Geneva, March 1997
THIRD ITEM ON THE AGENDA
1. At its November 1996 session the Governing Body requested the Office to prepare a paper on establishing a portfolio of proposals related to standard setting. The aim of the portfolio would be to broaden the selection of items to be included in the Conference agenda, to pave the way for more systematic and coherent medium-term planning of standard-setting activities and to facilitate the work of the Governing Body in deciding which items to place on the agenda of forthcoming sessions of the Conference. The present paper is an initial draft made up of a number of options and proposals, which the Governing Body will be able to discuss with a view to determining the exact parameters of the portfolio to be established. The Office will then make any amendments and additions required before submitting the first list of agenda items for the Conference to be held in the year 2000 to the November session in portfolio form.
2. Establishing a portfolio of standard-setting proposals raises the following three main questions, which will be considered in turn: What sort of consultation and selection process would make it possible to obtain new and more varied proposals than those currently available? How should the portfolio best be structured to meet constituents' needs? What would it comprise, and how could it be expanded over the coming months?
3. During discussions on the selection of agenda items for the Conference, over the years many Governing Body members have expressed regret at the limited choice of items proposed and at the often repetitive nature of those items. There is no doubt that within the Governing Body there is a demand for new, relevant and sufficiently varied proposals. Supply has not kept pace with this demand, and an imbalance has arisen which can perhaps partly be ascribed to the preliminary consultation process adhered to in recent years. This consultation process has for the most part been confined to the Office and the Governing Body, no proposals being requested from outside sources. Today more than 80 per cent of the proposals submitted to the Governing Body each year come from the Office, while 20 per cent are from members of the Governing Body. The base of this process has been limited, as only two or three ILO departments have originated most of the recent standard-setting proposals.
(a) The possible broadening of consultations
4. The first question to be asked is to what extent the constituents themselves would be able to contribute to the preparation of proposals for standards to be incorporated in the portfolio envisaged by the Governing Body. The ILO Constitution, in article 14, paragraph 1, expressly recognizes their right of initiative to submit new suggestions pertaining to standard setting to the Governing Body.(1) This provision gives governments of member States, representative organizations of employers and workers, and international intergovernmental organizations the option to make proposals to the Governing Body pertaining to standard setting.
5. With the occasional exception, in recent years constituents have stopped making direct proposals for standard setting to the Office or the Governing Body. This is in part because they are no longer directly consulted. The rare proposals addressed direct to the Office of late have been the result of individual and spontaneous initiatives, without the Office having sought the opinion of those concerned. To create a more varied portfolio of standard-setting proposals, the Governing Body is invited to specify which active measures should be taken to consult constituents on a periodic basis.
6. Consultations could be carried out indirectly and/or directly. Indirectly, multidisciplinary teams and the external offices could be asked to contact the governments, employers' and workers' organizations in their areas for their proposals for standard setting, then to transmit these to headquarters for inclusion in the portfolio. Sectoral meetings, meetings of experts and seminars organized by the Office will also remain important sources of proposals. Direct consultations could be in the form of a letter, possibly supplemented by a short questionnaire, sent by the Office to constituents and requesting their proposals. This letter could be sent after the March session of the Governing Body, when it has fixed the agenda of the forthcoming session of the Conference, so as to facilitate informal consultation during the June session of the Conference. A combination of direct consultations in letter form and indirect ones carried out by multidisciplinary teams and external offices would be a further possibility.
7. Article 14(1) of the Constitution also provides that suggestions from intergovernmental international organizations should be considered. At this stage the view is that active consultation measures should focus on ILO constituents, but should go no further. The Office would therefore not request suggestions from other international organizations, but it would be understood that if such an organization voluntarily submitted a suggestion it would be incorporated in the portfolio.
8. Initially, the suggestions received by the Office would be placed in the draft portfolio. However, the question arises whether they should all be submitted to the Governing Body for examination. It is of course quite possible that direct and broader consultations could give rise to proposals that are clearly irrelevant. An option would be to hold an initial examination of them based on unanimously accepted selection criteria. Three criteria in particular could be considered: how important the problem raised is for a large number of workers and employers; the universality of the problem; and whether standard setting is necessary to solve it or, alternatively, that it cannot be addressed by other means. This list of criteria is obviously not exhaustive, and it could be supplemented or amended by the Governing Body. The first examination could be carried out within the Office by the Standards Committee, which includes officials from the bureaux for relations with employers' and workers' organizations, the Legal Adviser and from the International Labour Standards Department, and is chaired by the Deputy Director-General responsible for standards activities. The heads of the technical departments concerned would also participate in this preliminary examination. Basing itself on the selection criteria set out by the Governing Body, the Standards Committee would consider the admissibility of proposals, setting aside those that obviously did not belong in the definitive portfolio to be submitted to the Governing Body.
(b) The examination of suggestions by the Governing Body
9. Creating a portfolio would inevitably affect the double-discussion procedure which currently takes place in November and March in the Governing Body to fix the Conference agenda. If the Governing Body wishes to retain the format and content of the document submitted to it at the November session, the Office would have to prepare a selection of proposals from the portfolio as a basis for this document, taking into account, naturally, progress made in work on any given item. The portfolio could thus be likened to a data bank from which suggestions could be drawn, but it would not be used directly by the Governing Body as a basis for discussion. Alternatively, the portfolio, which would evolve each year, could replace the document which is currently submitted to it in November.
10. At present, most of the suggestions submitted in November are resumed for a second discussion at the March session. In addition, the repetition of proposals is partly due to the fact that the Office is obliged to resubmit suggestions year after year unless they have been specifically declined or modified by a Governing Body decision. If a portfolio of suggestions were submitted to the November session, the first discussion within the Governing Body could result in a more concise short-list than it currently does. Items that the Governing Body did not yet consider to be ripe for standard setting, or on which no consensus was foreseeable, would be set aside, discarded or, in some cases, reformulated. The second discussion, at the March session, could then be entirely dedicated to examining the few proposals selected in November, and the discussion could then focus on the content of the standards and the type of instruments envisaged. Such guidelines on the content of the standards, while not affecting the sovereignty of the Conference, could assist the Office in preparing questionnaires and in performing the other preparatory work necessary for Conference discussions.
11. How should the portfolio be structured to make it an effective working instrument? A draft structure is proposed below for consideration by the Governing Body, which could supplement and amend it to bring it into line with constituents' needs.
(a) Structure by subject or by type of problem
12. The portfolio could be organized according to the classification by subject of international labour standards, which has 13 sections, ranging from basic human rights to specific categories of workers. This classification was formulated by the first Working Party on International Labour Standards (the Ventejol Working Party of 1979) and is widely used nowadays. Alternatively, the portfolio could be structured on the basis of the type of problem or theme. For example, the influence of economic globalization on labour standards is a theme encompassing a whole series of topical problems, and one that could lead to a number of standards. An illustration of a structure by subject and by type of problem can be found in part III of this document.
13. The Office suggests structuring the portfolio essentially along the lines of the classification by subject of international labour standards. This has the immediate advantage of placing any new draft standard in relation to existing ones. However, an approach by type of problem or theme could also be included in the portfolio as an addition, so that problems simultaneously affecting several areas could also be addressed.
14. When standard-setting action is suggested, the following questions should be considered: What is the actual problem? How does it affect workers, enterprises and labour administrations? How big a problem is it at the international level -- in other words, is it a local, regional or sectoral problem, or is it instead a universal one? To what extent could the adoption of international labour standards help resolve it? These questions reflect the selection criteria mentioned above, namely the criteria relating to the importance of a problem, its universality and the need for standard setting to resolve it.
(c) Proposed solution
15. Analysing the problems should result in suggestions on the content and form of the proposed standards. As regards their content, it would be important to specify the priority aspects which would constitute the core of a possible Convention, and to distinguish between these and other provisions that may be of a more optional nature. It would also be helpful to provide information on the scope or field of application of the standards and on any flexibility clauses that may be envisaged.
16. As for the form of the instruments, the suggestions in the portfolio should indicate whether the intention is to adopt either a Convention or a Recommendation. When the aim is to adopt a Convention supplemented by a Recommendation, the proposals should include, as far as possible, information on the obligations to be incorporated in the Convention and the other provisions that could be included in the Recommendation.
17. A related point is to determine which types of proposals could be placed in the portfolio. Suggestions for the adoption of new standards, in the form of Conventions or Recommendations, would naturally form the core of the portfolio. Suggestions for the revision of existing standards would be submitted for examination by the Working Party on Policy regarding the Revision of Standards of the LILS Committee, and its recommendations would then be incorporated in the portfolio. Matters for general discussion, which could in some cases constitute a preliminary stage in the preparation of standards, could also be included. However, the question should be raised of whether other types of suggestions such as draft codes of practice should be taken into account. Given the purpose of the exercise, the Office proposes incorporating in the portfolio suggestions geared to the adoption of new standards, the revision of existing standards as well as proposals for general discussion, but not to include other suggestions that did not contribute directly to determining the Conference agenda.
(d) The source of proposals
18. The source of proposals would be indicated under this heading and would include Governing Body members, constituents, Conference resolutions or reports, recommendations from regional meetings, sectoral meetings or meetings of experts, and other sources. Mention would also be made of cases where a proposal is being repeated or where it has received support on a number of occasions.
(e) Relation to existing instruments
19. The new standard-setting proposals should be put into the context of existing international labour standards in order to identify any effects they may have and to avoid overlapping. In view of the proliferation of instruments adopted by other international conferences and organizations, it is also becoming increasingly important to establish lists of international conventions outside the framework of the ILO which could bear a direct relation to the proposed new standards.
(f) Progress made in preparatory work
20. Experience has shown that the quality of the preparatory work carried out by the Office has often been a determining factor in increasing the chances of success at the Conference and the quality of the instruments adopted. The portfolio would contain information on research and other work in progress, as well as an assessment of the amount of time necessary for a proposal to translate into a standard.
(g) Future prospects
21. This part would contain the opinions expressed by constituents, the apparent areas of consensus and the points of divergence raised, in order to provide the Governing Body with some indicators as to the chances of success of standard setting.
22. If the Governing Body were to decide to put together a portfolio in the near future, it would have to be gradually fleshed out with new suggestions. The initial phase of the project would run from the current March session until September 1997. During that time, constituents and the Office would be asked to contribute to an initial, sufficiently extensive version of the portfolio for examination by the Governing Body at its November session. The portfolio would then be constantly updated and submitted each year to the Governing Body at its November session, if this is what is decided.
23. Nevertheless, the first rough draft of the portfolio would not be entirely without substance. As a starting point, the proposals for new standards made in recent years by the Office, the Governing Body, the Conference and other ILO meetings could be incorporated. The suggestions found in the reports of the Ventejol Working Parties, which are still relevant, could also be included. This short list of proposals is a kind of inventory or snapshot of the current situation. The Governing Body is invited to consider it and to make any changes it deems necessary, by adding to it, redrafting certain suggestions or deleting those which it does not judge appropriate for the first draft of the portfolio. The suggestions for the revision of existing standards have not been included in the list at this stage; nor have proposals for general discussion. Proposals that have already been selected by the Governing Body for the Conference agenda have been left out. The list is organized first by subject, on the basis of the classification of international labour standards, and then additionally by type of problem or theme, on the basis of a particular example.
A. Standard-setting proposals by subject
(a) Basic human rights
24. New provisions concerning discrimination in employment and occupation. The basis of the proposal is a special study carried out by the Committee of Experts in December 1995, which suggested adding new provisions to Convention No. 111 by way of an additional protocol. In principle, this draft protocol could be included among the new standards. This proposal was mentioned among the projects in preparation in the document on the agenda of the 87th Session (1999) of the Conference submitted to the Governing Body in November 1996.
25. Prison labour. This proposal was included in the 1987 report of the Ventejol Working Party. It did not give rise to any preparatory work by the Office and it has not yet been submitted for examination by the Governing Body.
26. Vocational training. At the November 1996 session of the Governing Body, the Workers' group requested the inclusion in the draft portfolio of a proposal for new standards on vocational training. In this connection, it will be recalled that the 1979 report of the Ventejol Working Party recommended new standards on the employment and training of young persons. Moreover, the theme of unemployment and the occupational integration of young people was proposed as a subject for general discussion, but not selected for the 1998 Conference agenda. It remained one of the projects in progress in the November 1996 document on the agenda of the 1999 Conference.
(c) Social policy
27. The promotion of cooperatives. This subject was submitted for examination by the Governing Body for the agenda of the 1999 Conference leaving three options open: the adoption of a Convention, which could be supplemented by a Recommendation; or the adoption of a new Recommendation; or lastly, the revision of the Cooperatives (Developing Countries) Recommendation, 1966 (No. 127).
28. Multinational enterprises and social policy. This proposal was mentioned in the 1987 Report of the Ventejol Working Party. It did not give rise to any preparatory work by the Office and it has not yet been submitted for examination by the Governing Body.
(d) Labour administration
29. No new proposals have been made in this area.
(e) Industrial relations
30. The settlement of labour disputes. This item is resubmitted for examination by the Governing Body at the current session for general discussion, and not for the adoption of new standards. It is based on a government proposal supported by the Employers' group in the Governing Body.
31. Furthermore, the 1987 report of the Ventejol Working Party mentioned the three following proposals:
With the exception of the protection of workers in matters of discipline, for which preliminary research was carried out, these proposals did not give rise to any preparatory work by the Office and they have not yet been submitted for examination by the Governing Body.
(f) Conditions of work
32. The protection of workers' personal data. This item is submitted for examination by the Governing Body at the current session in order to fix the Conference agenda for 1999. The meeting of experts on this subject held in October 1996 did not recommend any new standards in this area.
33. Prevention of sexual harassment at work. The proposal is included in the work in preparation in the Programme and Budget for 1996-97, and it was among the projects listed as being in progress in the November 1996 document on the 1999 Conference agenda.
34. Working time. The question of new standards on working time arrangements and/or the revision of existing standards on hours of work has been raised since the 1960s without any consensus having been reached in recent years. In November 1996 the Working Party on Policy regarding the Revision of Standards of the LILS Committee recommended, as a prerequisite for a possible revision of Conventions on length of work, that a general survey be carried out by the Committee of Experts.
35. Recording and notification of occupational accidents and diseases (including the revision of the list of occupational diseases appended to the Employment Injury Benefits Convention, 1964 (No. 121)). The item is submitted for examination by the Governing Body at the present session for inclusion in the Conference agenda for 1999.
36. Occupational safety and health in agriculture. This proposal is mentioned among the work in preparation in the Programme and Budget for 1996-97, and it was one of the projects listed as being in progress in the November 1996 document on the Conference agenda for 1999.
37. Prevention of biological hazards in the workplace. Preparatory work on this subject in view of possible standard setting is mentioned in the Programme and Budget for 1996-97.
38. Prevention of psychosomatic disorders and mental stress. This proposal was included in the 1987 report of the Ventejol Working Party and it was included in the Programme and Budget for 1996-97 among the work in preparation for possible standard-setting action.
(g) Social security
39. Basic social security standards. Social security systems are undergoing far-reaching changes. In recent years the Organization has not adopted any new standards in this area. The Office has begun research in order to specify certain strategic trends in social security systems, and this could lead to a proposal for new standards.
40. Equal treatment for men and women in matters of social security. The 1987 report of the Ventejol Working Party mentioned this proposal, which was considered by two meetings of experts in 1990 and 1994. The 1994 meeting recommended studying existing instruments on social security in order to evaluate to what extent they could contribute to promoting equality between men and women in systems of social protection.
41. Furthermore, the 1987 report of the Ventejol Working Party mentioned the two following proposals:
These proposals did not give rise to any preparatory work by the Office and they have not yet been submitted for examination by the Governing Body.
(h) Employment of women
42. No new proposals have been recorded in this area.
(i) Employment of children and young persons
43. New standards on child labour, included among basic human rights, are currently in preparation.
(j) Older workers
44. No new proposals have been recorded in this area.
(k) Migrant workers
45. In November 1996 the Working Party on Policy regarding the Revision of Standards of the LILS Committee recommended, as a prerequisite to the possible revision of Conventions relating to migrant workers, that a general survey be carried out by the Committee of Experts in 1998. In addition, a Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration is scheduled for April 1997.
(l) Indigenous and tribal peoples, indigenous workers in
46. No new proposals have been recorded in this area.
(m) Other special categories
47. Following the Maritime Session of the Conference in October 1996, new standards and/or the revision of existing standards might be considered for fishermen.
B. Standard-setting proposals by theme
48. To illustrate a possible additional method of organizing the portfolio by type of problem or theme, the following example is based on the theme of the impact of economic globalization on labour standards.
49. The globalization of markets and investment flows is spurring the growth of transnational relations in the labour sphere. There are several facets to these developments: in some cases labour relations themselves take on a transnational quality (e.g. workers employed abroad on projects); in others, transnational relations are shaped by the particular characteristics of economic agents and employers (e.g. multinational enterprises); in yet other cases, transnational relations encourage forms of at least partial extraterritoriality (e.g. export processing zones).
50. In addition, the division between what remains national and what becomes transnational is becoming increasingly blurred as transnational relations gradually make their mark in the various sectors of national economic and social relations. Thus, with the rapid expansion of mergers and acquisitions, closures of enterprises and relocations within multinational enterprises, the protection of workers' claims in the event of the insolvency of their employer can no longer be viewed only from a national perspective. Similarly, turning to new standards in preparation, transnational relations are today a reality in contract labour, and even in some forms of exploitation of child labour.
51. The question that arises is whether this evolution should be taken into account in the portfolio of standard-setting proposals, and if so, how. So far most international labour standards have been designed to be incorporated (mainly through legislative channels) and applied on the national level. Rarely has provision been made in them for the sort of mechanisms to enhance cooperation between member States which would be necessary to find solutions to gradually emerging transnational problems which, by definition, extend beyond the territorial powers of individual nations. If it were to be addressed, this subject would in all probability open up new horizons for standard setting.
52. In order to establish a portfolio of proposals for standard setting, the Governing Body is invited to examine the options and proposals presented above, to adopt conclusions pertaining to:
and to define the substance and form of the document to be submitted at its session in November 1997 with a view to its initial discussion on the Conference agenda for the year 2000.
Geneva, 13 February 1997.
Point for decision: Paragraph 52.
1 "The agenda for all meetings of the Conference will be settled by the Governing Body, which shall consider any suggestion as to the agenda that may be made by the government of any of the Members or by any representative organization recognized for the purpose of article 3, or by any public international organization."