EIGHTH ITEM ON THE AGENDA
Reports of the Committee on Legal Issues
and International Labour Standards
First report: Legal issues
1. The Committee on Legal Issues and International Labour Standards met on 13 November 1998 and was chaired by Mr. J.L. Ilabaca (Government, Chile). The Employer and Worker Vice-Chairpersons were Mr. D. Funes de Rioja and Mr. J.-C. Parrot respectively.
Revision of the procedure for the examination of representations submitted under article 24 of the Constitution
2. Introducing this item, the Chairperson observed that the paper(1) prepared by the Office on the subject was a complex one. It had been put before the Committee for a first exchange of ideas. The Committee was not expected to arrive at any final position, but rather to provide guidance that would enable the Office to prepare a further document for a future discussion of this important issue at the next session of the Governing Body in March 1999.
3. A representative of the Director-General (Mr. Maupain), introducing the paper, explained that its complexity was partly due to an attempt to address in a coherent fashion three problems raised successively in various instances: first, a request by the Officers of the Governing Body that the Committee consider the consequences of representations being automatically referred to a tripartite committee if they were found receivable; secondly, the commitment made by the Director-General, following a controversy that had arisen during the 85th Session of the International Labour Conference (June 1997), to give urgent consideration to the question of the suspensive effect of such representations under article 24 of the Constitution on the regular supervisory machinery provided for under article 22; and lastly, a question posed by the representative of the Government of the United States as to the need to maintain the rules providing for the private character of the meetings of the Governing Body at which a representation was considered and for the confidential nature of the reports submitted by committees set up to examine article 24 representations.
4. The Office paper essentially responded to three questions: Why was it necessary to make certain adjustments to the procedure for dealing with article 24 representations? What might be the objectives of the required revision? What solutions could be envisaged?
5. The first two questions are dealt with together below (due to their close links), followed by the third question. Many members stressed the preliminary nature of their observations.
1. Reasons for revision of the procedure and the related objectives
6. The representative of the Director-General identified three main reasons for revising the procedure: first, a substantial increase in recent years, which was likely to continue, in the number of representations, resulting no doubt from a growing awareness by industrial organizations of this constitutional remedy, possibly due to decentralization and the Active Partnership Policy of the Office; secondly, the possible overlapping of the representation procedure provided in article 24 and the regular supervisory procedure in article 22 as it had developed over time; thirdly, the blurred distinction between the dissemination of the reports of committees set up to consider representations and the publication of the representations themselves pursuant to article 25 of the Constitution, conceived as a sanction in serious cases. While this distinction was essential to the consistency of the supervisory system as a whole, it had been diluted in the practice of the Organization.
7. The representative of the Director-General recalled that the relevant Standing Orders had already been amended on several occasions; the last amendment had been in 1980. Any new revisions should not be undertaken lightly and would need to be based on clearly specified objectives. He suggested two main objectives: the overall consistency of the different supervisory mechanisms and the need to achieve a simple and viable procedure guaranteeing at the same time its efficiency and economy for both the Governing Body and the Office. The various supervisory procedures provided for in articles 22, 24 and 26 of the Constitution should complement and reinforce each other. Care should be taken not to encourage recourse to article 24 representations in cases where they would overlap with other procedures that appeared to be more appropriate.
8. The Employer members agreed that the current trend in the increase in the number of representations was likely to continue. This was a salutary development which was due in part to the enlargement of the membership of the Organization and also to the increase in social pluralism following the welcome spread of democratic systems. However, some problems inherent in the current procedure perhaps had equal weight in the proliferation of representations, namely the almost automatic acceptance of representations as being receivable and the simultaneous referral of the same issues to different ILO bodies through the different procedures available. They agreed that the revision should aim at ensuring the consistency and complementarity of the article 24 procedure with other supervisory mechanisms, avoiding any possible overlap, and that the process should altogether lead to more efficiency and simplicity.
9. The Worker members questioned the need for and desirability of modifying the current article 24 procedure. Statistics were necessary before it could be concluded that there had been a large number of representations over the past ten years. It could be a normal development or a transient phenomenon, or the number of representations could be due to more and more violations or to an increase in the number of member States. They stressed the importance of article 24 as a simple procedure, widely available, against blatant violations by member States. The purpose was to ensure the application of Conventions by member States and not to place limits on the receivability of representations. Simplicity and universal access were guaranteed under the current procedure. Any modification could have very serious consequences for the supervisory system as a whole. The Office paper referred to reduced effectiveness resulting from the strain placed by the increased number of representations on the secretariat's resources and the availability of Governing Body members to serve on committees. The Worker members wondered whether practical solutions should not be sought for these constraints rather than a modification of the procedure.
10. The representative of the Government of Japan, speaking on behalf of the Asian and Pacific Government members, recalled that they had with others on previous occasions requested a review and improvement of the ILO's supervisory system based on the following criteria: objectivity, transparency and the need to avoid duplication and to enhance its promotional nature towards the achievement of the objectives of the Organization. While the Office paper was in line with this goal, it did not address the supervisory system as a whole, and they hoped that the Committee would have an opportunity to revert to the matter in March 1999 on the basis of a more comprehensive paper.
11. The representative of the Government of Mexico supported the views of the Asian and Pacific governments about the need for a global revision of the supervisory systems, and concurred with the statement in paragraph 7 of the Office paper that thorough consideration should be given, without any time constraints, to this important issue in order to arrive at global solutions.
12. The representative of the Government of the Islamic Republic of Iran agreed with previous speakers that any revision should embrace the supervisory system as a whole. The difference between articles 22, 24 and 26 as they had evolved in practice was not clear. It was important not to depart from the objective of article 24. The review should first concentrate on identifying the different objectives and methods underlying each procedure. While article 22 established the general monitoring mechanism based on a regular reporting system, articles 24 and 26 provided for an adversarial procedure. The Office paper was thus suggesting that the Committee of Experts would be doing different jobs. The kind of information submitted in respect of each procedure was also different: article 22 relied on reports submitted by member States as supplemented by national industrial organizations. On the other hand, article 24 could also be invoked by international organizations of employers or workers. Any further Office paper should bear in mind the specificity of each procedure.
13. The representative of the Government of France, supported by the representative of the Government of the United States, agreed that any revision of the article 24 procedure should build upon the need to ensure the consistency of the supervisory system as a whole, paying particular attention to its relation with the procedures provided for in articles 22 and 26 of the Constitution. Articles 24 and 26 had been included in the Constitution because of their solemn character as ad hoc means to ensure compliance with international labour standards. Both procedures led to the adoption of conclusions, but article 26 was considered to be more solemn than article 24 in that it was the last recourse against violations; it should remain an exceptional procedure. On the other hand, article 22 provided for the normal and regular supervisory mechanism which had in practice become an increasingly in-depth review of member States' compliance with their international obligations. It was supplemented by article 23, whereby industrial organizations could intervene in this regular supervisory process. A clear identification of the place of article 24 in respect of these other procedures would no doubt contribute to the achievement of the most appropriate solutions. Article 24 could be considered as a goad to use on the Government, directed to the Governing Body rather than the regular supervisory procedures. It could be a quicker remedy, since the Governing Body was more easily accessible than the Committee on the Application of Standards of the International Labour Conference, which only met once a year.
14. The representatives of the Governments of Argentina, Brazil, Finland and Spain agreed that there was a real need to solve the current shortcomings of the system for the very reasons contained in the Office paper. The representative of the Government of Argentina considered that the main objective of the review should be to simplify the complexity of the different procedures which had been codified in different sets of rules; the representative of the Government of Spain insisted on the urgency of finding solutions, as the most unacceptable solution was the current one in which the automatic acceptance of representations as receivable had opened the door to potentially futile representations. The Governing Body should concentrate its efforts and means on serious cases. The Governments of Argentina and Spain requested the Office to provide the Committee with statistics relevant to the different kinds of representations and on the impact of their increasing number on the efficiency of the procedure.
15. The representative of the Government of Italy, while agreeing that the increase in the number of representations submitted was a real one, recalled that the Constitution had placed responsibility to deal with them exclusively on the Governing Body. Whatever direction the revision would take, the Governing Body was and must remain the constitutional master of the whole article 24 procedure.
16. The representative of the Government of Egypt also stressed the importance of statistics, including on representations in different categories and on those that were repeated. The trend stated in the Office paper was no doubt the outcome of the success of the Organization in disseminating information to constituents. This positive development should however not preclude a review of the procedure in the broader context of the supervisory system. There were shortcomings which needed urgent attention. Better solutions ought to be explored as a matter of priority but with caution.
17. The representative of the Government of Swaziland noted that, had there not been such an influx of representations, the need for the revision of the procedure would not have arisen.
2. Possible solutions
18. The representative of the Director-General emphasized that the Office had refrained from proposing any definite solutions except on the question of the suspensive effect of the article 24 procedure on the regular supervisory procedure under article 22 of the Constitution. The paper had indicated various possibilities. One was to set up a standing tripartite committee for the examination of all representations considered receivable. This option, which had been considered in the past but never pursued, had not been elaborated in the paper as it did not seem to meet the objectives of relieving the burden on the Governing Body, avoiding the creation of new structures, encouragement of representations that could be dealt with by other means and the overlap with the articles 22 and 26 procedures.
19. Another option would be for a standing tripartite committee to be set up to examine receivability and to act as a filter by assisting the Governing Body to deal with representations in the most appropriate way: receivable representations (on matters other than freedom of association) would be directed to an ad hoc tripartite committee if they essentially raised questions of fact; if they raised questions of law, the representations could be sent to the Committee of Experts on the Application of Conventions and Recommendations, which was best able to deal with such questions and to which in any case the Governing Body had in the past forwarded representations after they had been reviewed by a tripartite committee. Such a short-cut solution would economize on the setting up of ad hoc tripartite committees. It would also reinforce the examination of the representation: if the intervention of the Committee of Experts did not meet with results, the representation could once more be referred to the Governing Body, which could then decide on whether or not to take action under article 25 of the Constitution (see below). The representative of the Director-General stressed that the distinction between questions of law and questions of fact would not be a binding criterion. Under the Standing Orders outlined in paragraph 31 of the paper, there were elements to be taken into consideration to decide which way would be more appropriate, it being understood that the Governing Body would retain its full discretion in deciding on the appropriate procedure.
20. A third question was the issue of public or private sittings in the Governing Body for the examination of representations. The Office paper did not express any opinion on the option to be chosen, but rather emphasized the link between the public or private character of the sittings and the status and outcome of the reports. In particular, it was necessary to restore the original significance of publication under article 25 of the Constitution.
(a) Nature of the mechanism
21. The Employer members considered it necessary to ensure consistency with the procedures provided for in articles 22 and 26 of the Constitution. While this did not mean that the procedures must be the same, it was important that the methods used were both simple and efficient. Any solutions proposed had to be both technically viable and non-duplicative, thereby avoiding different conclusions on the part of different bodies seized of the same matter. They considered that, if the suggested standing committee were to be vested with the functions of both filtering and reviewing the substance of the representation, there would be a problem of accumulation of tasks. The Governing Body had a primary responsibility for representations which it could not shirk.
22. While the Employer members agreed that there could be a filtering mechanism, they had doubts about the importance of the distinction that might be applied as between questions of fact and law. Such a distinction was not always self-evident, and in most cases both fact and law were involved. Furthermore, the composition of ad hoc tripartite committees could be adapted to the region, political conditions and particular circumstances of the case. They could receive legal assistance when required. It was very important for the rules of the game to be agreed upon in advance. The Employer members agreed that representations concerning freedom of association should be dealt with as hitherto. Whatever the solution adopted -- a standing committee, a filtering mechanism or the channelling of representations to the Committee of Experts or other body -- agreement on the method which was best suited to the objectives was necessary. There was a need for political vision taking into account the responsibility of the Governing Body in this field.
23. The Worker members questioned the idea of referring article 24 representations to the Committee of Experts. There was no clear demarcation between issues of fact and law, and representations would normally contain both. Since the Office paper did not recognize such a possibility, it failed to give a clear picture. The Committee of Experts had its own specificity and this should not be prejudiced. In addition, industrial organizations should retain the choice of the body they wished to use. As regards whether a representation dealt with new problems or with others that had already been dealt with, to make a distinction in this respect could create a certain injustice for industrial organizations as a representation could very well deal with the same problem but raise different aspects from those covered by an earlier representation.
24. The Worker members did not find the alternatives suggested in the Office paper acceptable. They recalled the importance of two principles: the simplification of procedure and the need to ensure universal access to it. The alternatives explored in the Office paper were contrary to these two principles in that they were complex and provided for less universal access. They tended to reduce the number of representations submitted. Any reference to effectiveness in such a context would constitute an abuse in itself. There were many questions that needed to be explored so that a clear decision could be taken on the direction to be pursued.
25. The representative of the Government of Germany questioned whether the committee that might be entrusted with filtering representations would not be just as overwhelmed as the existing mechanism with the increase in representations and the need for it to determine which representations raised questions of fact or of law. He shared the doubts of the Worker members with respect to such a distinction. He also questioned whether representations raising pure questions of law should necessarily be referred to the Committee of Experts: industrial organizations were well aware of the Committee of Experts' existence and of the article 22 procedure. He outlined three practical problems with respect to the idea of referring representations raising questions of law to the Committee of Experts. The first related to the five-year reporting cycle for Conventions examined by the Committee of Experts: many industrial organizations could not wait and would need to use the article 24 procedure. The second type of circumstance would be where a government had failed to report on a Convention in accordance with article 22, or had failed to submit its report to the employers' and workers' organizations for comment or where it had submitted its report so late that it could not be examined by the Committee of Experts. A third situation was the case of an industrial organization which was unable to comment on the report submitted by another member State but wanted to make a representation on a violation of that Member's obligations.
26. The representative of the Government of Germany considered that a summary procedure for referring questions of law to the Committee of Experts could be considered only in the event of a distortion of the law or abuse of process. He saw such a possibility arising in only two cases: the first would be the use of the article 24 procedure to contest a finding by the Committee of Experts that there had been no violation of the Convention in question. The other situation would be the case where an industrial organization decided to file a representation because it was either late in sending its comments or the Committee of Experts did not have the time to consider them. However, situations of either kind could easily be determined by the Office. Although the representations would be receivable, the question of abuse of process could be examined by the Officers of the Governing Body or by the Committee, and decided upon by the Governing Body.
27. The representative of the Government of Germany also considered problematic the suggestion in the Office paper that the articles 24 and 26 procedures could have the same effect, since this could encourage a government that was wary of the Committee of Experts and Conference procedures to provoke a representation so that it did not have to deal with the Committee of Experts. Finally, on the point made by the representative of the Director-General that 90 per cent of the representations were referred to the Committee of Experts for follow-up, this was normal, as the Committee was responsible for ensuring that the government concerned was acting on the Governing Body's decisions on the representation made.
28. The representative of the Government of France considered that the idea of a filtering system was a good one and that the question of receivability was a simple matter, as the elements were easily verifiable. The filter would provide for a better distribution of tasks, since under the existing system there was an automatic referral to an ad hoc tripartite committee. The procedure for representations was considerably less solemn than that for complaints under article 26, and this distinction had to be maintained. There was therefore a need to look beyond the automatic referral procedure. Although for the time being the system was working well, things could change and the system could develop blockages.
29. The representative of the Government of Finland, on the question of the distinction between questions of fact and law, considered that it was not important for the solutions proposed. Often the main question to be resolved was the legal relevance of the various facts submitted. It was a question that could be dealt with by the suggested standing committee in recommending whether to channel a representation to the Committee of Experts. As regards whether the subject-matter of a representation was new or had already been dealt with, the rules should make it clear that a representation would be receivable if an earlier one had been made with respect to the issue covered by it.
30. The representative of the Government of Italy considered the idea of setting up a tripartite committee as a filtering mechanism to be well conceived, but he questioned the duration of such a committee and its membership, which should be small and be based on a system of rotation. Such a committee should be entrusted with advising on two questions: first, the receivability of a representation and, secondly, the question of whether the representation had legal content. Although the distinction between fact and law was never clear-cut, normally one of these elements would prevail. Once the Committee's recommendation had been made and the Governing Body had decided, the representation could then be referred to another committee with a larger membership or to the Committee of Experts. Either of these committees would submit recommendations to the Governing Body, which would then take the final decision.
31. The representative of the Government of Argentina considered that a standing tripartite committee to decide on receivability was a reasonable proposal. Such a committee would, once it had begun to operate and familiarize itself with the procedure, set criteria to enable it to determine when a representation before it raised questions of fact or law and needed to be referred to the Committee of Experts or to the standing tripartite committee for further examination.
32. The representative of the Government of Bangladesh considered that it might not be enough to make a literal interpretation or to take a mechanical approach to the procedures provided for in articles 24 and 26 of the Constitution. The underlying principles of any new procedure should take account of the stage of economic and social development of countries in line with the Declaration of Philadelphia.
33. The representative of the Government of Swaziland referred to another dimension of the problem: the role that the Active Partnership Policy and the MDTs could play at the grass-roots level in assisting social dialogue and tripartism so as to diffuse problems, avoid over-reaction and enable these problems to be examined locally before they were brought to the Governing Body. The member States concerned should receive a copy of any representation before it was sent to the Governing Body if tripartism was to be fully practised.
34. The representative of the Government of the Islamic Republic of Iran considered that any new suggestions should be directed to achieving greater objectivity in the procedures. It was also necessary to avoid simultaneous examination of the issues raised by different bodies, as this could lead to different or contradictory results.
35. The representative of the Government of Mexico expressed concern about arbitrary decisions if the Governing Body had discretionary power in the matter. There were no different kinds of representations. They all related to alleged violations and should be treated on an equal footing, except for representations dealing with freedom of association. He referred to the earlier procedure followed prior to the adoption of the 1980 amendments to the Standing Orders for the examination of representations, when the ad hoc committees dealt with both issues of receivability and substance. This avoided duplication of bodies.
(b) Review of the receivability criteria
36. The Employer members considered that it was necessary to review the question of receivability from a legal standpoint so that representations would not be automatically considered receivable, thereby diminishing unwarranted cases.
37. The Worker members stressed that the criteria on receivability should remain unchanged and that no additional limitation should be introduced in this respect.
38. The representative of the Government of Spain considered that solutions should be sought by introducing new criteria on receivability.
39. The representative of the Government of Egypt proposed the adoption of a new standard to set out the conditions for receivability, which would considerably simplify the process.
40. The representative of the Government of the Islamic Republic of Iran suggested that the criteria for receivability should be examined with a view to ensuring that the author of the representation was a genuine organization.
41. The representative of the Government of Mexico pointed to the review of the criteria on receivability as a possible way of dealing with the increasing number of representations. Such criteria could relate to the legal interest of the organization making the representation and the exhaustion of national procedures. The role of the Office would need to be clarified in this procedure.
(c) Suspension of examination by the regular supervisory body
42. The Worker members considered that the proposal in the Office paper (section III) raised a problem of substance as far as the distinction between questions of fact and law and the competence of each body were concerned. As pointed out in paragraph 36 of the Office paper, it might not be easy to establish a clear distinction between the issues raised in a representation and other aspects of the application of the same Convention. With reference to the footnote to paragraph 34 of the Office paper relating to the representation concerning the application of Convention No. 95 by the Russian Federation, they stated that the question had been raised in the Conference Committee on the Application of Standards.
43. The representative of the Government of France observed that there was a traditional presumption of the superiority of the article 24 procedure. However, the suspensive effect of that procedure should not be counter-productive and become a blocking mechanism.
44. The representatives of the Governments of Italy and Argentina considered the proposal contained in the Office paper to be logical.
(d) Public or private sittings and publication
45. The Worker members referred to the history of this question and the amendments adopted in 1980. They expressed their preference for the continuation of private sittings for the reasons set out in paragraphs 40 and 41 of the Office paper.
46. The representative of the Government of Germany considered the holding of private sittings to be outdated. Since access to confidential documents was often easy and a copy of the representation could be obtained from the organization concerned, there should be some flexibility in determining what documents were to be considered as confidential. As regards the publication of the reports on representations, there had been an over-interpretation of article 25 in practice, a provision which in reality had been rarely used and which was designed as a sanction in the case of the absence or inadequacy of the Government's statement in reply.
47. The representative of the Government of France observed that, while there was an aura of mystery about matters marked private or confidential, as they aroused interest, he was doubtful that confidentiality should be given to the article 24 procedure: the sittings of the Governing Body to adopt the reports of the Committee on Freedom of Association were public, as were the sittings of the Conference Committee on Application of Standards.
48. The representative of the Government of Finland felt that there was no room for confidentiality on such matters in today's world.
49. The representative of the Government of Italy pointed out that two separate issues were involved: the first was the text of the representation, which was a known fact, and the second was the decision by the Governing Body to make such information known. There was no element of confidentiality in the former. Confidentiality should only come into play as regards the discussions held in the Governing Body itself on the representation. Regarding the second issue -- publication under article 25 -- this could be decided by the Governing Body in an appropriate form, such as publication in the Official Bulletin or a press communiqué.
50. The representative of the Government of Argentina had no objection to making the sittings for the examination of representations public, but the rule requiring steps in the representation procedure to be kept confidential until such time as the matter had been dealt with by the Governing Body should be maintained.
51. The representative of the Government of Egypt referred to the philosophy underlying the present approach to the confidential manner of dealing with representations, and considered that any change of philosophy would have to be carefully considered.
52. The representative of the Government of the Islamic Republic of Iran considered that the only issue that needed to be addressed was whether, in considering the possibility of making the sittings public, account had been taken of the risk of opening the door to participation by non-governmental organizations or individuals, as had occurred in the Conference Committee on the Application of Standards.
53. Addressing the various concerns raised by members of the Committee, the representative of the Director-General first recalled that it had been the Officers of the Governing Body who had drawn attention to the growth of representations and had requested that the Committee examine possible ways of improving the procedure. He provided some statistics in this connection: the average number of representations had been 0.3 a year between 1919 and 1980, and 2.3 during the 1980s, but had risen to more than 6 a year in the 1990s. He stressed that the Office paper had not in any way suggested any limitation on the number of representations or any modification of the criteria on receivability, as this would not be possible under the current text of the Constitution. According to article 24, the Governing Body had to deal with "any representation ... made by an industrial association". The criteria on receivability were similarly conditioned by article 24 of the Constitution. Of the additional criteria that had been suggested, the one relating to the legal interest of the organization making the representation might perhaps be in line with the constitutional requirements.
54. With respect to the concerns voiced by the Worker members on the possibility that similar representations presented by different organizations might be found irreceivable, he recalled that the Constitution did not make any such limitation. In addition, he stressed that the revision would not be aimed at preventing industrial organizations from selecting a procedure from among those available to them, but rather at ensuring consistency between the results achieved through the different procedures.
55. Regarding the possible ways of dealing with representations depending on whether they related to questions of fact or law, he stressed again that this distinction was intended only as a factor to be taken into account by the possible standing tripartite committee. In reply to the remark by the Government of Italy, he indicated that the permanent character of such a committee, whose members would serve at least as long as members of the Governing Body, would necessarily result in the development of expertise on the most appropriate manner of dealing with each representation.
56. Concerning the suggested role of the Committee of Experts and the concern expressed as to the possible confusion which might result from using the same bodies for different types of findings, he explained that a representation would not be referred directly to it as such by the standing committee. As the possible provision for the Standing Orders clearly indicated (article 3), it was not the representation as such which would be referred to the Committee. The Committee of Experts would only be called upon to examine the matter raised in the representation if there was a possibility of the matter being settled by this method. Referral to the Committee of Experts could thus be like a sword of Damocles in that, if no result could be achieved, the Governing Body could come back to the situation raised in the representation and draw conclusions appropriate to the case.
57. Finally, he confirmed that there was no suggestion of replacing the article 24 procedure by that provided for under article 26. Commissions of inquiry were conceived as an extreme solution for unsettled disputes essentially of a factual nature. While the Committee of Experts and sometimes article 24 committees needed to interpret international labour Conventions or to assess the compliance of national law and practice with obligations under international labour standards, this was not the specific role of commissions of inquiry established under article 26.
58. The Committee recommends that the Governing Body request the Office to submit to it, at the 274th Session (March 1999) or 276th Session (November 1999) of the Governing Body, a document reflecting the guidance given by its members, which should be structured along the lines of the three questions stated in paragraph 4 above.
* * *
Agreement with the Inter-Parliamentary Union
59. No paper was presented concerning this item on the agenda, as the draft agreement between the ILO and the Inter-Parliamentary Union was still under discussion.
Geneva, 17 November 1998.
Point for decision: Paragraph 58.