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ILCCR: Examination of individual case concerning Convention No. 144, Tripartite Consultation (International Labour Standards), 1976 United States (ratification: 1988) Published: 2007Description:(ILCCR Individual Observation) Convention:C144 Country:(United States) Published:2007 Session of the Conference:96 Document:22 Subject: Tripartite Consultation Subject classification: Tripartite Consultation Display the document in: French Spanish Document No. (ilolex): 132007USA144 A Government representative referred to the written communication already provided to the Conference Committee and recalled that during the discussion in the Conference Committee in 2005 of that case, her Government had noted that Convention No. 144 was a very flexible, promotional instrument which allowed for consultations to be conducted in a manner that was best suited to national conditions and practice. In her Government's view, the mechanism for tripartite consultations on questions relating to ILO standards, which had been established before the adoption of the Convention and its ratification by the United States, continued to be effective and appropriate to the national situation. It was important for the Conference Committee to understand that the President's Committee on the ILO was more than just a formal body; it was, in fact, a broad-ranging mechanism for tripartite consultation. The Committee itself only met when warranted by issues that required decision at the highest level. However, tripartite consultations did not stop because there was no formal meeting of the President's Committee. The speaker explained that the bulk of the ILO consultations were conducted less formally at the staff level and covered a broad range of ILO matters considerably exceeding what was required in Article 5(1) of Convention No. 144. The tripartite consultations that were held in the context of the drafting of the Maritime Labour Convention were a particularly good example in that respect. Turning to the issue of consultations on ratification of ILO Conventions, she observed that much of what had been said about the implementation by the United States of Convention No. 144 related to the country's ratification of ILO Conventions. The speaker acknowledged that her Government would not ratify a Convention unless or until law and practice were in full conformity with its provisions. It was true that the legal review process had resulted in a very slow process towards ratification but this was preferred to ratifying first and assessing compliance later. Turning to her Government's commitment to tripartism, she pointed out that the President's Committee mechanism now allowed for other interested organizations of workers and employers who had a legitimate interest and rationale for doing so to participate and be kept informed about ILO standards-related issues. As such, the right of United States workers and employers had been acknowledged to decide for themselves who should represent them on the President's Committee. The speaker recalled the Committee of Experts' view that effective tripartite consultations were those that enabled employers' and workers' organizations to have a useful say in ILO matters. In that regard, her Government continued to believe that the tripartite consultations in the United States were effective. In conclusion, she recalled the Committee of Experts' request to both the United States Government and the social partners to re-examine the manner in which Convention No. 144 was being applied in order to ensure that all stakeholders take appropriate measures to achieve a satisfactory solution. She expressed her personal commitment to respond to the Committee of Experts' call for action, and she looked forward to working with the social partners concerned in that endeavour. The Employer members recalled that the Convention sought to establish tripartite mechanisms to promote the application of international labour standards. To undertake such a task, it provided for the implementation of procedures ensuring effective tripartite consultations on various issues relating to the ILO, such as those referring to items on the agenda of the International Labour Conference, the submission of Conventions and Recommendations, examination of non-ratified Conventions and denunciation of ratified Conventions. It was therefore necessary to determine whether consultations existed and their effectiveness or lack thereof. Before doing so, the Employer members felt it important to clarify two issues. Firstly, the Convention sought to promote the application of international labour standards through a system of consultation or collaboration and to facilitate tripartite consideration of the possible benefits of ratifying or not Conventions. It did not expressly seek to promote a greater or lesser number of ratifications. Therefore, it was irrelevant to analyse how many Conventions a particular country had ratified. Secondly, the Employer members felt that it was inappropriate to become involved in considering the level of influence exercised by social partners in the Government's decisions or commitments as a result of tripartite consultations. Instead, they felt that it was important to determine what was meant by "effective consultations". No definition was given in the Convention, but by following various legislative criteria, effective consultation could be considered as the transmission of relevant information to social partners so that they could become aware of a topic and examine it, and as the exchange of opinions and contributions on matters relating to ILO activities. With regard to the form taken by effective consultations, the Employer members indicated that the Convention referred to national procedures. Was it necessary for consultations to take place during one meeting or during several? Should meetings be held at the highest level or at a more technical level? Should a formal consultation procedure be established in writing or should it be more informal? The Employer members felt that the nature and form of consultations could be significant, but at the same time, could vary by country. In many cases, there were formal consultations with numerous meetings and documentation, but which were considered no more than a formality with limited effectiveness. The crux of the matter was for relevant information to be supplied on time, with the social partners able to make their contributions in order to influence the final decision through their opinions and submissions. Nevertheless, they stressed that in no way did it amount to a question of negotiation or agreement. The Employer members felt that in the United States, that obligation had been channelled through a consultation system established some years earlier, consisting of a political body and two technical bodies. The former, the President's Committee, met only when decisions were required at the highest level. It had met six times since 1988 and not at all since 2000. In addition to the President's Committee, there was a consultative group on ILO matters that channelled consultations relating to items on the International Labour Conference agenda, as well as tackling issues relating to the Governing Body and the application and ratification of ILO Conventions. A further body, the Tripartite Advisory Panel on International Labour Standards (TAPILS) was established specifically to examine the legal feasibility of ratifying selected ILO Conventions. Those technical consultative bodies had met regularly, the former on six occasions and the latter at least once. They considered issues to which the Convention referred, and took into account meetings before and after the ILO Conference and Governing Body, and issues relating to the ratification of at least two Conventions. The Employer members indicated that there was insufficient proof of an absence of regular meetings in respect of the Convention or that the information provided was not suitable or not provided in time. There was also insufficient proof that the social partners were unable to give their opinions before decisions were taken. They felt that the Government representative supplied information on the Convention's application since 2005 and indicated that they were willing to receive further details and information that would enable them to have a more complete overview of the Convention's application in practice. The Worker members recalled that the issue of the application of the Convention in the United States had already been addressed in 2005. They appreciated the fact that the Government had provided in advance additional information in the form of a written communication. As regards the substance, they noted that the spirit of Convention No. 144 was to institutionalize an effective and pragmatic process of tripartite consultations ultimately aiming at ratifying ILO Conventions. Yet, to date, the United States had merely ratified 12 Conventions, of which only two were fundamental Conventions: Convention No. 105 and Convention No. 182. In the conclusions of this Committee in 2005, it noted the information regarding the procedure for the ratification of Conventions Nos 111 and 185 and expressed the hope that the consultations announced in this regard would take place as soon as possible. Furthermore, Convention No. 144 sought to establish a favourable framework for the implementation of Conventions Nos 87 and 98. A restrictive interpretation of Convention No. 144 would therefore compromise, on the one hand, the role of workers' organizations and, on the other hand, the impact of ILO standards in every country. The Convention certainly allowed for the division of the foreseen procedure between two bodies, as was the case in the United States, with, on the one side, the President's Committee on the ILO, and, on the other side, the TAPILS. Of course Convention No. 144 did not indicate the intervals at which consultations are to take place, and the effectiveness of the tripartite consultations could not be measured solely by the number of tripartite meetings that had been organized. However, when a country ratifies a Convention it must be applied both in letter and spirit. The Worker members believed, however, that the particularities of the mechanism, whatever it might be, should not be utilized to slow down the process. Moreover, they firmly rejected the view of solely envisaging the ratification of those Conventions that did not require modification of national legislation, since such a strategy would destroy hopes for a positive development of social legislation of all States adhering to it. Given that the whole world looked to the United States, it was imperative that the country undertook to reinvigorate the competent bodies for tripartite consultations and seriously considered ratifying the ILO fundamental Conventions. The Worker member of the United States noted that the issue was not the mechanism for tripartite consultation, but rather the fact that the current Administration had allowed the tripartite process to languish. As had been noted by the Committee of Experts in its observation, the Government had failed to respond to the comments made by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). It was only after submission of the written response to the Conference Committee, that the Government's position was known. The speaker questioned the Government's stated commitment and pointed out that while the President's Committee had been established as the pinnacle of tripartite consultative mechanisms, the Secretary of Labor had failed to call one single meeting over the past seven years. This was the longest period of inactivity of the President's Committee since 1989. Turning to the United States framework for carrying out the tripartite consultative process, she indicated that, in addition to the President's Committee, two other mechanisms existed, notably the TAPILS and the Consultative Group. According to the United States Government, the primary purpose of TAPILS was to examine the national law and practice relating to selected ILO Conventions with a view to considering the legal implications of ratification or other appropriate action. However, the lack of a serious agenda for TAPILS underscored the fact that the Government had engaged in no serious effort to ratify Conventions Nos 111 and 185 despite the fact that those Conventions had been under consideration for possible ratification for some time. The speaker pointed to the fact that a working group had met once to discuss the law and practice report with respect to Convention No. 111 but that a final report had yet to be produced. A similar problem existed with regard to Convention No. 185. The Worker member of the United States was surprised to hear from the Government that the TAPILS process would be reviewed as soon as an internal governmental review of the Convention was completed. No explanations were given as to the timing of such a review. The only explanation that had been given was that the review touched upon national security issues - the usual fallback for every action that the current Administration took when it wanted to avoid public scrutiny. Turning to the meetings of the Consultative Group, she contested the Government's view that it was engaged in tripartism only because the Consultative Group met prior to the ILO Governing Body and the International Labour Conference. In her view, these meetings did not amount to effective consultation and stood in stark contrast to the kind of discussions that the Consultative Group had been engaged in prior to the current Administration. Further, she expressed her concern over another disturbing development since 2005, which was the change in the composition of the President's Committee. The purpose of this was to delete reference to the AFL-CIO as the workers' representative and the United States Council for International Business as the employers' representative. Instead, the Secretary of Labor would decide who would be represented at the Committee. This was done without notice and prior consultation. In this context, the Department of Labor had twice called a meeting of all international presidents to discuss the composition of the delegation to the Conference in 2006 and 2007 despite the fact that no union or the AFL-CIO had expressed the need for such a meeting. In sum, she felt that the Government's meddling in the affairs of the workers hardly amounted to a commitment to tripartism, on the contrary. The Worker member of Greece raised a question directed at the Government representative concerning the reasons why the Government of the United States lagged behind the overwhelming majority of ILO Members in the ratification of Conventions, including those that were the foundation of the 1998 Declaration. The Government member of Cuba stated that tripartite dialogue on international labour standards constituted an effective mechanism to achieve not only ratification, but also to apply effectively ILO Conventions in law and in practice. Therefore, the ILO supervisory bodies should pay special attention to complying with that principle in their activities and to applying those standards at the national level. She felt that as regards promoting the ratification of fundamental Conventions, priority should be given to those countries which applied a restrictive policy on ratification, since although ratification in itself did not prove its application, it entailed a willingness to assess and modify aspects of legislation and practice through the effective application of the ratified standards. In the particular case, the ratification and effective application of Convention No. 87 should be promoted, since it was the cornerstone of tripartite consultation under Convention No. 144. The Worker member of India pointed out that in June 2005 the Conference Committee had rightfully developed the hope that the consultations concerning ratification of Conventions Nos 111 and 185 would be concluded in the near future. However, such hope and aspiration of the workers of the United States had not been fulfilled through sheer neglect of the United States Administration. In spite of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, the United States Government had failed or neglected to ratify ILO fundamental Conventions such as the Forced Labour Convention, 1930 (No. 29); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Equal Remuneration Convention, 1951 (No. 100); the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Minimum Age Convention, 1973 (No. 138). Instead, it preferred to isolate itself from other countries while at the same time preaching to other countries about their obligations to apply labour standards. The fact that the United States had so far ratified only 12 ILO Conventions only indicated what could be the fate of Convention No. 144. The speaker urged the Committee of Experts to ensure that the issues that had been raised by the AFL-CIO concerning fruitful tripartite consultations could be resolved appropriately and that the American workers were given their fundamental rights enshrined in the ILO Constitution. An observer representing the World Federation of Trade Unions indicated that the current case not only referred to a violation of Convention No. 144, but also to the Government's refusal to ratify significant Conventions, such as Nos 87 and 98. She expressed her solidarity with the United States workers and rejected the Government's obvious intention to appoint trade union representatives in consultative committees. Such an appointment was the trade unions' sovereign right. The Government representative indicated that her Government would respond to all the points that had been raised in the debate and provide information on subsequent developments in a detailed report for the Committee of Experts' next session. She reiterated that the existing tripartite consultation mechanism was an effective means of implementing the Convention. However, tripartite dialogue did not necessarily mean agreement. The ILO Constitution, the records of the Credential Committee of the Conference and the 2000 General Survey on tripartite consultation made it clear that there could be more than one most representative organization of employers and workers in any given country. She recalled that the Government had made it possible for American workers and employers to decide for themselves who should represent them on the President's Committee. The Government was looking forward to exploring with workers' and employers' representatives how to respond best to the observation of the Committee of Experts on the Convention, which was addressed to all the parties. The Employer members indicated that the significance of the Convention lay in the implementation of dialogue mechanisms to improve the atmosphere of cooperation and the application and ratification of international labour standards. They felt that the discussions demonstrated that there were no serious issues concerning the Convention's application in the particular case. Nevertheless, they recognized that all systems could be improved and in that respect, indicated that any requests or contributions could be taken into account, since that would benefit the consultation procedures. The Worker members reiterated that by ratifying Convention No. 144, the Government was required to uphold both its letter and spirit. It therefore fell to the Government to re-energize the competent authorities in respect of tripartite consultations. It was further incumbent on the Government to take a different approach and contemplate ratifying ILO standards even when they entailed amending domestic legislation. The Worker members looked forward to the ratification of Conventions Nos 111 and 185. Moreover, taking into account the influential role played by the United States on the world stage, they expressed the firm hope that the country would soon ratify other Conventions, particularly the fundamental Conventions, which remained outstanding. The Worker members felt that possible recourse to technical working groups, as was suggested by the Employer members, could undoubtedly be of benefit in terms of effectiveness, but as far as tripartite consultations were concerned, the crux of the matter lay in genuine and honest political will. Lastly, they asserted that it was not the responsibility of the Department of Labor but of the workers' organizations themselves to nominate the trade union organization called to sit on the consultative bodies.
ConclusionsThe Committee took note of the written and oral information provided by the Government representative, as well as the discussion that followed regarding the effectiveness of the tripartite consultations required by the Convention. The Committee noted that according to the information provided by the Government, the President's Committee on the ILO was much more than just a formal body and that it was a broad-ranging mechanism for tripartite consultation. The Committee noted that the consultation mechanisms required by the Convention also included regular meetings of the ILO Consultative Group and of the Tripartite Advisory Panel on International Labour Standards (TAPILS). In this regard, the Committee noted with interest that an updated document including the results of tripartite consultations had been submitted to the Senate Foreign Relations Committee in January 2007, with a view to obtaining consent for the ratification of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). Consultations in TAPILS would resume of the Seafarers' Identity Documents Convention (Revised), 2003 (No. 185), as soon as the internal governmental review had been completed. Taking due account of the concerns expressed during the debate and the fact that the Committee of Experts had requested the Government to reply in detail to its observation before 1 September 2007, the Committee trusted that the Government and the social partners would deepen their dialogue on all the matters covered by the Convention in order to engage in a review of the manner in which the Convention was applied in practice. The Committee hoped that the report that would be examined by the Committee of Experts would include information on the initiatives taken to give satisfaction to all the parties involved in the consultations required by the Convention. |
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