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GB.271/4/1
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FOURTH ITEM ON THE AGENDA
Date, place and agenda of the 88th Session (2000)
of the Conference
1. In accordance with the provisions adopted by the Governing Body at its 254th Session (November 1992),1 it is proposed that the 88th Session (2000) of the International Labour Conference should open on Tuesday, 6 June 2000.
2. It is proposed that the session be held in Geneva.
3. The Conference will have before it the following standing items:
4. The agenda of the 87th Session (1999) of the Conference, as determined by the Governing Body at its 268th Session (March 1997), includes the following three items: (1) child labour (second discussion); (2) revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95) (first discussion); and (3) the role of the ILO in technical cooperation (general discussion).
5. The Programme and Budget for 1998-99, for budgetary purposes and without prejudging the Governing Body's decision, foresees that a total of three technical items may be placed on the Conference agenda in 2000.2 As a second discussion is due to take place in 2000 on the revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95), the Governing Body would at its present session only have to choose two technical items to complete the agenda of the 88th Session (2000) of the Conference.
6. At its 270th Session (November 1997), the Governing Body examined a paper prepared by the Office containing a draft portfolio of proposals for the initial discussion on the Conference agenda for the year 2000.3 After discussing it, at the request of the Employers' group the Governing Body added the topic of youth employment to the portfolio. It also selected a short list of items for more detailed discussion at the present session, and decided to request law and practice reports, or more detailed proposals, on the following nine subjects:
7. Further revisions.In addition, the Governing Body could, if it wished, include directly on the agenda of the 88th Session of the Conference (2000) the revision of one or more existing standards on the basis of the recommendations of the Working Party on Policy regarding the Revision of Standards of the Committee on Legal Issues and International Labour Standards in its report to the Governing Body at its current session. At its session in November 1997, the Governing Body referred to the possibility of revising the Maximum Weight Convention, 1967 (No. 127), or the Benzene Convention, 1971 (No. 136).
8. It will be recalled that items 2, 3, 4 and 6 were the subject of previous proposals made to the Governing Body at its 268th Session (March 1997).4 Each of these contributions has been modified to update it. The contributions on all nine of the proposals listed above are hence included in the present paper.
9. In accordance with the requests made by a number of constituents during discussions, the above list of items in no way predetermines the type of action that could be taken on them at the Conference in 2000. However, items 3, 5, 6 and 7 are submitted with a view to standard setting. Items 2, 4 and 9 are submitted for general discussion. Items 1 and 8 could be the subject of general discussions with a possible view to subsequent standard setting.
10. In view of developments since the Governing Body's session in November 1997 regarding both the recommendations of the Working Party on Policy regarding the Revision of Standards of the LILS Committee and the amendments to the Conference Standing Orders adopted by the Governing Body, a second paper is submitted to the Governing Body at its present session containing proposals for the withdrawal of five Conventions that have never come into force. The proposals in that paper have no relevance to the number of technical items to be chosen by the Governing Body in determining the agenda of the 88th Session (2000) of the Officers of the Governing Body.
11. Special event to mark the year 2000.The Employers' group proposed that a special summit should be organized at the 2000 session of the International Labour Conference to launch reflection on the role of the ILO in the third millennium. This proposal was supported by a number of governments. The Workers' group acknowledged the value of holding such an event, but only in so far is it did not detract from the normal progress of work at the Conference. A number of proposals were made concerning the theme of such an event, in particular employment, fundamental human rights in the workplace and social justice.
12. Adding to the portfolio.A number of constituents requested that emphasis be placed on a number of questions that were not retained on the short list for discussion at the present session. In particular, the question of the organization of working time received support from several governments. One government officially requested that this item be included on the Conference agenda, including the possible revision of the Hours of Work (Industry) Convention, 1919 (No. 1), the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30). Several members of the Governing Body also expressed the wish that the Office should accelerate its research work on some of the subjects in the draft portfolio, such as the prevention of biological hazards in the workplace, the role of the ILO in the reconstruction of conflict-affected countries, and the employment of women.
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Summary It is proposed that a general discussion on the topic of human resources training and development be placed on the agenda of the International Labour Conference at its 88th Session in 2000 with a view to the possible elaboration of a new instrument by the Conference at its 89th Session in 2001. The proposal is the outcome of discussions in the Governing Body, comments received from member States regarding possible items that could be discussed at future Conferences, and preliminary research undertaken by the Office to assess whether the Human Resources Development Convention, 1975 (No. 142), and its accompanying Recommendation (No. 150), adequately address contemporary issues of training policy and system reform in member States. The findings of these activities suggest that Convention No. 142 may not need to be revised for the time being. Conversely, the Recommendation has been overtaken by economic and social developments during the last two decades. It offers insufficient guidance to countries that engage in training policy and system reforms. The purpose of the general discussion proposed for the Conference in 2000 is therefore to consider new requirements for training policy and, on that basis, to guide the Office in preparing new standards that could be submitted for a possible adoption at its 89th Session in 2001. |
13. Globalization provides new opportunities and poses risks for workers, enterprises and the economy as a whole. To seize the opportunities and to alleviate the risks, a policy response is required that includes human resources training and development as one of its key components.
14. The liberalization of trade, investments and capital flows are making the world economy increasingly integrated. With the growth of global production systems, there has been a marked increase in intra-firm trade in intermediate products, subcontracting, licensing, franchising and outsourcing arrangements across national frontiers. The pace of technological change and product obsolescence are shortening product life-cycles and inducing enterprises to introduce flexible production systems, such as flexible automation and small batch production, in order to remain competitive in international and domestic markets. The forthcoming issue of World Employment for 1998-99, with the theme of "Training for Employment", will analyse these trends and their implications for training policies and systems worldwide.
15. The move towards more flexible production systems involves a change in the organization of work. Responsibility and decision-making are increasingly devolved to employees, who often work in teams. Flat corporate hierarchies, interdepartmental collaboration, teamwork and rewards for innovation are the code words for rapid response to changes in market demand.
16. Flexible production systems and new patterns of organizing work offer an advantage to workers who have a good basic education and are trainable and versatile in multiple technical skills, but also possess the communication and behavioural skills necessary to work in a team and can think logically and solve problems.
17. Meanwhile, technological innovation is also having an impact on work and skills in major sectors other than manufacturing, such as agriculture, infrastructure and services (banking, transport, communications, and governmental services). Together with the informal sector in developing countries, these sectors continue to account for the bulk of the employed labour force. In these sectors, linked to manufacturing, the removal of bottlenecks and improvements in efficiency by tapping new technologies can improve productivity while offering scope for employment generation. Training to meet new skill requirements in these sectors will therefore loom importantly in countries' efforts to seize the opportunities that globalization offers.
18. However, competition on a global scale may also contain dangers for labour as enterprises endeavour to minimize costs, for example through corporate restructuring, downsizing and outsourcing, and through the accompanying growth of non-standard forms of work, such as part-time and temporary work. The spectre of insecurity and unemployment affects, in particular, women, unskilled workers and those whose skills are becoming obsolete as technology changes.
19. It is widely held that work and employment become increasingly knowledge- and skill-intensive as national economies and enterprises pursue the goals of increased productivity and competitiveness. Employment outcomes tend to become more and more determined by the skills and knowledge individuals possess. As globalization gathers pace, countries endeavour to improve the efficiency of the labour force while ensuring equality of access to human resources training and development and particular support to disadvantaged groups in society, such as the long-term unemployed and displaced workers. In particular, older and poorly educated workers may find it difficult to adapt to the new and higher skills demanded in the job market. A major challenge is to find adequate solutions for such workers to maintain their employability and to enable them to make a decent living, solutions which may include training and retraining. The achievement of the efficiency and equity goals of training will demand increased collective and individual investments in human resources training and development in the context of training policy and system reforms.
Towards training policy and system reform
20. Many countries are starting to implement far-reaching reforms to make human resources training and development respond more effectively and equitably to the challenges of globalization. Human resources training receives increasing attention in the media, policy statements and public awareness.
21. The reforms launched in both industrialized and developing countries have several common threads. A major task is to develop a common vision among major stakeholders (i.e. the State and the social partners, but also other organizations and individuals representing civil society) of human resources training and of the development of the challenges and opportunities that lie ahead. As the State retreats from its former role as a major financier and purveyor of training programmes, the challenge is to forge a new partnership between the State, the enterprise sector, trade unions and other stakeholders in training. The partnership comprises three major areas: training policy and system development; the financing of training; and delivery of training programmes. In all these areas multipartite dialogue is the means to achieve consensus on the national training effort and increase the resources allocated to it.
22. The second major element of reform is the construction of a policy and institutional framework for the initial and continuous training of the workforce in response to economic and social change. Subsequent to educational reforms, young people today are increasingly educated. At the same time, many traditional, low-skilled entry-level jobs have disappeared. Reforms have therefore focused on programmes to combat youth unemployment by means of training and creating the conditions and mechanisms that will ensure a smooth transition for young people from school to work. Countries are also moving towards a system of continuous training while exploiting the opportunities offered by the training market. Continuous training is seen as a major instrument to help workers adapt to new skill requirements and enterprises to become more competitive in increasingly integrated world markets. Today, both individuals and enterprises consider training to be an investment in human resources.
23. However, despite much rhetoric about the need for increased investment in both initial and continuous training, the actual volume of training has often been inadequate in preparing the workforce for the challenges that lie ahead. Public spending controls and enterprise restructuring have reduced the resources allocated to training or targeted them in such a way that available resources do not reach everyone in a satisfactory and equitable manner. Often, the most disadvantaged groups see their access to training and training resources made increasingly difficult, thus accelerating their exclusion process. The challenge of diversifying and enlarging the resource base for training is a political, economical and social issue. The increased flexibility of labour markets and uncertainties in national economies also pose new challenges in terms of incentives and returns on investment made for training at all levels: the individual, the enterprise and the State. This problem needs to be addressed through the development of a new vision of shared investment between the State, the enterprise and the individual, each with its complementary objectives and values, in order to build a better equilibrium and improve access at all levels to the continuum represented by education, initial training and lifelong training.
The contribution of human resources training and development to economic growth with equity
24. Training can play a major role in promoting economic growth with equity; it benefits both individuals and enterprises and the economy and society at large; and it can make labour markets function better.
25. Training helps individuals develop their capabilities and upgrade their skills and is a crucial source of flexibility and adaptability in today's rapidly changing labour markets. Training improves their prospects of finding and retaining a job; improves their productivity at work, their income-earning capacity and living standards; and widens their career choices and opportunities. By reducing social vulnerability and exclusion, human resources training contributes to equity of access to employment. Enterprises also benefit, as training improves workers' productivity and raises competitiveness and profits. The economy benefits from training, by making it more productive, innovative and competitive. Training can help remove skill mismatches by sector, region and occupation. Rapid economic growth and social progress in many countries have been invariably accompanied by large investments in education and training. Certification and recognition of skills and competencies gained after training provide both employers and workers with valuable information that makes labour markets function more efficiently. Finally, training provides an important contribution towards a cleaner environment by responding to skill demands associated with improving environmental standards in the production of goods and services.
26. Human resources training and development can thus significantly contribute to economic growth with equity. However, human resources development cannot achieve this objective on its own, but must constitute an integral element of economic and social policies, including macroeconomic policies, that promote employment-based and equitable economic and social development.
ILO standard-setting activities in the area of human resources development
27. The major ILO instruments in the area of human resources development and training are Convention No. 142 and Recommendation No. 150. They tend to cover the totality of aspects concerning vocational training and guidance at various levels and have replaced the Vocational Training Recommendation, 1962 (No. 117), which had itself replaced a series of specific standards developed since 1939, particularly the Vocational Training Recommendation, 1939 (No. 57), the Apprenticeship Recommendation, 1939 (No. 60), and the Vocational Training (Adults) Recommendation, 1950 (No. 88).
28. Many other instruments also recognize the contribution of training and guidance to the pursuit of employment, working conditions and equitable treatment and some are closely related, including: the Paid Educational Leave Convention, 1974 (No. 140), and Recommendation (No. 148); the Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99), and the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), and Recommendation (No. 168); the Minimum Age Convention, 1973 (No. 138); the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and Recommendation (No. 111); the Employment Policy Convention, 1964 (No. 122); and the Equal Remuneration Convention, 1951 (No. 100), and Recommendation (No. 90).
29. Recent discussions in the Governing Body on future standard-setting activities suggest that human resources development and training receive top priority and that the instruments on human resources development, particularly Recommendation No. 150, be modernized and adapted to socio-economic developments and changes in training policies, and in training and vocational guidance systems organization and practices, together with a reinforcement of technical assistance to promote their application. Several national studies completed during the last biennium (1996-97) also drew this conclusion, and they constitute, with other regular programme research outputs, a strong basis for the preparation of a discussion paper on these issues to be presented to the Conference in 2000 for a general discussion on human resources development and training. This was confirmed during the 270th Session in November 1997 of the Governing Body when the draft portfolio was discussed. The proposal on human resources development was selected with the support of employers, workers and 19 governments.
30. Adopted in 1975, Convention No. 142 and Recommendation No. 150 mirror the prevailing economic and social conditions of that period. Then, most countries pursued planned economic, social and industrialization policies, the information technology revolution was still in its infancy, work organization in enterprises was largely based on Taylorist principles, and the labour force was employed in secure wage jobs. While Convention No. 142, which is rather general, can still be regarded as valid, Recommendation No. 150 is clearly outdated.
31. Recommendation No. 150 reflects the planning paradigm of that period, while giving little room for demand and labour market considerations; it provides little or no guidance on many issues that, nowadays, are central to training policy and system reforms being undertaken by member States at present. These issues comprise, for example, the policy, governance and regulatory framework of training; the respective role of other stakeholders than the State, e.g. the private sector, the social partners and civil society, in policy formulation and training delivery; the scope and mechanisms for diversifying and tapping alternative sources of financing training; devising appropriate mechanisms and methods to target training programmes at particular groups; the shift away from training for "qualifications" towards the development and recognition of "competencies" that comprise a wide range of work-related knowledge, technical and behavioural skills, and attitudes; and the increasing need to focus skill development activities on preparing workers for self-employment and the informal sector.
Suggested issues for a general discussion
32. Should the Governing Body decide to include an item on human resources training and development on the agenda of the Conference for a preliminary general discussion, the following issues could be topics that the Conference may wish to address:
33. In conclusion, it is suggested to hold a general discussion at the International Labour Conference in 2000 on the topic "Human resources training and development" that could guide the Office in the preparation of possible new instruments. Should it be decided, a new Recommendation could be prepared under a single discussion procedure for adoption at the 89th Session of the International Labour Conference in 2001. This would not preclude the Conference from deciding on the elaboration of new instruments in the form of a Convention and/or Recommendation under the regular double discussion procedure. In the event that the present proposal would be placed on the agenda for the Conference in 2000, the Office would reprogramme activities in order to undertake the required preparatory work during the present (1998-99) biennium.
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Summary It is proposed to hold a general discussion on a series of issues triggered by the conclusions adopted by the Conference in June 1996, which emphasized that investment lies behind many of the ILO's principal concerns. Without sustained and well-selected investment, social policy goals are difficult to reach. It is important to be clear on the nature of investment, the factors that lie behind the decision to invest and the impact it has on employment. The following discusses the impact of investment on output and employment growth; enterprise decisions on investment; the interaction of the public and private sectors; and foreign direct investment. The proposal concludes with a list of suggested issues for discussion. Business investment is a crucial element in the promotion of employment. To be most effective it has to take place in an appropriate policy environment and to reflect local factor endowments and labour markets. Foreign investment can be crucial in introducing new techniques and working practices and in breaking into export markets. The government can encourage investment in a variety of ways, principally through the provision of infrastructure and the right fiscal, financial and legal environment. Policy in foreign investment needs to respect the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, which calls for some active steps on the government's side to maximize the contribution of foreign investment to development. Worker-management cooperation can also contribute to positive decisions by both local and foreign companies on expanding businesses and building new plants. In this respect human resources and physical capital may need to expand in tandem. Any related threat of labour displacement associated with investment in more productive equipment should be identified early on. Investment in local level infrastructure and by small and medium enterprises can be particularly generative of employment, and means of stimulating it that respect good industrial relations practices should be further developed. |
Introduction
34. Investment is a crucial element in the process of output growth. As such, it is a precondition for the improvement of both wages and the quality of employment. Poor investment performance can be a very serious obstacle to employment growth, especially in periods of structural adjustment. Indeed, the disparity in investment performance between different regions is a major factor in explaining their varying employment levels. Economies in transition are in particular need of investment to modernize their economies. Furthermore, the nature of investment, its location and any possible "skill bias" associated with it, may have consequences on the level of employment.
35. Investment by definition requires savings. A high level of both savings and investments is desirable. Savings that finance investment can come from abroad through various channels, including direct foreign investment, so that a country can invest more than it saves. A large number of countries with slow growth have generated few domestic savings but have relied heavily on foreign borrowing, in the form of commercial borrowing or concessionary flows. The level of their domestic investment is often too low to ensure sustainable output growth or to raise the quality of employment. In the recent past, however, many countries with fast growth and a good record of employment creation have relied very little on foreign savings and have generated their own resources to finance a high level of domestic investment. In general, larger international flows of capital should increase the overall efficiency of resource allocation as well as of investment.
36. As conventionally measured, investment is a very mixed category, comprising equipment and machinery, residential and non-residential buildings, land improvement and other forms of infrastructure development, such as roads and harbours. Some of these elements are crucial to the growth of output and employment, while others may appear as a result of growth. Similarly, many factors which might rightly be regarded as playing an essential role in a country's development are not regarded as investment as measured in the national income statistics. These include, for example, human resources (i.e. the process by which individuals acquire skills). Although this process of skill acquisition fits uneasily within the normal income accounting framework, its parallel with physical investment must be acknowledged. Indeed, expenditure on education and training can exceed that on new productive capital assets.
37. It has been established that there is a fairly strong relationship between certain types of investment, such as investment in equipment and machinery, and economic growth. This relationship suggests that efforts should be made to promote this type of investment. A good policy framework is needed, however, to ensure that the efficiency of investment, and hence the returns on investment, are optimal. With a bad policy framework, privileged access to credit and loanable funds for favoured enterprises can result in over-investment in one area and under-investment in another, resulting in labour being starved of capital in certain sectors.
38. The Conference conclusions singled out the need for an enabling global environment in order to achieve full employment. In the context of promoting investment, the call for economic and financial stability and for open economic and trade policies is crucial. Also of essential importance is the conclusion that the globalization of financial markets should lead to productive investment, and not financial speculation.
The enterprise investment decision
39. Most discussion of what drives investment has been framed in terms of decisions taken by a firm on whether to extend or modify its capital stock. Issues relating to labour market regulation have usually been ignored. Public sector and household sector enterprises have been assumed to behave in broadly the same way as incorporated private sector enterprises. However, the former are both likely to pursue somewhat different objectives from private enterprises in general, and often face different constraints, especially as regards employment. In the past, discussion on the determinants of investment generally ignored decisions on relocation abroad, since this was rarely considered an option. Clearly, many different considerations have come into play in recent years. The focus on globalization, including the reduction of trade barriers, lower transport costs and the lower costs involved in supervision and quality control, has opened up many more options to investors. In particular, this has given much greater weight to the consideration of relative labour costs and, in many instances, to different degrees of environmental protection and health and safety standards in deciding on the location of production. Many more workers are now integrated into the global market-place than before.
40. In the past, there has been no need to address explicitly the issue of labour market regulation in relation to investment decisions in the private sector, especially in industrialized countries. In developing countries, however, the situation has often been different, as labour legislation is more difficult to implement and the extent of poverty has often caused an extremely wide range of wage rates to emerge across the formal, informal and agricultural sectors, a difference greater than would be justified by relative productivity levels. The extent of labour market segmentation, and indeed of the implementation of labour legislation, can then affect the scale and location of investment decisions and the amount and quality of employment generated.
41. It has always been acknowledged that greater investment leads to greater employment in the production process only if the new investment is not labour-saving to the same degree. It has often been assumed that if workers are displaced because a new investment is labour-saving, they are automatically absorbed elsewhere. Clearly, this process is far from smooth. In addition, the technology incorporated into the investment has often been assumed to reflect research into new processes which take into account only domestic resources and skill availability, and which are therefore "appropriate" for countries' skill levels.
42. In developing countries, it has long been known that some technologies embedded in new investment goods could well be inappropriate in terms of the country's endowment of capital and skills. Investment would then have weak or negative effects on employment. In addition, increasing wage inequality in some industrialized countries also suggests that much new investment in those countries is complementary to more highly skilled labour and disregards the availability of unskilled labour. Less and less unskilled labour is then required in the productive process.
Public and private sector interaction
43. The ways in which public policy in general interacts with private investment decisions relate to the expectations engendered by the government's overall policy framework and the success of these in encouraging investment, especially where one act of investment is a precondition for others. They also concern the wide range of measures that governments must in any case undertake to ensure broad-based private sector investment. Various research studies on the links between public and private investment have been undertaken and have often demonstrated a positive relationship between the two. It is however difficult empirically to isolate the particular types of government investment that seem likely to induce private investment. Some of the useful forms of government expenditure concern investment, mainly in infrastructure, where bottlenecks in ports, roads and power supply can raise costs in the private sector to a prohibitive extent (see below for the role of the private sector in easing such bottlenecks).
44. Government expenditure policy can also discourage private investment. This can happen under two scenarios. On the one hand, where credit to the private sector is limited and very possibly rationed, the small-scale and household sector suffers the most and formal sector enterprises with privileged banking links are favoured. The employment consequences of this are then increased differentiation between the conditions of employment and work in formal and informal enterprises and between large and small firms. On the other hand, even when the market sets interest rates the effect can be the same. Public sector savings on current account (including the savings of public sector enterprises to the extent that their debt is guaranteed by the government) may become increasingly insufficient to cover capital payments. The public sector then has to increase its borrowing, which pushes up interest rates to a level that discourages private investment. In addition, once public borrowing reaches a certain level, the likelihood of allowing inflation to reduce the real value of government bonds increases, devaluation becomes inevitable and capital flight is encouraged. A vicious circle of stagnation ensues, with severely negative effects on employment levels.
45. The possible role that the private sector could play in easing bottlenecks in physical infrastructure has been mentioned. Three possibilities of interaction between the private sector and the public sector can be noted: management contracts for public enterprises and utilities; the construction and operation of, inter alia, roads and bridges by the private sector; and leasing. The first of these is usually a stepping-stone to privatization, so that concerns raised in the context of privatization necessarily arise, such as the issue of employment security for the workforce. In this respect the desirability of matching any fall in employment by job creation elsewhere should be recalled, as specifically mentioned in the Conference conclusions for the economies in transition. The second applies particularly to quasi-monopolies, such as power generation, toll roads and tunnels. Such monopolies can have significant effects on costs for the rest of the economy if no obvious competition is feasible: failing such competition, complicated and sensitive issues of regulation arise. The third possibility -- leasing -- has become popular where the government wishes to reduce its borrowing requirement without giving up control over operations. Private companies can then either purchase existing government assets (the purchase price being regarded as negative borrowing by the government) or build up new assets with a view to leasing them to the government. This is likely to involve some private sector management, which may reduce running costs. However, the private investor will generally have to borrow at a higher cost than the government, so that the cost reduction may well be illusory.
46. One area where government policy on investment has a considerable impact on employment, particularly in developing countries, is in the choice of technology. In the past, governments sometimes encouraged the premature mechanization of agricultural activities, with negative effects on rural employment and wages. However, the widespread real currency devaluations of the 1980s largely eliminated that concern. In the course of the decade following the debt crisis, in most developing countries imported equipment became far more expensive in terms of consumer goods and of wages. It was not always possible, however, to build on this improving cost differential in favour of labour, either because the managerial skills required to use a large labour force equipped with more basic equipment were absent, or because the overall small-scale and domestic sector was underdeveloped, underfinanced and unable to bid for government contracts. However, the potential for employment generation through labour-intensive methods with local participation remains significant, for example in urban land and building improvement projects, as well as for small-scale public works in rural areas. This point is recognized, for example, in the Employment Policy Recommendation, 1984 (No. 169). It is essential in this context for relevant labour standards on remuneration and working conditions in such activities to be applied.
Foreign direct investment
47. As mentioned earlier, the combined effect of various ongoing processes, lumped together under the heading of "globalization", has been to broaden considerably the possibilities for relocating production between countries and regions in order to serve any particular market. This process has been beneficial to employment, although many problems of adjustment arise. Success in attracting foreign direct investment to a host economy, particularly in order to serve foreign markets, has come to be seen as an accolade given to a country for its choice of economic and labour market policies. It is necessary in this respect to be clear as to the benefits that a host country and its labour force can expect from foreign direct investment (FDI). These benefits will be greater when --
48. Policies for making the most out of FDI have included such features as a minimum level of local equity participation and rules on minimum local content. A minimum level of local equity participation is usually intended as a guarantee that skills among local investors will contribute to the management of the project. Local content rules have an obvious rationale and impact on local employment. However, such regulations need to be accompanied by positive efforts to upgrade local potential input. All this suggests that an industrial policy and active intervention is needed to accompany FDI and not only, as is more usual, fiscal incentives to attract it. This is explicitly recognized in the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. With regard particularly to developing countries, the Tripartite Declaration calls on multinational enterprises to take into account governments' employment policies and objectives. In order to do so, they should adapt their technologies to the needs of the host country, develop appropriate technology and promote the processing of local raw materials. They should also participate in official training programmes and broaden the experience of local managers.
49. Finally, considerable discussion has been generated on the factors that determine the location of FDI. In this respect there is every reason to believe that the same background factors that attract private sector investment in general and encourage its expansion will attract FDI as well. These factors include political and social stability, relative price stability and a credible macroeconomic policy framework. More controversy arises over the role of labour market policies and institutions and other features, such as health and safety standards. Labour flexibility, whether in terms of the employer's ability to modify the number of workers employed and hours of work, or in terms of the workers' ability to shift between tasks or their acceptance of fluctuating incomes, is considered to be important as a determinant, over and above that of prevailing unit labour costs. It is necessary, however, to have some notion of the range over which some of these factors operate. Assuming that virtually all other costs are set internationally, the difference in unit labour costs in some industries is so great that the industries disappear from some locations unless effectively a new product is created. But even large differences in unit labour costs can be overridden by other elements of an enterprise's strategy, let alone by direct government action to attract or retain enterprises. Correspondingly, enterprises can relocate, for example, on account of taxation or environmental controls, and not unit labour costs. Slight differences in unit labour costs may be easily offset by considerations arising from economic policy in general and, indeed, by the prospects of working with a responsibly organized labour force. Concern for labour market flexibility is likely to arise principally when other differences are slight, for example in unit labour costs and in general policies. But the scale of these factors, and indeed of factors relating to health and safety and pollution, remains very difficult to assess.
Suggested issues for a general discussion at the Conference
50. Should the Governing Body decide to include an item on investment and employment on the agenda of the Conference for a general discussion, the following are some preliminary suggestions for issues that the Conference may wish to address:
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Summary It is proposed that new standards concerning cooperatives should be developed. The Co-operatives (Developing Countries) Recommendation, 1966 (No. 127), concerning the role of cooperatives in the economic and social development of developing countries is the only ILO standard addressing cooperative issues in a comprehensive manner. The political, economic and social conditions which prevailed at the time Recommendation No. 127 was adopted in 1966 have changed fundamentally. The new standards could embed these changes in the equally evolved cooperative principles and values. In particular, they could aim at promoting autonomous cooperatives, and the scope of the new instruments should be universal, as new universally applicable standards in this area could enable self-help organizations to fully unfold their potential and thus help solve unemployment and social exclusion. The proposal traces the evolution of the cooperative movement in industrialized countries, former socialist countries and developing countries; outlines the new scope and universally applicable content that standards could have in this field; and concludes with a summary of the preparatory work already undertaken by the Office. |
Background
51. Paragraph 12.1(a) of Recommendation No. 127 defines a cooperative as "... an association of persons who have voluntarily joined together to achieve a common end through the formation of a democratically controlled organization, making equitable contributions to the capital required and accepting a fair share of the risks and benefits of the undertaking in which the members actively participate". This definition is universally accepted. Cooperatives play an important role in the economic, social, cultural and political development of most countries. Cooperatives significantly contribute to national economies and societies. They promote self-employment and indirectly secure employment in other types of enterprises which are buyers or suppliers of cooperative goods and services. Cooperatives are active in all branches of the economy and can be found among all professions. They are also concerned with the social well-being of their members, and that of non-members, by being active in the fields of housing, health care and care for the elderly, and in education, mainly at the primary level. These services are often provided for, on the initiative of, or in close collaboration with, employers' and workers' organizations which share these social and economic concerns with cooperatives.
52. Some 800 million people around the globe are members of cooperatives. A further 100 million people are employed by cooperatives without being members. If one adds to these figures the numbers of persons who are economically dependent on those involved in cooperative business, one realizes that a considerable proportion of the world's population satisfies its needs at least partly by or through cooperatives.
53. Despite these positive facts, it is felt that the self-help potential of cooperatives remains underutilized, even though economic and social challenges in many countries require the mobilization of all potential available.
54. Since the time of the adoption of Recommendation No. 127, political, economic and social changes have affected the situation of cooperatives throughout the world. While cooperatives seem to have a new role to play both in industrialized countries and in the former socialist countries, the focus of Recommendation No. 127 is limited to developing countries. New universal standards in this area could help enable cooperatives to develop more fully their self-help potential, placing them in a better position to meet a number of current socio-economic problems. It is therefore time to establish new international standards based on modern cooperative principles and values for the promotion of cooperatives.
55. As far as developing countries are concerned, Recommendation No. 127 mirrored the development concerns of the 1960s, especially in its approach to the role of governments and cooperatives in the development process. Today, development is not conceived as a process to imitate already industrialized countries, nor are cooperatives seen as a means in the hands of governments. In accordance with universally recognized cooperative principles, they are perceived as a means for their members to achieve their common goals.
56. In former socialist countries cooperatives were an integral part of the political system, a means of centralizing land use, employing agricultural labour and distributing consumer goods. The current privatization of the former socialist economies reaches beyond the land reform referred to in Recommendation No. 127: it involves the privatization of manufacturing facilities and service infrastructures, and involves the growth of worker-owned enterprises in all sectors of the economy. Some socialist-type cooperatives have been transformed into genuine cooperatives, while others have been bought out by individuals or by former members jointly. The ILO is receiving an increasing number of requests from developing countries and from countries in transition for assistance in cooperative organization, training and policy and legislative reform, since cooperatives have to assume an increasingly important role as a consequence of the liberalization and privatization of trade and services. The Office needs direction in the form of new standards to be able to respond to these requests.
57. In industrialized countries it is the changing structure of cooperatives and new forms of cooperatives that call for the application of new standards to this category of countries as well. The traditional structure of cooperatives is currently evolving to cope more effectively with competitive pressure from other forms of business organizations. On the other hand, the cooperative model of joint ownership and management is increasingly being used by employees to buy out their own enterprises in the transport, service and manufacturing sectors as a means of protecting and generating jobs in an era of continued downsizing resulting from globalization and technological change. At the same time, these workers increase their stakeholding in society.
58. In many countries, political, economic and social changes in general have put pressure on governments to limit their involvement in economic and social affairs. The core idea of structural adjustment programmes is a shift from public to private initiative, financing, management and responsibility. Subsequent monetary and fiscal stabilization programmes, institution building, privatization and liberalization require civil society to take a more active role in economic, social and political affairs. The State's role is increasingly limited to that of providing the political, legal and administrative framework for the development of private organizations, including cooperatives, which in turn strengthen democracy. There have been calls for new standards in this area from member States.
National law and practice
59. In a series of studies on "creating a favourable climate and conditions for cooperative development", the Office has documented national law and practice in different parts of the world outside the industrialized countries.5
60. In developing countries, cooperatives have in the past been confined to geographical areas coinciding often with administrative and district boundaries. Membership has at times been compulsory to carry out economic activities and governments have intervened in the organization and management of cooperatives by convening general assemblies and board meetings, by seconding government staff to these bodies, by taking decisions on behalf of cooperatives, by supervising employees and even elected office-bearers, by replacing them with state commissions, by defining the objectives of cooperatives, by assigning tasks, by subjecting investment and surplus distribution to their approval, by freezing cooperative bank accounts, by having the control and promotional function exercised by a government service, by creating and running secondary and tertiary cooperative organizations, by merging, dividing and dissolving cooperatives and by settling disputes without allowing appeals to ordinary courts of justice. On the other hand, governments have tended to grant to cooperatives tax privileges and easy access to credit. In general, and in accordance with the current spirit of Recommendation No. 127, cooperatives have been used as agents of government development offices, to organize production, to administer land reforms and to manage irrigation and credit schemes.
61. In the former socialist countries, there was no clear distinction between private and public in economic affairs. Accordingly, cooperatives were then organized as part of the state economic and administrative structure. They were used as an instrument to implement state economic plans and in an effort to create a socialist society.
62. In the industrialized countries, although genuine cooperatives still exist in large numbers, economic growth and growing regional integration has in some cases led to what might be termed a loss of identity. The tendency in the cooperative movement is to allow for styles of management, business behaviour and capital structure common to stock companies. This is a reaction to increased competition, mainly by stock companies at the national and international level, which because of their capital and managerial structure succeed in reacting more easily to business challenges than member-oriented cooperatives can. The search by cooperatives for better competitiveness, mainly through mergers and acquisitions, by changes in capital structure and by placing more entrepreneurial powers in professional non-member managers, has put a question mark over the character of cooperatives as democratic and member-managed business enterprises.
ILO standards and practice
63. The only comprehensive international standard on cooperatives is Recommendation No. 127. Also of relevance are the Rural Workers' Organizations Convention, 1975 (No. 141), and Recommendation (No. 149); the Employment Policy Recommendation, 1984 (No. 169); and the Indigenous and Tribal Peoples Convention, 1989 (No. 169). These standards give examples of how specific groups may organize, including in the form of a cooperative, to what ends cooperatives may be used by their members, or they emphasize that groups living according to cultural traits which are not the ones of the majority of society should be protected in their way of organizing self-help associations, including cooperatives.
64. 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 ILO has promoted the development of cooperatives, mainly through technical assistance and information, and has advised governments, and workers' and employers' organizations, on their role in this area. It has the largest programme of technical cooperation within the UN system for this purpose.
Purpose of new standards
65. The main purpose of new standards would be to elaborate standards of universal scope and to promote cooperative principles worldwide as a means of empowering civil society to reach social and economic goals through self-help. At a time when the changing role of governments coincides with the globalization of capital and the increasing internationalization of enterprises, it is necessary to reinstate the role of the individual in decision-making. Cooperatives serve as a model of enterprise which is member-centred, oriented towards members' needs and has a specific mechanism for the distribution of surplus. Furthermore, the purpose of the new standards would be to focus on the autonomy of cooperatives and to limit state intervention.
Contents of new standards
66. The new standards should have universal scope, since the consequences of economic, political and social changes have a bearing on all countries. For example, a common concern shared by all countries is the declining capacity to create formal wage and salary employment and to prevent social exclusion. In developing countries, structural adjustment has continued to have a negative impact on unskilled workers and low income groups. In many instances, social exclusion and poverty have accelerated. In economies in transition, the process of privatization combined with the lack of social safety nets has been accompanied by rising unemployment, lower incomes and lower social standards. In industrialized countries, slower economic growth combined with a shift towards the technologically advanced service industries, has resulted in growing economic and social exclusion, mainly among lower skilled workers in traditional industries.
67. The new standards, besides addressing governments and workers' and employers' organizations, could also address cooperatives, their unions and federations. The reference to the social partners is to emphasize their interest and responsibility for the promotion of cooperatives, while the inclusion of the cooperatives with their vertical structures is to underline their own responsibility. This responsibility includes the financing and management of their own support services, including audit and control, management training and membership education. This would better reflect the very nature of cooperatives as autonomous organizations.
68. The new standards should espouse the cooperative principles of:
69. The new standards could also place emphasis on the necessary complementarity between cooperative principles, cooperative law, and corresponding structures. Thus, for example, cooperative development presupposes an adequate administrative, banking, insurance and judicial structure and support from professional organizations. The new standards should strengthen the autonomy of cooperatives and address areas of common concern to the State and to cooperatives. The role of the government should be limited to legislation, registration, deregistration and enforcement. The management, autonomy and business viability of cooperatives have often been hampered by their being forced to join general development programmes for which they do not have the financial or human resources. Cooperatives should be allowed to develop their self-sufficiency and undertake obligations as decided by their members only. Larger goals with regard to general economic and social policy, as incorporated in Recommendation No. 127, would not be included in new standards, and all forms of discrimination against cooperatives should be excluded. A distinction could be made of different types of cooperatives in a way to include organized structures governed by the defined cooperative principles and to exclude other non-organized structures based on solidarity.
70. The importance of cooperative law for the development of cooperatives could be stressed. A distinction between the matters to be included in the law and those that may be regulated by administrative bodies could be added. Beyond any kind of separation of powers on which a political system may be based, it is important to cover basic cooperative matters by law in order to protect them from frequent political changes. Furthermore, law and administrative regulations could allow substantial issues to be regulated by cooperative members through their by-laws or statutes as an expression of their autonomy.
71. The specification of the basic issues that any cooperative law must address contained in Recommendation No. 127 could be broadened in a way that brings out the distinctive features of cooperatives as opposed to other forms of business organizations and enterprises. This concerns management, inter alia, and hence management qualifications, capital structure, the role of capital, democratic decision-making -- regardless of the size of the cooperative, and the rights and obligations of cooperative unions and federations. In this way the attention of legislators can be drawn to the need to reflect the specificities of cooperative law in other forms of legislation such as taxation, competition and labour law.
72. The new standards could embody a wider concept of cooperative human resource development and take account of the need for greater involvement of cooperative movements in planning, implementing and monitoring training programmes. Education and training could be directed towards business efficiency and skills and knowledge of cooperative principles in order to preserve cooperative identity.
73. The new standards would change the approach to governmental financial assistance, which has frequently encouraged government control of cooperatives. 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 financial support to cooperatives. Today, structural adjustment programmes have led to a reduction of public financial assistance and subsidies. Cooperatives are therefore intensifying their efforts to mobilize and manage their own credit and savings schemes and their own commercial relations with other cooperatives in the free market economy -- both domestically and internationally -- and to set up a system for the mutual exchange of technical cooperation through cooperative networks. Financial support should be restricted to indirect measures, such as participation in credit guarantee funds.
74. The new standards could take into consideration the self-auditing capacity of the cooperative movements. The establishment of sound auditing practices could be advocated and supported.
75. The new standards could encourage cooperative movements and academic institutions to support research on cooperative issues and make the results known through new information technologies. The collection of reliable and standardized statistical data is also essential.
76. Finally, past experience with Recommendation No. 127 suggests ways through which the ILO would be able to monitor the implementation of new standards. The experts attending the Meeting of Experts on Cooperative Law in 1995 were of the opinion that a body should be established to foster the rights of freedom of association for cooperative members.6
Nature of new standards
77. The experts attending the ILO meetings on cooperatives in 1993 and 1995 were not unanimous as to whether a Recommendation or a Convention would be the appropriate instrument. The adoption of a Convention, possibly supplemented by a Recommendation, was considered in order to give binding force to the updated basic cooperative principles. It was suggested by others, however, that the new standards envisaged should take the form of a Recommendation. In the latter event, it is suggested that a new comprehensive Recommendation should be adopted rather than a partial revision of Recommendation No. 127. Not only is a partial revision more difficult because the coherence of the existing standard would be difficult to maintain, but more importantly, the proposed new standards are intended to express a change in basic logic.
Preparatory work
78. The ILO held a Meeting of Experts on Cooperatives in 1993 whose agenda included an item concerning an assessment of the impact of Recommendation No. 127, for which a resource paper was prepared.7 This meeting was followed by the Meeting of Experts on Cooperative Law in 1995, mentioned above, during which this was further discussed. The Office issued a number of working papers in conjunction with the two meetings. These include a series on factors leading to a favourable climate for cooperative development in Africa (1993), Asia (1994), Latin America (1996) and Central and Eastern Europe (1996); a report on the relationship between the State and cooperatives in cooperative legislation (1993); structural changes in cooperative movements and consequences for cooperative legislation in different regions of the world (1993); a review of the impact of Recommendation No. 127 (1993); a report on the impact of labour law and industrial relations on cooperative law (1995); a report on cooperative law and the regulatory role of the State (1995); a report on cooperative structure and competition law (1994); and studies on labour law and cooperatives (1995).
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Summary The proposals on this subject have been modified and updated in line with the Governing Body's request and are intended for a general discussion.8 Labour disputes are inherent to all labour relations systems and therefore the effective prevention and settlement of labour disputes remains an essential requirement for sound labour relations and for creating a climate conducive to economic stability and efficiency with equity. Many changes have occurred, particularly in the last decade, under a new workplace and economic environment in terms of the types, nature and frequency of labour disputes and the way they are prevented or resolved. While collective bargaining, conciliation, mediation and arbitration remain the principal modes of dispute settlement, new and innovative tools, techniques and approaches to negotiation and conflict resolution have been introduced in many countries and workplaces. The future of the dispute resolution system is being debated, and existing traditional structures and approaches are continuously being reassessed. Greater emphasis is now being given to the prevention of labour disputes and the promotion of labour-management collaboration and cooperation. The proposals describe the concept and categories of labour disputes, and elaborate on the various trends, means and issues in the prevention and settlement of labour disputes. The procedures for dispute settlement and types of disputes as applied in different countries, including the relevant international labour standards, are explained. Finally, the proposals also include some of the major issues or points relating to the main topics of the proposals, which can be the focus of discussions for the effective prevention and settlement of labour disputes. |
Background
79. The effective prevention and settlement of labour disputes is a cornerstone of sound labour relations, and it is essential that appropriate machineries should exist for the purpose. Efficient mechanisms for dispute prevention and resolution help create a climate in which economic growth with equity can flourish.
80. Labour disputes or conflicts are inherent to all labour relations systems. They cannot obviously be prevented totally. What is ultimately important is the need to understand, prevent and settle them as promptly and fairly as possible.
81. The incidence of labour disputes and how they are handled and resolved vary from country to country. Different models of procedures, systems and practices in the prevention and settlement of labour disputes exist. In the new and fast-changing workplace and economic environment, the effects are far-reaching in terms of the speed, type and nature of disputes and the way they are handled. While collective bargaining, conciliation, mediation, arbitration and adjudication continue to be the principal methods of dispute settlement, new and innovative tools, techniques and approaches to negotiation and conflict resolution are now being developed, applied and studied for possible adaptation elsewhere.
82. Some of the other important developments arising from changes in the workplace scenario include the greater emphasis now being placed on the prevention of labour disputes, such as the introduction of interest-based negotiations, mutual gains bargaining, win-win negotiations and alternative dispute resolution (ADR). There are the debates on the future of the dispute resolution system (as in Australia), a continuing reassessment of the existing traditional structures and approaches (for example, in the United States), labour law reform in a number of countries, and the need for information, training and the upgrading of skills in relation to conciliation, mediation, arbitration and adjudication services, especially taking into account the changing nature of the workforce.
83. An overall review and assessment of existing systems, laws and practices, including all the new and innovative strategies and techniques with a view to promoting the effective prevention and settlement of both collective and individual labour disputes, now appears long overdue. A general discussion of the subject could prove a major step in that direction.
Categories of disputes
84. 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 particular historical development of its labour relations system. Classifying various types of labour disputes from a global viewpoint can therefore be difficult.
85. 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 and as a result of the failure of the parties to reach an agreement on conditions of employment or the relationship between them.
86. 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).
87. 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 are 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).
88. 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.
89. 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.
90. 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.
Prevention of labour disputes
91. Traditionally, the role of institutions and officers involved in dispute settlement, such as conciliators, mediators, arbitrators and labour judges, was basically that of "firefighters" who come only after a fire -- i.e. a conflict -- has broken out, in order simply to extinguish it. There has recently been a growing recognition, however, of the importance of efforts to promote greater workplace cooperation and improve the overall relationship between the parties to enable them to solve their problems amicably. There have been strong suggestions in favour of a shift from a regime of merely reducing conflicts to one that encourages the development of collaborative labour relations, flexibility and equity.
92. In the United States, for example, mediators are today more frequently taking the initiative of assisting employers and unions through facilitation and training in joint problem-solving in ways that are beneficial to both of them. This practice has been known as "preventive mediation" for many years, but has only lately acquired growing prominence as a means of preserving and promoting peace between labour and management. The United States Federal Mediation and Conciliation Service (FMCS) has also been participating in Alternating Dispute Resolutions (ADR) or various alternatives to litigation processes, particularly by providing fact-finding, facilitation and mediation services to various federal, state and local government agencies. The services include consultation, systems design, education/training/mentoring and evaluation. In addition, the FMCS has actively implemented a Labor-Management Cooperation Program since 1981 which supports and assists labour-management committees at various levels with the objective of encouraging "joint, innovative approaches to collaborative management-labour relations and innovative problem-solving".
93. In the United Kingdom, the Advisory, Conciliation and Arbitration Service (ACAS) usually helps with problems that have not developed into a dispute. Even where a dispute has been resolved, ACAS seeks to further understand and address the underlying cause of the dispute through the provision of advisory services. The preventive work of ACAS has been expanding especially in helping small and medium-sized enterprises put together best practices for partnership.
94. The dispute settlement bodies that have been established recently in some countries such as Ireland and South Africa also place emphasis on the importance of the prevention of labour disputes. In the Philippines, the current programme of the National Conciliation and Mediation Board includes the more frequent recourse to preventive mediation and the promotion of labour-management cooperation. In Singapore, the Conciliation Section of the labour ministry also fosters close labour-management relations and provides advisory service to unions and employers on industrial relations issues. In Canada, training in interest-based bargaining has been provided, on an experimental basis, as a means of preventive mediation, while in France the need for more experience in preventive mediation has been recognized, especially in dealing with recurring disputes.
95. It has been pointed out that probably the best way of preventing and resolving labour disputes is through the strengthening of bilateral relations between labour and management and the development of a more collaborative and cooperative relationship. This then enables the parties to deal with and avoid problems themselves through collective bargaining, bilateral negotiations and joint problem-solving approaches.
96. Much could be learned through study, research and discussion of the ways of preventing disputes and the best and most effective means of doing so in the context of various industrial relations systems.
Procedures for the settlement of labour disputes
97. 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.
Disputes over interests
98. 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
99. 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 (ACAS) 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.
100. 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, ACAS 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, ACAS 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 the terms of a settlement. However, in the Dominican Republic the terms "conciliation" and "mediation" are used depending on the type of dispute at issue, rather than the type of settlement procedure.
101. 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 the 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 ACAS 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.
102. 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.
103. 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).
104. 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, Singapore and South Africa, 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.
105. In the light of changes in the industrial relations scene and environment, to what extent have conciliation and mediation techniques, philosophy, structure and training programmes changed in many countries? What changes are required and what are the means to carry them out? What can be learned or adopted from another country's experience?
(b) Arbitration
106. 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. It 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.
107. 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, Singapore and the Philippines.
108. 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 further disruptive action.
109. 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 regarded as a hindrance to free collective bargaining, and is gradually taken over by conciliation as the main method of dispute settlement.
110. 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 as well as rights 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 is not yet widely practised in developing countries, partly because of the scarcity of arbitrators able to command the confidence of both parties, as well as cost factors. Another factor undermining the voluntary procedures is the wide availability of compulsory arbitration existing alongside voluntary arbitration in some developing countries.
111. 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. Many important lessons however can be learned from the experience of a number of countries like Canada and the United States in the use of voluntary arbitration to resolve labour disputes.
Disputes over rights
112. 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 been influenced by it has been mentioned earlier.
113. 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, and South Africa where conciliation is mandatory. In France, a partial panel of the labour court (conseil des 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.
114. 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.
(a) Ordinary courts
115. 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. Some countries, such as Namibia, designate a chamber of the ordinary courts to deal with labour matters.
(b) Labour or industrial courts
116. 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, Brazil, Finland, France and many African countries influenced by French law, Hungary, Spain, Turkey 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.
117. 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 otherwise arising under individual contracts of employment are handled by the ordinary courts.
118. In France, the labour courts (conseils des 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.
119. The labour or industrial courts in a significant number of countries (e.g. Costa Rica, Germany, Mexico, the Philippines, Singapore and Sweden) are tripartite; the French conseils des 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 and Venezuela, there is a system of administrative judges, with no specific worker or employer representation.
120. In the tripartite bodies, the role of the workers' and employers' representatives may differ. In some countries they take on a role of representing their members' interests, 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.
(c) Arbitration
121. 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 of submitting 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.
122. The role of bodies dealing with rights disputes has been the focus of recent attention in many countries, particularly developing countries, in view of the changing nature of such disputes occasioned by pressures on the employment relationship, new forms of contractual relationships and a highly competitive economic environment. Termination cases are increasing in many countries, such as in Asia, particularly as a result of the recent severe financial turmoil. Excessive legalism, undue delays and unreasonable backlogs of cases continue to be problems. In many African, Asian and Central and Eastern European countries, for example, the common concerns include the inadequacy or lack of skilled conciliators and arbitrators and outdated or ineffective labour laws and procedures. The common demands from these countries are training opportunities and technical assistance to strengthen the entire dispute settlement machineries.
Recognition disputes
123. 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.
124. 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. 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 subregion.
Unfair labour practices
125. 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 discrimination on other grounds (e.g. South Africa) as well as an employer's refusal to negotiate with a union and certain actions by unions vis-à-vis employers. The union's failure to represent workers fairly is also defined as an unfair labour practice in some countries.
126. In the United States a special administrative agency 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.
Industrial action
127. 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.
128. 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.
129. 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, no positive right to strike has been enacted, but some limited statutory immunities remain in relation to strikes which would otherwise give rise to civil or criminal liability.
130. 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.
131. 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.
132. 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 or to resolution by the Minister of Labour. 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.
133. 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.
134. 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).
135. 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.
136. 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.
137. 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 first 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.
138. 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.
139. 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
140. The existing international labour standards on dispute settlement are necessarily 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.
141. 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.
142. 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.
143. 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.
144. Other relevant international labour standards include the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Collective Agreements Recommendation, 1951 (No. 91), and the Labour Relations (Public Service) Recommendation, 1978 (No. 159). Apart from these and the other international labour Conventions and Recommendations 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 pertinent principles. The Committee of Experts undertook a general survey (its sixth) on the application of Conventions Nos. 87 and 98, which the Conference examined at its 81st Session in 1994. The Office relies on the principles of freedom of association and the right to engage in collective bargaining in advising member States on the drafting of labour laws.
Prospects for general discussion on disputes settlement
145. There appears to be a broad consensus among constituents on the importance of the prevention and settlement of labour disputes in the field of industrial relations. The above information attempts to show the existing situation in many countries on the subject, including the latest trends and problems faced, particularly in developing countries. The need for reforms in labour law and procedures, training, information-sharing, including studies and further research into effective and innovative practices, has been indicated. It might be preferable to re-examine the question as a whole in a general discussion, in order to guide the Office in relation to future initiatives in the field of the prevention and settlement of labour disputes. The points for discussion could include improved techniques and approaches in conciliation, mediation, arbitration and labour adjudication, including constraints and problems encountered; law and procedure, as well as policies on dispute prevention and settlement; and the role of international labour standards in promoting the effective prevention and settlement of labour disputes.
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Summary Recent years have seen a significant development in the perception of sexual harassment in employment and occupation as a problem affecting large numbers of people -- mostly women, but sometimes also men -- in all regions of the world. While the phenomenon is as yet covered by almost no international standards, a growing number of countries have taken legislative action to recognize it as abusive behaviour and to punish and prevent it. While the number of countries that have adopted such legislation is not yet very large, the trend is increasing; and both in countries that have adopted legislation and in many of those that have not yet done so, there is an increasing network of codes of conduct, enterprise regulations, and other forms of regulation. Variations persist in the definitions given to sexual harassment, the perception of precisely what conduct is unacceptable, and the remedies contemplated. There is nevertheless broad agreement on the nature and extent of the problem and on the fact that sexual harassment is an aggravated form of discrimination on the basis of sex. The various approaches taken reflect, for the most part, narrow distinctions in the way the line is drawn between acceptable and unacceptable behaviour. Should the Governing Body decide that the subject should be included on the agenda of the Conference for the adoption of a Convention and/or a Recommendation, these could lay down general principles on the prevention of sexual harassment in employment and occupation, to be adapted to national situations through legislation and/or other measures. |
Definition
146. There is no single generally accepted definition of sexual harassment. In its 1988 General Survey on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee of Experts on the Application of Conventions and Recommendations listed examples of behaviour that may constitute sexual harassment. It took up these points again and amplified them in its 1996 Special Survey on the same subject. These include insults, remarks, jokes, insinuations and inappropriate comments on a person's dress, physique, age, family situation; a condescending or paternalistic attitude with sexual implications undermining dignity; unwelcome invitations or requests that are implicit or explicit whether or not accompanied by threats; lascivious looks or other gestures associated with sexuality; and unnecessary physical contact such as touching, caresses, pinching or assault. The Committee of Experts stressed that in order to be qualified as sexual harassment, an act of this type must also be justly perceived as a condition of employment or a precondition for employment; or influence decisions taken in this field or prejudice occupational performance; or humiliate, insult or intimidate the person suffering from such acts. Sexual harassment may also arise from situations which are generally hostile to one sex or the other.9
147. In its General Recommendation No. 19 on violence against women, the UN Committee on the Elimination of Discrimination against Women qualified sexual harassment as a form of discrimination on the basis of sex, and as a form of violence against women. It stated that --
Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography or sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.10
148. Thus, while sexual harassment is not referred to specifically in any binding international Convention, the relevant supervisory bodies of the ILO and the United Nations have found that it is covered as a form of sex-based discrimination. The only international Convention so far adopted which prohibits this practice directly is the ILO's Indigenous and Tribal Peoples Convention, 1989 (No. 169), at Article 20.
149. The definition most commonly cited is contained in the European Commission's Recommendation (1991) on the protection of the dignity of women and men at work and its accompanying Code of Practice. The three key elements of that definition are the following:
150. The accompanying Code of Practice further states that:
The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is accept