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86th Session
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Report of the Committee on the Application of Standards |
Discussion in Plenary
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GENERAL REPORT
1. In accordance with article 7 of its Standing Orders, the Conference set up a Committee to consider and report on item III on its agenda: "Information and reports on the application of Conventions and Recommendations". The Committee was composed of 214 members (105 Government members, 26 Employer members and 83 Worker members). It also included 22 Government deputy members, 39 Employer deputy members and 92 Worker deputy members.(1) In addition, 48 international non-governmental organizations were represented by observers.
2. The Committee elected its Officers as follows:
Chair: Mr. P. van der Heijden (Government member, the Netherlands);
Vice-Chairs: Mr. A. Wisskirchen (Employer member, Germany); and Mr. W. Peirens (Worker member, Belgium);
Reporter: Ms. C. Aguessy (Government member, Benin).
3. The Committee held 19 sittings.
4. In accordance with its terms of reference, the Committee considered the following: (i) information supplied under article 19 of the Constitution on the submission to the competent authorities of Conventions and Recommendations adopted by the Conference; (ii) reports supplied under articles 22 and 35 of the Constitution on the application of ratified Conventions; and (iii) reports requested by the Governing Body under article 19 of the Constitution on the Vocational Rehabilitation and Employment (Disabled Persons) Convention (No. 159) and Recommendation (No. 168), 1983.(2) By decision of the Governing Body and the Conference, the Committee was also called on to examine the report of the Fourth Special Session (September 1997) of the Joint ILO-UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers.
5. As usual, the Committee began its work with a discussion of general aspects of the application of Conventions (particularly ratified Conventions) and Recommendations and the discharge by member States of standards-related obligations under the ILO Constitution. It then discussed the report of the Joint ILO-UNESCO Committee of Experts. The final part of the general discussion dealt with the General Survey made by the ILO Committee of Experts on the Application of Conventions and Recommendations on vocational rehabilitation and employment of disabled persons. Following that, the Committee considered various individual cases relating to the application of ratified Conventions or compliance with the obligations to supply reports and to submit Conventions and Recommendations to the competent national authorities.
6. The examination of those cases, which is the essential work of the Committee, was based principally on the observations contained in the report of the Committee of Experts and the oral and written explanations provided by governments concerned. The Committee also referred to its discussions in previous years, comments received from employers' or workers' organizations and, where appropriate, the reports of other supervisory bodies of the ILO and other international organizations. In view of the short time available, the Committee made a selection among the Committee of Experts' observations and thus discussed a limited number of cases. The Committee trusts that those governments will pay close attention to the requests of the Committee of Experts and will not fail to take the measures required to ensure fulfilment of the obligations they have undertaken. A summary of the information supplied by governments, the discussions in the present Committee and any conclusions it has drawn are set out in Part Two of this report.
7. The Employer members indicated that the Committee had been using the same agreed methods of work for a long time and that it should pursue its work in the same way since these methods had proved their worth in the past. The listing of individual cases for discussion was also part and parcel of the Committee's working methods, although it was never entirely satisfactory or just in all respects, which therefore posed a dilemma for Employer members. However, all the countries mentioned in the report of the Committee of Experts could not be included in this list, which had to be limited to 20-30 countries. During the prior discussion of this list, reference had been made to a geographical balance. However, one wondered why such importance had been given to geographical balance since what was always required was to examine how all member States complied with their individual obligations under ratified Conventions. Therefore the Employer members considered that the list should be approved as it stood.
8. The Worker members approved the list of individual cases after in-depth and lengthy discussions. They recalled, first of all, that the approval of the list and the choice of the priority cases for discussion was always a difficult task in view of the time constraints on the one hand and the large number of problems of implementation on the other hand. Moreover, the shortening of the duration of the Conference had very important consequences for this Committee. Before the new arrangements regarding the duration of the Conference, the list contained more than 30 countries for more than 50 Conventions. Since the shortening of the duration, the number of cases concerned around 27 countries and approximately 30 Conventions. And this year, the proposed list was restricted to only one Convention per country. With regard to the choice of individual cases, the Worker members recalled all the criteria used: the nature of the observations of the Committee of Experts; footnotes in the report of the Conference; the scope and quality of government replies reflected in the report; the discussions and conclusions of the meetings of the previous years; observations received from organizations of employers and workers; reports of other ILO supervisory bodies and other international organizations; the latest developments on the spot; the statements of the Workers' group made during the adoption of the previous year's list; and, this year, the 50th anniversary of Convention No. 87.
9. The Worker members also underlined the search for balance as regards regions and Conventions and recalled that the discussion touched not only upon fundamental Conventions but also referred to problems of application and recent developments with respect to the so-called technical Conventions. In spite of the fact that the Worker members approved the list of cases, they made certain important comments to the Committee of Experts, the ILO, governments concerned and this Committee. The fact that certain countries were not included on the list, even though the Committee of Experts had made observations on them in Part Two of its report, did not mean that the countries concerned should wait in order to bring their legislation and practice into conformity with the Convention. Further, the Worker members already wished to point out that there were cases which they would like to discuss next year if no progress had been made by then. The Worker members were insistent that the Committee of Experts should include in its next report comments on the following cases. First the Islamic Republic of Iran, regarding the Discrimination (Employment and Occupation) Convention, 1958 (No. 111): this Committee had had an in-depth discussion last year and drawn its conclusions in a special paragraph in view of the gravity and the persisting nature of the violations and, above all, the refusal of the Government during the Conference to accept a direct contacts mission; such a mission would have allowed the Committee of Experts to gather complete and verifiable information on the real situation in the field of discrimination and to formulate specific and practical recommendations; the Committee of Experts had also insisted on the importance of accepting a direct contacts mission and the Worker members wished the Government to accept it before the next meeting of the Committee of Experts, i.e. before November 1998; such mission would allow the Committee of Experts to analyse the existing situation and supplement the information in the Government's reports and thus enable this Committee to discuss the case on the basis of information gathered and analysed by a neutral and independent body; acceptance of a direct contacts mission would be concrete proof of the effective commitment of the Government to international labour standards, as had been stated by its representative in this Committee last year, whereas another refusal to accept a direct contacts mission would have inevitable consequences on the nature of the conclusions that the Workers' group would propose to this Committee next year. Secondly, Guatemala, regarding the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in view of the deterioration of the situation in practice, in spite of the signing of the Peace Accord. Thirdly, Costa Rica, regarding the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in view of the persistence of "yellow" unions (company unions), interference by employers in the internal affairs of unions and anti-union discrimination. Fourthly, Pakistan, regarding the Forced Labour Convention, 1930 (No. 29), in view of the firm conclusions of this Committee at last year's meeting. The Worker members stressed that these elements should be considered again in the report of this Committee as had been the case in paragraph 7 of the Committee's report in 1997.
10. The Employer members noted that the discussions of individual cases this year had in certain cases been very long. They considered the right to speak in the Committee essential. However, in the Employers' group it was the tradition, in most cases, for a single statement to be made reflecting the views of all Employer members. This saved much time. The Employer members would in future consider whether the number of individual cases to be examined would have to be limited to 20, because of time constraints.
11. The Worker members shared the Employer members' concern as to the length of some of the discussions of individual cases. Yet they did not wish to deny the floor to any Committee member. The Worker members' group appealed to all members of the Committee to avoid statements of repetition.
B. General questions relating to international
labour standards
Introduction: General aspects of the supervisory process
12. The Committee welcomed Sir William Douglas, Chair of the Committee of Experts. Sir William thanked the Committee, on behalf of the Committee of Experts, for renewing the invitation for him to attend as an observer. He drew attention to several matters dealt with in his Committee's report. The 50th anniversary of the adoption of Convention No 87, first of all, occasioned the reflection that the Convention remained unratified by countries counting more than half the world's workers -- something which his Committee appealed to governments to rectify; progress achieved was the combined effect of the work of the Committee of Experts, the Governing Body Committee on Freedom of Association and the Conference Committee. Second, his Committee's report again underlines the importance of labour inspection -- including in relation to forced labour and child labour -- and the Employment Policy Convention, 1964 (No. 122): the Committee of Experts was aware of the growing difficulty individual governments were having in applying the Convention during the epoch of economic globalization, and emphasized the links between employment policies and national macroeconomic policies. Third, the Committee would find greater input from employers' and workers' organizations helpful in the current issue of prison labour arising under the Forced Labour Convention, 1930 (No. 29), as it invariably proved useful in general clarifying the factual and legal position in each country. Fourth, failures of governments to meet reporting obligations posed a serious problem, which the Office was endeavouring to address through the services of standards specialists, where they exist, in the multidisciplinary teams (MDTs) and through assistance organized by the International Labour Standards Human Rights Department. It was important to ensure that sufficient qualified standards specialists were in the field so that the teams could play their role, whilst maintaining the capacity of the headquarters department to service the supervisory bodies. Fifth, the Committee of Experts' General Survey examined the application of the Vocational Rehabilitation and Employment (Disabled Persons) Convention (No. 159) and Recommendation (No. 168), 1983: the survey noted the 59 current ratifications of the Convention and hoped for more, given the promotional and flexible nature of its provisions and the particular role of organizations specifically of and for people with disabilities as well as employers' and workers' organizations. Sir William would report to the Committee of Experts on the present Committee's debates; and he hoped for continuing dialogue especially on the above matters, which called for close consideration.
13. The Committee noted the introduction by the representative of the Secretary-General to the various items before it and related developments in the Organization. Whilst there was continual progression in numbers of new ratifications -- especially the seven basic rights Conventions (Nos. 29 and 105 on forced labour; 87 and 98 on freedom of association; 100 and 111 on equal opportunities and treatment in employment; and 138 on child labour) -- the Office was concerned to pursue further the stepping up of its activities to assist governments in fulfilling reporting obligations and provide corresponding assistance to employers' and workers' organizations. Cases of progress in the application of ratified Conventions continued to mount, however, which testifies to the efficiency of the supervisory machinery and the work of the present Committee in particular. The work of the International Labour Standards Department had been much concerned in the last year also with activities around the 50th anniversary of Convention No. 87 concerning freedom of association and the Universal Declaration of Human Rights, including the campaign for universal ratification and implementation of the seven basic rights Conventions; and the Governing Body debates on a portfolio of proposals for new standard setting and the possible revision of existing standards. By request, an informal information session for delegates on the working methods of the present Committee was held immediately after its first sitting.
14. The Government member of France, Chair of the Working Party on Policy regarding the Revision of Standards of the Governing Body Committee on Legal Issues and International Labour Standards, informed the Committee of the progress made by the Working Party and the extensive work already completed with the Office's assistance. The aim was always to modernize the standard-setting system without in any way weakening it. Thanks to a constructive approach, consensuses had been reached on many complex issues. The Working Party would soon be considering Recommendations, maritime instruments and the methodology of revision.
15. The Worker members thanked the Chair of the Committee of Experts once again this year for accepting the invitation to observe the general discussion of the Committee. The dialogue between the Committee of Experts and the Conference Committee had intensified over recent years. For example, this could be seen in the reference by the Committee of Experts in paragraph 152 of its report to the position consistently taken by the Workers' and Employers' groups in the Conference Committee concerning the importance of complying with reporting obligations. The Worker members welcomed the Committee of Experts' observations concerning certain countries, which reflected on important elements of the discussions and conclusions of the Conference Committee, and its formulation of observations on all the cases, which the Worker members had indicated in the prior session of the Conference it would want to examine anew, if no real progress had been noted in the intervening time. The complementarity of the two Committees relied on the one contributing positions and statements based on the practical realities, and the other contributing impartial technical and legal analysis. This complementarity should be preserved and improved on, as it was a fundamental characteristic of the supervisory system and an essential reason for its success.
16. The Employer members, after welcoming the presence of the Chair of the Committee of Experts, noted that his attendance increased the mutual understanding between these two important independent bodies of the supervisory machinery. They added that the task of the Conference Committee had remained the same for decades and consisted of checking with Government delegates whether and to what extent member States complied with their obligations deriving from the ILO Constitution and from ratified Conventions. However, although the task remained the same, the matters addressed had their roots in changing circumstances. In order to avoid a fruitless exchange of opinions, it was necessary to give very careful thought to the changes that were taking place everywhere, both in the economy and the world of work, and develop the sensitivity required to take these phenomena into account in an appropriate manner. For several years, the Committee of Experts had been referring in its report to the concept of globalization, often in rather controversial terms. The Employer members emphasized in this context that globalization was a concrete phenomenon. Whether it was welcomed, criticized or simply analysed, globalization could not be denied. Indeed, many important developments were closely related to globalization, such as decentralization, individualization and tertiarization. These were often accompanied by a loss of solidarity, which concerned both the Employers' and Workers' groups in the Committee, and the ILO as a whole. Their consequences had to be addressed, not ignored. The Employer members had the impression that either globalization was seen as the reason for every negative development or it was praised as a panacea to solve all problems. In reality, the effects of globalization were different in different areas. Globalization did carry with it chances and risks. Globalization was not the main subject in every sector. In the growing sector of services, globalization was only of limited interest. In the industrial sector, the influence of globalization was very different. In the important pharmaceutical industry, globalization played a different role in the areas of research, production, marketing and distribution. Of these, only research could be global, the other aspects being regional or national, because of, for instance, provisions in national social security systems. Globalization was a development in an open market system which was regulated by competition leading to positive development for all economies. However, the creation of a legal framework was necessary. Without such a framework neither fair competition nor the safeguarding of social security was possible. The Director-General of UNCTAD had considered that development programmes in developing countries had been stimulated by the creation of competition and the instruments of a market economy.
17. In reply to statements of certain Worker members as to a "complementary" relationship between the Committee of Experts and the Conference Committee, the Employer members recollected that in 1990 the Committee of Experts referred to their opinions as binding if not contradicted by the International Court of Justice. However, in 1991, after strong criticism in the Conference Committee, the Committee of Experts had revised that view, recognizing the Conference Committee's autonomy within the supervisory system. Since then, nothing new had come out. The functions of the Conference Committee were clearly described in article 7 of the Standing Orders of the Conference, although some members had tried to elevate the Committee of Experts' importance by use of linguistic subterfuge. Looking at the report of the Committee of Experts, it was apparent that it made correct use of the term observations; this was different from creating jurisprudence. The mandate of the Committee of Experts was unchanged since 1926 and essentially required it to collect legally important facts. According to the ILO Constitution, only the International Court of Justice was empowered to give definitive interpretations. Noting the irony of the Committee of Experts' 1991 report where it "reserved" the right to the Employer members to depart from its view, he stated that the Workers' group had sometimes criticized single opinions of the Committee of Experts. But the fact that the Conference Committee often shared the view of the Committee of Experts was not because of any precedence held by the Committee of Experts but rather proof of the quality of its comments. It was incorrect to use the term "case-law" when referring to the Committee of Experts' observations, as it might make them look as if they were obligatory, and that was not legally justifiable. Creating case-law would threaten States which had not ratified given Conventions, because they would fear being faced with obligations not known at the time of ratification. For this reason, he thought that it was unnecessary and even boring to continue with this aspect of the discussion. The ILO's greatest need was for credibility, and a prerequisite for that was compliance by the Organization with its own established regulations.
18. The Employer member of the United States stated that the Committee of Experts had endeavoured to extend its oversight role, and its interpretations raised a basic question about its scope and role. Despite much good work, it seemed at times to be a proactive advocate. For example, as regards the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), it had taken one side in a controversy over the burden of proof in discrimination cases and said that it always welcomed a reversal of the burden. It had also taken a narrow and one-sided view of Convention No. 87 by regarding a 30 per cent representative requirement as restricting the right to organize; and finding a clear link between civil liberties and trade union rights, proclaiming freedom of expression and association essential to sustained progress. It had not referred to employers and other critics in this. He supported the observation of the Employer Vice-Chair in welcoming the changed stance of the Experts in some matters, such as sanctions, and urged the Committee of Experts to evaluate its role and comments so as to ensure consistency and a tight focus on its technical, impartial role.
19. Several Government members expressed support for the work of the Committee of Experts. The Government members of Cuba and Italy recalled the importance of its principles of independence, objectivity and impartiality. The Government member of Japan said it was important that the ILO's supervisory system for the application of standards was objective, impartial, consistent and clear. The Government members of Portugal and Romania referred to the quality and coherence of its report and the wealth of information in it; and the Government member of Belgium also pointed out its usefulness in publicizing labour standards issues, including for legal practitioners and judges. The Government members of Iceland (speaking on behalf of the Nordic countries) and Saudi Arabia regarded the Committee of Experts as a central pillar of the ILO; and the Government member of the United States attributed the success of the system to the spirit of dialogue which it inculcates. The Government member of Germany noted that the volume of work before the supervisory bodies had increased significantly, and responsible ILO staff numbers should be increased accordingly rather than decreased.
20. The representative of the Secretary-General informed the Committee that standards specialists in different regions had taken part in seminars for judges, and the Standards Department had in 1997 published a guide for labour court judges on developments regarding equal treatment.
21. The Worker members found the general discussion this year rich and interesting and they sincerely hoped that a constructive attitude demonstrated by several governments would result in the improved application of standards and renewed efforts for the submission and supply of reports. The Worker members, in the same way as the Committee of Experts, welcomed the spirit of mutual respect, collaboration and responsibility that had always characterized the relations between the Conference Committee and the Committee of Experts. The complementary nature of the supervisory bodies did not prevent them from expressing agreement with the Committee of Experts on certain important points.
Policy regarding ILO standards and principles
22. The Worker members took up the question of developments concerning standards and their application, on the basis of the reference points provided by the Committee of Experts. Standard-setting activities continued to receive sustained attention, both within and outside the ILO. The draft Declaration of principles on fundamental rights at work and the follow-up mechanism were to be discussed in another Conference Committee. The Worker members were of the opinion that, under certain conditions, such a declaration and its supervisory mechanism, would encourage the application of fundamental standards, including in countries that had not ratified the Conventions concerned. Many studies had confirmed that the observance of standards did not slow down economic development, but in fact had the opposite effect. The work of the Conference Committee in recent years bore witness to the general consensus on the importance of the effective application of fundamental standards, which provided the necessary framework for economic and social development. Cooperation between the ILO, the World Trade Organization (WTO), the World Bank and the International Monetary Fund should be strengthened to promote the application of these standards.
23. The Worker members noted that, according to the latest available information, more than 80 ratifications of fundamental Conventions had been registered since the launching of the Director-General's campaign, and prospects for further ratifications were encouraging. Two-thirds of member States had ratified between five and seven of those Conventions, 35 had ratified all seven Conventions. However, 17 had only ratified one or two, and six had ratified none of them. The universal ratification and application of these Conventions remained an absolute priority. The reasons given for not ratifying them, such as their incompatibility with national legislation or the economic or social situation, or their alleged rigidity, were only cover-ups for an absence of political will, which should be decried. The adoption of a Declaration of principles could have the effect of reducing efforts made for the ratification of fundamental Conventions. It was therefore necessary for the ILO not to let up on this and for it to increase its technical support to the campaign. The possible adoption of a declaration with a supervisory mechanism should not have the consequence of weakening the obligations derived from the fundamental Conventions or reporting obligations.
24. The Worker members were not unaware of the positive opportunities opened up by the internationalization of commerce and economies. But they could not fail to note that labour legislation and practice had not kept pace, which had left workers without social protection and employment prospects. Legislation was still too often characterized by an anti-trade union approach and a neglect of social problems. This was well illustrated by practices in export processing zones and subcontracting. Obstacles to freedom of association often stemmed from an excessive concern for short-term profit at the expense of more sustainable economic development. Such developments called for a strengthening of international social rules, as well as rules guaranteeing fiscal resources for States.
25. In addition, the Worker members were always of the view that the vital ratification of the basic Conventions was only the first step towards the larger development of a social policy, which also required the ratification of other priority Conventions, such as Convention No. 81 concerning labour inspection, Convention No. 122 concerning employment policy, Convention No. 144 concerning tripartite consultations and other Conventions which the Governing Body has, on the basis of the proposals of the Working Party on Policy regarding the Revision of Standards, decided to promote as a priority. They agreed with the Chair of the Working Party that it was to be hoped it would continue its work in a constructive manner and a spirit of consensus.
26. The Employer members warned that too much should not be read into statistics. While the number of new ratifications of Conventions was comparable to, although slightly lower than, that of recent years, the number of denunciations of ratified Conventions was significant. Where such denunciations were the result of the ratification of revised Conventions, they were clearly to be welcomed. However, a process of review and replacement of outdated Conventions was required. Many Conventions had been adopted 50, 60, 70 or more years ago and were outdated. The process of reviewing these Conventions had started rather slowly. The maintenance of outdated instruments would not improve the situation of workers. If those instruments which were totally outdated were to be fully eliminated, this would lead to a saving of resources and could prevent certain cases of denunciations without the accompanying ratification of a new Convention. Only where outdated Conventions were revised would they constitute an alternative to denunciation. Moreover, there was no shame to be attached to cases of denunciation without a new ratification, since they had to be accepted as arising out of the freedom of member States. The obligations arising out of ratification could only be accepted on a voluntary basis. Freedom gave the possibility to decide between two options, even though a decision in a particular direction might seem preferable.
27. The Employer members noted that, in its reference to the 50th anniversary of the Universal Declaration of Human Rights, the Committee of Experts placed special emphasis on those ILO Conventions which were classified by the ILO as human rights instruments, applying the principles of the Universal Declaration. The Employer members also wished to emphasize the fundamental right to freedom of speech and information, set out in article 19 of the Universal Declaration. That freedom was of equal importance to the ILO since, without such basic right, no society based on freedom could exist. However, it needed to be recalled that compliance with many human rights gave rise to significant problems. Although there was a widespread theory that such rights were inherent to human beings, legislation was in practice required for their implementation. It should also be pointed out in this respect that the first such provision was the Virginia Bill of Rights of 1776.
28. The Employer members noted that the functions of the ILO in regard to other international instruments of universal and regional character were also considered to be a matter of human rights to a certain extent. It could therefore be said that a global and regional network of prescriptions and measures was being established to achieve a just human order. However, it was not enough for human rights and a just social order to be enshrined in a multiplicity of instruments. There was a need for coordinated action between the organizations competent for the various instruments.
29. In the Employer members' view, the intensive efforts made to encourage member States to ratify the seven ILO Conventions setting out basic human rights had been relatively successful. However, a great deal still needed to be done to achieve global ratification. Non-compliance with human rights was not always intentional since human and material resources, which were not always available, were also required to make the necessary progress. The obstacles to observance of those rights could also include the adoption of erroneous policies, especially in the social and economic fields. For some years, the possibility had been examined of creating greater awareness and encouraging fuller compliance by member States with ILO human rights instruments through the formulation of a Declaration of principles. A special committee had been established in the Conference to consider this possibility, with all its inherent difficulties, and to discuss all the essential aspects of this important and comprehensive subject. While there was no need for a parallel discussion at the present time, the Committee on the Application of Standards would clearly have to deal with the matter at some later stage.
30. Several Government members (El Salvador, Iceland (speaking on behalf of the Nordic countries), India, Italy, the Netherlands) supported the Director-General's campaign launched in May 1995 for universal ratification and application of the seven basic human rights Conventions. Others noted that ratification was not an end in itself (Egypt) and that it must be followed by implementation (United States) and all due reporting (Germany). The Government member of Italy described a project of her Government to create a global Internet network of organizations interested in the ILO's fundamental Conventions.
31. The Worker member of Finland (speaking on behalf of the Worker members of the Nordic countries) noted that, despite the marked success of the ratification campaign, many countries had still ratified too few of the basic Conventions: only 35 had ratified all seven. The Worker member of the Netherlands hoped for a similar campaign to obtain respect for reporting obligations.
32. The Government members of Cuba and Venezuela recalled that many of the ILO's Conventions reflected rights contained in the Universal Declaration. The Government member of Brazil linked the 50th anniversary of the Universal Declaration to the campaign for ratification of the seven basic ILO Conventions and described action in cooperation with non-governmental organizations in his country to promote and implement them. In the ILO's work in this field, the Government member of Saudi Arabia called for close cooperation with UNESCO and the UNDP; and the Government member of Italy referred to the World Bank and the WTO in this respect. The Government member of Sri Lanka called for investigation by the ILO of the effects of global trade agreements on workers' rights.
33. The Government member of China said his Government took the view that the fundamental principles contained in Conventions Nos. 29. 87 and 105 were important and should be universally recognized. His Government had carried out conscientious and comprehensive studies of questions as to the ratification of basic labour Conventions and related Chinese legislation. The results showed that, as the country developed economically and socially, conditions were increasingly ripe for China to implement basic labour Conventions concerned within the framework of its national laws. In line with its national priorities and demands, the Government would continue stepping up the ratification process of basic labour standards. He recalled that his country had signed the UN Covenant on Economic, Social and Cultural Rights in 1997 and would in the near future consider signing the Covenant on Civil and Political Rights. This would play an active promotional role in ratification of basic ILO Conventions.
34. The Worker member of Zimbabwe called for collaboration by the ILO with all other international organizations, including the WTO, on human rights matters. The Worker member of Egypt was not in favour of cooperation with the WTO. The Worker member of the Netherlands wished the Committee of Experts to analyse more closely the attention given by UN supervisory bodies to the ILO's rich work in this field, as he feared too little attention was in fact given by them to it.
35. Several Government members expressed support for the adoption by the ILO of a Declaration of principles as discussed in another Committee. The Government members of Kenya and Lebanon stressed that it should not make a link with the trade issue. The Government member of Egypt said there should be new supervisory mechanisms, and the Government member of Lebanon pointed out that the present mechanism of article 19 of the Constitution was already successful. The Government member of Cuba also thought there should be no dual supervision, and that particular Conventions should still be ratified.
36. The Government member of Belgium said it was necessary to ensure that the adoption of a Declaration of principles did not have the effect of weakening the present supervisory system, but rather of strengthening it.
37. The Worker member of India opposed any linkage in a declaration between fundamental workers' rights and international trade, as that would lead to higher unemployment in developing countries.
38. The Employer member of the United States said US employers would not support involvement of the Committee of Experts in such a Declaration and its follow-up mechanism.
39. The Worker members noted that several Government members had shown a constructive attitude towards standard setting, either in general or in very specific terms. Some had announced recent ratifications, or described the setting up of internal procedures aimed at accelerating the ratification process. Others had provided interesting information regarding new measures taken in order to ensure better application of national and international standards. This had highlighted the constructive collaboration between the groups of the Conference Committee and how its debates had become more objective.
40. The Committee noted with interest information from Government members of the following countries regarding ratifications: Belgium (several maritime Conventions were under discussion); Canada (completion of the consultation process towards ratification of the Forced Labour Convention, 1930 (No. 29) was hoped for in the near future); China (procedural formalities for ratification of the Minimum Age Convention, 1973 (No. 138) were being completed); Dominican Republic (the Minimum Age Convention, 1973 (No. 138), would shortly be transmitted to the National Congress for ratification; the National Congress had already approved ratification of the Labour Administration Convention, 1978 (No. 150), the Working Conditions (Hotels and Restaurants) Convention, 1991 (No. 172), and the Safety and Health in Construction Convention, 1988 (No. 167)); Egypt (the Government had asked Parliament to study ratification of the Minimum Age Convention, 1973 (No. 138)); Germany (the federal Parliament had recently approved ratification of the Safety and Health in Mines Convention, 1995 (No. 176); India (Cabinet had recently approved ratification of the Employment Policy Convention, 1964 (No. 122); procedural formalities for ratifying the Abolition of Forced Labour Convention, 1957 (No. 105) were being completed); Indonesia (Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)); Italy (conditions necessary for ratification of the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), existed); Namibia (a law on affirmative action in employment was about to be enacted, which would bring Namibia closer to ratification of the Equal Remuneration Convention, 1951 (No. 100), and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111); the forced labour and child labour Conventions were enjoying the same priority in the ratification agenda); the Netherlands (the Government was studying the Part-Time Work Convention, 1994 (No. 175), and the Home Work Convention, 1996 (No. 177); ratification of the Asbestos Convention, 1986 (No. 162), and the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), was a priority); Slovakia (an instrument for ratification of the Safety and Health in Mines Convention, 1995 (No. 176), was being deposited with the Director-General during the Conference; ratification was under way in Parliament in respect of the Protection of Workers' Claims (Employer's Insolvency) Convention, 1992 (No. 173); Sri Lanka (the process of ratifying the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), was under way); Turkey (the National Assembly had approved ratification of the Forced Labour Convention, 1930 (No. 29), and the Minimum Age Convention, 1973 (No. 138), and the formal instruments of ratification would soon be communicated to the Office; the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), was also on the Assembly's agenda for approval of ratification); United States (the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), had been transmitted to the Senate for its consent to ratification); Venezuela (the Government had decided to transmit the Indigenous and Tribal Peoples Convention, 1989 (No. 169), to the national Congress for ratification).
Fulfilment of standards-related obligations
41. The Worker members observed that the proper functioning of the supervisory system depended to a great extent on the timely supply of requested reports and replies to the comments of the supervisory bodies. Despite the adjustments made, information on the supply of reports was not encouraging. The Committee of Experts had noted that contents of reports were often incomplete and did not enable it to assess implementation: it listed 57 countries which had not replied to its comments or whose reports had not been received. Individual comments indicated that the government concerned often did not reply or only repeated the contents of previous reports. It should be underlined once again that absence of cooperation with the supervisory bodies was a ground for being listed among the individual cases to be discussed by the Conference Committee and would also be taken into account in the Committee's conclusions or in envisaging inclusion in a special paragraph.
42. The Worker members had requested that the causes of the deterioration of the quality of reports be made the subject of an in-depth study by the Committee of Experts and by the ILO, with a view to revising procedures, if necessary. They welcomed that such a study had been carried out by the Committee of Experts. They recalled the consistent position of the Worker members and the Employer members as regards the importance they attached to respect for the obligation to supply reports. The Committee of Experts, which had also recalled that the adjustments to the procedures made aimed at reducing the workload of national administrations, had noted that in many cases difficulties resulted not from a lack of political will but from budgetary constraints of the competent administrations. The Worker members were however of the view that reducing the means at the disposal of administrations in charge of social matters was a result of deliberate political decisions. Governments should, on the contrary, strengthen their labour administrations, as provided for by the Labour Administration Convention, 1978 (No. 150). The Committee of Experts rightly underlined the help provided through vital technical assistance in this regard, in particular by the multidisciplinary teams. Its request that the ILO should make all the necessary efforts to ensure better observance of reporting obligations during the last three trial years of the new system and for the whole system to be assessed should be supported.
43. The Worker members stated that the Committee of Experts continued to receive a great number of observations from workers' organizations and to a lesser extent from employers' organizations. One should also take into account representations under article 24 and complaints under article 26, as well as complaints before the Committee on Freedom of Association, to appreciate fully the involvement of the organizations in the application of standards. The Worker members supported the comments made by the Committee of Experts on the importance of tripartism for the promotion and application of standards at both the national and international levels. The ILO had, through its promotional training activities, contributed a great deal to publicizing standards and the supervisory system: the Handbook of procedures relating to international labour Conventions and Recommendations and access through Internet should be mentioned in this respect. It was nevertheless true that some Conventions and certain procedures were better known than others. For example, comments were seldom made on reports under article 19 for General or Special Surveys. ILO publications should pay greater attention to the relationship between the various procedures and the Committee of Experts could publish in its report a brief indication of the General Surveys planned and the cycle for coming General Surveys and special reports: that would facilitate a new equilibrium between the comments made under the terms of articles 19 and 22 and representations, in view of the proposal of the consideration of the question of a possible revision of the representation procedure.
44. The Worker members pointed out that reference to cases of progress was a good way of illustrating the direct impact of the ILO's work and its supervisory system on the everyday life of workers, even though the changes called for in comments were very frequently introduced too slowly. The supervisory system should be able to achieve more rapid results. This was the context in which the Worker members had made their proposals for a strengthening of the system through closer collaboration between the ILO, WTO, the World Bank and the International Monetary Fund.
45. The Employer members stated that the statistics provided by the Committee of Experts on the compliance by member States with their reporting obligations showed a checkered picture. It was unacceptable that more than one-third of the reports due did not arrive before the end of the session of the Committee of Experts. Moreover, the experience of the Conference Committee showed that many governments tended to restrict themselves to a rather formal statement. A number of governments submitted their reports between the end of the Committee of Experts and the beginning of the Conference. If this practice were systematic, it would be unacceptable and could undermine the functioning of the supervisory system. In the past, the Employer members had proposed that the countries concerned should be named so that systematic repetition of the practice could be identified. They therefore requested the secretariat to specify whether serious reasons existed for not implementing this proposal.
46. Like the Committee of Experts, the Employer members expressed satisfaction at the cases of progress in the application of ratified Conventions. It was a positive development that the overall number of reports containing information on the application of ratified Conventions was increasing, as they were an indispensable element in monitoring compliance.
47. The Employer members noticed that the report of the Committee of Experts drew attention to the rise in the number of representations made under article 24 of the Constitution of the ILO. That procedure, which had formerly been considered to be of an extraordinary nature, was now becoming normal, resulting in an increased burden of work. The Employer members wondered whether this development implied a criticism or suspicion of the normal supervisory machinery, which included the present Committee. These cases should more normally be covered by the regular reporting procedures under which employers' and workers' organizations could make observations. If necessary, they could then be taken up in the Plenary of the Conference, which was the highest body of the Organization. Furthermore, the increase in the number of representations under article 24 had a parallel in the flood of cases which continued to be brought before the Governing Body Committee on Freedom of Association. It was necessary to see whether this flood could be stemmed. It was for this reason that the Employer members welcomed the forthcoming consideration by the Governing Body Committee on Legal Issues and International Labour Standards of the possible revision of the article 24 procedure.
48. In response to the concerns expressed by the Worker and Employer members, the representative of the Secretary-General said that statistics did exist regarding governments which sent reports only after the meeting of the Committee of Experts, and these would be transmitted to the Officers of the Committee. A preliminary analysis of the data failed to show any systematic practice by member States in this regard, or that particular Conventions were concerned. The secretariat was of course at the Committee's disposal for all the information it wished to have in order to ensure the transparency of its work. In fact, 72 reports had been received since the last information was published, which made 73.4 per cent of reports due; 553 reports had been received by the date requested, which was the highest number ever and accounted for the length of the Committee of Experts' report. He noted in this connection that, following the Governing Body decision in November 1993 to bring forward the date of publication, there were no more complaints that the Committee of Experts' report was received either late or not at all. On the other hand, if the decline in reporting continued, the Governing Body might wish to envisage a return to the previous reporting cycles.
49. The Government member of Iceland (speaking on behalf of the Nordic countries) agreed with the cautious use made of representations under article 24 of the ILO Constitution, and welcomed the forthcoming discussion of that article in the Governing Body. At the same time, he welcomed the use made this year for the first time as regards the forced labour Conventions of the special article 19 reporting procedure.
50. The Government member of Italy said that the effectiveness of supervision of international labour standards even in the absence of sanctions was due to the contribution of employers' and workers' organizations. And the Government member of Belgium pointed out that preparation of reports to the ILO and the consultation of the social partners it involved in his country could be a valuable labour policy tool. The Worker member of Iceland (speaking on behalf of the Worker members of the Nordic countries) said it was also their experience that tripartite consultation improved the quality of reporting.
Technical cooperation relating to standards
51. The Worker members thought that support should be given to the ILO's technical cooperation activities to improve the application of standards. National and international workers' organizations contributed in this respect, in collaboration with the ILO, to promoting a better knowledge of standards and procedures. It was particularly regrettable in this regard to note that eight of the 14 multidisciplinary teams (MDTs) were without standards specialists. The Worker members had always supported the establishment of the teams and emphasized that those posts needed to be filled on an urgent basis. Moreover, collaboration with other international organizations and institutions should have the objective of strengthening the complementarity of the various international human rights instruments. The Worker members were convinced of the importance of technical assistance both in promoting the ratification of standards and in strengthening the supervisory system by improving the observance of reporting obligations.
52. On the subject of ILO technical assistance in the field of the dissemination and application of standards, the Employer members welcomed the work of the ILO and its multidisciplinary teams, including the holding of seminars and the growing presence of the ILO on the Internet. In the modern world of communications, all these measures had to be used to increase awareness of the ILO's work. The Employer members welcomed the participation of employers' and workers' organizations in these activities. They also noted with satisfaction that since l982 the number of ratifications of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), had doubled.
53. Various Government members (Bangladesh, China, Dominican Republic, Georgia, Japan, Kuwait, Romania, Saudi Arabia, Slovakia) recalled the advantages of technical assistance provided by the Office especially in relation to international labour standards. The Government member of Kenya considered the ILO had an obligation to ascertain the nature of difficulties encountered in providing reports, which were often due to staff shortages, and that seminars, training, study fellowships and the services of MDT standards specialists were vital in this respect. The Government member of Cuba indicated that her Government had received considerable help from the standards specialist in the San José MDT; and the Government members of Iceland (speaking on behalf of the Nordic countries) and Egypt hoped that the Director-General would give priority to increasing the number of standards specialists in the teams. The Government members of Belgium, India and Italy drew attention to the need to budget adequate resources for technical cooperation.
54. The Worker member of the Netherlands was not convinced that reporting obligations put such an enormous administrative burden on governments and noted that some States with a bad record had never called on the ILO for help; in his view, the real difficulty was a lack of political will. He wondered what the result might be if a once-yearly reporting obligation were imposed on non-ratifying countries in the context of follow-up to any Declaration which might arise from this year's Conference, given that even in cases of ratified Conventions only 62.8 per cent of reports due were produced. The ILO should perhaps put as much energy into campaigning for respect of reporting obligations as it had into its campaign for ratification of fundamental Conventions.
55. The representative of the Secretary-General informed the Committee that the MDT standards specialist post in Beirut had been filled on 1 April, that in Moscow would be on 1 July and that in Harare on 15 August. The team in Manila would have a temporary specialist for eight months from 1 July. The teams in Budapest, Cairo and Yaoundé had no such posts under the current budget, but it was to be hoped that the Governing Body would remedy this in the next budget, which it would be examining in November.
Submission to the competent authorities
56. The Worker members said that the concern of the Committee of Experts with regard to the problems which persisted in many countries relating to the submission of instruments adopted by the International Labour Conference to the competent national authorities in accordance with article 19 of the Constitution was shared by the Worker members. They would call on workers' organizations in the ten countries which had not submitted instruments for at least the last seven sessions of the Conference to raise the issue with their governments.
57. The Government member of Lebanon referred to the table of submissions at the end of the Committee of Experts' report and pointed out that Lebanon had since submitted a total of 25 instruments.
Sanctions in national law
58. With regard to the issue of effective sanctions in national law, the Worker members noted that the Committee of Experts had taken note of the discussions of the Conference Committee and had situated its analysis in the broader context of the constitutional obligation to take such action as may be necessary to make effective the provisions of a ratified Convention. The Conference Committee had always emphasized the need for Conventions to be applied effectively in practice, even if the methods of doing so could vary at the national level. Such methods included advice, training, labour inspection and civil and penal action. It was clear that the effectiveness of measures could only be reinforced by the collaboration of employers' and workers' organizations. Certain Conventions contained explicit provisions to guarantee observance of their basic rules and, where sanctions were envisaged, such as in the case of forced labour, they had to be effective and credible. That presupposed that pecuniary sanctions would be adjusted to take inflation into account. The Worker members called upon governments to assess their systems of sanctions and adapt them where necessary, since their mere existence could have a dissuasive and preventive effect. The call made by the Committee of Experts for systematic follow-up at the national level and the dissemination of detailed information on this matter should be supported. Dialogue should continue in order to develop the most appropriate means to set up a truly systematic supervisory mechanism. The views of the Committee of Experts in paragraph 186 of its report provided a good starting point.
59. The Employer members noted with special interest that, following their comments of previous years, the Committee of Experts had for the first time expressed its view of the subject in a different manner. Article 19(5)(d) of the Constitution of the ILO set out the obligation of member States to "take such action as may be necessary to make effective the provisions" of a ratified Convention. However, article 19 did not require concrete measures or sanctions. The Committee of Experts had noted the wide range of measures adopted by governments to promote compliance with ratified Conventions and establish sanctions in the event of their violation. The Employer members had been referring to this diversity of measures for many years. This situation had not been criticized by the Committee of Experts. Indeed, the Committee had now recognized that it was for member States to determine the necessary steps to ensure compliance with Conventions. Where Conventions contained explicit provisions setting out sanctions, compliance needed to be monitored. However, only certain Conventions included such provisions.
60. In this connection, it was in the Employer members' opinion legitimate for the Committee of Experts to state that, where member States established pecuniary penalties, they should be of an appropriate amount and be adjusted to take account of inflation: the Committee of Experts invited the governments to give due consideration to additional measures to take, in order to ensure the application of Conventions, which was only a request and not an imperative by the Committee of Experts. The Committee of Experts had also asked governments to report on the measures taken in this respect. The Employer members were not opposed to the fact that the Committee of Experts had appealed to governments to consider establishing such sanctions where they were not explicitly set out in a Convention. However, the Committee of Experts now no longer required governments to establish dissuasive and in particular penal sanctions for the application of Conventions in all cases. This new approach was the result of a successful dialogue between two independent bodies in the supervisory system, namely the Committee of Experts and the Conference Committee. The Employer members looked forward to continuing the work of the Committee in a spirit of dialogue in order to achieve positive results.
61. The Government member of Germany continued to think it inappropriate to impose penal sanctions. However, he noted the Committee of Experts' view that penal sanctions may well be one of several possible means available under national legislation to ensure effective application of the Conventions. A Worker member of Germany said that dialogue was needed on this question rather than jumping to hasty conclusions: workers were particularly attentive to the application of standards in practice, and he assumed that in future the Committee of Experts would continue to demand the sanctions that were necessary to give effect to Conventions in practice.
Export processing zones
62. The Worker members said that the Committee of Experts should be encouraged to follow closely the application of Conventions in export processing zones, and it was very much to be hoped that their application would be reinforced in practice by the special action programme. Several trade union organizations had given voice to their fears concerning the observance in new zones of standards relating to trade union rights, the protection of maternity, equality of treatment and labour inspection. Certain of them had put forward concrete proposals for the observance of these standards, but they had not been given effect by governments due to pressure from international investors. Conditions of work in these zones were sometimes similar to forced labour and the zones could cover vast areas, as appeared to be the case in Panama and Honduras.
63. The Employer members noted that no new information had been provided by the Committee of Experts. A special action programme on labour and social issues relating to export processing zones was under way and it would be necessary to await the results of the action programme.
64. The Government member of the Dominican Republic pointed out that the special zones could be the source of employment for many workers, as in his country, where national legislation was applicable and enforced. The Worker member of Zimbabwe, however, said that such zones in his country were explicitly excluded from national labour laws. The Worker member of Costa Rica thought working conditions in these zones could be deplorable, with excessive working time, disregard of minimum wages, and no social security or other related economic benefits foreseen by legislation: sometimes enterprises were relocated wholesale and without warning from one special zone to another, without any workers' protection, so that the promotion of export processing zones amounted to the promotion of poverty.
65. The issue of trade union rights in export processing zones is referred to below in connection with the 50th anniversary of Convention No. 87.
Regional issues
66. The Government member of Belgium said that the superiority of ILO standards over both national law and regional norms needed to be recognized, and international trade law should not be allowed to weaken those standards. The Government member of Iceland (speaking on behalf of the Nordic countries) recalled the complementary effects of international and regional agreements: while certain provisions of the European Social Charter of 1961 were based on ILO Conventions, the Charter had in turn influenced the content of ILO instruments. The Nordic countries attached great importance to the comparable interpretation of comparable provisions in these agreements, and the participation of ILO officials in regional supervisory activities; and topics found in the revised version of the Charter concerning the right to dignity at work and protection against poverty and social exclusion merited discussion in the ILO. The Government member of Slovakia pointed out that his country had recently ratified the European Social Charter and certain of the protocols.
67. A Worker member of Germany hoped that the ILO's participation in supervision of the European Social Charter would be strengthened, especially when the Charter's new representation procedure came into force. Another Worker member of Germany pointed to the positive experience in many European Union members as a result of systematic consultation of the social partners on labour, social and economic matters. The Worker member of the Netherlands urged greater attention to the ILO's occupational safety and health Conventions in particular in the Member States of the European Union.
50th anniversary of the Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87)
68. The Worker members joined with the Committee of Experts in attaching particular importance to the 50th anniversary of Convention No. 87 and the Universal Declaration of Human Rights. In concluding its examination in 1994 of the General Survey on Freedom of Association and Collective Bargaining, the Conference Committee had made a solemn call for the ratification of this fundamental Convention, the principles of which were at the core of the ILO mandate, and the respect of which was an indispensable prerequisite for the defence of workers' and employers' interests throughout the world, particularly in an international context characterized by very rapid changes and accelerated globalization of the economy. Just as in 1948, new challenges required the effective and universal application of the Convention and the principles of freedom of association. It was in this context that calls were being made for universal ratification and the strengthening of the supervisory mechanisms. It was appropriate that the Committee of Experts had noted in its report the economic globalization and political and social changes which had occurred since the adoption of the Convention. The universality of these standards and principles was shown by the fact that the democratic values and participation to which they were dedicated had inspired and motivated thousands of workers to fight dictators throughout the world who trampled upon fundamental rights. Developments and prospects in this area could be seen in five areas.
69. The first matter of concern to the Worker members was ratification. The number of ratifications since the last General Survey had risen from 109 to 122; 52 member States had not ratified the Convention. These included some of the most powerful and highly populated countries, such as Brazil, China, India and the United States. Thirty-seven countries not bound by the Convention together counted about half of the workers and employers of the world. Moreover, 37 of the countries which have not ratified the Convention have been Members of the ILO for more than 20 years. Nevertheless, in the discussion of the General Survey in 1994, a large number of governments considered that it contained useful indications on ways to remove obstacles to ratification. All countries should therefore be urged to respond positively to the call to ratify by the Director-General and the Conference Committee.
70. The second aspect for the Worker members concerned the progress achieved in both legislation and practice since the creation of the Committee on Freedom of Association. The possibility of recourse to that Committee, even where the Convention had not been ratified, the strength of its case-law, its tripartite composition, which allowed it to leave aside the diplomatic manoeuvring which too often played a role in other forums, and its complementarity with the other supervisory bodies had contributed much to its success. The extension of the right to organize to categories of workers such as public servants, teachers, nurses and migrant workers had occurred to a large degree as a result of the vigorous application of the principles of freedom of association by the supervisory bodies. The same applied to the removal of trade union monopoly imposed by law, and the lifting of restrictions on the right of organizations to draw up their own rules and programmes, organize the election of their representatives and affiliate to national and international federations.
71. The third point mentioned by the Worker members related to the significant problems which, despite considerable improvements, persisted. The recommendations and conclusions of the Committee on Freedom of Association, along with the reports of the Committee of Experts and the Conference Committee showed the magnitude of the issue. It was only through the maintenance of a firm and consistent position that cases of progress could eventually be registered. Certain governments appealed to the economic or cultural circumstances of their countries or the idea that the interpretations given by the supervisory bodies were erroneous. While those bodies certainly had to take account of the facts and circumstances in each case, they could not as a result revise long-established positions of principle.
72. The fourth issue for the Worker members concerned the right to strike. The Committee on Freedom of Association and the Committee of Experts had been in agreement for many years that the right to strike was an indispensable corollary of the right of association. Since 1952, the Committee on Freedom of Association has indicated that strikes were a legitimate and essential means of promoting and defending the interests of workers. In their conclusions on examination of the General Survey of 1994, the Worker members and a very large majority of Government members had approved the Survey in its entirety, while the Employer members indicated that they adhered to most of the views of the Committee of Experts. The Conference Committee should also continue to play its complementary role on this question.
73. It was the Worker members' conviction, fifthly, that the importance of freedom of association had to be viewed in the context of globalization, as had been done in the ILO's World Labour Report, 1997-98: Industrial relations, democracy and social cohesion. Globalization was characterized by its impact on economic and social policies and balances, the technological and structural changes it accelerated and the competitive positions it modified. In this context, obstacles to freedom of association arose mainly out of the desire to obtain competitive advantage, as illustrated by the case of export processing zones. Trade unions nevertheless continued to play an indispensable role and had shown their ability to adapt. They played three important functions in a more and more globalized environment: in economic terms, they contributed to the distribution of the fruits of economic growth; they promoted democracy through workers' participation; and in the social field they contributed to stability by promoting social integration and combating exclusion. Trade unions should take action to organize better at the international level. Agreements reached at the level of the European Union on parental leave, part-time work, and the agreements for the implementation and setting up of European enterprise committees showed the way in this regard. Other regions of the world engaged in a process of regional integration could take partial initiatives to promote freedom of association and collective bargaining at supranational level.
74. The Worker members considered that freedom of association was not only an issue of labour law: it was an underlying factor of democracy which alone permitted development. It was a fundamental human right established in the Universal Declaration. It was not sufficient to tolerate trade unions; public authorities had to create the conditions for the development of their activities. States could call upon the technical cooperation of the ILO for identifying and solving problems involving freedom of association, but the prerequisite was the political will to promote freedom of association.
75. In the opinion of the Employer members, the relatively brief tribute contained in the report of the Committee of Experts on the occasion of the 50th anniversary of Convention No. 87 was justified because, although the Convention was central to the work of the ILO, the problems relating to its application had been covered regularly in General Surveys. Despite achieving 122 ratifications, the ratification rate for such an important Convention was actually too low; there were 52 member States which had not ratified it, which accounted for about one-half of all the employers and workers in the world. The Employer members supported the urgent appeal made by the Committee of Experts for further ratifications of the Convention. However, the most important aspect of the situation had been omitted from the comments of the Committee of Experts, namely the reasons why so many member States had refrained from ratifying the Convention. If these reasons could be identified without prejudice, it would be easier to find a solution.
76. The Employer members fully agreed with the statement that "the ratification of a Convention is only the first step in its implementation". The most important part of the process was respect for it in practice and the resultant compliance with its provisions. This was where statistics could be misleading, since they did not cover those countries which, without ratifying Convention No. 87, applied it in spirit and letter.
77. Some of the most important reasons for the progress achieved in this respect in recent years were due to the widespread development of democracy and the rule of law, and the accompanying economic and social development. The Employer members welcomed these developments with the same sense of satisfaction as the Committee of Experts and considered that they were a consequence of the freedom achieved by human beings.
78. As they had in the past, the Employer members also supported without any reservations the comments of the Committee of Experts on the subject of the suppression of legally imposed trade union monopoly, as contained in paragraph 44 of its report. Indeed, further progress could be noted in this field and the principle set out by the Committee of Experts was covered by the wording of the Convention. Legally imposed monopoly was not compatible with free choice and the intention of the Convention, which made it clear that employers and workers had the right to establish organizations of their own choosing. Nobody really doubted that Convention No. 87 applied to all workers. However, it needed to be understood that difficulties might arise with the definition of the term "worker", even in States which had established special labour legislation around 150 years ago.
79. In this connection, the Employer members noted that the Committee of Experts had once again referred to the right to strike, although in more nuanced terms than in the past. On this occasion, the Committee of Experts had limited its criticism to situations in which there was no right to strike or where excessive conditions were imposed rendering strikes virtually impossible. In this connection, the Employer members said that the right to undertake industrial action -- which was the workers' right to strike and the employers' right to lock-out -- could possibly be recognized as part of international customary law. Under these circumstances, a total prohibition of it or allowing it only under certain excessive conditions should be rejected. Convention No. 87 contained no special provisions on the right to strike. The Employer members would be willing to reiterate their well-known views on this subject in greater detail if necessary.
80. The Employer members noted that, in its comments on the significance of freedom of association in a globalizing world economy, the Committee of Experts had given the impression that globalization was a negative factor. In contrast, the Employer members emphasized that globalization was a social factor which could not be turned back, in the same way as most technical or scientific developments. It was better to look into the undoubted opportunities offered by globalization in terms of the increase in international trade and the possibility for production to be carried out under the best conditions, which was of benefit to all concerned. It seemed that the dream of a uniform world was realizable.
81. The Government members of Canada, Egypt, Iceland (speaking on behalf of the Nordic countries) and Venezuela called for ratification of Convention No. 87 by all remaining member States. Support for the comments of the Committee of Experts on the 50th anniversary was expressed in particular by the Government members of Germany, Honduras, Iceland, Italy and Japan. The Government member of Honduras pointed to the important role of free organizations of employers and workers in the social dialogue which was part of the decision-making and development processes. The Government members of Cuba, Iceland (speaking on behalf of the Nordic countries) and Namibia noted the comments regarding globalization and application of the Convention in export processing zones in particular: the member of Namibia acknowledged a possible incompatibility between his country's Export Processing Zones Amendment Act, 1996, and Convention No. 87, but his Government intended to rectify the situation.
82. The Government member of Cuba observed that the Committee of Experts noted that much remained to be done in the field of freedom of association, for example in the public service and agricultural and maritime sectors. In Cuba, economic changes and the opening up to foreign investment had caused expansion of export processing zones, but all enterprises with foreign capital were subjected to existing labour legislation including the right to join trade unions; they were also subjected to collective agreements adopted to regulate labour issues at each enterprise. The Committee of Experts emphasized in paragraph 48 of its report that "the right of employers and workers to establish and join organizations of their own choosing is in no way intended to assume a position favouring either the theory of the single organization or that of plurality of organizations". The imposition of a trade union monopoly was as harmful to freedom of association as the imposition, by law, of trade union pluralism; but pluralism tended to be considered the only valid criterion of freedom of association. The tradition of trade union monopoly should not be ignored, nor the cases where the organizations themselves had opted for a unitary system without any legal obligation to that effect and with a system of labour relations which facilitates and encourages real participation by genuine representatives in decisions concerning everyone.
83. Several Worker members (Colombia, Finland (speaking on behalf of the Nordic countries), Greece, Guatemala, Italy, Paraguay, Senegal, Swaziland) referred to abuses of trade unionists in many countries in violation of Convention No. 87. These took the form of killings, arrests, dismissals or fines; the creation of "solidarist associations" (non-union movements supported by employers) and various restrictions on union activities which were well documented by the International Confederation of Free Trade Unions and the ILO supervisory bodies. Worker members of Germany and Pakistan stressed the need to remove prohibitions on the right to strike. The Worker member of Brazil recalled that where trade union monopoly was imposed by law it was contrary to the Convention. Some Worker members (Germany, Italy, Jordan) considered that implementation of the Convention deteriorated with economic globalization, and the Worker member of Ghana also mentioned pressure from the Bretton Woods institutions. Restrictions imposed on union activities in export processing zones in particular, as mentioned by the Worker members of Costa Rica, Ghana, Pakistan, Uruguay and Zimbabwe, were further accentuated by the pressures of globalization; and there was a need there also to ensure free collective bargaining in accordance with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
84. Several Worker members (Islamic Republic of Iran, Japan, Jordan, Pakistan) echoed the appeal of the Workers' Vice-Chair for further ratification of Convention No. 87 as the way forward. A Worker member of Germany recalled the dramatic impact of the ILO's work in the field of freedom of association in cases such as those of Poland, South Africa and now Indonesia and hoped for more such cases: the Worker member of Finland (speaking on behalf of the Nordic countries) noticed that one-fifth of the Committee of Experts' report concerned freedom of association, and he saw a duty for the ILO to promote ratification of the Convention.
85. The Worker member of the Netherlands noted that several speakers had regretted that time constraints had not permitted the Committee to dedicate a special sitting to the celebration of the 50th anniversary of Convention No. 87. He observed that the next session of the Conference would coincide with the 50th anniversary of Convention No. 98, and he therefore hoped that the Committee would at that time commemorate the occasion appropriately.
86. The Employer member of the United States saw a remarkable growth of the activities and power of trade union organizations: they had obtained a voice to comment on and influence labour matters and trade, investment, commerce, tax and other public policy matters that had national and international impact. Unions had taken international actions to support their views. Moreover, the many contributions by unions were recognized. In order to codify their national, multinational and international approach, trade unions should be covered by universally recognized voluntary codes of conduct and ethical behaviour.
87. The Employer member of India referred to the Committee of Experts' comments on the question of strikes and thought that the rights of citizens often suffered where there were strikes in essential services, so that in such cases governments should intervene to refer the matter to arbitration or prohibit the strike: human rights of all citizens should not be subservient to workers' rights; the right to strike must be a limited one and must not degenerate into licence, which meant that legal restrictions on workers' rights in certain situations must be permissible. He therefore suggested a review of Conventions Nos. 87 and 98 to provide some flexibility so governments might safeguard the interests of citizens at large. The Employer member of Lesotho pointed out that freedom of association and the right to organize was a fundamental weapon for both workers and employers throughout the world: it was due to Convention No. 87 that employers and workers, through their representatives, spoke with one voice.
88. The Worker members were pleased to note that the large majority of the speakers, as well as the Employer members, had underscored that the 50th anniversary of Convention No. 87 was important. Some had illustrated the fundamental character of the Convention by citing examples, the freeing of the President of Serikat Burhut Sejahtera Indonesia (SBSI), Muchtar Pakpahan, who had joined the Conference. The Government members of certain countries which had not yet ratified the Convention favoured ratification in spite of certain problems which did not allow for early ratification. The best way to celebrate this anniversary would be to give effect to promises of ratification. However, as shown by the reports of the Worker members of Colombia, Costa Rica, Guatemala, Paraguay and Swaziland, violations of trade union rights still persisted. Ratification was one step, but what really mattered was application.
Action concerning the elimination of forced labour:
Special reports under article 19 of the Constitution
on the Forced Labour Convention, 1930 (No. 29), and
the Abolition of Forced Labour Convention, 1957 (No. 105),
from countries that have not ratified them
89. The Worker members noted that the special reports were intended to promote the ratification and application of basic Conventions by identifying obstacles, prospects for ratification and difficulties raised by non-ratification, as well as recent phenomena, such as prison labour in prisons administered by the private sector. The relationship between these special reports and the supervisory procedures for a possible Declaration of principles would need to be clarified. Conventions Nos. 29 and 105 were among the most widely ratified instruments. Nevertheless, global ratification still needed to be achieved, since there was no room in a globalized world for old or new forms of slavery. Several major countries, such as Canada, China and the United States had still not ratified Convention No. 29; China had not ratified Convention No. 105. These countries and others should be urged to ratify and apply the Conventions, even though this would require changes in their laws and mentalities.
90. The Worker members said that the Committee of Experts had warned against programmes for the compulsory employment of the unemployed or the attribution of unemployment allowances in conditions which in practice were close to forced labour. It had clearly stated that forced or compulsory labour could not be a tool for development. It had also taken up a clear position on cultural and political approaches which claimed to justify a weaker interpretation of basic rights. Malaysia and Singapore could not impose forced labour on the opponents of their regimes. An increasing number of problems were raised, in terms of both basic rights and unfair competition, by prison labour in prisons administered by private enterprises, or work for the private sector in public prisons, as well as in respect of sheltered workshops for the employment of persons with disabilities. In this respect, the position set out by the Committee of Experts appeared to be over-cautious, since energetic measures needed to be taken without delay to bring the working conditions of prisoners who worked directly or indirectly for the private sector closer to those of workers in general.
91. The Employer members noted that, although Conventions Nos. 29 and 105 were among the most widely ratified of ILO Conventions, the number of countries which had still not ratified them remained a cause for concern. The Committee of Experts had stated that little information had been provided in this respect by employers' and workers' organizations and it had encouraged them to play a more active role in future. However, in countries in which these basic Conventions had not been ratified, employers' and workers' organizations were often weak. Moreover, it was not surprising that those governments which had not yet ratified the Conventions in question had been unable to provide much information on the obstacles to ratification.
92. The Employer members remarked that the report provided information on a number of obstacles to ratification mentioned by governments, as well as circumstances which might constitute violations of Convention No. 29. For example, work might be required as a condition for receiving unemployment benefits in certain countries. This raised the question as to whether, in a mixed system, the requirement to perform work in exchange for an allowance might constitute forced labour. The provisions of Conventions had to deal with general principles and the most typical cases, but could not cover every detail. This meant that certain cases might arise which raised difficulties as to their classification as violations. It was not the role of the Committee of Experts to apply these general rules to each individual case, otherwise it would be in danger of developing standards, rather than applying them. The creation of standards was not the role of the supervisory system.
93. The Employer members noted that work performed by prisoners for private firms in public prisons, which affected the application of Article 2(2)(c) of the Convention, could be considered to be in compliance with the Convention when it was carried out with the agreement of the prisoner concerned. In such cases, normal labour law would apply. There could be good reasons why prisoners should work, but prison labour only made sense when it involved productive work in a market context. Such productive labour could only be performed with the assistance of private firms. However, it was very difficult to persuade such firms to employ prisoners, because the risks were high and productivity was low. Under such circumstances, prison labour should be welcomed, since it could fulfil therapeutic functions and play a role in retaining skills and providing a minimum income for the prisoners or enabling them to compensate the victims of their crimes.
94. The Government member of Saudi Arabia drew the relation between forced labour and poverty. Other Government members spoke of the prison labour issue. The Government member of Iceland (speaking on behalf of the Nordic countries) stressed the need for the safeguards mentioned by the Committee of Experts when prisoners work for private employers. The Government member of Cuba was deeply concerned about prisoners working for private firms. The Government member of Portugal underlined the importance of formal consent by prisoners working in such conditions. The Government member of Canada said his country was examining closely the Committee of Experts' comments as regards also the conditioning of benefits on work, and requirements as to overtime for workers in general. The Government member of the United States said a tripartite legal review of Convention No. 29 was taking place in her country, concentrating on the issue of privatization of prisons and employment of prisoners by private firms: the degree of control by public authorities which was called for was not yet clear, nor the criteria for deciding whether prisoners had freely consented; however, the political will to ratify the Convention existed and the legal feasibility would be further studied with ILO technical assistance.
95. The Worker members of Germany, Greece, Italy, Namibia and the United States expressed concern at the issue of prison labour in privatized prisons or where it was placed at the disposal of private enterprises. A Worker member of Germany said the subject was topical in his country, where the Constitutional Court had had to consider Convention No. 29 and the Committee of Experts' comments. In the United States, said its Worker member, it seemed that the requirements that acceptance of work by prisoners must be voluntary and that there should be guarantees of conditions approximating to a free employment relationship were not met. The Worker members of Greece and Italy noted that the issue arose in the era of globalization: progress in the application of Convention No. 29 in this respect was unconvincing, prisoners were being exploited without their free consent, and unfair competition was being created vis-à-vis employers and countries which respect the requirements. The Worker member of Namibia stressed that the health and safety of individuals must be conserved, with specific enactment of basic working conditions contained in ILO Conventions.
96. Another Worker member of Germany thought that the obligation on the unemployed to perform work under threat of losing unemployment benefits amounted to forced labour; further, he noted with regret that two South-East Asian countries had denounced Convention No. 105. The Worker member of Korea requested the Committee of Experts to monitor violations of Convention No. 29 that had taken place especially during wartime, in particular the "comfort women" issue; and he hoped the present Committee would also re-examine that and other violations of the Convention.
97. The Employer member of Lesotho considered prison labour by its very nature a form of forced labour: in some countries, prisoners were made to work at night to avoid labour inspection, and the Committee of Experts had an obligation to examine the problem seriously.
98. The Employer member of the United States believed the Committee of Experts had failed to appreciate the difference between forced labour that the drafters of the Forced Labour Convention, 1930 (No. 29), had in mind in 1930 and modern practices designed to move individuals from welfare to work and develop relevant workplace skills by prisoners; the interpretation of Convention No. 29 seemed unrealistic if it held that incorrect forced labour was involved if criminals, as prisoners, were "paid" a minimal amount of money for mandatory, useful work designed to enhance successful rehabilitation -- whether that work was for the government or for other, commercial purposes; experience had shown that similar development and training provided the best long-term results when tied to "real work situations": for example, work with computers or in a medical setting or in community maintenance contributed to the development of the work skills and ensured that employment would probably be available upon release from prison or after having completed transition from welfare to work. Governments at all levels continued to seek ways to control costs of social programmes. In the United States, privatization in managing prison facilities, establishing private sector operations within a prison was in effect under various arrangements. However, the Committee of Experts seemed to interpret Convention No. 29 as requiring public sector supervision of such arrangements, especially work situations. This could raise a major obstacle regarding the realities in today's world.
99. The Worker members noted in particular the statement of the Government member of Canada concerning the possible ratification of Convention No. 29. The Conference Committee and the Committee of Experts should continue to pay close attention to the question of prison labour, and the risks of exploitation and unfair competition vis-à-vis the private sector should not be underestimated. In this context, the statements by the Employer member of the United States were surprising. The Worker members did not deny that work could contribute to rehabilitation, but they were also aware of the risks of forced labour. The Treaty setting up the WTO permitted States to prohibit the import of goods produced using forced labour and the United States had availed itself of these provisions.
Other questions concerning the application of particular Conventions
Employment Policy Convention, 1964 (No. 122)
100. The Worker members attached particular importance to the comments of the Committee of Experts on the application of Convention No. 122, both in the general report and in individual observations. This year, it had recalled that the objective of full employment needed to be central to all economic and social policy, and not just to labour market policy. The effective application of this principle was not easy in countries facing the constraints of structural adjustment, debt and transition, which confirmed the need for greater international cooperation and for the social dimension to be taken into account by the international financial organizations. Although the economic policy of the Member States of the European Union continued to be governed principally by monetary considerations, the Treaty of the European Union had been supplemented by a chapter on employment, and principles relating to employment policy had been adopted by the European Council in Luxembourg in November 1997. However, current policies did not appear to be taking the objectives on economic policies proposed by the European Commission at the Council of Ministers of Finance of June 1998 into account. The Committee of Experts therefore needed to follow closely the employment objectives of the Member States and financial institutions of the European Union.
101. The Worker members said that the economic and social consequences of the crisis affecting Asia also needed to be addressed from the viewpoint of Convention No. 122 and other standards. From the outset, the ILO had drawn attention to the risks that it presented for employment and its eventual impact in terms of social exclusion and poverty. The conclusions of the tripartite meeting organized by the ILO in Bangkok in April 1998 had emphasized the importance of the basic principles of Convention No. 122. They had reaffirmed the need in this context for tripartite consultations, which would require democratic progress in several of the countries concerned. They had also placed emphasis on the necessity for a social safety net and the observance of basic standards. These conclusions needed to be put into effect rapidly by governments and international institutions in collaboration with the ILO. The Committee of Experts should follow closely the impact of the crisis on the application of Convention No. 122 and other standards.
102. The Worker members observed that the Committee of Experts had also referred to the possible negative consequences of certain measures to combat unemployment, for example where young persons or the long-term unemployed were placed in special programmes which had the effect of reducing their possibilities of finding productive employment on the regular labour market. It was the responsibility of employers' and workers' organizations and governments to ensure that these labour market training programmes reinforced their opportunities for reintegration. However, it had to be recalled that, due to restructuring measures and insufficient concern for employability, many workers would have no chance of finding another job in the absence of specific support programmes. The measures which discouraged certain categories of workers from entering the labour market could also be partially reviewed, as shown by the example of the extension of parental leave to both men and women, which could improve the employment opportunities of women; a first collective agreement had been concluded at the European level on this subject between the social partners of the European Union in December 1995. Early retirement was sometimes a means of attenuating the social impact of restructuring, but it could also be seen as a means of reducing working time over the whole of a career. The Worker members fully supported the position of the Committee of Experts to the effect that full, productive and freely chosen employment was an essential aspect of the general interest for which every democratic government was responsible.
103. The Employer members said that, although the comments of the Committee of Experts were briefer than in recent years, they were no less interesting. In particular, the Committee of Experts had observed that "the success of an employment policy which is consistent with the Convention depends to a large extent on adaptation to meet constantly changing circumstances". The Employer members fully supported this statement and emphasized that, like all other policy, employment policy was not static or isolated, but linked with other policy areas. Indeed, Article 1 of the Convention called for an active policy which took due account of the mutual relationships between employment objectives and other economic and social objectives. Moreover, Article 2 required such a policy to be decided upon and kept under review within the framework of a coordinated economic and social policy. Nevertheless, the comments of the Committee of Experts with regard to globalization had been too pessimistic. The Employer members emphasized in this respect that the number of jobs globally was not decreasing and that employment on a worldwide level was increasing. The favourable situation of the world economy was a result of increased trade across borders, the globalization of the financial markets and the dynamic of international direct investment, all of which provided an impetus for the development of national economies. The Employer members were therefore optimistic with regard to the development of the employment situation. However, there would be a need for economic and social restructuring. Where increased globalization was met with the appropriate adaptation, there would be greater opportunities for competition and employment. The distinctions between developing, industrialized and transition countries would become less important in a globalized world. But countries where costs, taxes and bureaucracy were too burdensome would not succeed. Societies which defended outdated concepts would experience difficulties in meeting the challenges. In this respect, the Employer members recalled that the experience of planned economies had demonstrated that jobs could not be created merely through legislation establishing the right to work. The only way to create jobs was for enterprises to produce goods and services for which there was a demand.
104. The Employer members welcomed the cautious warning concerning the "secondary" labour market, which had been expressed by the Committee of Experts for the first time. The Convention explicitly called for productive employment, which could only be achieved through the regular labour market. However, the Committee of Experts did not explain the connection between less favourable conditions and the establishment of a separate "secondary" labour market. In their opinion, what was referred to was the low qualifications of unemployed persons, the decline in regular employment and high costs in terms of the wastage of economic resources. For the Employer members, the objective of a modern employment policy had to consist of the maintenance and promotion of the employment capacity of the unemployed, so that they could be integrated into the labour market.
105. The Employer members expressed significant reservations concerning the comments made by the Committee of Experts with regard to the emergence of new jobs in the personal services sector. In view of the shortage of jobs and the lack of skills among the unemployed, it was no longer possible to exclude low-quality jobs. Such jobs were available in the fields of personal and domestic services, manual work, trade and agriculture. The employment potential of these sectors needed to be harnessed. Although pay was low in these sectors because of the low level of productivity, the resulting social hardship could be avoided through supplementary transfer systems.
106. The Government member of Germany pointed out that Convention No. 122 was concerned with employment that is productive and freely chosen as well as full. The Government member of Lebanon observed that in order to achieve the goals of the Convention, consideration needed to be given to securing sustainable economic development, and that was often obstructed by many variables, especially resulting from economic globalization: there was therefore a need for continuous vocational training at all levels, job creation, periodic surveys of the labour market, vocational guidance and availability of the necessary funding -- in all of which, the ILO had a role to play by providing the necessary technical assistance. In this context, the Government member of Portugal noted that Convention No. 122 reflected the human right to work; the question of human resources training and development had been placed on the agenda of the Conference for the year 2000 for a general discussion and that the Human Resources Development Convention, 1975 (No. 142), had been classified by the Governing Body in the category of Conventions to be promoted.
107. The Worker member of Brazil said that the labour market in his country was already one of the most flexible in the world, and yet there was high unemployment, instability and social deterioration as a result of structural adjustment policies. The Worker member of Pakistan agreed as to the harm caused by structural adjustment policies: the ILO should try to mitigate their effect in order to implement the basic right to employment enshrined in Convention No. 122. If full employment policies were not pursued, said the Worker member of Colombia, the informal sector with all its disadvantages would only grow more. The Worker member of India considered that the deregulation preached in the context of globalization lowered labour standards without creating employment: the ILO supervisory bodies had an important part to play in guiding employment policies, in which the Organization should also give technical assistance. The Worker member of China welcomed his country's ratification of Convention No. 122, unemployment being an obstacle to workers' rights in general being guaranteed; trade unions in China were responsible for running hundreds of job service centres.
108. The Worker member of Germany, in the context of globalization, called for the Committee of Experts to emphasize the international aspects of the principles in the Convention; the crisis in South-East Asia showed the need to apply social rules contained in ILO Conventions and Recommendations; experience in the European Union had in turn shown the positive role of employers' and workers' organizations in the formulation and implementation of employment policy. He noted that the countries most successful in implementing the Convention engaged in social dialogue and coordinated employment policies with, for example, fiscal policies; they also had the highest levels of manufacturing as well as strong labour market policies: the Committee of Experts should consider further the indicators of successful application of Convention No. 122 and the links with other Conventions. The Worker member of the Netherlands considered that the European Union could benefit from the ILO's supervisory work in the employment policy field when developing its own employment policies.
109. The Employer member of India said that social and economic development must go together: earning opportunities must be provided for people living below the poverty line, and greater flexibility in the labour laws would give entrepreneurs greater freedom to manage resources and thus generate employment opportunities. The Employer member of South Africa referred to the role of Convention No. 122 in increasing opportunities and social justice for all; but employment policy should be related to macroeconomic policy in general and not limited to narrow active labour market measures, and the Office should take steps to collaborate with the International Monetary Fund, the World Bank and the WTO.
110. The Employer members agreed that it was dangerous to perpetuate youth employment programmes for too long a period as this contributed to creating a "secondary" labour market which had been considered to be artificial. They re-emphasized that creation of employment depended on the finding of products which the market demands. In this connection, governments were bad counterparts.
111. The Worker members noted positive indications had been given concerning Convention No. 122. The Government member of India had announced that ratification was under way. The Worker members of the Netherlands and of Germany had emphasized the particular importance of this instrument, including in industrialized countries and, in particular, in the context of recent developments concerning employment policies in the Member States of the European Union.
Labour inspection
112. The Worker members said that the comments of the Committee of Experts on the importance of labour inspection for observance of fundamental rights needed to be supported, because the existence of an effective and accessible system of labour inspection, staffed by well trained and really independent officials, was indispensable for the protection of the weakest categories of workers, such as migrant workers, domestic workers, child workers and clandestine workers. Labour inspection needed to provide effective help to workers and it was, for example, not acceptable for illegal workers to be penalized without measures being taken against their employers.
113. The Employer members agreed that effective labour inspection could contribute to the improved application of human rights. Labour inspection was particularly appropriate to improve living and working conditions through a correct determination of the facts and the identification of measures to improve the situation.
114. The Government members of Kenya and Portugal agreed as to the essential role of labour inspection in ensuring the observance of basic rights. The Worker members of Ghana and Japan also agreed, but noted that there had been widespread weakening of labour administrations because of economic crisis, whereas labour inspection could only be effective when sufficient resources were provided.
Child labour
115. The Worker members shared the concern of the Committee of Experts with regard to the absence of precise and reliable information on the extent of child labour and monitoring measures. At previous sessions, the Conference Committee had noted that -- in total contrast to the information produced by the ILO, the United Nations, trade unions and non-governmental organizations -- government reports tended to minimize or deny the extent of the problem. Governments should consult trade union organizations which, in turn, should make additional efforts on the issue of child labour. As a result of the ILO's International Programme for the Elimination of Child Labour (IPEC), the resolution on child labour and the draft new Convention, as well as the greater attention paid by the supervisory bodies, awareness of the problem had increased, as illustrated by the global march against child labour. Nevertheless, even though 133 countries had ratified at least one of the 11 ILO Conventions on minimum age, the difference between the 187 ratifications of the United Nations Convention on the Rights of the Child and the 60 ratifications of Convention No. 138 was too wide. In addition, although the legal framework and the supervisory system were indispensable in combating child labour, they had to be supported by initiatives, such as codes of practice, in various countries aimed at consumers and enterprises.
116. The Employer members observed that the Committee of Experts had referred to a lack of information on the practical application of the Minimum Age Convention, 1973 (No. 138). Such information should be forthcoming through compliance with the normal reporting obligations under the Convention. A clear view of the situation could be facilitated by the labour inspectorate. Child labour had many facets, and the Conference would be examining the type of instrument that was necessary to combat it in its most extreme forms. Until such instrument was adopted, the Employer members supported the application of the existing provisions, particularly with a view to eliminating the most harmful forms of child labour.
117. The Government member of Portugal thought that the adoption of a new Convention ought not to result in neglect of Convention No. 138. The Government member of Lebanon linked the child labour issue to provision of compulsory education followed by appropriate job opportunities: IPEC could help a great deal, and her Government was seeking its assistance. The Government member of India subscribed to the principles of Convention No. 138, even though it could not be ratified by his country in its present socio-economic situation: Convention No. 29 was not an appropriate instrument to tackle the issue, and his Government looked forward to the new instrument now being discussed. The Government member of Saudi Arabia considered child labour an aspect of poverty, which was its underlying cause. The Government member of Sri Lanka noted that employers rarely provided information on children working in contravention of standards; and the Government member of Germany suggested not only employers' and workers' but also other types of interested organizations be given the opportunity to provide the supervisory bodies with information on the application of any new standards adopted on child labour.
118. The Worker members of Brazil, Greece and Uruguay called for an end to child labour through implementation of both Convention No. 138 and the new Convention to be adopted. The Worker member of Italy mentioned the tripartite approach to the child labour issue in his country and the success of the national Charter on the subject. The Worker member of Pakistan emphasized the importance of the Conventions relating to child labour, since children were the future of a nation. In order to eradicate child labour, member States had to allocate greater resources to the education of children.
C. Report of the Fourth Special Session of the Joint ILO/UNESCO Committee of Experts
on the Application of the Recommendation concerning the Status of Teachers
119. The Employer members recalled that for some years the Conference Committee, at the request of the Governing Body, had been reviewing the work of the Joint ILO/UNESCO Committee of Experts on the Application of the Recommendation concerning the Status of Teachers. Some people might be of the opinion that the situation of teachers was not of great importance to the Employer members, since teachers were mainly employed by public employers. Although the Employers were fully aware of the important social role that teachers played, the report of the Joint ILO/UNESCO Committee of Experts gave an overall impression of pessimism, criticism, self-pitying and even helplessness on the part of teachers. But the Employer members wondered whether there were real grounds for such negative sentiments. In the first place, it should be recalled that the teaching profession was privileged in being covered by a specific Recommendation supported by two international organizations, which worked towards the proper implementation of the Recommendation and produced reports on the teaching profession. There was even a specific supervisory machinery set up under the Recommendation which included the examination of individual complaints. The Employer members also noted that a large number of symposia and meetings had been held, studies undertaken and plans of action formulated on the status of teachers. Such measures had not been adopted for other professions.
120. The Employer members thought the sense of pessimism communicated by the report was undoubtedly due to the far-reaching changes affecting the teaching profession. These were very real changes which affected all professions and raised major challenges for all sectors of society. The Employer members did not fully understand why the report appeared to consider the high proportion of women in the profession to be a negative factor, when it was a cause of concern generally that women had fewer opportunities than men to find employment. A number of the other subjects raised in the report, such as the incidence of fixed-term contracts, also applied to other professions, not only to teachers. On the threshold of the twenty-first century, teachers as a whole needed to react more rapidly to develop their knowledge and ability to respond to the new requirements of modern society. Teachers should be the first to recognize the need for lifelong learning. However, it was not possible to establish absolute values for all countries regarding the measures that needed to be taken to attract and retain people of the necessary calibre in the profession. In this respect, although teachers complained that they and their organizations were not sufficiently involved in the decisions which affected them, the Employer members recalled that decisions relating to such important factors as educational objectives and curricula had to be dealt with by those who were democratically entitled to do so. Although it was clearly necessary to consult teachers on educational matters, many other categories were also concerned, foremost among them being parents. Indeed, teachers were well represented in many countries in Parliament and could therefore exert more influence over national affairs, including their own, than the members of other professions.
121. The above comments should not be interpreted as a lack of recognition of the basic concerns of teachers. The Employer members agreed that teachers should enjoy a status that was compatible with their functions. They should be as highly trained and qualified as possible and, in particular, should recognize the need to adapt to the principle of lifelong learning. Clearly, this involved a large measure of personal commitment. Teachers should benefit from material conditions which corresponded to their important functions. While there evidently existed problems in many countries in according teachers a status that was compatible with their importance, it was not possible to identify uniform solutions applicable to all countries. It was necessary to ensure, in a manner adapted to the national situation, that teachers were not classified below their just status.
122. With regard to the right to strike in the profession, the Employer members referred to their well-known position on the right to strike in general. According to the position adopted by the ILO supervisory bodies, the right to strike could be restricted in essential services which, in the view of the Employer members, not only included those necessary for the survival of the population, but also services which were essential to the vital, long-term interest of society in general. While strikes by teachers did not create an emergency situation, it should be recognized that they did harm the long-term prospects of children and students.
123. In conclusion, the Employer members reaffirmed that it was one of the primary political obligations of democratic societies to ensure the best possible education for young people in order to safeguard the future of society. Education was intimately related to the way in which children were brought up and the obligations of their parents in this respect. It was important for teachers to be involved in both of these aspects of the development of children, and the more they did so, without confining their interests to their material position, the better their status would be in society.
124. The Worker members noted with interest the report of the Joint ILO/UNESCO Committee and its annexes, as well as the relevant documents produced by the Governing Body. As they had emphasized in 1995, the fundamental principles of the Recommendation remained entirely valid, as reaffirmed by the Joint Committee in paragraphs 14 and 31 of its report. The Recommendation concerning the Status of Higher Education Teaching Personnel, adopted by UNESCO in 1997, was a useful supplement to the 1966 Joint Recommendation and the trade union organizations had long insisted that higher education teaching personnel should also be covered. The hope expressed by the Governing Body that the terms of reference of the Joint Committee would be extended to the supervision of the new instrument should be firmly supported and the relevant UNESCO bodies should take the necessary decisions and provide the resources for the Joint Committee to improve its follow-up work.
125. The Worker members said that approval of international instruments was one matter, but their application and supervision was another. The Conference Committee had always been of the opinion that an effective and efficient supervisory system was an indispensable prerequisite for the credibility of standard-setting activities. In this respect, the Joint Committee had indicated the modifications that it was proposing to the procedure for the examination of complaints with a view to speeding up its work and increasing its effectiveness. However, the three-year cycle of the Joint Committee's meetings was too long and the delay between the receipt of complaints and the formulation of conclusions was likely to weaken the impact of the system.
126. On the substance of the report, the Worker members wished to refer to seven points in particular. In the first place, the report raised the problem of teachers' morale. The problem affected teachers throughout the world despite regional differences. It had not suddenly grown worse, but was a result of important trends over many years. It was impossible not to be concerned at the contradiction between, on the one side, the emphasis placed on training to combat social exclusion by raising skill levels and, on the other side, the absolute priority given to structural adjustment and financial restrictions, which had a direct impact on education (the reduction of the cost of education per student, decentralization of the education system and decline in budgets without technological improvements and equipment). Although the continued importance of education and training for the development of human resources and enterprise competitiveness was a matter of general consensus, including in the Conference Committee, their financing and organization gave rise to an ever-increasing number of problems. It was not sufficient just to identify the causes of the problems. It was indispensable for national and international authorities to take the necessary measures to resolve them.
127. Compulsory education and high quality teaching were, in the view of the Worker members, essential instruments in combating child labour. However, the fundamental right of every child to education, set out in Paragraph 10 of the ILO/UNESCO Recommendation, was coming under increasing threat, particularly for children from underprivileged categories and those who required a specific education. At a time when the ILO and the international community as a whole were mobilizing against child labour, it was essential to provide education systems with the resources to implement a strategy of combating child labour. The next report of the Joint Committee could examine this problem more thoroughly in relation to the application of the proposed new ILO Convention on child labour currently being discussed by the Conference.
128. <