Geneva, November 1996
SECOND ITEM ON THE AGENDA
1. In accordance with its Standing Orders, the Governing Body is invited to give preliminary consideration to the agenda proposed for the 87th Session (1999) of the International Labour Conference.
2. The Conference will have before it the following standing items:
3. On the basis of the work cycle of the Conference adopted by the Governing Body in 1992, the agenda of the Conference in 1999, which is a budget year, would be expected to include three standard-setting items, one of which would concern the revision of existing standards. At its present session the Governing Body is called upon to decide on the subjects from which the agenda items could be chosen. It will take its final decision during the second stage of the discussion at its spring session. For the first stage the Office submits a document with all the relevant information on the issues proposed by the Director-General and, at the spring session, another document dealing with supplementary items proposed by the Governing Body during the first stage of the discussion.
4. The agenda of the 86th Session (1998) of the Conference, as established by the Governing Body at its 265th Session (March 1996), contains three standard-setting items: (1) general conditions to stimulate job creation in small and medium-sized enterprises (second discussion); (2) contract labour (second discussion); (3) child labour (first discussion). As a second discussion is due to be held in 1999 to adopt new standards on child labour, at its session next March the Governing Body will only need to choose two standard-setting items to complete the agenda of the 87th Session (1999) of the Conference. However, it will be recalled that the Governing Body did not choose any item for general discussion for the 1998 session of the Conference, and that the Conference has recommended that technical cooperation should be the subject of periodic general discussions. It has therefore been decided to submit this subject to the Governing Body for general discussion, in addition to the proposals for the adoption of new standards and revision of existing standards. Should the Governing Body wish to compensate for the decision taken for the 1998 session, it could include a general discussion in the agenda for 1999. If it decides to choose a general discussion on technical cooperation, then this would replace one of the standard-setting items.
5. As regards the adoption of new standards, four subjects are proposed. The first is the settlement of labour disputes. This item, initially proposed by the Employers' group and submitted to the Governing Body for the agenda of the 1996 and 1997 sessions of the Conference, was supported by a large number of governments at the 264th and 265th Sessions of the Governing Body (November 1994 and March-April 1995). The proposal presented here shows only a few changes by comparison with the text previously submitted to the Governing Body. However, if the Governing Body considers that changes should be made to this proposal, then the Office could revise it for the next session in March 1997 to take account of requests made at the present session.
6. The second proposal concerns the recording and notification of occupational accidents and diseases. Examination of this question, which received some measure of support when it was considered by the Governing Body for inclusion in the agenda of the 1996 and 1997 sessions of the Conference, could also lead to the revision of the list of occupational diseases appended to the Employment Injury Benefits Convention, 1964 (No. 121).
7. Thirdly, there is the protection of workers' personal data, which is again submitted to the Governing Body after previous submissions for the agenda of the 1995, 1996 and 1997 sessions. The meeting of experts on this subject, held in October 1996, may have provided additional information that can be submitted orally to the Governing Body at its present session. If the Governing Body so wishes, the proposal submitted in March 1997 could incorporate the conclusions of this meeting of experts.
8. Finally, the Governing Body might lend consideration to the promotion of cooperatives. A meeting of experts held in March-April 1993 concluded that it was necessary to initiate standard-setting activities in this field on account of the changes that cooperative movements are undergoing worldwide. This might take the form of a new Convention accompanied by a new Recommendation, or possibly only a new Recommendation, on the promotion of cooperatives. The meeting of experts also concluded that it was necessary to revise the Cooperatives (Developing Countries) Recommendation, 1966 (No. 127) and to expand its scope to cover all member States, both developed and developing.
9. As regards the revision of existing standards, the Office proposes that the Governing Body should re-examine the question of the revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95). This item, which was already proposed for the agenda of the 1995, 1996 and 1997 sessions of the Conference, was a topic of obvious great interest to a considerable number of members of the Governing Body. In April 1995 it was nearly adopted instead of the revision of the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), and a number of members of the Governing Body also proposed that it should there and then be placed on the agenda of the 1998 session of the Conference. It will also be recalled that the Working Party on Policy regarding the Revision of Standards of the Committee on Legal Issues and International Labour Standards is due to examine the situation concerning Convention No. 103 at the Governing Body's present session, and that it could recommend the revision of this instrument.
10. In this connection it will be noted that the Working Party on Policy regarding the Revision of Standards in March 1996 recommended the revision of a Convention "and possibly of other instruments on the night work of young persons".(1) Without prejudging the recommendations that the Working Party may produce at the present session, but in order to give effect to the decisions already taken by the Governing Body on this subject, the Governing Body may wish to examine the question of the revision of that Convention or possibly of other instruments that the Working Party may have identified at the present session. In these circumstances the Office is unable to provide any detailed contribution on this subject in the present paper, but one could be prepared for the next session in March 1997.
11. Finally, the question of the role of the ILO in technical cooperation could be considered for general discussion at the 1999 Conference. It will be recalled that in 1987, and again in 1993, the Conference recommended that technical cooperation should be the subject of a detailed examination at regular intervals of not more than five years. The subject was proposed for the agenda of the 1998 Conference but was not retained. If the Governing Body chose this item, then it would only have to select one standard-setting item for the adoption of new standards or the revision of existing ones.
12. Proposals on the following subjects are hence submitted to the Governing Body:
Proposals for new standards
(1) The settlement of labour disputes.
(2) Recording and notification of occupational accidents and diseases (including the revision of the list of occupational diseases, Schedule I to the Employment Injury Benefits Convention, 1964 (No. 121)).
(3) The protection of workers' personal data.
(4) The promotion of cooperatives.
Proposals for the revision of existing standards(5) Revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95).
(6) Revision of another Convention (or group of Conventions) identified by the Working Party on Policy regarding the Revision of Standards of the Committee on Legal Issues and International Labour Standards.
Proposal for a general discussion(7) The role of the ILO in technical cooperation.
13. A number of standard-setting items are being studied by the Office and could be presented with a view to their inclusion in the agenda of the Conference to be held in the year 2000 or later. A number of subjects have already been put forward, such as sexual harassment, occupational safety and health in agriculture, revision of the White Lead (Painting) Convention, 1921 (No. 13) and of the Benzene Convention, 1971 (No. 136). Proposals for a general discussion could cover the question of unemployment and the occupational integration of young people, or the question of employment and training. Current work in the Committee on Legal Issues and International Labour Standards and its Working Party on Policy regarding the Revision of Standards should enable the Governing Body to identify directions for future standard-setting activities, particularly concerning the arrangement of working time, the night work of women, or questions concerning migrant workers. Other proposals could result from the work of the supervisory bodies. In this connection the Special Survey in 1996 on equality in employment and occupation gave rise to a discussion in the Conference Committee on the Application of Standards on the possibility of an additional Protocol to the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee of Experts will in December also present a General Survey of the Labour Administration Convention, 1978 (No. 150). The Governing Body might be called upon to decide on the possible inclusion of this subject in the agenda of the Conference for the year 2000 or later.
14. The Governing Body is called upon at its present session to decide on the questions from which a choice could be made at its 268th Session (March 1997), when it should take the final decision on the agenda of the 87th Session (1999) of the Conference.
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15. The proposals on this subject are substantially the same as those presented to the Governing Body at its 261st and 262nd Sessions. If the Governing Body so decides, the Office would of course reformulate them in the light of any comments and requests made by its members.
16. The prompt and equitable settlement of labour disputes is an important basis for sound labour relations, and it is essential that appropriate dispute settlement machinery should exist to facilitate such settlement.
17. There are numerous models of procedures for settling labour disputes which can be set in motion at various stages of a dispute. Different countries have opted for different models and established various systems of dispute settlement, specifying the procedures to be set in motion at each stage in each of the different types of dispute.
Categories of disputes
18. Most countries have made a distinction between several types of labour disputes, and have established separate procedures for dealing with them. The ways in which a country makes such a distinction reflect the historical development of its labour relations system, and therefore vary widely. Classifying various types of labour disputes from a global viewpoint is therefore a difficult issue.
19. Nevertheless, it is possible to identify certain widely applied distinctions. The two most generally used are distinctions between rights disputes and interest disputes, on the one hand, and between individual and collective disputes on the other. The distinction between disputes over rights (or rights disputes) and disputes over interests (or interest disputes) characterizes the dispute settlement machinery of many countries. Disputes over rights are those arising over the application or interpretation of an existing provision in a contract of employment, a collective agreement or legislation; disputes over interests are those arising over the establishment or modification of rights or obligations, primarily in the context of collective bargaining.
20. With respect to disputes over rights, a distinction is often made between individual and collective disputes, whereas disputes as to interests are generally only collective. An individual dispute typically involves the interpretation of an individual contract of employment or legislation concerning employment. Collective rights disputes include those arising over the interpretation or alleged violation of the procedural provisions of collective agreements (e.g. those providing for peace obligation during the life of a collective agreement) and of legislation (e.g. provisions concerning representative bodies of workers within undertakings).
21. In many countries, the above distinction affects both the applicable settlement procedures and the right to strike and lockout. However, the distinction between these various types of disputes is far from universal, and even where it is made it is often blurred. Thus, for example, the distinction is of very limited relevance in the United Kingdom, where the process of making new rules and that of interpreting existing rules is so intricately intertwined in collective bargaining that a dispute about existing "rights" can easily be turned into a dispute about "interests". Many of the developing countries in Asia and Africa that have inherited from the United Kingdom the broad concept of the "trade dispute" or the "industrial dispute" covering all forms of labour disputes also still rely on dispute procedures that basically cover both interest disputes and rights disputes indistinctly, although some of them have attempted to introduce such a distinction with more or less success (e.g. Bangladesh and Pakistan in 1969) and some others have set up special procedures for dealing with individual disputes over termination of employment (e.g. in Sri Lanka since 1957 and Malaysia since 1969).
22. In some other countries, such as France and French-speaking African countries, the basic distinction for the purpose of different dispute settlement procedures is between individual and collective disputes, the former always being a rights dispute, while the latter is usually an interest dispute but may also be a dispute over rights.
23. In many developing countries, various restrictions imposed on the exercise of the right to strike tend to diminish the significance of a distinction between interest disputes and rights disputes, because the possibility of recourse to industrial action normally constitutes one of the main characteristics of dispute procedures for interest disputes, in contrast with procedures for rights disputes.
24. Apart from the types of labour disputes so far mentioned, there are others that are subject to special procedures for their settlement in a significant number of countries. These include disputes over trade union recognition and disputes over "unfair labour practices", e.g. disputes related to the exercise of trade union rights.
Procedures for the settlement of labour disputes
25. Procedures for the settlement of labour disputes vary widely. The relevant ILO Conventions and Recommendations, referred to below, leave ample room for individual countries to design their own systems of dispute settlement, consisting in different procedures for dealing with different types of disputes.
26. Disputes over interests usually arise as a result of the failure of the parties in collective bargaining to reach agreement on conditions of employment or the relationship between them. The basic principle underlying the procedures for settling this type of dispute is that they are to be resolved by the parties themselves through negotiation, if necessary involving the threat or use of industrial action, and that outsiders should eventually be called upon to intervene only to assist the parties in finding a mutually acceptable solution to their differences. However, this principle has been significantly modified in most developing countries where the governments play an active role in dispute settlement in order to ensure that the outcome of collective bargaining or dispute resolution is compatible with their economic policies, and to reduce the incidence of industrial action which they generally regard as detrimental to economic development and political stability. In times of economic difficulty, the principle has on occasion been similarly modified in some industrialized market economy countries.
(a) Conciliation and mediation
27. The most widely used procedures for settling disputes over interests are conciliation and mediation. These are procedures whereby a third party provides assistance to the parties in negotiations to help them reach an agreement. In many countries, particularly in Africa, Asia and Latin America, they are mainly provided by government conciliation services, or, more rarely, by labour inspectors. In a number of industrialized countries, on the other hand, bodies largely independent of the government have been established for conciliation and mediation, such as the Advisory, Conciliation and Arbitration Service (AAAS) in the United Kingdom, the Federal Mediation and Conciliation Service (FMCS) in the United States, the Australian Industrial Relations Commission (AIRC), the Conciliation Board in Denmark as well as the Labour Relations Commissions in Japan. In most industrialized market economy countries, conciliation is the only procedure generally available for the settlement of collective interest disputes, and it has proved to be very effective, resulting in a vast majority of disputes being resolved at this stage.
28. The establishment of independent bodies is usually meant to inspire greater confidence among the social partners in the neutrality of the conciliation machinery. The need to inspire confidence among parties has also influenced the structure of such bodies in many countries. Thus, for example, the Labour Relations Commissions in Japan and the Governing Council of AAAS are composed of equal numbers of employer and trade union representatives and of independent members. Similarly, conciliators in Denmark are, in practice, all nominated jointly by trade unions and employers' organizations.
29. The autonomy of employers and trade unions in conciliation is far-reaching in Germany, where mediation procedures have been set up in most branches of activity by agreements between the parties to collective agreements, and are composed of an equal number of representatives from the employers' association and the trade union concerned, as well as a neutral chairperson. Similar systems of conciliation have also been established for particular branches of industry in Belgium and Switzerland.
30. A number of developing and newly industrializing countries have also set up tripartite bodies with responsibility for conciliation. For example, in many countries in Central and Latin America, such bodies have been in existence for many years (e.g. Brazil, Mexico, Venezuela).
31. Conciliation is voluntary where the parties are free to use or not to use it, and compulsory where they are required to make use of it. For example, in Belgium, France, Hungary, the United States and the United Kingdom, both parties must consent to the use of conciliation. In Australia, Canada, India, Malaysia, Poland and Singapore conciliation is compulsory either because the law provides that disputes must be submitted to conciliation, conciliation officers can initiate proceedings, or the right to strike or lockout is contingent on first attempting to resolve the dispute through conciliation. However, whether conciliation is compulsory or voluntary, it is meant to assist the parties in settling their differences by agreement, without the conciliator being able to impose any solution upon the parties.
32. While in many countries the terms "conciliation" and "mediation" are used interchangeably, in some countries a distinction is made between them according to the degree of initiative taken by the third party. Thus, for example, AAAS in the United Kingdom normally conducts "conciliation" in a quiet and confidential atmosphere and attempts to facilitate negotiations between the parties; it normally refrains from making proposals. However, where "mediation" is considered appropriate and the parties agree to it, AAAS may appoint as mediators independent persons, who in turn make precise recommendations for a possible solution. Other examples are found in Chile and the Dominican Republic, where a distinction between conciliation and mediation is made in the labour legislation. In Chile the term "mediation" also refers to the use of a conciliator empowered to propose terms of a settlement. However, in the Dominican Republic the terms "conciliation" or "mediation" are used depending on the type of dispute at issue, rather than the type of settlement procedure.
33. Arbitration is a procedure whereby a third party, not acting as a court of law, is empowered to take a decision which settles the dispute.
34. Arbitration is "voluntary" when it can be set in motion only on the basis of agreement by the parties, and "compulsory" when either party or the government can set it in motion on its own initiative.
35. Compulsory arbitration of interest disputes is rare in the private sector of industrialized countries, one exception being Canada (at the federal level and in some provinces) where interest disputes involving an attempt to reach a first collective agreement must go to binding arbitration under certain circumstances, such as where the bargaining has been tainted with anti-union motives. Compulsory arbitration is more widely used in the public service of industrialized countries (for example in Ireland, Norway and the United Kingdom) and sometimes in essential services. It is also widely used in both the public service and the private sector of many developing and newly industrializing countries. As examples, mention can be made of the procedures existing in a number of African and Asian countries such as Kenya, Nigeria and Singapore.
36. Compulsory arbitration of interest disputes has been instituted by a number of governments in developing countries, based on the theory that it will protect the national economy and public life from the disruptive effects of industrial action and facilitate the maintenance of public order (for example Nigeria, Uganda and Zambia). However, in many countries the attempt to suppress industrial action may in practice generate discontent which may give rise to disruptive illegal action.
37. Compulsory arbitration is also sometimes found to be an attractive procedure in countries where the lack of balance between the power of employers and that of trade unions inhibits effective collective bargaining. However, as labour relations systems mature, compulsory arbitration often starts to be looked upon as a hindrance to free collective bargaining, and is gradually taken over by conciliation as the main method of dispute settlement.
38. In order to encourage the parties to assume a growing role in dispute settlement, while maintaining the framework of labour relations free of industrial action, a number of developing countries have sought to promote voluntary arbitration of interest disputes whereby the parties voluntarily refer their dispute to arbitrators of their choice, instead of having it referred by the government to compulsory arbitration. However, in spite of serious efforts made in many countries to promote it, voluntary arbitration of interest disputes is not yet widely practised in developing countries, partly because of the scarcity of arbitrators able to command the confidence of both parties. Another factor undermining the voluntary procedures is the wide availability of compulsory arbitration existing alongside voluntary arbitration in some developing countries.
39. Voluntary arbitration of interest disputes is also rare in industrialized countries. The main reason seems to be that conciliation (and, if necessary, recourse to industrial action) is more in line with the general labour relations philosophy of these countries.
Disputes over rights
40. The basic principle underlying procedures for settling disputes over rights is that these disputes should, unless settled by negotiation, be resolved by courts or arbitrators and not by industrial action, because they involve the determination of existing rights, duties or obligations. In practice, however, the procedures for settling disputes over rights overlap with those for settling interest disputes in many systems of labour relations. The little relevance which the distinction between the two types of procedures has in the traditional labour relations system of the United Kingdom and some of the countries that have inherited it has been mentioned earlier.
41. Another factor blurring the distinction is the role of conciliation. It is used in a large, and probably growing, number of countries not only for the settlement of interest disputes but also for the settlement of rights disputes, at least as a first stage. There are even countries, e.g. Sweden, where disputes between the parties to a collective agreement can be referred to the Labour Court only after negotiations between them. In France, a partial panel of the Labour Court (conseil de prud'hommes) presides over compulsory conciliation procedures before the case is adjudicated. Independent conciliation services, as discussed above, may also be involved in attempting to settle rights disputes. Such widespread recourse to conciliation as a means of settling rights disputes seems to reflect the wide recognition among social partners of the fact that disputes over rights often arise out of misunderstandings or communication gaps between the parties, which can best be resolved by discussions between them rather than through litigation.
42. The bodies entrusted with the settlement of disputes over rights may be classified into a number of categories, including ordinary courts, specialized labour or industrial courts, quasi-judicial administrative agencies and arbitration.
43. The jurisdiction of the courts competent to deal with disputes over rights varies widely. In a number of countries, e.g. Italy and the Netherlands, all rights disputes, whether individual or collective, are dealt with by the ordinary courts. In the Netherlands serious backlogs in the courts have resulted in lengthy delays in deciding labour matters. However, in Italy labour disputes are dealt with through a more rapid procedure than normal cases and the judges assigned to deal with the disputes have special competence in labour matters.
44. Labour courts are often distinguished from ordinary courts by expertise in labour matters, their tripartite composition, informal proceedings and relative autonomy; however, not all labour courts conform precisely to this model. The problem of excessive legalism and delays has been noted in a number of labour court systems. Labour courts appear to be the most common mechanism used for the settlement of disputes over rights, having a major role in Austria, Finland, France and many African countries influenced by French law, Spain, Turkey, Hungary, Brazil and Uruguay to name only a few examples. Where labour courts exist, the jurisdiction over labour matters is often divided between the labour court and the ordinary courts. While the labour courts in Germany have virtually exclusive jurisdiction over both individual and collective rights disputes, and the industrial courts of a number of Asian and African countries have an even wider jurisdiction encompassing both disputes over rights and those over interests, these cases nevertheless seem to be the exception rather than the rule.
45. The jurisdiction of the labour courts in Denmark and Sweden centres on collective rights disputes between the parties to a collective agreement. In Sweden, for example, a dispute between an employer and an employee who does not belong to a union goes first to the ordinary court with the possibility of an appeal to the Labour Court. In the United Kingdom, rights disputes arising under specific legislation, e.g. those involving equal pay, sex discrimination and unfair dismissal, are within the exclusive jurisdiction of industrial tribunals, whereas rights disputes arising under individual contracts of employment are handled by the ordinary courts.
46. In France, the labour courts (conseils de prud'hommes) are competent to deal only with individual disputes, which however include the interpretation and application of terms of collective agreements as they are frequently incorporated into individual contracts of employment. Alleged breaches of labour legislation, however, are dealt with in the ordinary courts. The labour tribunals in Sri Lanka are competent to deal only with disputes over termination of employment.
47. The labour or industrial courts in a significant number of countries (e.g. Germany, Sweden, Costa Rica, Mexico and Singapore) are tripartite; the French conseils de prud'hommes are basically bipartite bodies. An advantage of such bipartite or tripartite tribunals lies in the expertise in industrial relations possessed by their employer and worker members. The procedures in such tribunals tend to be less legalistic than in ordinary courts, thus facilitating the expeditious and inexpensive solution of disputes, but they may sometimes encourage a political rather than judicial solution of disputes. In other countries, such as Argentina, the Philippines and Venezuela, there is a system of administrative judges, with no specific worker or employer representation.
48. In the tripartite bodies, the role of the workers' and employers' representatives may differ. In some countries they take on an adversarial role, whereas in most systems they are expected to act in an independent capacity (e.g. Germany, Sweden and the United Kingdom). Whether or not the lay members are voting members or only act in an advisory capacity also varies from country to country.
49. The establishment of procedures for arbitration of disputes over rights (commonly called "grievance procedures") by collective agreements is widespread in Canada and the United States. In most collective agreements in the United States, the parties voluntarily include an arbitration requirement, whereas in Canada the inclusion of an arbitration provision in the collective agreement is required pursuant to most provincial labour legislation, and where not expressly included, such inclusion is assumed. Arbitrators are sometimes appointed on an ad hoc basis for each particular dispute, but they may also be named specifically in the collective agreement to deal with all disputes arising during the term of the agreement. In the United States, arbitration will normally be conducted by a single arbitrator, in contrast with the prevailing practice in Canada to submit the cases to tripartite boards. The principal strengths of the grievance arbitration system lie in its largely voluntary nature and flexibility. One of its weaknesses, on the other hand, is that the procedures are available only in bargaining units where there is a certified bargaining agent.
50. In most Western European countries, and in a number of developing countries, trade union recognition does not give rise to serious problems, primarily because employers voluntarily recognize the bargaining authority of unions, or recognition is mandated by law. In the United States and some other countries, unions' claims for recognition have met particularly strong resistance from employers, often resulting in bitter conflicts. For this reason, in the United States and certain other countries, legislation was adopted to place the whole question of trade union recognition under far more detailed regulation than in other countries. The basic principles underlying the United States and Canadian systems of recognition are that the union selected by the majority of the workers in a given bargaining unit shall be the exclusive representative for all the workers in the unit and shall be so recognized by the employer. One of the main aims of this system is to settle recognition questions without industrial strife.
51. This North American system of trade union recognition has influenced the systems of a number of developing countries faced with difficulties arising out of trade union multiplicity, particularly in Asia and the Caribbean region.
Unfair labour practices
52. A number of countries have established special procedures for settling unfair labour practices. The definitions of unfair labour practices vary significantly, but they are mostly related to the exercise of trade union rights. Most frequently, they are disputes arising from alleged acts of anti-union discrimination in respect of employment. In some countries they also cover an employer's refusal to negotiate with a union as well as certain action by unions vis-Ó-vis employers. The union's failure to represent workers fairly is also defined as an unfair labour practice in some countries.
53. In the United States a special administrative agency, called the National Labor Relations Board, is entrusted with the task of resolving such disputes. In other countries, such as Japan and Canada, these disputes are also dealt with by specialized quasi-judicial bodies.
54. The right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. It is explicitly recognized in Article 8 of the International Covenant on Economic, Social and Cultural Rights. At the regional level, the European Social Charter was the first text explicitly to recognize this right in the case of a conflict of interests, subject to any commitments under collective agreements in force. Within the ILO, the Committee of Experts on the Application of Conventions and Recommendations and the Governing Body Committee on Freedom of Association have recognized that the right to strike, though not explicitly mentioned in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), arises out of the principle of freedom of association and constitutes an essential means available to workers and their organizations for the promotion and protection of their economic and social interests.
55. Strikes often provide workers with a means of counterbalancing the power of the employer through economic leverage. On the other hand, depending on the extent of the industrial conflict, strikes or lockouts can be disruptive to economic life. In most industrialized countries, the latter consideration is not considered sufficient in most cases to outweigh the former so as to lead to extensive restrictions. However, in a number of developing countries, a variety of considerations, including the impact on economic development has led governments to restrict the right to strike much more severely.
56. Laws on strikes and lockouts must be examined with respect to both the extent of the recognition of the rights and the regulation of the exercise of the rights. The extent of the recognition of the right to strike varies widely. At one end of the scale there are countries where the constitution, legislation, court decisions or agreements between the central organizations of employers and workers recognize the right to strike in principle, subject to restrictions that may be introduced with respect to certain categories of workers. Some of these countries (e.g. France, Italy and Portugal) do not provide a corresponding guarantee of the right to lock out on the grounds that workers are less powerful than employers and the right to strike is intended to redress the balance. Others (e.g. Canada, Mexico, Sweden and the United States) explicitly recognize both the right to strike and the right to lock out. In the United Kingdom, while no positive right to strike has been enacted, limited statutory immunities are conferred in relation to strikes which would otherwise give rise to civil or criminal liability.
57. In some countries (e.g. the private sector in France and Italy) the right to strike is conceived as a right of the individual workers, while in others (e.g. Germany and Sweden), it is a right of the trade union. A practical consequence of this difference is that, while in the former group of countries unofficial or "wildcat" strikes are lawful in principle, they are unlawful in the latter group of countries.
58. Most of the countries that in principle recognize the right of workers to strike exclude certain categories of workers (e.g. military personnel, high-level public servants) from the benefit of this right.
59. At the other end of the scale, there are countries where workers in general do not enjoy the right to strike or where that right may be severely limited. Although only in relatively few countries legislation explicitly prohibits strikes on a permanent basis, there are many countries, particularly in Africa, Asia and Latin America, where the prohibition of strikes results, for all practical purposes, from the cumulative effect of the provisions relating to the established dispute settlement machinery, which provides for compulsory reference of all unresolved disputes to binding arbitration. In many other countries, while it is not obligatory to refer all unresolved disputes to arbitration, the government is empowered to refer disputes to compulsory arbitration at its discretion, thus keeping the power to prohibit or put a rapid end to almost any strike. The ILO supervisory bodies have considered such powers to limit seriously the means at the disposal of trade unions to further and defend the interests of their members and the right to organize their activities and therefore not to be compatible with the principles of freedom of association.
60. Even in countries where the right to strike or lock out is recognized in principle, the ways in which these rights can be exercised are often regulated. Such regulations mainly concern the timing, the purposes and the methods of strikes and lockouts.
61. The regulation of the timing of strikes and lockouts is embodied, in many countries, in the obligation of the parties to a collective agreement not to strike or lock out during the life of the collective agreement. This obligation, commonly referred to as a "peace obligation", may be established by an explicit legislative provision, as in Sweden; by a general agreement between the central organizations of trade unions and employers, as in Denmark; by an explicit clause in the collective agreement between the parties, as in the United States; or as a function of the collective agreement, as determined by the courts, establishing peace between the parties (Austria, Germany and Switzerland).
62. The purposes of lawful strikes are also regulated in many countries. Often, a strike is lawful only if it is for purposes connected with labour relations, or "in contemplation or furtherance of a trade dispute" (as formulated in the British law), although how to define a "trade dispute" or "purposes connected with labour relations" is a complex issue. The lawfulness of purposes is often questioned with respect to political strikes and sympathy strikes. While in certain countries political strikes or sympathy strikes are generally permitted, they are prohibited or restricted in many others.
63. The purpose of a lockout also determines its lawfulness in some countries. For example, in France and Italy, an employer can initiate a lockout only as a defensive measure once an illegal strike is under way, whereas in Chile a lockout can be used in response to any strike affecting over 50 per cent of the workforce. In Spain lockouts are permitted in limited circumstances, including where it is necessary to protect persons or property from violence.
64. One of the commonly accepted principles concerning the methods of strikes and lockouts is that they should be peaceful. Another main principle is that a strike or lockout should be the last resort in labour disputes, so all efforts should be made to settle disputes peacefully. This principle has been made binding by courts in some countries, like Germany and the Netherlands, where it is held that a strike is lawful only if all possibilities for negotiation have been exhausted. There are also many countries where prior notice of strikes and/or the taking of ballots among the union members is required by legislation. However, many others have no such prerequisite. The legal systems vary widely concerning such issues as go-slows, work-to-rule, rotating strikes, picketing, sympathy strikes and the occupation of an enterprise.
65. The regulation of strikes and lockouts in essential services has again become topical in some countries recently. Although restrictions on strikes and lockouts in essential services have existed for many years in many countries, there is now a trend in some other countries, where the right to strike and lock out was traditionally widely recognized, towards the introduction of certain restrictions on the exercise of these rights in essential services, for example in the form of an obligation to provide certain minimum services during a strike or prohibiting lockouts.
66. The ILO supervisory bodies have considered that the prohibition of strikes in essential services, where it exists, should be confined to services whose interruption would endanger the life, personal safety or health of the whole or part of the population, and that appropriate guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their interests, through the provision of adequate, impartial and speedy conciliation and finally -- and only where conciliation fails -- arbitration procedures in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties and rapidly and fully implemented. The ILO supervisory bodies have also taken positions on a number of the other issues discussed above, including political strikes, balloting and notice periods.
International labour standards
67. The existing international labour standards on dispute settlement are of a general nature, reflecting the wide variety of existing systems of dispute settlement. The Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), recommends that voluntary conciliation machinery, free of charge and expeditious, be made available to assist in the prevention and settlement of industrial disputes. It also recommends that provision should be made to enable the procedure to be set in motion, either on the initiative of any of the parties to the dispute or ex officio by the voluntary conciliation authority. Where a dispute has been submitted to conciliation or arbitration with the consent of all the parties concerned, they are encouraged to refrain from strikes or lockouts while conciliation or arbitration is in progress. The Recommendation also states that none of its provisions may be interpreted as limiting in any way whatsoever the right to strike.
68. Another indication as to how appropriate dispute settlement machinery should be conceived is given by the Collective Bargaining Convention, 1981 (No. 154), which provides for measures aimed at ensuring that bodies and procedures for the settlement of labour disputes contribute to the promotion of collective bargaining. In the same vein, the Collective Bargaining Recommendation, 1981 (No. 163) advocates the establishment of procedures for the settlement of labour disputes which assist the parties in finding a solution to the dispute themselves.
69. The Examination of Grievances Recommendation, 1967 (No. 130), deals with a particular category of labour disputes, namely grievances of one or several workers against certain measures or situations concerning labour relations or employment conditions, where the worker or workers in good faith consider such measures or situations to be contrary to provisions of an applicable collective agreement or of an individual contract of employment, to works rules, to laws or regulations or to the custom or usage of the occupation, branch of economic activity or country. It recommends that a worker or workers should have the right to submit such grievance or grievances without suffering any prejudice as a result, and to have them examined pursuant to an appropriate procedure for settlement within the undertaking. Where the grievance is not resolved within the undertaking, the Recommendation goes on to state that there should then be a possibility for final settlement through agreed procedures, conciliation, arbitration or judicial decision, etc. The Recommendation makes a distinction between such grievances and collective claims aimed at the modification of terms and conditions of employment, which are excluded from its scope of application.
70. With respect to labour disputes occurring in the public service, the Labour Relations (Public Service) Convention, 1978 (No. 151), provides that the settlement of disputes regarding terms and conditions of employment is to be sought through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration. The Convention goes on to stress that such machinery should be established in such a manner as to ensure the confidence of the parties involved. During the debate leading to the adoption of the instrument, an understanding was reached that this Convention did not deal in one way or the other with the question of the right to strike.
71. Apart from these international labour Conventions and Recommendations, as mentioned above, the Governing Body Committee on Freedom of Association and the ILO Committee of Experts on the Application of Conventions and Recommendations have formulated a number of principles on the right to strike and the limitations that may be imposed on that right. The ILO has relied on these principles as defined by these bodies in advising member States on the drafting of their labour laws. These bodies have developed such principles based on the general principles on freedom of association laid down in the Declaration of Philadelphia and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee of Experts has undertaken a General Survey (its sixth) on the application of this Convention and of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which the Conference examined at its 81st Session in 1994.
Prospects for a new instrument on dispute settlement
72. If the topic of dispute settlement is considered appropriate for standard setting at this time, a more thorough investigation of national law and practice would be needed to obtain more detailed and up-to-date information on the rules and procedures for dispute settlement and the right to strike and lock out. The General Survey will be of some assistance, but further information would be required to provide an adequate basis for standard setting in this sensitive field.
73. The content of any new standards on dispute settlement might include provisions on individual rights disputes revising those contained in the Examination of Grievances Recommendation, 1967 (No. 130), and provisions on interest disputes revising those contained in the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92). In view of the great diversity of systems and approaches to dispute settlement in ILO member States, it may not be feasible for new provisions to go beyond the rather general terms contained in these existing Recommendations. However, consideration could also be given to transforming these Recommendations into a Convention or Conventions, possibly supplemented by a Recommendation or Recommendations.
Convention, 1964 (No. 121))
74. The ILO's standard-setting activities in the field of occupational safety and health have focused on various aspects of the prevention of accidents and diseases at work. Previous Conventions and Recommendations have included general provisions for the reporting of occupational injuries. However, they have dealt only to a very limited extent with the effective recording and notification of occupational accidents and diseases as a tool for preventive action. National definitions of occupational injuries frequently differ from the international standard definition recommended by the resolution concerning statistics of occupational injuries, adopted by the 13th International Conference of Labour Statisticians (Geneva, 1982). In addition, there are national variations in the collection and notification procedures and in the coverage and sources of statistics. Coverage, for example, may be limited to certain types of workers, certain types of economic activity, enterprises employing more than a certain number of workers, or injuries giving rise to a specific minimum duration of incapacity. Compulsory occupational accident and disease reporting systems and compensation schemes are, in general, the two main sources of statistics. The application of different definitions as well as differences in collection and notification procedures lead to diverse situations in member States, and it is impossible to say with any degree of certainty whether the information that is available represents a true picture of the actual situation. International comparisons concerning measures of success in compliance, enforcement and preventive action are not possible unless harmonization is achieved.
75. A Conference agenda item on the recording and notification of occupational accidents and diseases was initially proposed for consideration by the Governing Body at its session in November 1989, but was not selected as an item for the 1991 Conference agenda.(2) Since then, several member States have introduced new occupational injury statistical systems or have modified existing ones. Participants in the Latin American Regional Tripartite Seminar on the Organization of Occupational Health Services and the Recording and Analysis of Occupational Accidents and Diseases (Mexico, 23-27 October 1989) highlighted the importance of reliable occupational injury data and emphasized the need for harmonizing recording and notification systems. In the European Community proposals have already been made for the harmonization of statistics on occupational accidents and diseases in Member States. The Working Group on the Harmonization of European Statistics on Accidents at Work (ESAW) and the Working Group on Statistics of Occupational Diseases have been established. Following a detailed investigation of current practices in Member States of the European Union, methodologies have been developed to provide for harmonized statistics on occupational accidents and for comparable statistics on occupational diseases. The 24th General Assembly of the International Social Security Association (ISSA) adopted a report in 1992 which also calls for a harmonized international system for the notification and compilation of accident statistics.
76. An item on the recording and notification of occupational accidents and diseases was again proposed for consideration by the Governing Body at its session in March 1994 for the 1996 Conference agenda.(3) Before placing this item on the agenda of a future session of the Conference, the Governing Body decided to await the outcome of the Meeting of Experts held in October 1994 to which a draft Code of Practice on the recording and notification of occupational accidents and diseases was submitted for examination and adoption (see below, paragraph 84). Although such a Code of Practice is not a legally binding document, it provides guidelines on uniform criteria to assist member States in establishing, in the light of international experience, systems that would have the advantage of collecting comparable information. It is intended to recommend, guide and promote national efforts towards harmonization and may help define the possible content of future international standards. The Code is expected to be published in the last quarter of 1996, i.e. two years after its adoption, but it has been used already in several member States.
77. An item on the recording and notification of occupational accidents and diseases was again proposed to the Governing Body at its session in March-April 1995, but was not selected as an item for the 1997 Conference agenda.(4) Recognizing the international needs, recent trends and the availability of the printed Code of Practice in 1996, a proposal on the recording and notification of occupational accidents and diseases is now submitted again for consideration as an item for the 1999 agenda of the International Labour Conference. It is obvious that international standards could help to improve and harmonize both the terminology and the procedures with a view to compiling consistent and comparable national data on the occurrence of occupational accidents and diseases. This information should be the basis for coherent national, sectoral and enterprise-level policies and action for prevention.
78. Despite significant advances in dealing with many of the challenges to the safety, health and well-being of workers, some 200,000 work-related deaths still occur each year. In addition, each year approximately 120 million workers worldwide are injured or fall ill due to work-related accidents and diseases. A major obstacle to preventing loss of life and injury on this scale is the absence of reliable information on the causes of these accidents and diseases. Without adequate information, effective control measures cannot be achieved. For the collection of such information, there must be both recording at the level of the enterprise and notification to the appropriate authorities.
79. Employers need to investigate and record information about accidents and diseases that arise in their enterprise. A record should be made of some essential facts about the affected person, including how the person was injured or became ill. Use of a standard format for such information makes it possible to analyse the recorded data in order to study how accidents and diseases occur, to identify causes and to devise measures for their prevention and control. In addition, when this information is made available to workers' representatives, it enables them to contribute to the improvement of working conditions.
80. It is not sufficient for information about occupational accidents and diseases to be recorded and kept at the enterprise. Such information must also be notified to the appropriate authorities, which are mainly the social security institutions or the authorities responsible for enforcing occupational safety and health legislation. The social security institutions may be government bodies, independent insurance organizations or a combination of both, which require information in order to compensate injured persons and their dependants. The enforcement authorities need to have information or details of accidents notified to them so that they can investigate individual cases and, through the use of accumulated statistics, devise enforcement strategies and guidance for effective prevention programmes. Some social security institutions have the double function of administering compensation schemes and contributing to the prevention of accidents and diseases. It is important that notification be in a standard format so that the information received by these national bodies can be used effectively for the purposes for which they have been collected, in particular for the identification of recurring accidents and diseases and the establishment and implementation of policies to combat them.
81. The quality of information available at both enterprise and national levels for the purpose of prevention varies widely between countries on account of differences in the scope of legislation on social security benefits and on occupational safety and health protection or, quite simply, because some countries have not yet introduced arrangements for data collection. Existing national standards do not very often include adequate guidance on methods of recording and notification.
82. Existing ILO standards in the field of occupational safety and health deal only to a very limited extent with the recording and notification of occupational accidents and diseases as a tool for preventive action, and do not include sufficient guidance. The Labour Statistics Convention, 1985 (No. 160), and its corresponding Recommendation (No. 170), as well as the resolution concerning statistics of occupational injuries adopted by the 13th International Conference of Labour Statisticians (1982), encourage the compilation of statistics of occupational injuries and diseases.
83. The Occupational Safety and Health Convention, 1981 (No. 155), provides in Article 11 for the competent authority or authorities to ensure that procedures will be progressively established and applied for the notification of occupational accidents and diseases by employers and, when appropriate, insurance institutions and others directly concerned, and for the production of annual statistics. Under the terms of Paragraph 15 of the Occupational Safety and Health Recommendation, 1981 (No. 164), employers should be required to keep such records relevant to occupational safety and health and the working environment as are considered necessary by the competent authority or authorities; these might include records of all notifiable occupational accidents and injuries to health. The Employment Injury Benefits Convention, 1964 (No. 121) requests that legislation concerning employment injury benefits shall protect all employees. Each Member shall prescribe a definition of "industrial accident" and a list of diseases which shall be regarded as occupational diseases under prescribed conditions. National legislation should include a general definition of occupational diseases broad enough to cover at least the diseases enumerated in Schedule I to the Convention. According to the Protection of Workers' Health Recommendation, 1953 (No. 97), national laws or regulations should require the notification of cases and suspected cases of occupational diseases. Similar general provisions are made in numerous ILO Conventions and Recommendations. In practice, however, these international labour standards do not cover methods of recording and notification and do not specify appropriate national procedures or systems.
84. In October 1994, a draft Code of Practice on the recording and notification of occupational accidents and diseases was examined and adopted at a Meeting of Experts. The report of the Meeting, which adequately reflects the outcome of the deliberations, was submitted to the 261st Session of the Governing Body,(5) which authorized the Director-General to publish the Code(6) which is expected to appear in the last quarter of 1996. The experts stressed that the collection, recording and notification of data concerning occupational accidents and diseases were instrumental to the prevention of occupational injuries, and that it was important to identify and study the causes of accidents and diseases in order to develop preventive measures. The draft Code was amended accordingly in order to serve as a useful instrument to the competent authorities in developing systems for the recording and notification of occupational accidents and diseases while providing valuable guidance for joint action by employers and workers aimed at the overall prevention of occupational injuries. The experts agreed that it was the task of the competent authority to establish and implement a national system for the recording, notification and investigation of occupational accidents, occupational diseases, commuting accidents, dangerous occurrences and incidents; that implementation of this national system should be carried out by the employer in consultation with workers and their representatives; and that the relevant concepts and terminology for reporting, recording and notification systems should be determined by the competent authority in consultation with the most representative organizations of workers and employers and be consistent with this Code and with international agreements and recommendations.
85. The objectives of the Code of Practice are --
In addition, provisions are included concerning equivalent requirements for the recording and notification of dangerous occurrences, incidents and commuting accidents.
86. The Meeting of Experts acknowledged the value of and the need for guidance by lists of occupational diseases, particularly in countries which were at different stages of development and where such lists did not exist. Consequently, the Code of Practice provides for the competent authority to prescribe a list of diseases, comprising at least the diseases listed in the most recent version of Schedule I to Convention No. 121, which should be regarded as occupational diseases under prescribed conditions, or to include in its legislation a general definition of occupational diseases broad enough to cover at least the diseases listed in Schedule I, and to review the prescribed list periodically and extend it progressively. The current version of Schedule I as amended in 1980 is given in Annex A to the Code. The Meeting of Experts acknowledged the difficulties inherent in the recognition of occupational diseases and in the reference to a list established 15 years ago, and recommended that Schedule I to the above-mentioned Convention be updated. In 1991, an informal consultation on the revision of Schedule I, convened by the ILO, prepared a revised list. As this revised list has not been approved officially, it was included as Annex B in the Code of Practice as an example of proposed occupational diseases for consideration in national lists being reviewed and extended. An item on the revision of the list of occupational diseases appended to Convention No. 121 was proposed to the Governing Body at its session in November l992, but was not selected as an item for the l994 Conference agenda.(7) Such a list could serve as an essential tool for the implementation of the proposed new international standards.
87. It would therefore be appropriate at the same time for the Conference to consider the updating of the ILO list of occupational diseases together with the international instrument(s) that might be adopted on the recording and notification of occupational accidents and diseases. The proposed list of occupational diseases which would be submitted to the 1999 Conference has two purposes: (i) it would become the revised Schedule I to the Employment Injury Benefits Convention, 1964 (No. 121), i.e. it would be a list for compensation purposes; (ii) it would also be a list of occupational diseases for the new instrument(s), i.e. for the purpose of recording and notification. The 16th International Conference of Labour Statisticians, proposed for the ILO Programme and Budget 1998-99, will discuss related questions on occupational injury statistics.
Recording and notification of occupational accidents
88. Measures at the level of the enterprise for the recording of accidents differ greatly. While large enterprises tend to make detailed records of accidents and their causes, smaller enterprises are less likely to do so. Some enterprises have introduced their own reporting systems, sometimes to compare figures in different factories within the same company, particularly in multinational enterprises. Such practices, while serving an immediate purpose, are of no assistance to national authorities seeking to decide on the direction which their preventive efforts should take. Many countries lack any legislative provision whatsoever for the recording of accidents and diseases at the enterprise level.
89. The notification of occupational accidents and diseases is generally linked either to a national compensation scheme or to a statutory requirement of reporting to the competent authority. In a number of countries, occupational accident reports are received and primarily collected in both the social security organization and the enforcement authority or its equivalent.
90. In general, only compensated accidents or those meeting certain criteria are covered by the national notification schemes, while many minor accidents, knowledge of which would be even more important for the development of preventive policy, are not registered. As a result, the relative incidence of notified accidents could differ widely between countries and often between different sectors of the economy of one country. Furthermore, changes in the organizational set-up of insurance systems or in the criteria of compensation or reporting may have direct consequences for the reported number of occupational accidents.
91. An important problem in comparing occupational accident figures from different countries are the differences in the main categories of notifiable non-fatal accidents in each country, which may range from accidents causing incapacity for work for a specified number of days to any accident irrespective of interruption of work. In addition, differences exist in the information to be provided for notification. Most of the countries require information on the time, day and place, the type and primary cause of the accident as well as the nature of the inquiry and the part of body injured. Some call for information about what the injured person was doing at the time of the accident. Only a few require information about the occupation, qualification and training of the injured person and the length of time he/she has been employed in that capacity or about required safety devices or personal protective equipment. The criteria for notification are different for accidents that occur on the way to and from work (commuting accidents) or traffic accidents which occur while at work.
92. Considerable discrepancies also occur in the notification of accidents in specific sectors of the economy. In particular, agricultural, construction, marine and mining workers are subject to diverging notification criteria, which may result in incoherent information in a number of countries. Coverage is often low in the tertiary sector. In addition, self-employed, part-time and casual workers or trainees/apprentices may be omitted by not having recourse to public insurance schemes.
93. To a large extent, data on accidents resulting in fatal injuries are more reliable than those on non-fatal accidents, as fatal cases are almost invariably notified. Even then, differences may occur in interpreting the term "fatal" for notification purposes.
Recording and notification of occupational diseases
94. The recording and notification of occupational diseases is even more complicated. Most countries have a legal definition of occupational disease in the form of a prescribed list of occupational diseases. In many cases the prescribed list is linked with compensation criteria. However, there are differences between the chosen methods of definition. Some countries have a list of specified diseases which may be similar to, but not necessarily the same as, Schedule I to Convention No. 121, as amended in 1980. Other member States operate a so-called mixed system (prescribed diseases and other diseases). As a result, national statistics on occupational diseases differ with respect to the diseases covered, their definitions, the criteria for the recognition of such diseases and the coverage of working populations. A particular difficulty arises for diseases due to multiple causes and those with long latent periods.
95. Procedures for notifying occupational diseases differ considerably from those for occupational accidents, as regards both the persons responsible for making the reports and those receiving them. Either the employer or the physician is responsible for notification to the labour inspectorate or its equivalent or the report is to be received first by the insurance body. In some countries a number of optional information channels exist. While such reports invariably go to the insurance organization responsible for paying compensation, the enforcement agency may not be notified of cases of occupational disease. In general, the number of cases of occupational disease that remain unreported is impossible to quantify, and there is little doubt from research conducted in many countries that there is under-reporting on a vast scale. It should be noted that a fairly large number of developing countries are not in a position to collect and publish national data on occupational diseases. In these countries, diseases resulting from occupational exposure may often be diagnosed as non-occupational diseases due to a lack of national expertise or facilities for differential diagnosis, or both.
Content of the envisaged international instrument(s)
96. A national system of reporting, recording, notifying and evaluating occupational accidents and diseases is essential for the collection of consistent and comparable data, for international comparisons, and for the economical and meaningful use of scarce resources all over the world for the protection of the working population. International standards would provide for coherent policy and principles at the national level and at the level of the enterprise and for the harmonized collection of data on occupational accidents and diseases. This would facilitate comparative analysis and implementation of national policy and programmes for preventive action and promotional measures. The ILO Code of Practice on the recording and notification of occupational accidents and diseases, adopted in October 1994, while more detailed than the proposed instrument(s), could be used as a point of departure for drawing them up. A Convention containing basic principles, supplemented by a Recommendation, is envisaged.
97. The instruments envisaged should aim at reinforcing and incorporating various activities into consistent systems of collecting information on occupational accidents and diseases in member States. Such systems should cover methods of reporting and recording within an enterprise and notification to the national authority. A good recording system at the level of the enterprise would facilitate the investigation and analysis of the recorded results that would promote the review of the safety and health policy within the enterprise, in particular for the purposes of planning coherent and effective prevention programmes.
98. The following aspects of the recording and notification of occupational accidents and diseases might be covered.
(a) General provisions
99. The provisions might specify that the competent authority should formulate, implement and periodically review a coherent national policy and principles on the recording and notification of occupational accidents and diseases, and establish and progressively implement national procedures and the necessary legal, institutional and administrative arrangements. Provisions for notification at the national level might cover fatal occupational accidents, all occupational accidents causing incapacity for work for a period to be established by the competent authority, and all occupational diseases included in a national list or covered by the definition of such diseases prescribed by the competent authority and diagnosed in a specified period. Provisions for recording at the level of the enterprise might be extended to include also accidents and diseases not covered by the notification requirements.
(b) Action at the level of the enterprise
(i) Measures for recording
100. These measures would relate to setting up adequate procedures and allocating responsibilities within the enterprise for reporting by the worker and recording by the employer of occupational accidents and diseases. The provisions might specify the content and format of records, the period of time in which employers should have the records available, the cooperation of workers and their training in adequate reporting and recording. The information to be recorded should include at least the information needed to be notified to the relevant enforcement body, the appropriate compensation organization or other designated bodies. Specifications might be made for additional or for progressively more detailed information to be recorded.
(ii) Use of recorded information
101. Accurate information concerning common causes of occupational accidents and diseases and the extent of injury will help in setting priorities for necessary preventive measures. It will also facilitate assessment of the effectiveness of legislative and other measures. Provisions might thus specify measures to promote the uniform identification and the assessment of causes of occupational accidents and diseases at each enterprise and, consequently, at all branches of economic activity and at the national level by the use of the information recorded.
(c) Notification at the national level
(i) General provisions
102. These would specify how member States should prescribe and implement uniform procedures for notifying occupational accidents and diseases, including the determination of bodies to which notification should be made, and would specify the responsibilities of employers and workers for compliance with the prescribed procedures. The instruments might also deal with enforcement measures.
(ii) Requirements for notification
103. The provisions would specify the types and extent of information to be notified to the relevant enforcement body, the appropriate compensation organization or other designated bodies, the timing for the notification depending on the type of injury and the notification arrangements to be set up within the enterprise. The notification of occupational accidents might include information on the enterprise where the accident occurred and its employer, the injured person, the extent, nature and location of the resulting injuries, the accident and its sequence, the investigation and action taken to prevent a recurrence of the accident. The notification of occupational diseases might include information on the enterprise and employer, the person affected, the occupational disease and its attribution to harmful agents and process and length of exposure. Specifications might be made for progressively more detailed information to be notified.
(iii) Procedures for the use of the notified information
104. The instruments might also suggest the means of promoting the use of the notified information at the national level, including the creation of national databases and the production of reliable statistics on occupational accidents and diseases as a basis for setting priorities and elaborating national policy and preventive action programmes. The instruments might take into account the role of social security and sectoral institutions according to national law or practice.
Revision of the list of occupational diseases
105. On the basis of a review of the diseases which might appropriately be included in a revised Schedule I to the Employment Injury Benefits Convention, 1964 (No. 121), and of current practice and trends in the diagnosis and evaluation of occupational disease for compensation purposes, the proposed new list of occupational diseases might cover the following additional items --
106. The inclusion of the above diseases in the ILO list would have an important impact on prevention because these diseases can be avoided under well-controlled conditions. Since the revised list will be for purposes both of compensation, and of recording and notification of occupational diseases (paragraph 87), this will be conducive to an improved flow of information on the incidence of work-related diseases with a view to their prevention. This list will also offer useful guidance on the health surveillance of workers exposed to specific occupational hazards. A harmonized list will have the advantage of promoting close cooperation between insurance organizations and enforcement agencies (paragraph 95). Because of the double purpose of the new list of occupational diseases, which may be in two parts, the elaboration of the list and the preparation of the new instruments on recording and notification should be pursued simultaneously. For the purpose of recording and notification, the list should not only include the diseases where a direct link with work has been established, but also cases where such a link is suspected.
107. It will be recalled that a Meeting of Experts on Workers' Privacy, scheduled to take place in October 1996, was called to consider a draft Code of Practice on workers' privacy and to recommend appropriate future ILO action.(8) If the Governing Body so requests, information with regard to the conclusions adopted by the Meeting of Experts could be incorporated in the paper to be submitted to the Governing Body at its session in March 1997.
The nature of the problem
108. The issue of data protection has to be seen within the broader concern for individual privacy and human dignity. The concept and definition of a right to privacy varies in different legal systems and national situations. Generally, it can be said that privacy concerns the nature and extent of an individual's right to be left alone or to be free from unwarranted intrusion. It has also been expressed as the ability to control knowledge about oneself. Individuals are guaranteed the freedom to decide whether data concerning their person may be disseminated, subject to limits by legitimate interests of the State or third parties. Workers have a privacy interest in not disclosing information of a personal or sensitive nature to their employers. This interest can conflict with the interest of employers in knowing as much as possible about job applicants before hiring and to manage and control work and work performance.
109. Advances in data-processing technology have significantly increased the capacity of the employer to collect, store and process information related to individual employees, as well as the ability to incorporate data rapidly from other sources. The result can be a factually incorrect or misleading consolidated file. Such information, which may cover sensitive personal matters, may be collected on an individual worker without the person's knowledge; it may be used for purposes other than those for which it was gathered; and it may also be transmitted to unauthorized third parties, such as other enterprises or outside institutions. The unrestricted collection of personal data, and especially of such data without the workers' knowledge, creates special difficulties for workers who may face discrimination in employment and occupation. The practices of some employers have revealed the vulnerability of workers and the potential for invasions of individual privacy.
110. The specific interests of employers have not been the only reason for the increasingly detailed collection of employee data. Structural changes in the employer-employee relationship on account of expanding fringe benefits have also been influential. Benefits cannot be provided without an additional amount of knowledge on particular employees. In addition, regulatory intervention has led to a substantial increase in the data requested from employers by government agencies. As an illustration, more than one-third of the data collected by German employers is gathered for purposes defined by regulations.
111. In addition to the use of computers to process and store information, numerous other methods of collecting information on individuals have spread in the workplace. Electronic technology has been used in worker surveillance and monitoring, which can be and often has been done without the employee's knowledge. Telephone monitoring, video surveillance and the use of listening and tracking devices are among the more common types. Electronic monitoring can be a source of fear and anxiety when used to exert excessive management control or to coerce workers to meet unrealistically high work standards. Stress researchers have identified intrusive monitoring and control as stress factors in the workplace which have led to physical illness and psychological distress.
112. Furthermore, testing practices are expanding rapidly. These include alcohol and drug testing, HIV testing, genetic testing, honesty testing through the use of polygraphs and other means, and a wide range of psychological and personality tests. These can be applied to workers and job applicants alike. The use of such tests can be an unwarranted intrusion into the private life of the individual, be irrelevant for a given position, and have serious and long-lasting consequences for individual workers when the tests are unreliable or errors are made in evaluating test results. Finally, monitoring, surveillance and testing practices may also have a discriminatory impact on different groups, and create a general climate of distrust and uncertainty in the workplace.
113. These problems are not limited to industrialized countries. They are found almost everywhere. Modern telecommunications, the rapid drop in the price of information technology, the enlarged global economy and the transfer of technology, including the introduction of sophisticated data-processing systems in developing countries, mean that workers in more and more countries increasingly face new threats to their privacy. National attention and debate has been more predominant in industrialized countries in the face of rapidly changing technology, as well as in response to the elaboration of the Guidelines governing the protection of privacy and transborder flows of personal data adopted by the Organisation for Economic Co-operation and Development (OECD), a Council of Europe Convention for the protection of individuals with regard to the automatic processing of personal data and Recommendation on the protection of personal data used for employment purposes, as well as a European Community Directive on data protection. Even so, concern is not lacking in developing countries: representatives from the following countries participate in Privacy International, a non-governmental international organization devoted to advocacy on privacy issues: Argentina, Chile, Costa Rica, Haiti, India, Kenya, Panama, the Philippines, Thailand, Zambia and Zimbabwe. In addition, Government representatives from countries in transition to market economies, such as Bulgaria, have stated that the topic is important in view of the expected extension and expansion of monitoring and surveillance and the need to have rules in place before such practices become widespread. In addition, there is a need to improve the protection of privacy while balancing it with the needs of personnel management.
Action at the national level
114. Workers' privacy generally is seldom addressed directly in national legislation. However, national constitutions, including recent constitutional charters, recognize a general right to private life in some countries, such as Niger, Portugal, São Tome and Principe and Spain, while in many others, including Belgium, Costa Rica, Italy, Japan, Seychelles and Tunisia, general protection is guaranteed against interference with correspondence or other means of communication. Some countries have addressed issues of privacy and human dignity more specifically in their labour laws. For example, France amended its Labour Code in December 1992 to expand principles of individual liberties and protection to the private life of job applicants and employees. The Workers' Charter in Spain provides that the basic rights of workers include respect for privacy and the dignity of workers. Switzerland's Code of Obligations contains protection for the "personality" and individuality of workers. Data protection legislation, though not specific to the workplace, is the most comprehensive legislative approach taken thus far.
Protection of workers' personal data in national laws and regulations(9)
115. Scope of legislation. No country has so far adopted legislation applying exclusively to the protection of workers' personal data: preference has been given to legislation on personal data protection in general applying to all citizens, whether workers or not. The number of countries with this type of legislation is still limited. However, new data protection legislation came into effect in 1993 in Belgium, New Zealand, Spain and Switzerland. Countries in Eastern Europe have also shown fresh interest in the protection of workers' personal data. Accompanying the changes that are under way in their political and economic systems is an increasing concern to adopt data protection policies and mechanisms that are adapted to the standards being established in the rest of Europe. Already, legislation has been enacted in Hungary, the Czech Republic and Slovakia,(10) while a comprehensive personal data protection Bill has been drafted in Poland. In September 1993, other countries and areas considering data protection legislation included Bulgaria, Croatia, Estonia, Greece, Liechtenstein, Lithuania and Hong Kong.
116. About half of the countries with legislation on personal data protection in general regulate the collection and processing of such data in any form, both manual and electronic. These include Australia, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Hungary, New Zealand, Norway, Slovakia, Switzerland and the United States. In the other countries (Austria, Ireland, Italy, Japan, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom) only personal data kept in electronic form is subject to the law. In Canada, Italy, Japan and the United States at the federal level the coverage of the law is limited to the public sector. The kinds of data protected also vary and are defined in legislation, as are the data subjects covered.
117. Some countries, most notably the United States, have common law protection of the personal data maintained by employers. For example, employers can be sued on privacy claims for matters relating to improper data collection and the maintenance, use or disclosure of personnel files. The most frequently brought invasion-of-privacy cases involve employer disclosure of private matters such as medical or psychological data and performance evaluation information to third parties. Nevertheless, the focus of the protection of workers' privacy in most countries is statutory protection, which provides a clearer framework for regulation and legal protection.
118. Data protection institutions. Most countries with data protection laws have established special data protection institutions to supervise the implementation of the legislation. In general, these institutions receive and decide on employers' registrations and notifications, etc., before data files are set up, and receive complaints on alleged violations of the legislation. In some countries these bodies are also empowered to take action to promote the protection of privacy, for example by proposing amendments to legislation, proposing guidelines for processing personal data files, and carrying out special studies (often in areas that are not usually specifically covered in data protection legislation and which may have special relevance to the workplace, such as drugs and alcohol, HIV, genetic and psychological testing and issues of monitoring and surveillance). The new Privacy Commissioner in New Zealand has been given a broad mandate to look into privacy matters in general and to monitor technological developments and their impact on individual privacy.
119. Data protection institutions have been very active in some countries in developing policies or rules concerning workers' personal data. In France, for example, the National Data Processing and Liberties Commission (Commission nationale de l'Informatique et des LibertÚs) has emphasized the need to restrict the use of automated systems in connection with recruitment and dismissal procedures, and has issued rules on the retrieval of data collected for the purposes of personnel administration and wage payments, has criticized the multiple use of employee data through unrestricted online connections with databases, has analysed telephone call accounting (i.e. recording numbers and other information on calls made), and has taken legal action to prevent the collection of detailed information on employees' political convictions and their private lives. In Canada, the Federal Privacy Commissioner has successfully criticized the practice of employers asking for direct information from employees on illnesses or injuries, has moved to limit intrusive screening, testing and monitoring, at least as long as other options are available, and has been instrumental in the examination of problems relating to drug, HIV and genetic testing. In the United Kingdom, the Data Protection Registrar has announced a review of the approvals that have been given to employers to collect personal data, including sensitive information on their employees, and to determine whether the information is relevant for the purpose or is excessive. This covers, for example, approvals granted to collect data on the sexual lives of workers for the purposes of personnel and employee administration.
120. Prior procedures. In a number of countries, employers must fulfil certain requirements before they can establish personal data files on their employees. For example, in Austria prior notification to the relevant data authority is required, which must contain the following information: the legal basis for the file, the employer's name and address, the purpose of the file, the persons to whom the data refer, and classifications and communications of data. Licences and permits for the collection and processing of certain kinds of data are sometimes required, as in Sweden. On the other hand, data concerning employees is excluded in Hungary from the requirement for data registration.
121. Collection of data. In most countries, collected data must be relevant, up to date, and necessary for a lawful purpose and for the purpose of the data file, i.e. work-related in the context of employment. Many countries, including Denmark, France, Norway and Sweden, regulate how the actual collection of data should take place, while in others, such as Australia, Canada, Portugal, Spain and the United States, employers must ensure that employees are aware of the purpose for which the data is collected. The sources of data are also regulated in some countries. For example, in Luxembourg information must be collected from the employees themselves, and in Finland, if sources other than the employees are used, employers must make a report on the sources used. Employers who use forms to collect data in Belgium, New Zealand, Portugal, Spain and the United States must indicate the purpose of collecting the data, the persons for whom the data are intended and the conditions of access to the data file.
122. Security measures. Employers must take appropriate security measures against unauthorized access, disclosure or misuse of personal data files. In Canada, specific minimum security measures are set out in the laws and regulations, while in France the national data authority is responsible for ensuring that proper security rules are adopted at enterprise level. Persons handling personal data often have an explicit secrecy obligation.
123. Interconnection of data files. The possibilities available to employers to interconnect or merge different data files are strictly regulated in Australia, Canada (Quebec), Denmark, France, Hungary, the Netherlands, Norway, Portugal, Sweden and the United States. Many countries that permit interconnection of files, including Denmark, France, Portugal and the United States, have procedures that require the employer to specify the types and purpose of interconnection required. Employers may have to specify the types and purpose of interconnection or receive prior approval from the national data authority at the time the personal data files are established.
124. Rules applying to "sensitive" data. Most countries restrict or prohibit the collection and processing of "sensitive data", which may include, according to definitions in national legislation, information on race; religious, political or philosophical beliefs; national extraction or social origin; sexual habits or preferences; membership of trade unions or other organizations; health status; consumption of alcohol or other intoxicants; personal wealth; job evaluations; and social security identification numbers. In Sweden, performance and productivity data are also considered sensitive and special precautions must be taken if evaluative information is contained in data files.
125. The strictness of special rules on sensitive data vary. Collecting sensitive data is generally prohibited (subject to some exceptions) in Denmark, Finland, France, Germany (Hesse), Luxembourg, Norway, Portugal and Spain. In a number of countries additional security measures are required for storing sensitive data. Furthermore, external communication of "sensitive" data is also restricted. Provisions range from requiring the employee's consent to an absolute prohibition on some types of data: this is the case in Finland and Norway for social security data, in Luxembourg for information on trade union membership and in Japan on an employee's nationality, religious or philosophical beliefs, social status or union activities.
126. Right of access to data files. A key part of data protection legislation is the right of individuals to have access to personal data files on themselves. This right is recognized in most countries which have legislation on the subject. However, employees in Japan are not entitled to have access to personal data files kept by their employer. In New Zealand, employers may refuse to disclose evaluative material which was compiled solely for the purpose of determining the suitability, eligibility or qualifications of a worker where such disclosure would breach a promise of confidentiality to the person who supplied the information. Workers may seek the help of their representatives or the works council in obtaining access to their files in countries such as Finland, Luxembourg and Germany. In all countries employers may be entitled to refuse a request for access to data files in certain circumstances.
127. Rectification of data. Most countries also allow rectifying personal data. In many countries, including Australia, Austria, Canada, New Zealand, Switzerland and the United States, if the accuracy of data is disputed employees may request that a note be attached to the file about the dispute, or, as in Ireland, data can be supplemented with a statement agreed upon by the employer and employee. Numerous countries, where there is a refusal to correct data, provide for the filing of a complaint with the data protection authorities. In Sweden an employer must conduct an inquiry without delay if it is suspected that electronically processed data files contain incorrect or misleading personal data. In Germany, if there are reasonable doubts as to the accuracy of the data, the employer must report the source of the data and the parties to whom the data has been communicated. There is also the right to have illegally collected data deleted and to have procedures for placing comments in files and for requesting the removal of certain documents. In Switzerland, employees may request that action taken concerning disputed data be made known to third parties or be published.
128. External communication of data. Most national legislation regulates the external communication of personal data by requiring the employee's consent, as is the case in Australia, Austria, Canada, Denmark, Finland, Hungary, Ireland, Japan, the Netherlands, Norway and Sweden, and/or by specifying that it must be in accordance with a law, or other specified circumstances. In Denmark, France and Sweden the permission of the data authority may be required. In Canada, personal data may be transmitted in certain circumstances even if the employee refuses to agree to this. Another aspect of external communication of data is the transborder communication of data, which is subject to particular regulation in most of these and in other countries.
Regulation of specific methods of data collection
129. In addition to legislation on the collection and processing of personal data, increasing attention is being given to the legal regulation of specific methods of collecting information from workers, such as through various kinds of tests and monitoring and surveillance practices.
130. Testing of workers. The use of tests by some employers in the recruitment process or during employment is an important aspect of workers' privacy and the protection of workers' personal data. At issue are both the conditions under which employers have a right to require workers or job applicants to undergo such tests and the use and disclosure of the resulting data. Interest in the regulation of such tests has naturally been related to the incidence of their use in different countries. In many countries, few if any of these tests are used by employers and their use may be limited to specific job categories. In fact, introduction of specific legislation concerning employee testing has been rare. Instead, efforts to regulate testing have tended to rely on various types of existing legislation, including laws on privacy and protection of personal data; occupational health and safety; the working environment; co-determination; and discrimination.
131. While many countries have laws prohibiting the use of alcohol (and less frequently, drugs) at work, at least in safety-sensitive industries, mandatory testing for compliance is rarely dealt with in these statutes. Legislation authorizes alcohol and drug testing of workers in safety-sensitive positions, for example in the transport industry, in the United Kingdom and the United States. The United States Government also requires private employers who perform certain government defence and energy contracts to adopt drug testing programmes. In other countries, occupational health and safety laws may provide the basis for an employer to require workers to undergo appropriate medical tests, either at the pre-employment stage or under certain circumstances, for example where there is reasonable suspicion of drunkenness or other form of intoxication.
132. Similarly, countries have rarely spelled out in legislation the duties or rights of employers to test employees or job applicants for Human Immunodeficiency Virus (HIV) or to ask questions about their HIV status. Italy, however, has enacted a law which bars employers from requiring HIV tests in most cases. A significant consideration is that such tests and questions risk infringing laws concerning workers' privacy and anti-discrimination legislation where the relevance to a person's employment is not clearly established. None the less, HIV testing has been expressly authorized for some specified groups where a particular risk of transmission exists. For example, the Canadian Human Rights Commission's policy on AIDS states that being free of HIV infection could be regarded as a bona fide occupational requirement in three circumstances: when an employee performs invasive procedures which result in exposure to blood or blood products and the risk of transmission is real after all reasonable precautions have been taken; when an employee travels to countries which bar entry to those infected with HIV; and when the employee performs job duties which impinge on the safety of the public and performs these duties alone. The United States Public Health Service Act calls for states to adopt guidelines issued by the Centre for Disease Control which (a) urge health care workers who perform invasive procedures to know whether they are HIV positive, and (b) require strict observance by all health care workers of infection control procedures. Medical examinations of seafarers may include HIV tests, as is the case in Poland and in Trinidad and Tobago.
133. As regards genetic testing, at least ten states in the United States have laws which prohibit employment discrimination based on screening for one or more genetic traits. The use of genetic screening is quite controversial in a number of countries, not least on account of its varying reliability as a predictor of subsequent illness. Genetic monitoring of workers, to identify the genetic damage which may occur to workers over time as a result of exposure to hazardous substances is less controversial. In Finland, occupational health and safety legislation requires employers to consider the risk of genetic damage to employees when working with certain hazardous substances. Finland has also participated in a research project with other Nordic countries to determine whether worker exposure to genotoxins predisposes them to illness, particularly cancer. A proposed law on genetic testing in the workplace has been submitted by the Government of Denmark to the Danish Parliament. Similarly, in Germany the use of genetic screening and monitoring in the employment setting has been discussed in Parliament.
134. Attempts to regulate the use of psychological or personality testing, especially of job applicants, have been based in part on the requirement in many data protection laws that the information sought must be relevant and on the special rules concerning sensitive data such as that concerning the workers' philosophical beliefs and sexual life, etc. The reliability of some personality assessment techniques, such as graphology, has come under criticism in some countries, such as Canada and France. Increasingly, employers who use psychological and personality tests are also being called upon to show that these tests are not discriminatory, especially on the grounds of race and sex.
135. Honesty testing, whether by mechanical means (polygraphs and voice stress analysers) or through questionnaires which claim to evaluate workers' attitudes to honesty, is not dealt with expressly in European laws. In the United States, mechanical honesty testing is banned in the employment context, except for intelligence and certain law enforcement services, although polygraphs may be used under specified circumstances for workers in the pharmaceutical industry who are involved in the production and distribution of drugs and for workers in security services responsible for the protection of money. Non-mechanical testing is forbidden in Massachusetts, while in Rhode Island it cannot be used as the principal basis of an employment-related decision. In Canada, mechanical honesty testing is prohibited by statute in New Brunswick and Ontario, and it is also prohibited in the Australian State of New South Wales.
136. Monitoring and surveillance of workers. This is another area relating to privacy and the protection of workers' personal data in which there is growing concern. Audiovisual surveillance of workers, computer-based qualitative or quantitative monitoring, monitoring of employees' telephone calls and physical searches of workers have all been subjected to restrictions in various countries.
137. The regulation of employers' practices in this field has most commonly been attempted through the use of existing, more general, legislation and principles of good faith and fair dealings in the employment relationship. Data protection laws can also be significant and have been specifically applied to forms of electronic monitoring in countries such as France and Sweden. In several countries, including Austria, Belgium, Germany, the Netherlands and Sweden, co-determination rights of works councils include the introduction and use of technical devices to monitor employees' behaviour or performance and the methods for conducting searches in enterprises. In France, advance notice and consultation with the works council is required on the introduction of new technology which can monitor employees' behaviour or performance, but there is no right of co-determination. Amendments to the French Labour Code in 1992 relating to hiring practices and individual liberties prohibit the collection of information by employers by means of secret devices. The requirement of a satisfactory working environment in working environment legislation in countries such as the Netherlands, Norway and Sweden could also be used to restrict the rights of employers to monitor workers' behaviour or performance, including the computer-based monitoring of workers using visual display units (VDUs), without the workers' knowledge. The penal codes in some countries, including France and Sweden, make it an offence for employers to record or listen to telephone calls without the worker's consent. In France the penal code also protects workers against video-camera surveillance in the workplace. In Belgium a similar type of protection is provided by legislation on employment contracts.
138. In a few cases, specific legislation has been introduced on monitoring and surveillance of workers. In Sweden, a law on surveillance cameras prohibits hidden surveillance of public workplaces. In Italy, an Act respecting workers' freedom and trade union freedom (the workers' statute) includes a provision on the use of equipment to supervise workers' activity at a distance. Equipment, such as audiovisual equipment, telephone listening equipment and computer-based performance and monitoring systems, which could be used for this purpose, may be installed only with the agreement of the works unions or the works committee. Another provision of this Act imposes conditions for searches of workers. In the United States, proposed legislation is pending which would restrict electronic monitoring in the workplace, especially secret monitoring.
Protection of workers' personal data in collective agreements
139. Data protection (and employee privacy) has not been widely covered by collective agreements. It has often been difficult to negotiate provisions on the protection of workers' personal data in view of other priorities (wages, job security, hours of work, etc.), assertion of management prerogative and the complexity of the subject.
140. When data protection is addressed in collective agreements, the subject is often limited to one or two short paragraphs in an otherwise lengthy document. Agreements do exist in some countries (Austria, Germany, Switzerland and the United States, for example) which address in great detail the protection of personal data, and in some cases such agreements are exclusively devoted to data protection.
141. These agreements have been concluded in a diverse range of industries. They may include, as is the case for example in a collective agreement in a dairy in Germany, provisions relating to: prohibition of the use of programme-controlled links between workplace data and/or employee data with a view to automatically examining an employee's aptitude for a task, automatically comparing the aptitudes, output-related or behaviour-related data of several employees, or determining employees to be transferred or dismissed; prohibition on the use of the data for the purpose of checks or output assessments; provisions for modifications to stored data at an employee's request; establishment of a data-processing commission of the works council; the information rights of the works council; and the use of an arbitration body to settle questions subject to co-determination in connection with the use of electronic information systems or hardware. In Norway, the Basic Agreement of 1990 between the Confederation of Norwegian Business and Industry and the Norwegian Confederation of Trade Unions not only covers personal data files, but also has extensive provisions on internal controls, television surveillance, technological development and computer-based systems and control measures in enterprises.
142. Some relevant provisions are also included in new technology agreements, especially with respect to requirements for advance notice and information disclosure to workers and/or their representatives, consultation and negotiation on the introduction of new technology and restrictions on monitoring workers' performance.
Positions of employers and workers
143. Workers' organizations. In several industrialized countries, workers' organizations have argued strongly for legal protection of personal data collected during the hiring process and the employment relationship. One of their main demands is that only job-related information be collected, and that this category of information be defined specifically. Other demands include the following: that data be accurate; that workers have full access to their data, know what use is made of the data and be assured that information gathered for one purpose is not used for another; that limitations be placed on access to the data in the enterprise; that transmission to third parties be forbidden without the worker's consent; that there be time limitations on retention of data; and that there be a significant role for workers' representatives and works councils in the introduction of new data-processing systems and in regulating their use.
144. Workers' organizations at the international level have been vocal on the need for international labour standards and have themselves adopted guidelines on data protection. For example, guidelines on personnel data collection and processing systems were adopted in 1985 by the International Trade Union Conference on Personnel Data Collection and Processing Systems, organized by the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET). In addition to extensive provisions on the collection and use of data, the guidelines cover telephone monitoring and the monitoring and surveillance of employee movements.
145. A large number of workers' organizations at the national level have adopted policies on testing for alcohol and, in some cases, drug use. Some have opposed virtually all forms of testing as an unjustifiable invasion of a worker's privacy and personal dignity. The strongest opposition to alcohol and drug testing concerns random testing, as opposed to reasonable suspicion testing or screening during periodic medical examinations. Others have emphasized that any testing must not be introduced unilaterally, but through collective bargaining, and must focus only on workers who show symptoms of job-related impairment. They have also stressed the importance of guarantees of privacy, the need to use the most reliable means of testing and the obligation to inform workers and their representatives of the testing methodology used.
146. Workers' organizations in France insist that alcohol and drug abuse is strictly a medical problem and should be subject only to the discretion of the occupational physician, and protected by medical confidentiality. Trade unions in the United States have also opposed testing in industries where there is little statistical or other evidence of abuse. Moreover, drug testing has been singled out for criticism because it typically measures prior off-the-job use, but not job impairment.
147. Where workers' organizations have developed policies on AIDS, these focus particularly on education and training and on protection of employees. As regards HIV testing, general pre-employment testing has been opposed, as has routine testing of workers. However, HIV screening is not necessarily rejected in special cases, provided that appropriate confidentiality and employment safeguards exist. For example, the National Commission in Sweden, which includes major workers' organizations, has issued guidance on HIV at the workplace which provides that in jobs which are subject to special requirements of safety or efficiency, health checks may be indicated in exceptional situations; such checks may include HIV screening.
148. Genetic testing is less frequently addressed. In Denmark, workers' organizations have argued against a ban on genetic testing, preferring to control the way in which the technology is used than to ban it. However, in the United States several states have adopted laws banning genetic testing (for one or more genetic traits) after workers protested because persons whose genetic tests revealed certain traits experienced job discrimination and, in some cases, dismissal.
149. Relatively few workers' organizations have adopted positions concerning psychological testing. Those that have adopted positions emphasize that the tests used should be accurate and reliable, that they should be one among several methods of evaluation, and that the right to privacy should be respected. The Swedish Confederation of Professional Employees (TCO) has issued detailed demands concerning psychological tests, including the union's right to veto the use of such tests and the applicant's right to refuse psychological testing.
150. Workers' organizations in the United States have strongly supported the proposed Privacy for Consumers and Workers Act, which would restrict the use of electronic and video surveillance in the workplace. They argue that secret monitoring of employees does not create better workers or improve productivity and quality, but rather sets up an atmosphere of suspicion, reduces pride in work, invades workers' privacy and results in physical and mental stress and injury of workers.
151. Employers' organizations. Employers' organizations at the international level, including the Union of Industrial and Employers' Confederations of Europe (UNICE), have expressed concern that legislation on the protection of personal data could involve an expense disproportionate to the ends desired. Some organizations emphasize that the use of personal data in personnel management cannot easily be avoided. In addition, increased regulation could seriously impede effective management; many laws are overly restrictive; and the subject is highly sensitive and linked to cultural values. UNICE has argued for finding the correct balance between the need to protect individuals in relation to the automatic processing of personal data and the need to enable the pursuit of legitimate business without unjustifiable or extremely expensive restrictions which could paralyse some sectors of industry.
152. Employers' organizations often deal with testing as an integral part of a policy regarding alcohol and drugs, including employee assistance programmes. They affirm the employer's right to institute alcohol or drug testing, whether on a regular or random basis, at least in certain circumstances, particularly where the safety of employees and third parties is an issue. Protection of the security of industrial or commercial secrets also has been cited as a justification for testing. The policies do not emphasize the imposition of sanctions, although the right to impose sanctions is maintained. The Swedish Employers' Confederation (SAF), for example, draws a distinction between alcohol abuse, which is generally dealt with as a health problem, and the use of illegal drugs, and considers it justifiable, in the latter case, to give less consideration to personal circumstances.
153. With regard to AIDS and HIV testing, some employers' organizations have played an active role in informing and educating their members. They have emphasized that the risks of infection at the workplace are practically non-existent in most occupations and that employers normally have no reason to demand HIV tests or to know if their workers have AIDS or are HIV-positive. Optional tests for personnel going abroad to countries with high health risks are supported. In occupations where there could be a risk of HIV transmission, especially in health services, some employers' organizations have supported the use of HIV testing, with appropriate guarantees of confidentiality. In the Netherlands, for example, the Council of Central Entrepreneurial Organizations (RCO) considers that HIV testing should even be an essential element in the recruitment medical examination if the medical officer considers that it is relevant to occupational risk and safety in the workplace.
154. Employers' organizations in the United States are concerned about proposed new regulation of electronic monitoring. They have been firmly opposed to the proposed Privacy for Consumers and Workers' Act, although at least one organization has indicated that it would agree to legislation that would require notification of monitoring policies during the interview process and upon employment and could accept some restrictions on monitoring of private areas in the workplace, such as changing rooms. Several employers' organizations have pointed out that monitoring is intrinsically no more invasive than traditional personal supervision and has the advantage of greater objectivity. They have also emphasized the importance of electronic monitoring as a means of enhancing employee productivity and quality assurance, of identifying training needs, of evaluating worker performance and of monitoring security and preventing losses. One organization also drew attention to the need for employers to be able to conduct video monitoring of picket lines as a deterrent to illegal activity.
155. Privacy rights contained in instruments adopted by the United Nations and regional international organizations provide a legal basis in some countries for challenging practices in the workplace which violate individual privacy. Provisions often cited are the protection for privacy in article 17 of the United Nations International Covenant on Civil and Political Rights, 1966,(11) and in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, adopted by the Council of Europe.(12)
156. The only international instrument specifically covering data protection in the context of the employment relationship is the 1989 Council of Europe Recommendation No. R(89)2 on the protection of personal data used for employment purposes. This was adopted pursuant to the 1981 Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data, which is the only legally binding international instrument on the protection of personal data in general. Also influential on the development of national legislation are the Guidelines governing the protection of privacy and transborder flows of personal data adopted by the OECD in 1980, which apply to personal data that involve dangers to privacy and individual liberties, irrespective of the methods and equipment used in handling the data.
157. In the ILO, the protection of workers' personal data has not been the subject of specific standards except for a number of provisions on the protection of data related to workers' health contained in some instruments concerning occupational health services, maximum weights and night work.(13) However, as a broad principle, the Declaration of Philadelphia affirms that all persons have the right to pursue their material well-being in conditions of freedom and dignity. In addition, measures for the protection of workers' privacy play a part in the application of the principle of equality of opportunity and treatment in employment under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee of Experts on the Application of Conventions and Recommendations discussed the issue in its General Survey on Convention No. 111 (and Recommendation No. 111) in relation to protection against discrimination in access to occupation and employment and in terms and conditions of employment.(14)
158. The subject has been raised in various ILO fora. In 1985, the Advisory Committee on Salaried Employees and Professional Workers adopted a resolution on personnel information systems and data privacy in commerce and services.(15) A few years later, the Hotel, Catering and Tourism Committee adopted a resolution on information on personal data(16) calling on governments to require that personal data concerning employees in the hotel, catering and tourism sector be compiled and used in such a way as to respect the dignity and integrity of the person. Data protection for workers was identified as a possible subject for new instruments in the report of the Governing Body's Working Party on International Labour Standards in 1987.(17) The Director-General focused further attention on the subject in his report on human rights submitted to the 75th Session (1988) of the International Labour Conference.(18) He identified the protection of workers against the improper use of personal data and the potential abuse of modern electronic equipment for the control and surveillance of workers' performance as potential matters for standard setting.
159. On the subject of drug and alcohol testing, the Joint ILO/WHO Committee on the Health of Seafarers adopted in 1993 Guiding Principles on Drug and Alcohol Testing Procedures for Worldwide Application in the Maritime Industry.(19) In addition, the ILO Interregional Tripartite Expert Meeting on Drug and Alcohol Testing in the Workplace adopted Guiding principles on alcohol and drug testing in the workplace in May 1993.(20)
160. Concerning AIDS, a joint WHO/ILO Consultation on AIDS and the Workplace led to the development of a consensus statement. The statement includes provisions on pre-employment and employment HIV screening which state that such screening should not be required.(21) Furthermore, a WHO Consultation on Testing and Counselling for HIV Infection produced a statement which takes a general position against mandating testing in the workplace as well as in other settings. The proceedings of an international conference on AIDS and the Workplace, co-sponsored by numerous agencies, including the ILO, contain a recommendation against routine screening for HIV positive status in the work context.(22) In addition, both the European Community (Conclusions of the Council and Ministers of Health of the member States on AIDS and the Workplace, 15 December 1988) and the Council of Europe (Recommendation No. R(89)14 adopted by the Committee of Ministers of the Council of Europe on 24 October 1989) have taken positions against mandatory HIV tests in the workplace.
161. Other than general privacy principles, aspects of monitoring and surveillance are not specified in international instruments, with few exceptions. For example, the principle that no quantitative or qualitative checking facility may be used without the knowledge of workers is included in a Council Directive of the European Community on the minimum safety and health requirements for work with display screen equipment of 29 May 1990 (90/270/EEC).
162. The above review of national law and practice demonstrates that the significant issues have been identified and that governments as well as employers' and workers' organizations are seeking answers and guidance on a complex subject. The lack of regulation in many countries poses a threat to workers who may have little knowledge of the possible impact of new technology on their privacy interests.
163. Various forms of technology are being introduced in developing countries which have implications for the protection of workers' personal data and for new ways of monitoring workers. For example, sophisticated accounting systems which include a monitoring capability are being installed in countries such as the Philippines. Electronic mail and communications by facsimile are becoming more widespread and also raise issues of access to such communications and the security arrangements that might be required to protect data. The Bangkok Post reported that the Central Population Database Centre of the Government of Thailand is computerizing identification cards and civil registration and providing management information services. The international decentralization of data-entry activity is also having an impact. For example, employment in data-entry and routine data-processing work is expanding in developing countries, and is sometimes undertaken specifically for export by the process of international subcontracting. These jobs are predominantly created for women. This development has two implications: this type of work is among those that are most subject to monitoring or lend themselves to monitoring (which adds stress to an already repetitive and stress-inducing activity) and, if monitoring is undertaken, it disproportionately affects women.(23)
164. Given the growth in the use of electronic technology in the workplace, its expansion into workplaces all over the world, and the increasing internationalization of data processing, there is an arguable need for new ILO standards on the protection of workers' personal data. Because of the complexity of the employment relationship, special rules are required. While some argue that the broad protection of privacy embodied in the Universal Declaration of Human Rights and in some national constitutions is sufficient, others believe that references to dignity and privacy are too vague when it comes to a particular application in a specific situation, such as data protection in the workplace. Provisions of data protection laws and standards are clearer statements that individuals in whatever function or position have a fundamental right to determine the use of the data related to their person. National constitutional provisions often protect individuals against state action, and thus employment relationships in the private sector may not be covered. Nevertheless, broad guarantees of privacy and personal dignity need to be translated into specifically enforceable rights.
165. While recognizing the prerogatives of employers in terms of recruitment and control of the work process, the new standards would set out general principles of data protection and other aspects of workers' privacy raised by various methods of collecting data. The general principle should be the need to safeguard the privacy and human dignity of the employee in the collection and use of personal data for employment purposes and in the employment relationship. The advantages of automatically processed data could be acknowledged but be guided by principles designed to minimize risks to the fundamental freedoms of employees, in particular the right to privacy.
166. The new standards would apply to workers' personal data collected and processed by employers, either manually or automatically, in the context of the employment relationship, including during the hiring process. They would contain definitions of personal data and data subjects, include provisions for informing employees and consulting/negotiating with their representatives about the introduction or adaptation of methods for collecting and using personal data of employees, and provide for the creation or designation of national authorities for supervising their implementation.
167. Specific provisions would be spelled out on methods of and restrictions on the collection of data (work related, relevant, up to date, collected by fair and lawful means); types of data that could be collected with restrictions or prohibitions on certain types of data on sensitive personal matters; notice to employees of data collection and consent requirements for collecting and communicating certain data; the storage of data including specifying how long data could be kept and ensuring security of data; the hiring or employment purposes for which data could be collected and used; who would be permitted access to data; access of workers to their own data and their ability to rectify data; rules restricting the interconnection of files; external communication of data with methods for restricting data to third parties; and guidance on the transborder communication of data.
168. Further guidance might be provided on the issues related to specific monitoring, surveillance and testing practices used in the workplace to collect information on employees.
169. Cooperatives play an important role in the economic, social, cultural and political development of most countries. This was reiterated in 1994 by the Secretary-General of the UN in a special report to the General Assembly on the status and role of cooperatives in the light of new economic and social trends.(24) The World Summit for Social Development in 1995 endorsed this report by committing itself to utilize and fully develop the potential of cooperatives for the creation of full and productive employment through the establishment of legal frameworks that would encourage cooperatives to mobilize capital and promote entrepreneurship.
170. It is estimated that some 800 million people around the world are members of cooperative business enterprises. A further 100 million persons are employed by cooperatives. In addition, the cooperative movement is indirectly supporting the employment provided in other enterprises which are buyers or suppliers of cooperative goods and services.
171. Cooperatives are found among the largest employers and significantly contribute to the gross national product in the countries where they are active. As workplaces, as employers and by promoting self-employment and indirect employment, they influence employment. Being concerned with the social well-being of their members, cooperatives are also active in the field of housing, health care and care for the elderly, and in the field of education, mainly at primary level. These services are often provided for, on the initiative of, or in close collaboration with, workers' and employers' organizations which share these social and economic concerns with the cooperative movement. In this context, it may be recalled that trade unions have played an important role in the development of cooperatives.
Why new international standards?
172. The ILO recognizes the importance of cooperatives in article 12 of its Constitution, which provides for consultation with cooperators besides employers and workers through their recognized international organizations. In accordance with this provision, the Organization has promoted the development of cooperatives and has advised governments and workers' and employers' organizations on their role in this area. In addition, the ILO has promoted cooperatives mainly through technical assistance and technical cooperation activities almost since its inception.
173. The only standard directly addressing cooperative issues is the Co-operatives (Developing Countries) Recommendation, 1966 (No. 127). The purpose of this Recommendation was to provide governments of developing countries with guidelines for cooperative development. However, it is felt that Recommendation No. 127 neither has a sufficiently broad scope, nor provides adequate means fully to develop the self-help potential of cooperatives in present-day societies. It would therefore be of importance to develop new international standards for the promotion of cooperatives, by adopting either a new Convention or a new Recommendation based on modern cooperative principles and values.
174. Recent economic trends, including structural adjustment and particularly privatization, have highlighted the role of cooperatives in promoting self-employment and wage employment. The consequences of these global economic changes, to which cooperatives may respond, affect all countries. Because the limitation of existing international standards to developing countries is no longer appropriate, the new standard should extend its coverage to all ILO member States.
175. Recommendation No. 127 mirrors the development concerns of the 1960s, especially in its approach to the role of governments and cooperatives as instruments in the development process. In a genuine effort temporarily to make up for the lack of private entrepreneurship, the standards focused on the question of what instruments governments may draw on to enhance economic development. This may be demonstrated by the way many cooperative laws, based on these standards, were conceived. They provided more the legal basis for state intervention in cooperative affairs than an organizational framework for private economic activities. Under the current Recommendation, governments felt empowered to intervene at all stages of cooperative activities -- from their establishment, setting their objectives and running their day-to-day affairs to their dissolution for political reasons. Although most of the issues raised by Recommendation No. 127 are still of relevance, the emphasis and focus have evolved dramatically and new standards with a different focus should be envisaged.
176. Existing standards give lengthy attention to the link between cooperative development and land reform in developing countries, since at the time of the adoption of Recommendation No. 127 newly independent countries were obliged to undertake agricultural development programmes that involved the transfer of land from expatriate to indigenous producers and the reorganization of production and marketing through cooperatives. Today, however, this issue is only a limited part of the wider dimension of privatization, which involves the spread of worker-owned enterprises in industrialized and formerly socialist countries. For example, a new trend in industrialized countries is the reorganization of ailing enterprises as cooperatives or mutually owned and managed enterprises through worker buy-outs or employee stock-ownership plans. In the former socialist countries, the privatization of agricultural land, manufacturing facilities and the service infrastructure is an urgent and complicated issue. Thus, new international standards should give consideration to the broader process of privatization, which is not adequately covered by the existing Recommendation, in which reference is made to the process of land reform only.
177. The approach to government financial assistance, and hence to control over cooperatives, has also evolved. At the time of the adoption of Recommendation No. 127, governments were expected to exercise a predominant role in the channelling of national and international aid to cooperatives. Structural adjustment programmes imply, inter alia, the gradual withdrawal of the State from cooperative affairs, including a reduction in financial assistance and subsidies. Cooperatives are therefore intensifying their efforts to mobilize and manage their own credit and savings schemes, their own commercial relations with other cooperatives, at home and abroad, and a system of mutual exchange of technical cooperation through cooperative networks. The new standard should take these aspects into account.
178. The business viability and management autonomy of cooperatives, and hence the economic and social well-being of cooperative members, have often been jeopardized by involvement in general development programmes for which they did not have the financial or human resources. The contribution of cooperatives to such programmes should therefore not be exaggerated, and unrealistic expectations should be avoided. Cooperatives should be allowed to develop their self-sufficiency and undertake obligations as decided by their members. It would thus be advisable to reconsider the view that cooperatives should have such large goals with regard to global economic and social policy as incorporated in the existing standards. Consequently, unless the focus of international cooperative standards shifts from the State and overall national economic and social goals to the strengthening of member-orientated, independent and autonomous cooperatives, these standards will fail to support the promotion of cooperatives. It is commonly agreed that such a shift of focus would better encompass the universally recognized cooperative principles and help release the free, currently under-utilized, self-help potential in the fields of employment and social and human resources development.
179. At the time of the adoption of Recommendation No. 127, cooperative human resources development was viewed to be mainly the responsibility of governments, which then possessed the required financial resources and training infrastructure. The existing standards thus limit themselves to the traditional framework of cooperative education and training, and do not consider career and personnel planning, performance analysis, communications and information systems, research and institutional networking. However, there is increasing demand by cooperative movements to be given a larger role in planning, implementing and monitoring human resources development. New standards should therefore embody a wider concept of cooperative human resources development and take account of the need for greater involvement of cooperative movements in such development.
180. Two Meetings of Experts on cooperatives emphasized the need to rethink existing international standards along the lines outlined above. The Meeting of Experts on Cooperatives (Geneva, March-April 1993) reviewed the impact of Recommendation No. 127,(25) and the Meeting of Experts on Cooperative Law (Geneva, May 1995) discussed the impact of labour law, industrial relations systems and international labour standards on cooperative law and the regulatory role of the State in cooperative law.(26) As regards the latter, the Governing Body requested the Director-General to consider the revision of the Recommendation concerning the role of cooperatives in the economic and social development of developing countries, 1966 (No. 127), as recommended by the Meeting of Experts on Cooperative Law and by the Meeting of Experts on Cooperatives held in 1993.
181. Many countries have recently embarked on reforms of their cooperative movements. Cooperative laws have been or are currently being revised according to internationally recognized cooperative principles, reflecting at the same time the new approaches to economic and political development. Recommendation No. 127 should be reviewed in order to support or incite such reforms, taking specifically into account the following issues.
Proposed new international standards
182. A new instrument should take account of the changes that have occurred over the past three decades, and should reflect new insight into development problems, while preserving those parts of Recommendation No. 127 that are still valid.
183. What could remain unchanged. The two major points that are essential for democratic institution-building, namely the definition of cooperatives and the specification of the basic issues that any cooperative law must address, could remain unchanged, as they reflect cooperative principles. Furthermore, legislation in a growing number of countries takes this definition as a starting-point and includes the issues proposed by Recommendation No. 127 in their regulations.
184. What could be changed. A new instrument could redefine the priorities. It could contain new standards allowing for cooperatives to unfold their self-help potential for the benefit of their members and hence of their communities at large.
185. The present standards address the governments of developing countries. This scope could be broadened to include, inter alia, the governments of all ILO member States, workers' and employers' organizations, as well as cooperatives, their unions and federations. The reasons to include the governments of all member States of the ILO have been discussed above. It should be noted that the Meeting of Experts of 1995 recommended examining the need to distinguish between different categories of countries (developing countries, countries in transition, industrialized countries). In view of the ILO's tripartite constitution, workers' and employers' organizations could also be included. As for the cooperative movements, they could also be addressees, as it is important to emphasize the responsibilities of the cooperative movement itself.
186. As stated above, Recommendation No. 127 gives more power to the State than the currently promoted principle of subsidiarity does. A new instrument could balance the powers of the State with the autonomy of cooperatives. Thus, the role of governments would need to be limited to registration, deregistration and control of compliance with the law. Nevertheless, governments share the responsibility to provide a favourable framework for the development of cooperatives and other mutual self-help organizations. The new standards could ensure for example, that --
187. What could be added. Cooperatives worldwide have been involved in a broad and growing spectrum of economic and social activities, generating a wide range of new self-help initiatives. While it is relevant to discuss an adequate approach to such initiatives, not all of them may require a legislative structure. In order to avoid any possible confusion, it would thus be of relevance to elaborate new standards identifying those self-help initiatives that require a legislative structure in order to function effectively. This could be done in the form of an addition to the definition of cooperatives.
188. Recommendation No. 127 contains a list of the core issues the legislator should address. This list could remain unchanged. However, these issues are to a large extent congruent with those applicable to company law. This and a number of other reasons support a trend towards the "companization" of cooperative laws. The potential for self-help must however be supported and protected by legislation which brings out, within each of the issues mentioned in the current Recommendation, the specificities of cooperatives as laid down in the cooperative principles, especially member focus, member control and autonomy.
189. Lack of, or deficient accountability is a major reason for the failure of cooperatives. However, cooperatives are nowadays requesting regular and timely audits of their financial and management performance by independent qualified auditors, who take into account the member-orientated approach of cooperatives. Furthermore, cooperative apex organizations are demonstrating an improved capacity to carry out this service. New standards could therefore take into consideration the self-financing and self-auditing capacity of the cooperative movements.
190. What type of new instrument. The Meeting of Experts (1995) "did not have a unified opinion on the question of whether a Recommendation was the appropriate instrument or whether it should be transformed into a Convention".(27) The experts thus suggested that both a Convention and/or a Recommendation might be possible.
191. A Convention, possibly supplemented by a Recommendation, would give universality to the above-mentioned updated basic values of cooperatives, and would receive greater recognition from ILO member States.
192. Should member States of the ILO favour the adoption of a Recommendation, it is felt that the very nature of the subject-matter, as well as the proposed substantive changes in the current standard, as proposed here, would best be served by adopting a new Recommendation. However, the revision of Recommendation No. 127 might also be envisaged.
193. In recognition of the need to protect working women at childbirth, one of the first actions of the International Labour Conference was to adopt the Maternity Protection Convention, 1919 (No. 3). The Maternity Protection Convention (Revised), 1952 (No. 103) reaffirmed the rules laid down by the earlier Convention -- a right to maternity leave of 12 weeks including a compulsory period to be taken after the birth, the payment of cash benefits during such leave, the prohibition of dismissal during maternity leave, and the provision of nursing breaks -- but introduced greater detail and, on certain points, greater flexibility. The Maternity Protection Recommendation, 1952 (No. 95), improved the provisions of Convention No. 103 and set out additional measures to protect the health of expectant and nursing mothers and their infants. The Declaration of Philadelphia (Part III, paragraph (h)), includes maternity protection among the aims and purposes of the International Labour Organization.
194. In 1983, after examining the working of the two Conventions, the Governing Body requested the Director-General to submit, at an appropriate time, new proposals for the revision of Convention No. 103.(28)
In 1987, in view of the crucial importance of maternity protection, the Governing Body confirmed that Conventions Nos. 3 and 103 should remain among the standards to be promoted as a priority.
195. A Directive on the introduction of measures to encourage improvements in the safety and health of pregnant workers and workers who have recently given birth or are breast-feeding was adopted by the Council of Ministers of the European Communities on 19 October 1992. The Directive provides for an assessment of the exposure of workers to hazardous agents, processes or working conditions, the protection of pregnant and breast-feeding workers against exposure to dangerous agents or night work, the provision of 14 weeks' maternity leave with benefits fixed by reference to sickness benefits, and the prohibition of dismissal except in exceptional cases not connected with pregnancy. The Council also adopted a Directive (96/34/EC of 3 June 1996) on the framework agreement on parental leave concluded by UNICE, the CEEP and ETUC.
National approaches to maternity protection
196. Most countries provide statutory maternity protection measures. Although the scope of such measures and their quality vary greatly, they are clearly inspired by the requirements of ILO standards; a significant number of countries afford better conditions than those contained in the relevant ILO instruments, especially in terms of the duration of maternity leave, the amount of cash benefits, health protection and protection against discrimination on grounds of maternity.
197. Women in industrial and non-industrial undertakings appear to be covered by labour legislation in the vast majority of the countries surveyed. However, certain sectors, which may employ considerable numbers of women workers, such as agriculture or domestic service, are excluded in certain countries, as are homeworkers, self-employed workers and workers employed in small undertakings. While a great many labour laws do not apply to public officials, these are usually covered by special maternity protection rules, which in fact often afford more favourable conditions. Of greater concern is that the social security system fails to provide income replacement during absences from work due to maternity in a great number of countries.
198. With the coming into force in August 1993 of the Family and Medical Leave Act in the United States, the right to maternity leave, i.e. the right to return to work after an absence to give birth, is now recognized almost universally. In accordance with ILO standards, women are generally required to provide, at a time which may be prescribed, a medical certificate signed by a qualified practitioner or midwife indicating the estimated date of delivery. However, differences may be observed as regards the duration of the leave, its distribution and possible extension, as well as in the amount of the cash benefits payable during the period of leave. These are equivalent to the woman's prior earnings in some countries, while other countries provide for benefits that are lower, or are payable only during part of the leave. ILO standards provide that such benefits should be paid out of public funds or financed by a system of insurance, and that individual employers should not be liable for the cost of benefits due to women employed by them. However, in many countries the employer remains liable for part (e.g. Honduras, Norway) or all (e.g. Burundi) of the worker's salary. In addition, a large number of countries have defined eligibility requirements for maternity leave or benefits, or both, which may deny protection to certain groups of women.
199. A number of countries require women to have been employed for a certain minimum period in order to be eligible for maternity leave (e.g. one year in Australia) or maternity benefits. In many countries, women must have contributed to the relevant social security or insurance scheme for periods ranging from a few weeks to a year. Where the employer is liable for the cost of cash benefits, these may be computed on the basis of length of service with the same employer (e.g. Saudi Arabia: 50 per cent of earnings after one year, 100 per cent after three years). Also in contravention of ILO standards, a few countries limit the right to maternity leave to a certain number of pregnancies during the period a woman is working for the same employer (e.g. Egypt), and in exceptional cases (e.g. teachers in Trinidad and Tobago) if a woman is not married she is not entitled to maternity leave. Eligibility may also be defined in terms of the size of the undertaking's workforce. Thus, in the United States, the Family and Medical Leave Act applies only to employees in companies with more than 50 workers within a 75-mile radius.
200. Significant progress has been noted in connection with the duration of maternity leave. The two ILO maternity protection Conventions provide for a period of 12 weeks. This requirement is not met in only 34 of the 144 countries for which information is available, while it is observed in about half and exceeded (sometimes by as much as 50 per cent) in 59 countries. A few countries (e.g. Trinidad and Tobago) provide for 13 weeks; over 20 countries, including Benin, Japan and Panama have reached the level of 14 weeks called for in the Maternity Protection Recommendation, 1952 (No. 95). In other countries, this level is exceeded (for example, 15 weeks in Belgium or the Congo; 16 weeks in Austria or Spain; 18 weeks in Chile). Since 1982, when the Governing Body last reviewed the situation, increases in the duration of maternity leave have been provided for in a number of countries, including, for example, Belgium, Chile, Cuba, Cyprus, Denmark, Greece, Guatemala, Spain, Sweden and Venezuela. Finally, many countries grant new fathers a short period of leave at the time of birth (e.g. Finland, six days, paid; New Zealand, two weeks, unpaid; Turkey, three days, paid; Uruguay (in the public sector), three days, paid).
201. Since the late 1970s, certain countries have adopted a policy on leave for family care that does not focus on mothers only but features a parental approach. Thus, nowadays maternity and paternity leave form part of parental leave in such countries as Australia, Denmark, Iceland, Norway and Sweden. Parental leave schemes usually reserve a portion of the leave to the mother based on her need for rest at the end of pregnancy to protect her health and that of the unborn child (for example, 14 weeks, to be taken before and after childbirth as under maternity leave schemes), and up to two weeks to the father, to be taken at the time of birth or shortly thereafter. The balance of the leave (the purpose of which is to help parents raise a child) is to be divided between the parents as they choose. It should also be noted that adoption leave is increasingly available to adoptive parents, either within parental leave schemes (e.g. in Portugal) or by reference to postnatal maternity leave (e.g. in Chile and Poland). In Colombia, the duration of adoption leave is equivalent to the full maternity leave.
202. In some cases, the leave entitlement is granted in total (e.g. Grenada, the Philippines and Zambia) and the distribution of the time off is largely at the discretion of the woman concerned. In most countries, on the other hand, the distribution of maternity leave is prescribed through a specification of the duration of prenatal and postnatal leave. In others, women are free to save some of their prenatal leave, to be taken after the birth of the child (e.g. two weeks in France).
203. In many countries, including Austria, Barbados, Ireland, India and Morocco, the postnatal period of leave is compulsory, as called for in ILO standards. However, this period may be shorter than the six weeks prescribed by the standards (e.g. five weeks in Malta). There are also cases where the worker may return to work before the end of the compulsory period if she provides a medical certificate attesting her fitness to do so (e.g. Switzerland). In a few countries (e.g. Germany), both prenatal and postnatal leave is compulsory. In others, the employer may request a worker to stop working at some point before the due date of birth. In a few countries (e.g. Canada), there is no compulsory leave period, as it is felt that the leave is a right that should be freely exercised, and that time off should be organized to suit individual women's circumstances.
204. In line with the requirements of ILO standards, maternity leave is often extended in cases of illness arising out of pregnancy and childbirth (Cameroon, Chile, Greece, Indonesia). Several countries also provide for an extension of maternity leave in the case of multiple births (Afghanistan, Ghana, Luxembourg). In another group of countries, extension is foreseen for both reasons (China, Guinea, France). Maternity leave is also extended in a large number of countries when delivery occurs later than anticipated; such countries include the Bahamas, Belgium and Burundi. Several countries ensure that when birth occurs earlier than foreseen the duration of the leave is not shortened, and stipulate that postnatal leave will be increased by the number of days not taken before birth, as in Ethiopia, Malta and Nicaragua.
205. In many countries, women returning from maternity leave are entitled to resume the position they held before going on leave. In others, a comparable position has to be offered to them.
206. Of primary concern is the availability and level of cash benefits during maternity leave. In a very few countries (e.g. Australia, New Zealand, the United States), maternity leave is unpaid. In others, a flat-rate benefit is payed. Under Convention No. 103, where they are provided under compulsory social insurance and based on previous earnings, cash benefits should be equal to at least two-thirds of the previous earnings taken into account for the purpose of computing benefits. In only about 20 of the 144 countries for which information is available, benefits calculated on the basis of past earnings, whether paid by insurance or social security or by the employer, fall under this standard, which is reached or exceeded in more than 90. However, in a number of countries, including France and the Netherlands, the benefit is computed on the basis of a wage ceiling, which may be lower than the actual salary of women who hold high positions. Over the past ten years, increases in the amount of cash benefits were introduced in some countries, including Belize (from 60 to 80 per cent), Costa Rica (from two-thirds to 100 per cent), Cyprus (from 60 to 75 per cent), Honduras (from two-thirds to 100 per cent) and Senegal (from 50 to 100 per cent). In certain countries, benefits in kind are also maintained.
207. Most countries also provide medical benefits including prenatal care, care during childbirth and postnatal care. Some, such as France, encourage women to take regular antenatal check-ups by providing for an allowance to be paid on production of a medical certificate, a measure which applies to working and non-working women alike but which can be accompanied, in the case of working women, by the availability of paid time off to attend the check-up, as in China. Paid time off for antenatal medical examinations is often provided under collective agreements.
208. In line with ILO standards, which call for the provision of nursing breaks, the legislation in most countries allows new mothers to interrupt their work in order to nurse their infants, most commonly twice a day for half an hour. Longer breaks are provided, for example, in Mongolia (two one-hour breaks until the child is six months old, one for the following six months) or Somalia (two one-hour breaks). In some cases, the law also requires the employer to provide suitable premises where women workers can breast-feed. It would seem that, where particular value is placed on the benefits of breast-feeding for infants' health, as for example in the United States, such premises are being made available voluntarily. Most frequently, nursing breaks are regarded as working time and remunerated accordingly, although in some cases remuneration is granted through collective bargaining rather than under the law. In some countries, the law sets out the duration of the period during which nursing breaks should be granted (e.g. six months in Brazil; nine months in Spain; 12 months in Japan; 15 months in Benin and 18 months in Egypt).
209. The maternity protection standards address the issue of employment protection by prohibiting dismissal during maternity leave (and any extension thereof), or at such time as notice would expire during the period of leave. Dismissal on grounds that might be regarded as legitimate is not considered to be permitted during this period. The Termination of Employment Convention, 1982 (No. 158) provides that pregnancy or absence on maternity leave shall not constitute valid reasons for termination. In a number of countries, including Botswana, Bangladesh and Ireland, the legislation reflects the prohibition contained in the ILO maternity protection Conventions. In several other countries, however, the prohibition exists but is not absolute. For example, in Guinea, where an employer may not dismiss a woman during maternity leave or any extension thereof, termination is lawful if the employee has engaged in serious misconduct not connected with pregnancy or if, for reasons unrelated to pregnancy, the employer finds it impossible for the contract to remain in effect; in many countries, an employer may dismiss a woman on maternity leave who has taken up paid employment during such leave. In another group of countries, dismissal is prohibited for a longer period than that envisaged in ILO standards, such as during the last few months of pregnancy or from the time pregnancy is known, as for example in Cyprus, but the prohibition is not absolute and the workers concerned may be dismissed on just grounds unconnected with pregnancy or in such cases as the closure of the undertaking. The need for employment protection in connection with maternity has thus been addressed in the vast majority of countries, where legislation provides for the protection of employment throughout pregnancy, maternity leave and also during a period following such leave (e.g. three months in Colombia). Not infrequently, absence on maternity leave counts towards seniority.
210. Most countries acknowledge the need to protect the health of pregnant and nursing women and have enacted a number of measures to that end, broadly in line with the guidance contained in ILO Recommendation No. 95. While the level of protection afforded varies, measures most commonly found include the prohibition of night work, of overtime and of certain types of work recognized by the competent authority to be harmful to the health of the mother or child. Night workers and workers normally performing dangerous work must usually be transferred without loss of pay to a position suitable to their condition.
211. In a number of countries, night work is prohibited for all women, either in industry or in general; special protection for pregnant women is therefore less relevant. In Italy, exceptions to the general prohibition of night work for women in industry, negotiated under collective agreements, cannot apply to pregnant women or for up to seven months after childbirth. Night work is prohibited for pregnant women in Chile, Ethiopia and Indonesia; in some countries the prohibition concerns only part of the pregnancy (e.g. the three months before the expected date of delivery in Lesotho); however, in such cases the period during which the woman may not work at night may be extended if a medical doctor so requests (Namibia). Elsewhere (e.g. Japan), if a pregnant or nursing worker so requests, she will not be required to work at night.
212. Overtime work is prohibited in a large number of countries, including Ghana (pregnant women and women with children up to eight months), the Lao People's Democratic Republic (the prohibition also applies to work on normal days of rest), Panama and Switzerland. Collective agreements often contain additional provisions for the arrangement of working time of pregnant or nursing women, who may be allowed to leave earlier and arrive later so as not to be caught in rush periods, as in France.
213. Most countries prohibit the employment of pregnant and nursing women in work that is deemed by the competent authority to be harmful to their health or that of their child. Some countries state the prohibition in general terms, while others list the type of work that is prohibited (e.g. exposure to chemicals, radiation and infections in Finland, to ionizing radiation in Guinea, the manual handling of loads in Italy -- up to seven months after childbirth -- and exposure to benzene in Spain). In Turkey the protection against onerous work extends to the six months following childbirth. Other countries indicate that, for a certain period, pregnant women will be assigned to light duties (Cambodia). In several countries, women assigned to work that is incompatible with pregnancy must be transferred to suitable work (e.g. Chile, France, Thailand); in some, when transfer is not possible, the maternity leave starts when the incompatibility is established (Denmark). Transfer is also available from work that is not inherently dangerous but is certified by a medical practitioner not to be suited to a particular woman's state of health (e.g. Chad, France). In Ghana, pregnant workers (after the fourth month) may not be assigned to work outside their permanent place of residence.
214. Women alone have the biological capacity to carry, deliver and breast-feed infants. Although women perform a unique social function in bearing children, in practice maternity can be a source of discrimination, such as when actual or potential pregnancies are taken into account in considering applications for training or employment or are viewed as grounds for termination. It can also cause indirect discrimination with regard to working conditions. As many more women wish or need to combine work and motherhood, and as the development of national economies increasingly requires the work of women, many countries have adopted new approaches to maternity and work over the last 40 years. In particular, there is now growing awareness that women should not be disadvantaged in the labour market on account of maternity. Thus, measures are to be found in several countries to ensure that women do not suffer discrimination on account of pregnancy. These include a general prohibition of discrimination on the grounds of pregnancy (as in Venezuela and the United States), or more precise requirements (e.g. in France, where it is unlawful for an employer to seek information on whether an applicant is pregnant). In a 1989 judgement, the Court of Justice of the European Communities found that an employer who dismisses or refuses to recruit a woman because she is pregnant is in breach of the 1976 EC Directive on equal treatment. The Court reasoned that pregnancy is unique to women, so where unfavourable treatment is made on grounds of pregnancy, there is by definition discrimination on grounds of sex: there is no need to compare the treatment of a pregnant woman with that of a hypothetical man, as is usually required in sex equality cases.
215. Many collective agreements contain clauses regarding maternity protection. While some agreements merely reflect the statutory provisions, it is much more frequent for such agreements to provide for improved protection, which is sought in several areas. It is not uncommon for the employer to agree to provide financial benefits over and above those payable by social security, to grant a longer period of maternity leave than prescribed by legislation, to allow longer nursing breaks or to grant paternity leave where this is not statutory. Employers may also agree to refrain from giving pregnant employees notice of termination during a period longer than the period during which it is illegal for them to do so, or to extend maternity leave to employees not covered by the scope of the relevant legislation (as for example in female-dominated trades in some countries, where a number of part-time employees work shorter hours than required by the maternity protection legislation). Collective bargaining may also be used to clarify details not specified in the legislation: for example, in Malaysia an agreement between the Malayan Commercial Banks' Association and the National Union of Bank Employees states that, where public holidays fall within the period during which an employee is on maternity leave, the leave shall be extended by a working day for each such public holiday. Under a number of agreements, workers are entitled to take their annual leave immediately after maternity leave.
Prospects for further international action
216. The maternity protection Conventions are poorly ratified. As at August 1996, Convention No. 3 and Convention No. 103 had only been ratified by 34 countries each. This slight increase on the 1982 figures is mainly due to the confirmation, by newly created States, of ratifications which had previously covered their territory before they became Members of the ILO.
217. The lack of flexibility of the instruments has discouraged ratification. The four main requirements that pose problems with the ratification of Convention No. 103 are the following: (a) its scope, which is defined very broadly; (b) the compulsory nature of postnatal leave; (c) the absolute prohibition of dismissal during the relatively short period of maternity leave; and (d) the requirement that employers should not be directly responsible for the payment of benefits.
218. On the other hand, the foregoing brief analysis shows that significant progress has been achieved in many countries, where laws and regulations now contain standards equal to, or higher than those of Convention No. 103, or provide for measures that the standards do not envisage.
219. The right to maternity protection, which had been stated in a resolution adopted by the International Labour Conference in 1975, has now become well accepted in a substantial number of member States. The pattern of women's participation in the labour force has changed markedly, with most of them nowadays continuing to work when they have children. Recent developments in many countries are evidence of a political will to strengthen maternity protection. The ILO should be in a position to guide such efforts within the common framework of modern standards that are sufficiently flexible to enable countries with widely differing circumstances to consolidate achievements and make realistic progress, while reflecting the needs and wishes of workers and the legitimate concerns of employers. Several Government members of the Governing Body, including those of the African Government group, Australia, Brazil, Canada, China, France, Germany, India, the Islamic Republic of Iran, Italy, the Netherlands, Nicaragua, Norway, Pakistan, Panama, Poland, the Russian Federation, Spain, the United Kingdom and the United States, consider that a revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95) would be timely.
220. A revision of the maternity protection standards should pursue the double aim of drawing up standards that could be widely ratified and would reflect the advances made in many countries. Efforts would be made to provide for a sufficient degree of flexibility in the areas, identified in paragraph 217 above, that have proved to present problems for a number of governments. At the same time, efforts would also be made to ensure that all the basic requirements of protection -- non-discrimination and employment security, health protection, maternity leave and cash benefits -- are maintained and, where appropriate, improved, in the framework of a single instrument, with a view to charting future progress.
221. Experience with a number of standards has shown that a satisfactory way of ensuring a gradual extension of the protection afforded is to ensure that the scope of the instrument is defined broadly in general terms, and that provision is made for its gradual application. Since the occupational distribution of women may change over time, it would also seem unnecessary to go into excessive detail concerning the sectors or occupations to be covered. An acceptable wording could perhaps retain the principle that instruments should be applicable to all branches of the economy and all categories of workers, while authorizing, after consultation with the organizations of employers and workers concerned, the partial or total exclusion of certain categories of workers for whom their application would raise special problems of a substantial nature. In its first report, a Member availing itself of this possibility would be required to state clearly the particular categories of workers excluded and the reasons for their exclusion, and in subsequent reports to indicate the measures taken to extend the application of the provisions gradually to those categories.
222. Qualitative improvements reflecting measures currently in force in many countries could be sought, including the prohibition of discrimination on the grounds of pregnancy or childbirth, employment protection, the protection of workers' reproductive health, health protection during pregnancy and breast-feeding, the duration and distribution of maternity leave and the level of cash benefits. Consideration could also be given to the need to reflect new trends in a growing number of countries, such as considering maternity leave within parental leave schemes or providing for adoption leave.
223. Maternity protection constitutes an essential requirement for the achievement of equality of opportunity and treatment between men and women in employment and occupation. Indeed, as noted by the Committee of Experts on the Application of Conventions and Recommendations, it is more of a premise of the principle of equality than a dispensation. The point has also been made in the UN Convention on the Elimination of All Forms of Discrimination against Women, which states that the adoption of measures aimed at protecting maternity shall not be considered discriminatory (Article 4.2). A major goal of a revised Convention could be to formalize a consensus on this point by providing for the prohibition of discrimination on the grounds of pregnancy, childbirth or lactation. The Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which prohibits discrimination on the grounds of sex, implicitly also prohibits discrimination on any grounds linked to sex, as noted by the Committee of Experts on the Application of Conventions and Recommendations in its 1988 General Survey on the Discrimination (Employment and Occupation) of Standards. In line with a number of ILO resolutions which state that pregnant and nursing women fulfil a social function for which they should not be penalized, it would seem important expressly to identify maternity as a prohibited ground for discrimination. Such a provision would clarify the fact that maternity is a condition which requires differential treatment to achieve genuine equality. The revised Convention could state that it would be unlawful for employers to take pregnancy into account with a view to refusing to employ a woman or terminating her contract during a period of probation. The revised Recommendation could provide guidance on acceptable practice in connection with disclosing or establishing pregnancy during recruitment or employment.
224. The revised Convention could also contain provisions aimed at protecting the employment of women during pregnancy, maternity leave and for a certain period after resumption of work, by providing that dismissal would only be permitted, under conditions that would be specified, on grounds clearly not connected with pregnancy, childbirth, lactation or family responsibilities. This would remove one of the current difficulties, while in effect improving protection in line with current practice in a number of countries. The revised standards would further provide for the right of employees to return to their former position or one that offers similar conditions and would offer guidance in connection with the preservation of seniority rights and related matters.
225. A second important aim of a revised Convention would be to address the protection of the reproductive health of workers and of the health of pregnant and nursing women. Historically, maternity protection measures aimed to protect the health of women workers and that of the newborn child by providing for maternity leave and benefits and for nursing breaks. Recommendation No. 95 reflects the need for additional health protection measures during pregnancy. It provides for the prohibition of night work, overtime and work which involves special hazards to pregnancy or lactation, together with the right to transfer without loss of pay. It further envisages the possibility of such a transfer in connection with work which is certified by a medical practitioner to be detrimental to a particular woman's health. However, such measures may not suffice to ensure the satisfactory outcome of pregnancy and prevent defects attributable to the exposure of either of the future parents to hazards in the working environment. The prohibition of the work of women of childbearing age or capacity in processes involving teratogenic or mutagenic hazards neglects paternal exposure and hardly affords a satisfactory solution, even leaving out equality considerations. Advantage might be taken of a revision of the maternity protection standards to provide for adequate minimum preventive measures geared to health protection in relation to conception, gestation and lactation in the revised Convention and to offer more detailed guidance in the revised Recommendation.
226. For the ILO, the normal duration of maternity leave has been fixed at 12 weeks since 1919. It would seem reasonable for the new Convention to adopt slightly improved standards. While the normal duration of maternity leave could be fixed at, say, 14 weeks, the level of 12 weeks could also perhaps be retained as a temporary exception permissible in countries where it is not immediately feasible to adopt the higher standard. A revision could also seek to ensure a proper balance between the need to provide adequate protection and the desirability of accommodating individual preferences with regard to the distribution of maternity leave. A possible solution could be to provide that it would be compulsory to take a specific period of maternity leave before and/or after childbirth, leaving it to the competent authority in each country to establish the length of this period and when it should begin.
227. Another area where improvement could be sought concerns cash benefits. Where benefits are computed on the basis of past earnings, the new standards could perhaps retain the current level of two-thirds of previous earnings, while indicating that, over a certain period of time, benefits would be brought to 100 per cent of such earnings, as provided for in Recommendation No. 95. Where a flat-rate cash benefit is paid, measures could be taken to ensure that it is adequate for the maintenance of mother and child and is revised regularly to keep up with the cost of living.
228. Convention No. 103 requires that individual employers shall not individually be liable for the cost of benefits payable to the workers employed by them. This is crucial to ensure equal opportunities for women of child-bearing age, and the Office does not consider that such a basic principle should be called into question. However, it is fully aware that in many countries, public funds are insufficient and public insurance systems either do not exist or are insufficiently developed to bear the cost of maternity benefits. It is proposed, therefore, while maintaining the requirement as an objective, to allow for temporary exceptions. Member States which avail themselves of a temporary exception would be required to identify and to introduce progressively satisfactory arrangements to finance the cost of maternity benefits.
229. The Office considers that any revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and of the Recommendation, 1952 (No. 95), should aim at developing standards that are both realistic and comprehensive. There now appears to be broad-based agreement on a few basic principles, such as the need to avoid discrimination on grounds of pregnancy, childbirth and nursing, including the protection of pregnant women against employment decisions motivated by their condition, the right to maternity leave and to adequate cash benefits during such leave, and the need for health protection. Building on these core elements of maternity protection, the new standards could set the course for further development by means of provisions going beyond the core obligations, and provide guidance on some of the measures to be taken to ensure the practical application of maternity protection, with due regard to national possibilities and constraints.
230. If the Governing Body so requests, proposals in this respect could be submitted at its session in March 1997, based on the recommendations made by the Working Party on Policy regarding the Revision of Standards of the Committee on Legal Issues and International Labour Standards.(29)
231. In 1987, when the Conference reviewed the role of the ILO in technical cooperation, it resolved that "it would be desirable for the International Labour Office to undertake a comprehensive review of the programme [of technical cooperation] at regular intervals, at least every five years".(30) The Conference reiterated its stance again in 1993 when it undertook another comprehensive review of the programme.(31) The need to reassess the impact of recent political, economic and social developments on the ILO's role in technical cooperation was reaffirmed by the Governing Body when, through its standing Committee on Technical Cooperation, it endorsed a new strategy for the ILO's technical cooperation.(32) In three years' time (1999) significant changes which affect both the qualitative and quantitative dimensions of the programme, summarized in the following paragraphs, will warrant a fresh examination of the future role of the ILO in technical cooperation.
232. The ILO's technical cooperation programme is being conditioned by the continuing process of reforms in United Nations operational activities, set out in the Comprehensive Triennial Policy Reviews by the UN General Assembly in 1989, 1992 and in 1995. At issue in the global debate are such fundamental questions as the role and function of the UN development activities system and their relationship to the other functions of the UN, the division of roles and responsibilities for development at the international level and the specific comparative advantage of the UN system in relation to other actors, notably the Bretton Woods institutions, bilateral donors, non-governmental organizations (NGOs) and the private sector. The reform process has also involved the questions of financing levels and modalities, governance structures and coordination at the global, sectoral and country levels. As a result of these reforms, the modalities for managing and implementing the UN technical cooperation system are also being redefined, with significant changes in the roles and responsibilities of the national government, the funding agencies and the ILO as a specialized agency. National authorities are increasingly taking over the role of project administration and execution, with the agencies' role shifting to that of providing technical support.
233. Another important development has been the recent substantive reorientation of the United Nations Development Programme (UNDP) based on the concept of sustainable human development (SHD). As defined by the UNDP, SHD comprises poverty eradication, employment creation, environmental regeneration, and women's integration in development. Among these, poverty alleviation is considered the overriding concern of the UNDP. The ILO must ensure that its involvement and accumulated experience in core areas of the SHD concept are recognized and become fully integrated in the new UNDP programming framework. In terms of programme implementation, the decision on successor programming arrangements of the UNDP's Executive Board in May 1995, whose effects on the ILO are described below, will also require serious consideration as to how the ILO can adapt administratively, financially and substantively to a programme undergoing such rapid and radical change.
234. Since the early 1990s the multi-bilateral donors have become the largest source of extra-budgetary funds for the ILO's programme of technical cooperation. They account for at least 60 per cent of its financing in the 1996-97 biennium. The programme under multi-bilateral arrangement differs from donor to donor in terms of geographical priority and technical fields. However, there is a common trend among the donors in their dealings with UN agencies: the donors are becoming more concerned with the effectiveness of the programme, and demand greater efficiency in the administration of technical cooperation programmes. Decisions on funding will increasingly be based on evaluations of effectiveness and efficiency, and no agency can rely on existing relationships for continuous funding. Thus, if the ILO is able to demonstrate effective implementation and efficient administration of its programme, there is a good chance that increased funding may be secured from the multi-bilateral donors. Another area for potential expansion in the years to come lies within broader development issues, of which the following are of specific interest to the ILO: child labour, environmental issues, women's integration in development, the promotion of human rights and assistance in the democratization process. The above programming modalities will of course have to respect the demand-driven nature of technical cooperation while matching it with the specific requirements of individual donors.
The impact of UNDP's changing implementation modalities
235. The modalities, level of involvement and resources available to the ILO and other agencies in the UNDP-funded programmes will continue to be influenced by the UNDP's policy favouring national execution and a programme approach. From the ILO's point of view, the new procedures for determining execution and implementation arrangements, as well as the new support-cost facilities, have not been adequate to ensure high-quality programmes and accountability. Another series of reforms include the replacement of the five-year programming cycle by a rolling three-year programming period and the abolition of the system of indicative planning figures in favour of a more flexible resource planning system. The increased importance of earmarked thematic funds will affect advance planning and will lead to greater competition for limited resources.
236. The ILO was able to influence the priorities and final selection of the UNDP's TSS-1 activities (programme-level technical activities) during the first rounds of programming (1992-96) in terms of the number and the financial volume of the activities assigned to the ILO. However, there have been problems in ensuring the full integration and use of TSS-1 in the ILO's programming process and in achieving the intended complementarity and synergy between TSS-1 and the ILO's ongoing regular work. The challenge for the ILO in future TSS-1 exercises will be to integrate broader ILO concerns in the terms of reference and implementation of TSS-1 activities and to solve time and human resource constraints within the multidisciplinary teams and the technical departments. These changes in the implementation modalities of the UNDP were known and discussed at the last review of ILO technical cooperation at the Conference in 1993. However, the actual impact of these new modalities on the implementation of the ILO's technical cooperation has been felt only since 1993. Therefore the views of the Conference would be valuable on how effectively the ILO has been able to influence these processes, while at the same time cope with the financial constraints.
237. Some preliminary indications concerning the likely position and response of the international community to the above issues are beginning to emerge from the series of global conferences organized under UN auspices, particularly the Social Summit (Copenhagen, 1995) which, like the earlier International Conference on Population and Development (Cairo, September 1994) and the Conference on Environment and Development (Rio de Janeiro, 1992), have devoted considerable attention to some of the fundamental challenges facing future social development policies. These fora increasingly recognize the unique role which civil society and NGOs play in the overall development process. The Social Summit provided separate fora to three distinct gatherings involving NGOs, the business community and trade unions. The Fourth World Conference on Women (Beijing, 1995) raised expectations that the ILO's fundamental standards and concerns will be given greater prominence in future national programmes. By 1999 it should be possible to measure to what extent these global summits and the commitments they generated in their respective plans of action, have had a direct impact on the role of, and resources available to, the ILO under its technical cooperation programme and therefore the role assigned to the ILO in follow-up on the Programmes of Action adopted by these conferences.
Managing a dynamic technical cooperation programme with declining resources
238. Whereas in the past the UN, notably the UNDP and to a lesser extent the United Nations Fund for Population Activities (UNFPA), were the principal sources of extra-budgetary funding for the ILO and hence shaped the deployment of the programme across the developing regions, the UN-financed segment of the programme is declining substantially. None the less, the UNDP remains a significant partner of all specialized agencies and a leader in the development dialogue, and the ILO has been engaged in discussions with the UNDP regarding areas of common concern within the sustainable human development (SHD) concept, notably as regards strategies and programmes for poverty alleviation and employment creation.
239. The potential of joint funding or other similar cost-sharing arrangements will need to be explored. It may be expected that the regular budget of the Organization, notably the regular budget for technical cooperation (RBTC), will be called upon to play more catalytical and strategic roles. Conceivably, the size and criteria currently governing the use of RBTC funds stand to benefit from a review by the Conference.
240. Given the relative increased importance of multi-bilateral donors, initiatives have been launched to prepare detailed guidelines for use by the field structure and technical departments in the form of donor portfolios. Specific donor policies, priorities and procedures are being documented in order to ensure that the ILO participates in the design and implementation of development programmes which fall within its special competence. In addition, the scale of funding to be derived from the development banks, which has been steadily increasing, should also affect both the size and the direction of the programme. The ILO has been engaged in active dialogue with the European Union (EU) for some years with a view to closer cooperation between the two organizations in development assistance. Joint missions have been fielded for the assessment of needs at country level and various technical consultations have been held for the identification of common areas of concern. As a result, there was a significant increase in the number of EU-funded activities in 1995. The importance of the EU as a development partner for the ILO is expected to increase in the future, and the ILO needs to have a clear policy on its cooperation with the European Union.
The Active Partnership Policy
241. The most significant single development affecting the technical cooperation programme from within the ILO was the introduction of the Active Partnership Policy (APP) in 1992. Within this framework, 14 subregional advisory teams were created in order to move the ILO's technical expertise closer to its constituents. Country objectives exercises have been carried out for individual countries to establish development priorities within the ILO's field of competence and, where possible, these reviews are being linked to the Country Strategy Note (CSN) exercise introduced in the UN General Assembly resolution 47/199 (1992). The exercise has raised expectations at the country level, and the ILO must act quickly and efficiently to translate the country objectives into concrete activities. The APP is recognized in international fora as a significant attempt to adapt to the changes in the external environment, and its continued success will depend on the ability of the Organization to take stock regularly and rapidly to readjust policies, procedures and organization. The multidisciplinary approach to programme planning and implementation has been largely successful. The composition of the teams with respect to technical expertise will be reviewed in 1997 with a view to making them correspond more closely to the needs of the countries covered by the individual teams. The review in 1999 will provide an excellent opportunity to examine the effect of the Active Partnership Policy, particularly on the technical cooperation programmes and their relevance to its constituents.
International labour standards and technical cooperation
242. Action towards synergy between these two means of action is aimed at avoiding any conflict between ILO technical cooperation activities and the principles contained in ILO standards, especially concerning fundamental human rights. Using largely RBTC resources, every effort must be made to assist member States in applying standards and establishing appropriate social and economic foundations at the local and national level. However, the promotion of international labour standards must also be an integral part of the technical cooperation programme, with the aim of incorporating standards in the policy and legislation of member States and creating an environment conducive to their application. The International Programme on the Elimination of Child Labour (IPEC) is a good example in this respect: the Programme has not only contributed significantly to the promotion of awareness on child labour and demonstrated different methods for the elimination of child labour, but more importantly IPEC has also succeeded in many countries in persuading the government to elaborate national policy on child labour. While the Governing Body's discussion of the paper submitted in 1992 on International labour standards and technical cooperation(33) was fruitful, further examination is certainly required to take into account recent developments affecting both means of action.
The ILO's technical cooperation strategy
243. This issue is covered in greater detail in section II of the paper submitted to the Committee on Technical Cooperation at the present session under the first item on its agenda.(34) It is important to note here the three main elements of the strategy. In concerted efforts to strengthen national capacity, country objective reviews have been undertaken in order to establish national priorities. Improved delivery has become an issue of quality as well as quantity, and efforts in this direction can only improve the ILO's capacity to solicit funds from the various donor sources. The implementation of a dynamic resource mobilization strategy, mentioned briefly above, calls for the re-establishment of a solid pipeline of proposals originating from ILO constituents.
244. The implementation of the ILO's technical cooperation strategy will regularly be the principal topic of discussion at future meetings of the Governing Body's Committee on Technical Cooperation, but a more thorough, lengthy review of its impact at the 1999 Conference would be welcomed.
245. In view of these developments, all of which affect the ILO's technical cooperation programme, it is desirable for the Conference to review the ILO's technical cooperation programme in the 1990s, to assess in particular how it responded to the changing environment, and examine what needs to be done in order to increase the ILO's ability to respond promptly to the needs of its constituents and to provide effective technical cooperation in a most efficient manner in the next century.
* * *
246. In order to determine the agenda of the 87th Session (1999) of the Conference, the Governing Body is invited to decide on which of the following subjects, which are described above, it would like to receive more detailed proposals at its 268th Session (March 1997):
Proposals for new standards
(a) The settlement of labour disputes.
(b) Recording and notification of occupational accidents and diseases (including the revision of the list of occupational diseases, Schedule I to the Employment Injury Benefits Convention, 1964 (No. 121)).
(c) The protection of workers' personal data.
(d) The promotion of cooperatives.
Proposals for the revision of existing standards
(e) Revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95).
(f) Revision of another Convention (or group of Conventions) identified by the Working Party on Policy regarding the Revision of Standards of the Committee on Legal Issues and International Labour Standards.
Proposal for a general discussion
(g) The role of the ILO in technical cooperation.
Geneva, 30 September 1996.
Point for decision: Paragraph 246.
9 The data protection laws of 19 countries are presented in detail (not including recent enactments in Belgium, the Czech Republic, Hungary, New Zealand, Slovakia, Spain and Switzerland), in ILO: Conditions of Work Digest, Vol. 10, No. 2, 1991 on Workers' privacy, Part I: Protection of personal data. Legal provisions applicable to monitoring and surveillance in 19 industrialized countries appear in ILO: Conditions of Work Digest, Vol. 12, No. 1, 1993 on Workers' Privacy, Part II: Monitoring and surveillance in the workplace. In addition, workers' testing is covered for 18 countries, in ILO: Conditions of Work Digest, Vol. 12, No. 2, 1993 on Testing in the workplace.
11 "Article 17: (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks."
12 "Article 8: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
13 Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152); Occupational Health Services Recommendation, 1985 (No. 171); Maximum Weight Recommendation, 1967 (No. 128); Night Work Convention, 1990 (No. 171).
14 ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Equality in Employment and Occupation, General Survey of the Reports on the Discrimination (Employment and Occupation) Convention (No. 111) and Recommendation (No. 111), 1958, Report III (Part 4B), International Labour Conference, 75th Session, Geneva, 1988, see especially para. 71, pp. 70-72; para. 105, pp. 115-116; para. 121, pp. 132-133.
15 Resolution (No. 96) on personnel information systems and data privacy in commerce and services, 1985, in ILO: Note on the Proceedings (Geneva, 1985), Advisory Committee on Salaried Employees and Professional Workers, Ninth Session, Geneva, Apr. 1985, p. 113.
16 Resolution (No. 9) on information on personal data in the hotel, catering and tourism sector, 1989, in ILO: Note on the Proceedings (Geneva, 1990), Hotel, Catering and Tourism Committee, First Session, Geneva, Dec. 1989, doc. No. IC/HCT/1/1989/19.
19 Annex II, Guiding Principles on Drug and Alcohol Testing Procedures for Worldwide Application in the Maritime Industry, in ILO: Report of the Joint ILO/WHO Committee on the Health of Seafarers, Seventh Session, Geneva, 10-14 May 1993, JCHS/7/D.4(Rev.).
23 For example, see S. Mitter and R. Pearson: Global information processing: The emergence of software services and data entry jobs in selected developing countries, Sectoral Activities Programme, working papers (Geneva, ILO, 1992), SAP 4, 14/WP.51.