Handbook of procedures relating to international labour Conventions and Recommendations

XI. Special procedures

A. Representations as to the observance of ratified Conventions

Constitutional provisions

76. Articles 24 and 25 of the Constitution read as follows:

Article 24

In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.

Article 25

If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.

77. When adopting the new amendments in November 2004, the Governing Body decided that the special Standing Orders should be preceded by an Introductory note summarizing the various stages of the procedure and indicating the options available to the Governing Body at each stage: (Endnote_1)

(a) the Office acknowledges receipt and informs the government concerned;

(b) the matter is brought before the Officers of the Governing Body;

(c) the Officers report to the Governing Body on the receivability of the representation, for which purpose it must:

(i) be communicated to the ILO in writing;

(ii) come from an industrial association of employers or workers;

(iii) make specific reference to article 24 of the Constitution;

(iv) concern a Member of the ILO; (Endnote_2)

(v) refer to a Convention to which the Member in question is a party;

(vi) indicate in what respect it is alleged that that Member has failed to secure the effective observance within its jurisdiction of that Convention;

(d) the Governing Body reaches a decision on the receivability without discussing the substance of the matter;

(e) if the representation is receivable, the Governing Body either sets up a tripartite committee to examine the matter according to rules laid down in the Standing Orders; or, if the matter relates to a Convention dealing with trade union rights, it may refer it to the Committee on Freedom of Association;

(f) the Committee reports to the Governing Body, describing the steps taken to examine the representation and giving its conclusions and recommendations for decisions to be taken by the Governing Body;

(g) the government concerned is invited to be represented in the Governing Body consideration of the matter;

(h) the Governing Body decides whether to publish the representation and any government statement in reply and notifies the association and government concerned.

Main constitutional provisions

78. Article 26 of the Constitution reads as follows:

1. Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing articles.

2. The Governing Body may, if it thinks fit, before referring such a complaint to a Commission of Inquiry, as hereinafter provided for, communicate with the government in question in the manner described in article 24.

3. If the Governing Body does not think it necessary to communicate the complaint to the government in question, or if, when it has made such communication, no statement in reply has been received within a reasonable time which the Governing Body considers to be satisfactory, the Governing Body may appoint a Commission of Inquiry to consider the complaint and to report thereon.

4. The Governing Body may adopt the same procedure either of its own motion or on receipt of a complaint from a delegate to the Conference.

5. When any matter arising out of article 25 or 26 is being considered by the Governing Body, the government in question shall, if not already represented thereon, be entitled to send a representative to take part in the proceedings of the Governing Body while the matter is under consideration. Adequate notice of the date on which the matter will be considered shall be given to the government in question.

79. The following articles of the Constitution deal with other aspects of the complaints procedure:

article 27: Members' cooperation with a Commission of Inquiry;

article 28: report of the Commission of Inquiry, embodying its findings and recommendations;

article 29: communication and publication of the report of a Commission of Inquiry, indication of governments concerned whether they accept its recommendations, and possible reference to the International Court of Justice (ICJ);

article 31: decision of the ICJ to be final;

article 32: power of the ICJ over the findings or recommendations of a Commission of Inquiry;

article 33: Governing Body recommendation as to action by the Conference in the event of failure to carry out recommendations of the Commission of Inquiry or the ICJ;

article 34: verification of compliance with recommendations of the Commission of Inquiry or the ICJ and subsequent Governing Body recommendation as to discontinuance of action by the Conference.

80. There are no standing orders for the procedure of Commissions of Inquiry: the Governing Body has in each case left the matter to the Commission of Inquiry itself, subject only to the Constitution's and its own general guidance. The reports of the respective Commissions of Inquiry describe the procedure followed for the examination of complaints, including the procedure for receiving communications from the parties and other interested persons or organizations, and holding hearings. (Endnote_3)

1. Governing Body Committee on Freedom of Association (Endnote_4)

Composition and terms of reference

81. The Committee is a tripartite organ of the Governing Body, comprising nine of its members and nine substitute members sitting in a personal capacity, plus an independent Chairperson. Its sittings are private, its working documents confidential and, in practice, its decisions are taken by consensus. The Committee examines complaints of infringement of freedom of association and submits its conclusions and recommendations to the Governing Body. Complaints may be entertained regardless of whether the country concerned has ratified any of the Conventions in the field of freedom of association. (Endnote_5)

82. (a) Complaints must be in writing, signed and supported by proof of allegations relating to specific infringements of freedom of association.

(b) Complaints must come from organizations of employers or workers (Endnote_6) or from governments. An organization may be:

(i) a national organization directly interested in the matter;

(ii) an international organization of employers or workers which has consultative status with the ILO; (Endnote_7)

(iii) another international organization of employers or workers, where the allegations relate to matters directly affecting affiliated organizations. Organization of the Committee's work

83. (a) The Committee meets three times a year.

(b) The Office may at any time ask a complainant to specify what infringements are complained of, where a complaint is not sufficiently detailed.

(c) The Office informs complainants that they should supply any supplementary information intended to substantiate their complaints within one month. (Endnote_8)

(d) The allegations are transmitted by the Office to the government concerned for reply within a given period.

(e) The Committee decides whether to reach a conclusion or ask the government concerned for additional information.

(f) The Committee may recommend the Governing Body to communicate them to the government concerned, drawing attention to anomalies, and inviting measures to remedy them as well as the transmission of further information on such measures. It may also recommend referral to the Fact-Finding and Conciliation Commission. (Endnote_9)

(g) The Committee's Report is published in the Official Bulletin.

(h) The Committee agreed to adopt on a trial basis a procedure which would allow seeking, as the case may be, the comments of all the parties affected, so that the government may transmit to the Committee the most exhaustive reply possible. The practical application of this new rule of procedure should not result in a delay concerning the recourse to urgent appeals made to governments nor in the examination of cases. (Endnote_10)

(i) The Office systematically requests governments to ensure that they obtain information from all parties concerned by the allegations.

(j) The Committee may invite its Chairperson to hold consultations with a governmental delegation during the International Labour Conference, to draw their attention to the seriousness of some problems and to discuss the various means that would allow their resolution.

(k) If a country has ratified the relevant Conventions on freedom of association, the Committee can draw the legislative aspects of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

(l) In the course of the procedure, it is possible to undertake various missions (direct contacts, technical assistance, etc.) with the government's consent.

Composition, terms of reference and procedure

84. The Commission is composed of nine independent persons appointed by the Governing Body, who normally work in panels of three. It examines complaints of infringements of freedom of association referred to it by the Governing Body, including on the request of a government against which allegations are made. (Endnote_11) The Commission's procedure is comparable to that of a Commission of Inquiry, (Endnote_12) and its reports are published.

Constitutional provision

85. Article 30 of the Constitution provides:

In the event of any Member failing to take the action required by paragraphs 5(b), 6(b) or 7(b)(i) of article 19 with regard to a Convention or Recommendation, any other Member shall be entitled to refer the matter to the Governing Body. In the event of the Governing Body finding that there has been such a failure, it shall report the matter to the Conference.

Endnotes