Committee on Legal Issues and International Labour Standards
FIFTH ITEM ON THE AGENDA
Report of the Working Party on Policy regarding
the Revision of Standards
Examination of the needs for revision of Conventions
1. The Chairman recalled that the setting up of a Working Party allowed a free discussion to be held in a climate of confidence and that the Office representatives had provided valuable assistance in its work. The Working Party had two documents before it at this meeting: the first concerned the examination of Conventions in need of revision (third stage)(1) and the second referred to the follow-up on the recommendations of the Working Party.(2) As regards the organization of the future work of the Working Party, there were still many tasks to be carried out under the broad mandate entrusted to it.
2. The Employer members said that the work carried out by the Office was very important and comprehensive. However, they wished to express some concerns of a conceptual kind. As regards the Conventions proposed for shelving, it was important to prevent any contradiction with reality. Some Conventions considered as obsolete continued to receive ratifications, while States were not ratifying more modern and recent Conventions. Attention must be drawn to decisions involving shelving, so as not to have to recommend to a State which had just ratified an obsolete Convention to denounce it in order to ratify the corresponding recent Convention. Conventions were often ratified in order to be able to benefit from technical cooperation. The Employer members would make more explicit proposals within the framework of the case-by-case examination of the Conventions.
3. The Employer members also noted that the revision proposals made by the Office concerned 13 Conventions, of which only two were firm, which might seem rather timid. Furthermore, they pointed out that the use of the expression "invite ... to ratify" or the expression "invite ... to contemplate ratifying" presupposed not only a semantic difference but a difference concerning the intention expressed by the Working Party in its recommendations. In as far as comments by the Committee of Experts or other information presented by the Office highlighted the existence of problems concerning the application of the Convention, it would appear difficult to invite States to ratify this Convention. An invitation to ratify is a positive and promotional act. If obstacles and difficulties existed, the Working Party could only invite member States to study or examine the possibility of ratifying the Convention. The mandate of the Working Party was to provide the ILO with a standard-setting system which was applicable and not to turn it into a cemetery of standards.
4. The Employer members emphasized the need to harmonize the expressions used, especially within the framework of the examination of Conventions Nos. 6 and 90 respecting child labour, where reference was made to child labour, work by young persons and adolescents. The Working Party should give special attention to the terminology used in the light of the legal technicalities of the questions involved.
5. The Worker members noted that in general the document before the Committee followed the methodology used previously and was a useful tool for the work of the Working Party. The recommendations made by the Office contained in some cases a request for information from States, which could indicate a need for revision. This wording was in line with terminology previously accepted. However, the results of requests for information should not be anticipated. The Worker members strongly opposed the suggestion that the Office proposals were tentative proposals for revision (paragraphs 5 and 26 of the Office document). The purpose of requests for information was to determine the technical or other assistance to be provided to member States to enable them to ratify the Convention or, where applicable, to determine whether a recommendation should be made for the revision of this Convention. The same applied to the proposals concerning shelving in paragraph 26(d) of the Office document and the expression "regarding the form a possible revision should take" (paragraph 6). Furthermore, only the French title of the document "Examen des besoins de révision des conventions" is consistent with the mandate of the Working Party and thus the English and Spanish titles should be corrected. Finally, as regards the request for information from States, emphasis should be placed on tripartite consultation which was an essential component of the follow-up measures.
6. The Chairman noted that these comments were useful since they cleared up misunderstandings which might result from the wording used or its translation. The objective was to ensure that States did not continue to refer to out-of-date instruments, even if some of these might retain some validity in that they reflected a particular national situation. In referring to the observations of the Worker members, he recalled that the work within the Working Party had been carried out in a spirit of transparency and that a case-by-case approach should be adopted.
7. The Employer members insisted on the fact that the working document presented by the Office was an appropriate basis for continuing the dialogue, without prejudging the conclusions drawn in particular cases. Situations existed in which direct technical cooperation could help encourage ratification. However, in other cases further studies would be required to determine the reasons for non-ratification of a specific Convention. The Employer members pointed out that it was not a question of "attacking" Conventions but of trying to establish a hierarchy or taking account of differences in the respective situation.
8. The Chairman referred to the information concerning ratifications of Conventions since the beginning of the work of the Working Party, which reflected the influence of its activities in promoting the modernization of the standard-setting system. The objective was to encourage States to turn their attention away from obsolete Conventions towards new and recent Conventions. As regards the work method adopted during the present meeting, the Chairman pointed out that Conventions would be examined by subject area, followed by a case-by-case examination as in the previous meeting of the Working Party.
9. The Worker members expressed their agreement with the Office proposals. They pointed out that there was an error in the English version of the document, where a footnote referred to Convention No. 11 rather than Convention No. 111.
10. The Employer members recalled that the provisions of Article 1 of Convention No. 11 were intended "to secure to all those engaged in agriculture the same rights of association and combination as to industrial workers". They expressed their agreement with the proposal to promote the ratification of the Freedom of Association and the Protection of the Right to Organise Convention, 1948 (No. 87) for States Parties to Convention No. 11. On the other hand, in the case in which a State had not yet ratified either Convention No. 11 or Convention No. 87, they believed that it should be encouraged to ratify only Convention No. 87, since this Convention had a much broader scope. It would be appropriate to continue to promote the ratification of Convention No. 87 and to shelve Convention No. 11. The shelving of Convention No. 11 should not pose any real problem as such to the Working Party since this measure would encourage the promotion of the ratification of Convention No. 87.
11. The Chairman pointed out that it would be difficult to envisage shelving a Convention which had been ratified by 117 States and that perhaps priority should be given to encouraging the ratification of Convention No. 87 without prejudice to Convention No. 11. The Worker members endorsed this statement.
12. The representative of the Government of the United States pointed out that in the case of the last nine ratifications registered for Convention No. 11 the States had also ratified on the same date Convention No. 87. She also noted the complementarity between Conventions Nos. 11, 135, 141 and 151 and the basic Conventions on freedom of association. She expressed the wish that these Conventions might be included in the General Surveys on this subject. The representative of the Government of Chile seconded this proposal.
13. The representative of the Director-General pointed out that Convention No. 11 required equal treatment for a specific category of workers, as was the case, in the sphere of social security, with the Workmen's Compensation (Agriculture) Convention, 1921 (No. 12). Some legislative systems had adopted specific legislation for agricultural workers which should be examined in the light of Convention No. 11. In the case of Conventions which granted an identical level of protection (in particular the Workmen's Compensation (Occupational Diseases) Convention, 1925 (No. 18), and the Workmen's Compensation (Occupational Diseases) Convention (Revised), 1934 (No. 42)) the practice of the Committee of Experts and the Office was not to request reports for the Convention the substance of which was included in a subsequent Convention. On the other hand, as regards Conventions Nos. 11 and 87, individual reports were requested. Although emphasis could be placed on the ratification of Convention No. 87, it would probably be excessive to shelve Convention No. 11.
14. The representative of the Director-General said that the secretariat thought the representative of the United States Government's suggestion was excellent.
15. The representative of the Government of Sweden pointed out that Convention No. 11 seemed to retain an interest which was independent of Convention No. 87. Its ratification should therefore not be discouraged. It would subsequently also be important to re-examine progress on the ratification of Convention No. 87. For countries such as Sweden, which have ratified both these Conventions, the obligation to submit reports did not raise any problem as regards Convention No. 11 since it was sufficient to refer to the report made for Convention No. 87.
16. The Chairman insisted on the need to retain a comparable wording for Conventions whose situation was comparable. He emphasized that if this were not the case, the Office might encounter a number of problems in the follow-up action on the recommendations of the Working Party. He suggested that a decision should be taken concerning the use of the wording proposed in the document before the Working Party ("invite ... to ratify") or the wording used in the previous meetings of the Working Party ("invite ... to contemplate ratifying").
17. The Employer member of Australia also said that the wording in the recommendations should be uniform and consistent with that used in the Office documents presented so far to the Working Party.
18. The Working Party agreed to harmonize the wording used in its recommendations by employing the terminology used in March and November 1996, i.e. by inviting member States to contemplate ratifying a Convention.
19. After taking note of a proposal put forward by a representative of the Director-General, the Working Party proposes:
20. The Worker members said that they supported the Office proposals and furthermore that they would like to make a recommendation inviting the Director-General to include the Convention amongst the instruments for which promotional activity should be stepped up, as proposed for Convention No. 151. They recalled that the Ventejol Working Parties had classed this Convention in the category of instruments to be promoted on a priority basis.
21. The Employer members said that the relatively low level of ratification of Convention No. 135 suggested difficulties and obstacles to the promotion of its ratification. Unlike the arguments which could be cited within the framework of the examination of Convention No. 151, it was not necessary to promote the ratification of Convention No. 135 in any particular manner.
22. The Working Party proposes:
23. The Worker members believed that any reference to a possible revision of this Convention was premature. They drew the Working Party's attention to the risks of certain requests for information from States which could encourage them to propose the revision of a Convention by not making any efforts with a view to its ratification.
24. The Employer members said that they were able to accept a recommendation for the possible revision of this Convention.
25. The Chairman pointed out that reference would no doubt have to be made to the text of the 1983 General Survey in order to determine whether the emphasis was rather on the obstacles to the ratification of the Convention or on the need for a possible revision.
26. The representative of the Government of Chile asked what were the reasons why the Office had suggested, in some cases, a possible revision.
27. The representative of the Director-General said that special attention had been given to the opinions of the technical departments, and that in this specific case the Freedom of Association Branch had been consulted. This was a Convention which had received a relatively low level of ratifications and which had given rise to certain difficulties of application. The representative of the Director-General said that this was a sphere in which different subjective assessments were possible.
28. The Worker members insisted on the importance of encouraging the organization of rural workers. They recalled the resolution adopted unanimously by the Tripartite Meeting on Improving the Conditions of Employment and Work of Agricultural Wage Workers in the Context of Economic Restructuring, which sought to promote this Convention.
29. The Employer members said that they were convinced that a more detailed examination of the Convention could shed more light on identifying the ratification difficulties. A revision of some aspects of the Convention would help achieve a higher rate of ratification. An intention to revise the Convention did not in any case imply an intention to abrogate it but rather to improve the application of the principles of Convention No. 141.
30. The representative of the Government of Mexico proposed the inclusion in the text of the recommendations that the revision of Convention No. 141 should lead to an increase in its rate of ratification.
31. Another representative of the Director-General proposed that the revision should be envisaged in the light of the information obtained on the obstacles and difficulties to ratification of the Convention, with the examination of the possible need for its revision being left to a second stage. The Worker members supported this proposal.
32. The Employer members expressed agreement with the spirit of the proposal made, in so far as, in the light of the information gathered by the Office, it would be possible to examine the revision possibilities. However, it would not be desirable to consult States once again after having obtained information on the obstacles encountered, and the recommendation for revision should be presented directly to the Governing Body.
33. The Chairman believed that the Working Party could propose to the Governing Body a full or partial revision of the Convention, if the information gathered by the Office revealed a need for revision.
34. The representative of the Government of Chile said that the recommendations were good and he shared the concerns expressed in the debate.
35. The Employer member of Australia accepted that mention should indeed be made of the possibility of revising some Conventions.
36. The Worker members believed that the use of the expression "in due course" was sufficiently clear and that in no case should the content of the information which the Office might obtain be judged in advance. They quoted the Office text which stated that even if "a large number of countries reported difficulties that could 'delay or prevent' the ratification of the Convention ... some of these countries should be able to overcome these difficulties in the light of the comments made" by the Committee of Experts in 1983.
37. The Working Party adjourned its examination of Convention No. 141 to its next meeting.
38. The Chairman, acting in his capacity as representative of the Government of France, said his country's public service was governed by a general set of regulations, and that it would therefore not be able to ratify this Convention.
39. The Worker members expressed agreement with the proposals made by the Office.
40. The Employer members said that they did not agree with the need to recommend to the Governing Body the inclusion of Convention No. 151 amongst those in respect of which promotional activities should be stepped up.
41. A representative of the Director-General suggested that the proposals should refer to "continuing" promotional activities rather than their "stepping up".
42. The Worker members proposed that reference should be made rather to "a special promotional effort".
43. The Employer members said that there was no justification for establishing new priorities between Conventions and that the ratification of Convention No. 151 should be promoted on an equal footing with the other Conventions, but not in any particular manner. They insisted on the fact that the decision to re-examine the situation of certain Conventions should be taken when the Office has gathered the required information.
44. After an exchange of views, the Working Party proposes:
45. The Employer members pointed out that Convention No. 156 clearly figured amongst the Conventions which deserved priority revision. The Working Party could not make a proposal which contained on the one hand an invitation to ratify the Convention and on the other a recognition of the existence of obstacles and the need to review this Convention. If member States informed the Office of their concerns regarding Convention No. 156, the Working Party should give priority to this Convention and envisage proceeding to its re-examination within a relatively short period.
46. The Worker members recalled that the observations expressed by the Committee of Experts have been nuanced. They opposed any deletion of the invitation to ratify.
47. The Employer members insisted on the priority which should be given to the revision of Convention No. 156. For their part the Worker members recalled that the Convention was a recent one, adopted in 1981, that a General Survey had been carried out in 1983, and that it was therefore difficult to speak of any urgency concerning the revision of this Convention.
48. After an exchange of views, the Working Party proposes:
49. The Worker members expressed their agreement with the Office's proposals.
50. The Employer members felt that the Office's proposals were too cautious. Convention No. 2 had recently received another ratification and a decision needed to be taken on whether it should be shelved in due course.
51. The Worker members firmly rejected any suggestion that the Convention might be shelved.
52. The Chairman said that the Convention had indeed been ratified by 51 countries and it was therefore difficult at this point to propose that it be shelved. It would be preferable to wait until Conventions Nos. 88 and 122 had received new ratifications and Convention No. 2 had been widely denounced.
53. After an exchange of views, the Working Party proposes:
54. The Working Party expressed its agreement with the Office's proposals. It proposes:
55. The Working Party expressed its agreement with the Office's proposals. It proposes:
56. The Worker members accepted the Office's proposals but said that they had had some doubts about revising this Convention given that it had been adopted only recently and that the employment market situation was very precarious.
57. The Employer members did not wish to enter into a substantive discussion about this Convention as it posed serious difficulties. They recalled their reservations about inviting countries to contemplate ratifying the Convention, as well as the request they had made at the Conference in 1995 for it to be revised.
58. The Working Party proposes:
59. The Working Party expressed its agreement with the Office's proposals. It proposes:
60. The Working Party expressed its agreement with the Office's proposals. It proposes:
61. The Worker members expressed their agreement that ratification of Convention No. 160 should be promoted but preferred the shelving of Convention No. 63 to be deferred pending ratification of the revised Convention by the States Parties to it. They noted that two ratifications of Convention No. 160 had recently been registered by Canada and Panama, entailing the automatic denunciation of Convention No. 63, and that there may well be others.
62. The Employer members said that Conventions like Convention No. 63 which were no longer open to ratification should be shelved. They recalled their introductory statement on the objectives of the policy with regard to the revision of standards. It was pointless keeping an obsolete Convention among the ILO's juridical texts. The Working Party would later have to decide on its possible abrogation in the light of the outcome of the active promotion of Convention No. 160. The Office should not be too hesitant or timorous in this respect.
63. The representative of the Director-General said that the Office did not base its reasoning simply on the number of ratifications without making a global and detailed study of each Convention. The idea of there being a "critical mass" of ratifications for shelving Conventions was counter to the principle that they should be examined one by one, which the Working Party had already decided in favour of.
64. The Working Party postponed consideration of Convention No. 63 to its next meeting.
65. The Working Party expressed its agreement with the Office's proposals. It proposes:
66. The Worker members wondered whether it was worth asking for information on obstacles to ratification inasmuch as this Convention had been extensively ratified.
67. The Working Party accepted the proposal of the Worker members. It proposes:
68. The Working Party expressed its agreement with the Office's proposals. It proposes:
69. The Worker members disagreed with the remark in the Office paper that the indications supplied seemed to raise some uncertainties as to the continued relevance of Convention No. 131.
70. The Working Party expressed its agreement with the Office's proposals. It proposes:
71. The Working Party expressed its agreement with the Office's proposals. It proposes:
72. The Working Party expressed its agreement with the Office's proposals. It proposes:
73. The Worker members endorsed the Office's proposals but asked for the reference to the possible shelving of Convention No. 52 to be deleted in the light of the Office's remarks.
74. The Employer members were in favour of the possible shelving of Convention No. 52.
75. After an exchange of views, the Working Party proposes:
76. The Working Party expressed its agreement with the Office's proposals. It proposes:
77. Given the difficulties noted by the Committee of Experts, the Employer members raised the possibility of the Office carrying out a special study on the status of Convention No. 140 so that the Working Party could take a decision on the existing problems. Without such a study, the Convention would continue to be fairly poorly ratified.
78. The Worker members recalled that a general survey had been carried out in 1991 and that the Working Party could hardly ask for another.
79. The representative of the Director-General said that it would pass on the Employer members' request to the competent technical department.
80. The Working Party proposes:
81. The Working Party expressed its agreement with the Office's proposals. It proposes:
82. The Working Party expressed its agreement with the Office's proposals. It proposes:
83. The Working Party expressed its agreement with the Office's proposals. It proposes:
84. The Working Party expressed its agreement with the Office's proposals. It proposes:
85. The Worker members suggested that the Working Party decide immediately in favour of revising this Convention.
86. The Employer members pointed out that it was illogical to invite States to ratify the Convention, on the one hand, and to recognize that it should be revised, on the other.
87. The Working Party proposes:
88. The Worker members felt that the obstacles to ratification identified by the Office were sufficient to justify this Convention's revision.
89. The Employer members said that, as with Convention No. 127, it was difficult to invite countries to ratify a Convention that needed to be revised. They asked for information on obstacles to ratification before formally recommending its revision.
90. The Working Party proposes:
91. The Employer members requested that, when analysing the information on obstacles to ratification, the Office draw attention to any points that might justify the revision of this Convention.
92. The Working Party expressed its agreement with the Office's proposals. It proposes:
93. The Worker members recalled that they had supported the drafting of a code of conduct on this subject during the discussion of the 1998-99 programme and budget proposals and that they therefore wish to delete any reference to the possible revision of this Convention. It was true that it had not received many ratifications but a technical cooperation effort might be the solution.
94. The Employer members agreed that the possible revision of Convention No. 148 need not be mentioned. Once the Office had received the information requested, there would still be time to take a decision.
95. The Working Party proposes;
96. The Worker members recommended revision of this Convention.
97. The Employer members said that they could accept the proposal that a Protocol be adopted revising Convention No. 27, since the conditions of transport had changed greatly since it had been adopted.
98. The Working Party proposes:
99. The Employer members thought that Convention No. 32 might be shelved and ratification of Convention No. 152 be promoted, as the Working Party had previously decided. Shelving was not a negative decision but a means of making the ILO's body of standards more consistent.
100. The Worker members opposed the Employer members' request; they felt that shelving the Convention was not a foregone conclusion.
101. After an exchange of views, the Working Party proposed:
102. The Employer members said that careful examination of this instrument did not justify postponing a decision in favour of its shelving with immediate effect.
103. The Worker members insisted that they wait for the information requested before deciding to shelve this Convention; they felt that the outcome was not a foregone conclusion.
104. After an exchange of views, the Working Party proposed:
105. The representative of the Government of the United States noted that, although Convention No. 120 had been adopted over 30 years before, it had only been ratified by 49 States. She proposed that information be requested on any obstacles that might explain the small number of ratifications.
106. The Worker members felt that the information given by the Office did not presuppose the existence of any particular obstacles to ratification of this Convention.
107. The Working Party proposes:
108. In response to a request from the Employer members, who noted the use of the different terms "child labour" and "work of young people" and the importance of not broadening the meaning of the instruments, the representative of the Director-General explained the wording that was used in this section (see footnote).
109. The Working Party proposes:
110. The Working Party expressed its agreement with the Office's proposals. It proposes:
111. The Chairman said that the Working Party's workload for this meeting had been ambitious and that time had been short. He reiterated his proposal that it have an extra yearly meeting. There was still a great deal to be done and the Working Party had yet to decide on follow-up action and look at other matters such as maritime Conventions, Recommendations and other points that were included in its mandate. An extra meeting could, for example, be held at the same time as the Conference in June.
112. The Worker members did not support holding a meeting in June but asked that they receive the list of Conventions to be dealt with in November as early as possible. Regarding the maritime Conventions, the Worker members did not think that a definitive decision had been taken as to whether or not they would be examined by the Working Party. As to the procedure for examining the Recommendations they wished to reserve judgement until the relevant paper was submitted to the Working Party in March 1998. They regretted that there had not been time to discuss the document on follow-up action and suggested that it be submitted directly to the LILS Committee.
113. The Employer members also expressed their disagreement about the holding of another meeting during the Conference. The paper on follow-up action could be discussed at the November meeting. There was no urgency and the Working Party should give itself time to consider how certain reservations expressed during the meeting could be overcome.
114. The Chairman said that it was really up to the Working Party to consider the paper on follow-up action. He proposed that the Working Party be given an extra half day for its meetings in March and November. He also suggested that the Office prepare a classified list of the Working Party's recommendations to bring them in line with one another.
115. The representative of the Director-General mentioned that there were still some 25 Conventions for the Working Party to look at and that a paper on the subject would be submitted in November 1997, when the paper on follow-up would be updated. He noted the Chairman's request that the Working Party be given an extra half day for its meetings during the Governing Body sessions in March and November.
116. The Worker members recalled that the continuation of the discussion on policy regarding the revision of standards depended on the follow-up to the decisions adopted. They requested that the paper on follow-up action be taken up first at the November meeting.
* * *
117. The Committee on Legal Issues and International Labour Standards is invited to:
Geneva, 18 March 1997.
Points for decision:
Paragraph 19; Paragraph 76;
Paragraph 22; Paragraph 80;
Paragraph 44; Paragraph 81;
Paragraph 48; Paragraph 82;
Paragraph 53; Paragraph 83;
Paragraph 54; Paragraph 84;
Paragraph 55; Paragraph 87;
Paragraph 58; Paragraph 90;
Paragraph 59; Paragraph 92;
Paragraph 60; Paragraph 95;
Paragraph 65; Paragraph 98;
Paragraph 67; Paragraph 101;
Paragraph 68; Paragraph 104;
Paragraph 70; Paragraph 107;
Paragraph 71; Paragraph 109;
Paragraph 72; Paragraph 110;
Paragraph 75; Paragraph 117.
3 The wording used in this heading and in the text corresponds to that used in the Conventions concerned and in the classification of international labour standards adopted by the Ventejol Working Party. In the future the wording will be brought into line with other standards on which work is currently under way, specifically the standards concerning child labour.