arbitration and broad powers of the Registrar to cancel registration of a union. The Government adds that the law requires that not less than half of the total number of officers must be employed in the industry or occupation concerned; on this last point, the Committee recalls that provisions of this kind do not pose problems with regard to the Convention when they only affect some of the trade unions' officers, which seems to be the case here. As for the other difficulties cited by the Government, the Committee refers to the comments it has made in this survey concerning the right to organize of public servants, the structure and composition of public servants' organizations (Ch. III), political activities of trade unions (Ch. IV), the prohibition on strike action (Ch. V) and the dissolution and suspension of organizations by administrative authority (Ch. VI).

Other information

299. The Government of Angola states that inspiration was taken from the Convention in drafting the new Act respecting trade unions and that legislation has been extensively amended in order to give effect to the Convention.

300. The Government of China considers that the provisions of national legislation on this subject, in particular those of the Constitution, are in conformity with the fundamental principles and spirit of the Convention. Trade unions are mass organizations of the working class which should abide by the Constitution and the law, devote themselves to the unity of the country and the nation and should not infringe on the interests of the State and society, or the legitimate rights and freedom of other citizens.

301. The Government of Malawi states that national legislation guarantees the principles laid down in the Convention. However, the Government intends to review the labour legislation in order to accommodate developments and changes in the field of labour administration. This review will take account of the provisions of the Convention. The Committee reminds the Government that it may avail itself of ILO technical assistance for this purpose.

302. According to the Government of Uganda, the provisions of the Convention have been incorporated in the Trade Unions Decree, No. 20 of 1976. It states that there are now 15 legally registered trade unions; at the national level, affiliation is limited to one recognized central body, in view of past experience and problems occurring with a multiplicity of trade unions. According to the Government, the Trade Unions Decree also imposes certain restrictions on trade union activities, in that it requires a minimum number of members for registration of a trade union and confers broad powers on the Registrar to refuse registration or dissolve a trade union.

303. The Government of Sudan states that its labour relations legislation, which guarantees equal rights for workers' and employers' organizations, is in full conformity with, and even exceeds the requirements of the Convention, in particular as regards freedom to establish and administer trade unions. Moreover, legislation adequately protects their freedom of activity.

304. The Government of Singapore states that the national industrial relations system emphasizes consultation and the amicable resolution of industrial disputes through conciliation and arbitration; it has made it possible to improve the standard of living of the workers, who enjoy the right to organize, trade union membership having increased over the last seven years. The Government considers that there is no need to modify existing legislation and practice, but nevertheless notes the provisions of the Convention.

305. The Government of the United Republic of Tanzania states that with the recent adoption of a multi-party system, the ties between the workers' union and the single ruling party were severed and that various trade unions were set up. Referring to several provisions in the labour legislation which appear to be in conformity with the Convention, the Government points out however that, under the current legislation, the Organization of Tanzania Trade Unions (OTTU) remains the sole body representative of all employees in the country; the relevant provisions have been scrutinized by the Government, employers and workers, who proposed that they be amended if the Convention is to be ratified. The Government foresees adoption of measures in the future which will give effect to those provisions of the Convention not yet covered by the national legislation and practice. The Committee notes these positive developments and recalls that the Government may avail itself of the technical assistance of the Office in this respect.

306. The Government of Zambia states that consultations are currently taking place within the Tripartite Labour Consultative Council with a view to adopting measures to ensure complete exercise of the right to organize. Noting that a new Industrial and Labour Relations Act (Act No. 27 of 1993) has recently entered into force, the Committee trusts that these tripartite consultations will soon bear fruit and enable the Government to ratify the Convention, if necessary with ILO technical assistance.

307. The Government of Zimbabwe states that the principle of a single trade union for each branch of industry has been removed from legislation, but that public servants are not yet covered by the Labour Relations Act.

308. Several governments state that they have entrusted an ad hoc body with the task of examining industrial relations legislation, or that the latter is currently being reviewed. Thus, in 1992 the Government of the Republic of Korea set up a Committee on Labour Laws (including representatives from academia, labour, management, legal circles and the media) to conduct a systematic examination of labour relations legislation in order to bring it into line with the changing industrial society; all of the social partners have been consulted and the Government planned to submit proposed amendments to the National Assembly in 1993. The Government is determined to achieve the ILO's objectives, but states that a considerable amount of time and effort will be required to harmonize national legislation and practice with the Convention. The Government of Mauritius likewise states that it is currently studying the report submitted to it by a Special Law Review Committee to examine industrial relations legislation, and that consideration will be given to the provisions of the Convention during this examination. The Government of Thailand reports that, since national legislation is not entirely in conformity with the Convention, it is currently undertaking a review which will take its provisions into consideration.

II. Convention No. 98

New ratifications

309. The Committee notes with satisfaction that Convention No. 98 has been ratified by the following member States since 1983: Latvia, Netherlands, Rwanda, San Marino, Sao Tome and Principe, Togo. Moreover, the following member States have officially informed the ILO that they remain bound by the Convention which was applicable to their territory: Azerbaijan, Belize, Bosnia and Herzegovina, Croatia, Czech Republic, Kyrgyzstan, Russian Federation, Slovakia, Slovenia, Tajikistan. This brings the total number of ratifications of this instrument to 123 as at 31 January 1994. (Endnote 11)

Ratifications in progress or considered

310. The Government of Burundi mentions that ratification follows its normal course and could be completed at any time, since the draft texts have been submitted to the competent authorities at the beginning of the year. The Government of Estonia states that there are no obstacles to the application of the Convention and announced in May 1993 that it would be submitted to Parliament for ratification. The Government of Suriname states that the process of ratifying the Convention is under way, although the legislation on collective agreements is incomplete and it intends to adopt more uniform rules applicable to all sectors of industry. The Committee welcomes these initiatives and trusts that the formal process of ratification will be rapidly completed in all of these countries.

311. The Government of Zambia states that national legislation has not been amended to give effect to the provisions of the Convention. Pointing out that a continuous review of the legislation is undertaken, it considers that in due course it should be possible to consider ratification of the Convention. The Committee notes this information with interest and trusts that the formal process of ratification will be initiated in the near future.

Other cases

312. The Committee notes however that several other countries state that they are not in a position to ratify the Convention, citing various difficulties, (Endnote 12) or do not take up any position on the question of possible ratification. (Endnote 13) In the latter group, some countries state that the provisions of the Convention will be taken into consideration in a review of the legislation currently in force; others state more generally that their legislation is, on the whole, compatible with the Convention or adequately governs the rights of workers' and employers' organizations.

Difficulties delaying or preventing ratification

313. Referring to various legislative and other provisions protecting workers against discrimination for trade union activities and organizations against acts of interference, as well as measures to promote collective bargaining, the Government of Botswana states, however, that there exist difficulties preventing ratification of the Convention. It refers to the prohibition on civil servants from forming trade unions.

314. The Government of Cambodia states, due to the absence of an act on trade unions and to the fact that professional associations and trade unions do not exist, the issue of protection against anti-union discrimination remains somewhat theoretical. The authorities have undertaken a study with a view to elaborate a trade unions act and regulations concerning labour disputes and collective agreements. The Committee recalls that the ILO may provide technical assistance to the Government in this matter.

315. Mentioning that the legislation in force in the different jurisdictions is essentially in conformity with the basic provisions of the Convention, the Government of Canada recalls that, according to long-standing practice concerning instruments on subjects coming under both the federal and provincial/territorial jurisdictions (which is the case of Convention No. 98), ILO Conventions are only ratified if all of the authorities concerned concur with ratification and undertake to implement the instruments.

316. The Government of El Salvador states that Article 5 of the Convention is not applicable under national law, as the armed forces and the police are governed by special texts. In its General Surveys of 1973 and 1983, the Committee already drew the attention of the Government to the fact that under Article 5, the extent to which the guarantees provided for in the Convention apply to the armed forces and the police is to be determined by national law and regulations. Consequently, States ratifying the Convention may decide on the extent to which such persons shall enjoy the right to organize, if at all.

317. The Government of the United States points out that the application of the Convention is widely assured by constitutional and legislative provisions, in particular the National Labour Relations Act (NLRA). The latter protects workers against acts of anti-union discrimination and organizations against acts of interference, by means of remedies against unfair labour practices, with enforcement being entrusted to an independent body, the National Labour Relations Board (NLRB); specific Acts provide similar protection to railway and airline employees; employees who are not covered by these Acts are protected by state legislation or, subsidiarily, by constitutional guarantees. The promotion of collective bargaining is ensured by means of legal remedy against unfair labour practices and by provisions expressly obliging the parties to meet and confer in good faith, even if this does not include any duty to make concessions or agree to a proposal made by the other party to bargaining; the NLRA provides that the parties have the right to strike and lockout in support of their respective positions. Disputes that cannot be resolved by the parties themselves are generally resolved by means of mediation, conciliation and arbitration, usually on a voluntary basis, with or without the assistance of an independent agency, the Federal Mediation and Conciliation Service (FMCS). Federal public servants have rights and remedies similar to those provided under the NLRA, but there are limitations on the subject-matter of collective bargaining, and the right to strike is denied; state and local government employees are covered by a variety of legislation which cannot be inconsistent with fundamental constitutional guarantees of freedom of association. In the view of the Government, legislation, which has been relatively stable, is in general conformity with the Convention, and no new measures are envisaged, including ratification of the Convention. The draft government report was reviewed by the Tripartite Advisory Panel on International Labour Standards (TAPILS). (Endnote 14)

318. Recalling the substantial changes in labour legislation which have recently entered into force, the Government of New Zealand states that it has now instituted a labour relations system in which the parties are free to bargain collectively or individually, which could lead to disputes. It also reiterates the difficulties cited as regards certain restrictions on the right to strike. (Endnote 15)

319. The Government of Switzerland states that while new provisions improve protection of workers against dismissal, in particular for the lawful exercise of trade union activities, ratification of the Convention is still impossible due to the absence of provisions in national legislation protecting workers against acts of anti-union discrimination before employment. At this stage, no measure is envisaged to give effect to the provisions of the Convention which are not yet covered by national legislation.

Other information

320. The Governments of the Republic of Korea and Thailand give the information supplied regarding the process of review of their national legislation with respect to Convention No. 87, as regards Convention No. 98, stating that the provisions of the Convention will be taken into consideration, but that several obstacles to ratification remain at this stage. (Endnote 16) The Committee trusts none the less that the work of the bodies reviewing this legislation will be completed within a reasonable period and recalls that the ILO can provide technical assistance for this purpose.

321. The Governments of Chile, the Islamic Republic of Iran, Kuwait, Madagascar and Mexico state that, in their view, the provisions of national legislation are in conformity with the Convention and that no change is currently being envisaged.

322. The Government of Myanmar states that following the changes which occurred in 1988, a national Convention representing all social groups is currently discussing new constitutional and legislative provisions which will include those regarding the fundamental rights and responsibilities of workers. Noting that the Conference Committee on the Application of Standards suggested that the Government avail itself of ILO assistance with respect to Convention No. 87, (Endnote 17) the Committee is of the view that such assistance could also prove useful and appropriate at this stage, in connection with Convention No. 98.

323. The Government of Zimbabwe states that although the Labour Relations Act has decentralized the collective bargaining process, it still does not cover public servants.

III. Reports not submitted

324. Regarding the reports requested under article 19, the Committee notes with concern that 52 of the 106 reports requested were not submitted. (Endnote 18) While it is aware that some of these countries have been going through, or are still experiencing, severe political crises, or periods of civil unrest or war, the Committee stresses the importance of compliance with this constitutional obligation, as it does regularly with regard to article 22 of the Constitution, (Endnote 19) since the reports supplied under article 19 are the first step in the dialogue undertaken with governments leading up to the possible ratification of Conventions. In view of the particular importance of Conventions Nos. 87 and 98 the Committee deeply regrets that these reports were not transmitted.

325. The Committee recalls the utmost importance of ratifying ILO Conventions, in particular those concerning freedom of association, which the revised classification adopted in 1987 placed first among the instruments to be promoted on a priority basis. (Endnote 20) It also observes that, at its 153rd Session, the Inter-Parliamentary Council adopted a resolution calling on each of the Parliaments represented in the Inter-Parliamentary Union to "take the necessary initiatives for the rapid ratification of (the ILO Conventions which have not yet been ratified)" and to take initiatives to ensure that, particularly by adapting national labour legislation, the standards set by the ILO are fully implemented. (Endnote 21) On the occasion of the 75th anniversary of the founding of the ILO and the 50th anniversary of the Declaration of Philadelphia, the Committee urges member States which have not yet done so to ratify the Conventions concerning freedom of association, in particular those which are the subject of this survey. (Endnote 22)

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Endnote 20

Endnote 21

Endnote 22

Legislation

See related national legislation from Natlex

Botswana: Trade Unions and Employers' Organizations (Amendment) Act, 1992

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Case reference:0319932911524 Report=291 Case=1273, 1441, 1494, 1524 * El Salvador
Survey reference:251994G05 General Survey 1994, para. 156-162
Survey reference:251994G04 General Survey 1994, para. 118, 120
Survey reference:251994G03 General Survey 1994, para. 100-103
Not in ILOLEX: General Survey 1983, para. 368, 371