Handbook of procedures relating to international labour Conventions and Recommendations

II. Submission to the competent authorities

Constitutional obligations

12. Conventions come into force for any State only through an act of ratification duly registered by the Director-General of the ILO. However, all member States have an obligation to submit Conventions and Recommendations (Endnote_1) to the competent national authorities. The relevant provisions of article 19 of the Constitution are as follows:

5. In the case of a Convention:

(a) the Convention will be communicated to all Members for ratification;

(b) each of the Members undertakes that it will, within the period of one year at most from the closing of the session of the Conference, or if it is impossible owing to exceptional circumstances to do so within the period of one year, then at the earliest practicable moment and in no case later than 18 months from the closing of the session of the Conference, bring the Convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action;

(c) Members shall inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring the Convention before the said competent authority or authorities, with particulars of the authority or authorities regarded as competent, and of the action taken by them;

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6. In the case of a Recommendation:

(a) the Recommendation will be communicated to all Members for their consideration with a view to effect being given to it by national legislation or otherwise;

(b) each of the Members undertakes that it will, within a period of one year at most from the closing of the session of the Conference or if it is impossible owing to exceptional circumstances to do so within the period of one year, then at the earliest practicable moment and in no case later than 18 months after the closing of the Conference, bring the Recommendation before the authority or authorities within whose competence the matter lies for the enactment of legislation or other action;

(c) the Members shall inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring the Recommendation before the said competent authority or authorities with particulars of the authority or authorities regarded as competent, and of the action taken by them;

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7. In the case of a federal State, the following provisions shall apply:

(a) in respect of Conventions and Recommendations which the federal government regards as appropriate under its constitutional system for federal action, the obligations of the federal State shall be the same as those of Members which are not federal States;

(b) in respect of Conventions and Recommendations which the federal government regards as appropriate under its constitutional system in whole or in part, for action by the constituent states provinces, or cantons rather than for federal action, the federal government shall -

(i) make, in accordance with its Constitution and the Constitutions of the states, provinces or cantons concerned, effective arrangements for the reference of such Conventions and Recommendations not later than 18 months from the closing of the session of the Conference to the appropriate federal, state provincial or cantonal authorities for the enactment of legislation or other action;

(ii) arrange, subject to the concurrence of the state, provincial or cantonal governments concerned, for periodical consultations between the federal and the state, provincial or cantonal authorities with a view to promoting within the federal State coordinated action to give effect to the provisions of such Conventions and Recommendations;

(iii) inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring such Conventions and Recommendations before the appropriate federal state, provincial or cantonal authorities with particulars of the authorities regarded as appropriate and of the action taken by them. (Endnote_2)

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13. In order to facilitate the uniform presentation of information supplied by governments as to measures taken to comply with the provisions cited in paragraph 12 above, the Governing Body adopted a Memorandum concerning the obligation to submit Conventions and Recommendations to the competent authorities. A revised version of the Memorandum was adopted by the Governing Body in March 2005. (Endnote_3) The Memorandum recalls the relevant provisions of the Constitution and cites extracts from reports of the Committee of Experts on the Application of Conventions and Recommendations (Endnote_4) and the Conference Committee on the Application of Standards (Endnote_5) intended to clarify the aims and objectives of submission, the nature of the obligation and a series of requests for information. The tripartite consultations that should be held in relation to the obligation of the submission to national parliaments of the instruments adopted by the Conference are also recalled. The content of the Memorandum is as follows:

I. AIMS AND OBJECTIVES OF SUBMISSION

(a) The main aim of submission is to promote measures at the domestic level for the implementation of Conventions and Recommendations. Furthermore, in the case of Conventions, the procedure also aims to promote ratification.

(b) Governments remain entirely free to propose any action which they may judge appropriate in respect of Conventions or Recommendations. The aim of submission is to encourage a rapid and responsible decision by each member State on instruments adopted by the Conference.

(c) The obligation of submission is a fundamental element of the standards system of the ILO. One purpose of this obligation was, and still is, that the instruments adopted by the Conference are brought to the knowledge of the public through their submission to a parliamentary body.

(d) The obligation of submission reinforces the relations between the Organization and the competent authorities and stimulates tripartite dialogue at the national level.

(a) The competent authority is the authority which, under the Constitution of each State, has power to legislate or to take other action in order to implement Conventions and Recommendations.

(b) The competent national authority should normally be the legislature.

(c) Even in cases where, under the terms of the Constitution of the Member, legislative power is held by the executive, it is in conformity with the spirit of the provisions of article 19 of the Constitution of the ILO and of practice to arrange for the examination of the instruments adopted by the Conference by a deliberative body, where one exists. Discussion in a deliberative assembly, or at least information of the assembly, can constitute an important factor in the complete examination of a question and in a possible improvement of the measures taken at the domestic level to give effect to the instruments adopted by the Conference. With respect to Conventions, it could lead to a decision as to their ratification.

(d) In the absence of a parliamentary body, informing a consultative body makes it possible to carry out a full examination of the issues addressed by the Conference. This process ensures that the instruments are widely disseminated among the public, which is one of the purposes of the obligation of submission.

(a) Article 19 of the Constitution lays down the obligation to place before the competent authorities all instruments adopted by the Conference without exception and without distinction between Conventions and Recommendations.

(b) Governments have complete freedom as to the nature of the proposals to be made when submitting the instruments and on the effect that they consider it appropriate to give to the instruments adopted by the Conference. The obligation to submit the instruments does not imply any obligation to propose the ratification of Conventions or to accept the Recommendations.

(a) Since article 19 of the Constitution is clearly aimed at obtaining a decision from the competent authorities, the submission of Conventions and Recommendations to these authorities should always be accompanied or followed by a statement or proposals setting out the Government's views as to the action to be taken on the instruments.

(b) The essential points to bear in mind are: (a) that, at the time of or subsequent to the submission of Conventions and Recommendations to the legislative authorities, Governments should either indicate what measures might be taken to give effect to these instruments or propose that no action should be taken or that a decision should be postponed; and (b) that there should be an opportunity to take up the matter for debate within the legislature.

(a) In order that the competent national authorities may be kept up to date on the standards adopted at the international level which may require action by each State to give effect to them at the national level, submission should be made as early as possible and in any case within the time limits set by article 19 of the Constitution.

(b) In virtue of the formal provisions of article 19 of the Constitution, the submission of texts adopted by the Conference to the competent authorities must be effected within one year or, in exceptional circumstances, not longer than 18 months from the close of the session of the Conference. This provision applies not only to non-federal but also to federal States; in the case of the latter, the period of 18 months is applicable only in respect of Conventions and Recommendations which the federal Government considers to be appropriate for action by the constituent states, provinces or cantons. In order that it may be possible to ascertain that States Members have respected the prescribed time limits, the Committee considers that it would be advisable for the date on which the decisions of the Conference have been submitted to the competent authorities to be indicated in the communication to the Director-General.

As regards federal States, the Committee wishes to point out that under article 19 of the Constitution, paragraph 7(b)(i), whenever action by the constituent states, provinces or cantons is considered "appropriate", the Government must make effective arrangements for the reference of Conventions and Recommendations adopted by the Conference to the "appropriate authorities" of the constituent states, provinces or cantons for the enactment of legislation or other action.

(a) For those States which have already ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), effective consultations have to be held on the proposals made to the competent authorities when submitting the instruments adopted by the Conference (Article 5, paragraph 1(b), of Convention No. 144).

(b) The representative organizations of employers and workers must be consulted beforehand. The effectiveness of consultations presupposes that the representatives of employers and of workers have at their disposal sufficiently in advance all the elements necessary for them to reach their opinions before the Government finalizes its definitive decision.

(c) Members which have not ratified Convention No. 144 may refer to the relevant provisions of that Convention and to those of the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152).

(d) The representative organizations of employers and workers will be requested to make known their point of view on the action to be taken with regard to new instruments independently. Fulfilment of the submission procedure is an important moment of dialogue among government authorities, the social partners and parliamentarians.

(a) Under article 23, paragraph 2, of the Constitution, the information communicated to the Director-General on submission to the competent authorities must be sent also to the representative organizations of employers and workers.

(b) This provision is designed to enable the representative organizations of employers and workers to formulate their own observations on the action that has been taken or is to be taken with regard to the instruments in question.

14. (a) Copies of Conventions and Recommendations are sent to governments, immediately after the Conference adopts them, by circular letter recalling the obligations as to submission under article 19 of the Constitution. The Governing Body Memorandum is attached to this circular letter. Copies of the same documents are sent to national organizations of employers and workers.

(b) One year after the close of the session of the Conference at which the instruments were adopted, a letter of reminder - with a further copy of the Memorandum - is addressed to all governments which have not supplied the information requested.

(c) When 18 months have elapsed since the close of the relevant session of the Conference and the information has still not been supplied, a further reminder is sent.

(d) In response to the Committee of Experts' request, the Office, when it receives information as to submission of instruments to the competent authorities, checks to see whether the information and documents asked for in the Governing Body Memorandum - including replies to any observations or direct requests of the Committee of Experts itself or observations of the Conference Committee - have been supplied. If they have not, the Office will, as a routine administrative step, ask the government concerned to send what is missing. The substance of information supplied is examined by the responsible supervisory bodies.

15. Article 5, paragraph 1(b), of Convention No. 144 and Paragraph 5(b) of Recommendation No. 152 provide for consultation of representatives of employers' and workers' organizations on the proposals to be made to the competent authorities in connection with the submission of Conventions and Recommendations. Part V of the questionnaire at the end of the revised Memorandum asks the governments concerned to indicate whether prior consultations took place and, if applicable, the nature of those consultations.

16. Article 23, paragraph 2, of the Constitution provides that all governments must communicate to the organizations copies of the information supplied under article 19; and under Part VI of the questionnaire at the end of the Governing Body's Memorandum, they should indicate to the Office which organizations communication has been made to. The Memorandum also asks governments to indicate any observations received from employers' or workers' organizations as to the effect given or to be given to the instruments submitted.

17. Article 23, paragraph 1, of the Constitution provides for a summary of the information supplied under article 19 to be laid before the next meeting of the Conference. That summary appears as an appendix to Report III (Part 1A).

18. Governments and representative organizations of employers and workers may, on request, obtain from the International Labour Office information and specimen documents showing the manner in which other countries fulfil the submission obligation.

Endnotes

Cross references
Conventions: C144
Recommendations:R152
Constitution: Article 19
Constitution: Article 23
Constitution: Article 35