Report of the Committee on the Application of Standards
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
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.
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.
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.
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. The Worker members noted that the ILO/UNESCO Recommendation also aimed to promote the professionalism of teachers, as shown in Paragraph 4 and several of its other sections. Nevertheless, the Joint Committee had noted a worrying tendency for a weakening of this professionalism due to a series of factors, including the decline in the social status of teachers, the fact that they were not sufficiently involved in decisions by the authorities, and the inadequacy of their initial and further training. It was impossible not to agree with the Joint Committee when it stated that the quality of teaching and the conditions of teaching personnel were so closely related that anything that affected one affected the other.
129. In the opinion of the Worker members, the Joint Committee had rightly emphasized the contribution that the real participation of teachers could make to improving their professionalism, increasing the effectiveness of teaching and the achievement of a status that was commensurate with the increasingly high expectations of society. Based on in-depth studies, the Joint Committee had concluded that teachers' organizations were not sufficiently involved and were very rarely consulted on policy relating to the education system. Moreover, consultation was not negotiation, which required a more intense level of dialogue. The ILO/UNESCO Recommendation stipulated in Paragraphs 82 and 83 that the working conditions and salaries of teachers should be determined through collective bargaining. However, the report noted the weakness or total absence of the appropriate machinery in many countries. In addition, the tendency for the organization of teaching to be decentralized, accompanied by a failure to adapt participatory mechanisms, aggravated the risk of the absence of negotiation with local authorities.
130. The Worker members concluded that particular emphasis needed to be placed on the fact that freedom of association also applied to teachers without any exception whatsoever, as the Committee of Experts and the Committee on Freedom of Association had recalled on many occasions. Teachers had to have the right to call strikes and on some occasions their pupils supported their trade union action to improve teaching and increase the number of teachers. Although the working conditions and salaries of teachers should be of an appropriate level to attract qualified and motivated recruits to the profession, the report of the Joint Committee and its annexes pointed to serious problems in this respect in industrialized countries, as well as in developing or transition countries. In several countries, teachers' salaries were paid several months late. Finally, additional measures needed to be taken to ensure equality of opportunity and treatment for men and women, particularly in vocational teaching (paragraph 64 of the Report) and to reinforce the presence of women in participatory decision-making machinery. The Worker members were convinced that energetic measures needed to be taken to disseminate the ILO/UNESCO Recommendation broadly and in particular to ensure its application, since the Joint Committee had indicated that there had been a regression in its application by many countries despite the wider dissemination of the instrument. The problems relating to the application of the ILO/UNESCO Recommendation were very similar to those encountered in the observance of international labour standards.
131. Several Worker members (of Argentina, Chile, Germany, Guatemala, Niger, Uruguay) emphasized the quality and relevance of the Joint Committee's report in relation to many issues: economic globalization, since the future of humanity lay in the field of knowledge; the responsibility of structural adjustment programmes implemented by the IMF and the World Bank for the deterioration in education and in the conditions of teaching personnel (low pay, wage cuts, the non-payment of wages for several months, payment in coupons, minimum-level increases conditional upon presence, fixed-term contracts and the great difficulties experienced in engaging in collective bargaining were cited); and the report's importance for people with a low educational level, since in order to be able to defend their rights, workers needed to attain a good educational level.
132. Referring to the structural adjustment programmes implemented by the IMF and the World Bank, the Worker member of Niger emphasized that, even though education had long been the first priority for these countries, structural adjustment programmes imposed by the international financial institutions had relegated it to a position of secondary importance. Concern with short-term financial goals had obscured the fact that the financing of education was by far the most effective and promising form of investment in development. In combination with currency devaluations in West Africa, these programmes had been responsible for teachers losing one-third of their purchasing power. The harsh cuts made in education budgets were resulting in a continued deterioration in public education. It was urgently necessary to draw the correct conclusions from the traditional saying that "if education is expensive, try ignorance".
133. The Worker member of Chile informed the Committee that the wages of teachers had decreased systematically during the period of military rule in his country and the adjustments that had been made had always been lower than the prevailing rate of inflation. With the advent of democracy, salaries had increased by 90 per cent between 1990 and 1997. Nevertheless, despite these increases, the wages of teachers were still at the level that they had reached in real terms in 1960. In Chile, social security was paid by the workers themselves, with contributions being deducted by both private and municipal employers. However, the contributions that were collected for the social security system were not passed on to the pension administration funds (AFPs), which had significantly jeopardized the future pensions of teachers. He added that debts remained unpaid to teachers in his country from the time of the military regime due to the failure to pay an extraordinary rise provided for in Legislative Decree No. 3551, as well as the failure to pay the compensation due as a result of the transfer of administrative responsibility for teachers from the Ministry of Education to the municipal authorities between the years 1981 and 1987. The grave problems indicated in the report of the Joint ILO/UNESCO Committee had resulted in a low level of self-esteem among teachers, which had in turn led to an increase in the number of teachers who wished to leave the education system to seek better employment opportunities. It had also resulted in a significant decrease in the number of young persons wishing to enter teaching careers because they did not believe that their financial or professional requirements would be satisfied. An educational reform was being planned in his country which, according to the Government, would result in an increase in weekly teaching hours, a change in the fundamental objectives and minimum contact of lower and middle-level teaching, and an improvement in educational infrastructure and the conditions of teachers. The Teachers' College of Chile supported an overall reform which would contribute to the development of the country, provided that it was carried out with the full collaboration of teachers. It was impossible to envisage a major educational reform without involving all the actors concerned, including teachers.
134. The Worker member of Germany, referring to the statements made by the Employer members concerning the right to strike of teachers, emphasized that the denial of this right was almost tantamount to forcing people to work. He reaffirmed that the right to strike was a basic right of this category of worker and was a fundamental human right. The information provided on the situation in Chile under the previous dictatorial regime was a stark reminder of the effect that restrictions on the right to strike could have on teachers. It was therefore necessary to recall once again the positions adopted on this matter by the ILO supervisory bodies, namely the Committee of Experts and the Committee on Freedom of Association. He recalled in this respect that the Employer members of the Committee on Freedom of Association had associated themselves with these positions, and he requested the Employer members to clarify their attitude with regard to the positions of these bodies.
135. The Worker member of Argentina expressed the opinion that the negative consequences of structural adjustment policies in Latin America were having an increasingly serious effect on teachers which had been reflected in their low pay, wage cuts, and other negative consequences on contracts and collective bargaining which were mentioned previously. This situation confirmed the information contained in the report of the Joint ILO/UNESCO Committee with regard to the low morale of teachers who were faced by ever-increasing requirements and lower remuneration for their work, as well as a scarcity of opportunities for training and participation in education programmes. For the reasons set out in the report, the best teachers were being lost to the profession. They could never be substituted by machines, however much technology advanced. The teachers' organizations in her country were endeavouring to improve the working conditions of teachers, obtain lifelong training opportunities, improve salaries, participate in education policy and promote the right to collective bargaining. With reference to child labour, which was one of the fundamental issues dealt with by the ILO, she said that education played a decisive role in the eradication of this problem. In conclusion, she hoped that governments would give priority to education and would take the necessary measures to increase the number and quality of teachers.
136. In reference to questions of economic globalization, the Worker member of Guatemala emphasized the importance of teacher professionalism in the report of the Joint ILO/UNESCO Committee. The professionalization of teaching was a strategic tool in a world in transformation and it was therefore a cause for concern that teachers should be treated and considered as robots when reforms of educational programmes were planned. It was intolerable for teachers not to be involved in education planning processes, since they were the ones who transmitted the principles and values of society. He expressed concern at the processes of the privatization of education which had been embarked upon in Latin America where, in his opinion, family breadwinners were being manipulated for this purpose and where educational reforms were often imposed from outside. Finally, he recalled the dangerous statements made by the Employer members to the effect that the right to strike should be denied to teachers. In this respect, he emphasized that this right could not be prohibited, although the ethical use of strikes could be encouraged. The education system of a country was a strategic requirement for the development of its citizens.
137. The Worker member of Uruguay said that the report of the Joint ILO/UNESCO Committee was very topical because educational reforms were linked to the processes of economic restructuring that were occurring in Latin America. The reorganization of the educational system was planned for the present, without taking future needs into account. In order to be able to defend their rights, workers needed to attain a good educational level. He referred to a newspaper from his country which illustrated the real problems referred to in the report of the Joint ILO/UNESCO Committee, such as the strike by teachers who wished to participate in the educational reform, but who's views had not been taken into account. They had also been denied the right of collective bargaining with regard to their conditions of work and had been refused a wage increase, despite the fact that the current wage was $286 for a teacher and $169 for a teaching auxiliary, at a time when the poverty line in his country was $1,700. He also emphasized that teachers in the public administration were the only ones who did not receive seniority increments. This situation demonstrated the serious problems faced by teachers and the need to continue the efforts to improve the application of the Recommendation concerning the Status of Teachers, which was a basic instrument for the defence of education, and therefore for the future of humankind, in view of the great responsibility of society with regard to the education of children.
138. The representative of the World Confederation of Teachers (WCT) reaffirmed that the Recommendation retained all its value as a point of reference for the status of teaching personnel, even if it was insufficiently applied. Failure to apply the Recommendation in practice went hand in hand with the disappearance of social dialogue. It was often related to the absence of freedom of association in certain countries where membership of a trade union was still considered to be incompatible with the status of teacher. At a time when requirements concerning the quality of teaching were being raised, it should not be forgotten that quality depended essentially on the training, conditions of employment and social status of teaching personnel. While it was the responsibility of teachers, based on an appropriate high-level training, to ensure a high level of professionalism in fulfilling their mission, it was also the responsibility of society as a whole to create the best educational conditions and to ensure that teachers enjoyed conditions of employment, and working and living conditions that were not only decent, but which were in conformity with their social status. The WCT was convinced that quality teaching could only be based on these two criteria and that the ILO/UNESCO Recommendation of 1966, together with other standards on trade union, professional and social rights, established the required framework. Faced with a marked trend towards the privatization of education systems, the WCT was opposed to the submission of education systems to the market. It noted that decentralization and deregulation led to the weakening of participation by teachers in decision-making. In such a context, fighting for the observance of the standards set out in the Recommendation was equivalent to fighting for greater social cohesion.
139. The representatives of Education International (EI) acknowledged that the report painted a depressing but also true picture of the situation of teachers around the world. EI believed that the low status, morale, influence or earning power of teachers was a general, not an isolated, situation. As the report had also pointed out, teachers and their unions were not listened to with respect to education sector problems; yet there was ample proof that successful reforms, including structural adjustment programmes, could not succeed without consultation and the participation of those responsible for implementing them. The report of the UNESCO Commission on Education for the twenty-first century invited public authorities to encourage democratic consensus as a basis for successful educational reform strategies. Schools and education professionals were bearing much of the blame for the increasing difficulty in coping with enormous economic and social changes taking place around the world. While teacher pay was a large part of the education budget in many countries and an indicator of how much a society valued teachers, teachers in many countries were not being paid in time or at all. Strike action often occurred, frequently provoking retaliation by way of dismissals, transfers, suspensions and arrests. There was agreement between the provisions of the ILO/UNESCO Recommendation and the decisions of the ILO Committee on Freedom of Association on the right to freedom of association for teachers and education personnel, yet such a right did not exist in many countries. The case of the Republic of Korea was specifically mentioned, but teachers also lacked collective bargaining rights in many other countries. Reference was made to the general phenomena of government legislation to extend unilaterally collective contracts, freeze or roll back salaries, and narrow the scope of collective bargaining, which constituted an abuse of power by governments as employers. It was ironic that teachers were expected to teach about human rights while they themselves were denied such rights. Through collective bargaining teachers could secure terms and conditions of employment which would allow them to do their job in dignity, in good times as well as bad. Maintaining good conditions of work and levels of salary would permit attraction and retention of highly qualified education personnel which was a problem in many countries in light of the professions' demographics. Well-qualified young people, particularly young men, were not choosing teaching as a profession because a decent income and influence over their own work could not be assured. The report of the Joint Committee also pointed to many of the problems faced by women teachers, including the unequal distribution of family responsibilities, the large number of women in part-time employment, their promotion prospects, and the negative perceptions of women as potential managers, especially by male-dominated selection panels. The example of Germany was cited as an illustration. Up to 95 per cent of part-time teachers were women, and their decision to take up this employment arrangement was based on their family responsibilities. The solution was not to be found in a renunciation of family responsibilities by women, but at the professional level: for example, the development of model arrangements for the sharing of managerial functions by part-time workers, permitting more managers. Women teachers' chances of promotion would increase and part-time work would also become more attractive for men. In view of the very large number of women teachers, the recommendations proposed in the Joint Committee's report should be implemented. Specific reference was made to the situation of teachers in Kosovo who had not been allowed the right to education in their own language since 1989. It was feared that ignoring their non-violent protests would only provoke violence as the route to change. Finally, EI looked forward to working with the Joint Committee in the development of comprehensive and reliable teacher indicators for the purpose of examining the ILO/UNESCO Recommendation's effectiveness, and to receiving the Joint Committee's next report, which they hoped might show progress.
140. The Committee took note of the report of the Joint Committee.
D. Reports requested under article 19 of the Constitution
Vocational Rehabilitation and Employment (Disabled Persons)
Convention (No. 159) and Recommendation (No. 168), 1983
141. The Committee devoted part of its general discussion to the examination of the first General Survey made by the Committee of Experts on the application of Convention (No. 159) and Recommendation (No. 168), 1983, concerning vocational rehabilitation and employment of disabled persons. In accordance with the usual practice, this survey took into account information communicated by governments under article 19 of the Constitution, as well as the information communicated by member States which have ratified the Convention in their reports under articles 22 and 35 of the Constitution and the comments received from employers' and workers' organizations to which the government reports were communicated in accordance with article 23(2) of the Constitution.
142. The Worker members recalled that the Committee of Experts endeavoured to ensure that General Surveys were an instrument for the evaluation of Conventions and Recommendations. The present Committee had already had the opportunity to draw attention to the value of these surveys for standard-setting policy at both the international and national levels. All member States should therefore cooperate. In this specific case, the Committee of Experts indicated that 144 reports had been received out of the 290 requested and, while welcoming this number, it had noted that the information provided was often superficial, in particular as concerns practical application. This was regrettable in the case of a Convention which left a great deal of latitude to member States as to the choice of methods for achieving its objectives.
143. The Worker members recalled that, upon the proposal of the Working Party on the Policy regarding the Revision of Standards, the Governing Body had classified Convention No. 159 among those Conventions which continued to respond to current needs and the ratification of which should be promoted. Several countries had stated that they were in favour of ratification, even if they had not indicated any dates. Other countries had provided no indication in this respect, even though their law and practice appeared to be in conformity with the Convention. Still others wished first to proceed by harmonizing their legislation with the Convention. These countries should respond positively to the appeal made by the Governing Body and the Committee of Experts and take advantage of the information in the General Survey in preparing for the ratification of the Convention. Several countries which had reported insufficient human, material and financial resources, nevertheless announced that they would ratify the Convention in the near future. This indicated that it was possible, even with reduced means, to pursue an active policy of equality of opportunity within the framework of the general obligation to combat discrimination which derived from the Declaration of Philadelphia, the declaration adopted at the World Social Summit in Copenhagen and Convention No. 111. The Worker members also recalled that a policy of health available to all prevented and reduced the risk of disability. They highlighted the need, taking into account rapid technological developments and increased competition, for an integrated approach to vocational rehabilitation and employment of persons with disabilities which was constantly being reassessed through dialogue with employers' and workers' organizations, as well as those organizations concerned with persons with disabilities. An in-depth examination of the Committee of Experts' General Survey should facilitate this approach.
144. The Worker members stated that they had examined the General Survey on the instruments adopted in 1983 with great interest. They compared the survey with the experience of workers' organizations in the field and had established contacts with organizations representing persons with disabilities. They welcomed the Committee of Experts having once again gone out of its way to carry out useful work on instruments which were an extension of Conventions Nos. 100 and 111, as noted in paragraphs 24, 110 to 112 and 245 of the General Survey, because they considered that the integration of persons with disabilities into the labour market helped to combat social exclusion and poverty. Far from being a marginal problem, it affected, as indicated in paragraphs 99 to 101 of the General Survey, some 500 million persons throughout the world, of which 350 million lived in regions where there was a complete absence of any services to enable them to overcome their disability. These persons were frequently among the poorest members of the population, even in industrialized countries. In the Member States of the European Union, the unemployment rate of persons with disabilities reached 25 per cent; double the average rate. As the Committee of Experts had noted in paragraph 102 of the General Survey, finding a job was very difficult for many people with disabilities. This situation called for training and placement measures and the adaptation of jobs in order to enable persons with disabilities to exercise a broad range of occupations under normal working conditions. The Worker members stated that they fully subscribed to the fundamental principle of Convention No. 159 and Recommendation No. 168 which complemented Recommendation No. 99 of 1955. According to these instruments, employment was the principal means of promoting the social integration of persons with disabilities. Concrete social and political action could indeed greatly improve the socio-occupational life of persons with disabilities.
145. The General Survey confirmed the relevance of Convention No. 159 and Recommendation No. 168 which constituted a solid basis for the action to be taken by member States. It should be widely disseminated so as to make known, in industrialized countries as well as in developing countries, the different possibilities for promoting the social and occupational integration of persons with disabilities, as well as the work carried out by the ILO towards this goal, so as to promote greater ratification of the Convention.
146. The Employer members emphasized the noble role played by the ILO in working for the improvement of the situation of persons with disabilities, who make up a particularly disadvantaged category of the population. They considered that it was a characteristic of enlightened humanity to show concern for the situation of persons with disabilities and for their integration into work and the society in every way possible; however, good intentions were not enough. It was important that the resources available be used in the most effective manner.
Occupational integration of disabled persons and economic imperatives
147. Underlining the problem of the impact of globalization on the socio-occupational situation of persons with disabilities, the Worker members stated that, as shown by the General Survey, the developments and prospects relating to the vocational rehabilitation of persons with disabilities is set in a context of trends which are sometimes contradictory. While some technological developments could, for example, facilitate the integration of many persons with disabilities, they also constituted a real threat to the employment of others, due to a lack of sufficient qualifications or a shortage of adapted jobs. Globalization, which can provide opportunities for those who are very specialized, can also constitute an inherent threat within the context of increased competition in a labour market which is not adapted to the integration of persons with disabilities in enterprises. The lack of interest of foreign investors in developing countries, the decline in the demand for low-skilled labour and the rise in unemployment all contribute to reducing the employment opportunities of persons with disabilities.
148. The Government member of the Czech Republic agreed with the Experts' observation in paragraph 217 of the General Survey concerning the difficulties arising out of the transition to a market economy, which were unfavourable to the employment of people with disabilities.
149. The Worker member of Côte d'Ivoire emphasized that, with the problems and economic crises faced by African countries over the last 20 years, family solidarity and assistance to disabled relatives had been lost. He added that, in many enterprises, employers took advantage of increasing unemployment to dismiss workers who were disabled following occupational accidents.
Definitions and scope of the instruments
150. The Worker members referred to the first chapter of the General Survey concerning the definitions and scope of the standards wherein the Committee of Experts emphasized in paragraph 56 that these standards aimed at eliminating the obstacles to integration of persons with disabilities and at their advancement in training and employment under equal conditions with other workers.
The concept of disability
151. The Worker members stressed that these instruments did not only concern disability in the uniquely medical sense of the term, but also and especially occupational disability resulting from physical or mental impairment in the medical sense of the occupational prospects of the individual. Using this concept of disability as a base, member States which have ratified the Convention were left full latitude to determine, taking into account the great variety of social policies, economic development policies, cultural concepts and medical developments, the criteria for identifying disability in the sense of the Convention. The concept was evolving. These criteria might vary: they might be broader for the purposes of suitable vocational training and for assistance for the adaptation of jobs, or more restrictive with regard to entitlement of certain social benefits. The member States should constantly review and adapt their policy in this regard, in consultation with the employers' and workers' organizations, as well as with the organizations representing persons with disabilities.
152. The Employer members recalled that Convention No. 159 did not propose a definitive definition of the concept of disability and that its provisions aimed at persons whose prospects for securing and advancing in suitable employment were substantially reduced as a result of a duly recognized physical or mental impairment. They underlined that, under the terms of the Convention, the issue of disability had to be treated in terms of its employment consequences and covered physical as well as mental disabilities. The Employer members recalled that another useful definition of disability was that adopted by the WHO which referred to impairments of physical organs as well as disabilities at the personal and social levels, making apparent the link between the disability and the assistance required by the affected individual. Thus it was not appropriate to apply the concept of employment incapacity in too general terms. Some persons with duly recognized disabilities were hardly impaired in their capacity to carry out their job. The approach adopted by the Convention, which applied to all categories of workers, is therefore useful in defining disability in terms of the difficulty in securing and advancing in suitable employment.
153. The Government member of the Syrian Arab Republic indicated in this regard that, according to a poll in his country of persons with disabilities, they did not even represent 1 per cent of the entire population, but this figure did not take into consideration all types of disability. The Government member of Germany indicated that, according to the legislation in his country, every person with a disability had the right to assistance and rehabilitation measures. Persons who were severely disabled were defined as those who had a 50 to 100 per cent degree of disability and those who had a degree of disability of between 30 and 50 per cent had to make an application in order to be considered as severely disabled.
Meaning of vocational rehabilitation
154. The Worker members raised the question of the definition of vocational rehabilitation, seconding the point of view of the Committee of Experts according to which this concept must have a very large scope and include a coordinated and continuous process involving a series of medical, social, educational and vocational measures contributing to greater equality of opportunity with a view to social and occupational integration and reintegration. The Worker members attached particular importance to the requirement for an integrated vocational rehabilitation process, since the employers concerned were too frequently confronted by administrative divisions between the various services of vocational rehabilitation. The functional and administrative divisions between these services gave rise to considerable delay in the implementation of measures and to contradictory approaches concerning vocational rehabilitation. It was indispensable, notwithstanding the notion given and the differences between national economic situations, that countries adopt, in consultation with all organizations concerned, integrated policies in order to obtain the best results from the financial resources allocated to vocational rehabilitation.
155. The Employer members emphasized the flexibility of the Convention concerning the meaning of vocational rehabilitation, each country being free to adopt the measures which were the most adapted to its particular national situation.
156. During the discussion concerning the definition of disability and the scope of the instruments examined, the Government member of Spain, as well as the Employer and Worker members of Spain expressed regret about the terminology used on rare occasions in the text, but especially in the title of the Committee of Experts report in Spanish. They also indicated that the expression "personas inválidas" (invalids) was improper and had a pejorative connotation. They proposed its replacement with "personas discapacitadas" (disabled persons) or "personas con discapacidad" (persons with disabilities). They likewise suggested the replacement of "readaptación" (readaptation) with "rehabilitación" (rehabilitation). But, although the qualifier "inválidas" had an inexact connotation in respect of the capacity potential of the persons covered by these instruments and is not well-received by these persons and the organizations which represent them, the Committee of Experts considered that the reproduction on the cover of the report of the official title of the instruments adopted in 1983 should not prejudice the awareness of the rapid evolution of thinking on the question over the last decade. The contents of the General Survey had abundantly illustrated this evolution in the chapter concerning the definitions and scope of the instruments.
Equality of opportunity for persons with disabilities
157. The Worker members considered that, as emphasized by the Committee of Experts, Convention No. 159 and Recommendation No. 168 aimed at eliminating the obstacles preventing persons with disabilities from securing and advancing in training and employment under equal conditions with other workers. Member States should constantly review and adapt their national policy of vocational rehabilitation and employment in consultation with the employers' and workers' organizations, as well as with the organizations representing persons with disabilities. Like the Committee of Experts in its General Survey, the Worker members particularly insisted on the important role which should be given in national policy to respect for the principle of equality of opportunity between persons with disabilities and workers generally. The Worker members supported the suggestion made by the Committee of Experts to member States which have ratified Convention No. 111 to extend the protection offered by this instrument to persons with disabilities by using the possibility provided in this respect in Article 1, paragraph 1(b), of the Convention.
158. The Employer members explained that the principle of equality of opportunity correctly underlined by the Convention as being a basis for national policy in vocational rehabilitation and employment of disabled persons implied that, in order to ensure this equality, it was appropriate to treat what was different in a different manner.
159. This point of view was supported by the Government member of Canada who specified that, according to the legislation in his country, equity means more than treating different persons in the same way, but rather meant respect and accommodation of differences. An important role was given to joint consultations employers-workers and to collaboration in the implementation of equity measures at the workplace. Legislative provisions concerning special positive measures in the sense of Article 4 of Convention No. 159 were mentioned by the Government members of Canada, China, Denmark, Greece, India, Morocco, Netherlands, Syrian Arab Republic, and the United Kingdom, as well as by the Employer member of the United States and the Worker members of Germany, Italy and Pakistan.
160. The Government member of Denmark considered that the adoption of specific measures in favour of persons with disabilities, taking into account their difficulties, was of greater value than adopting legislation in the area of discrimination. He stated that the Convention was functioning satisfactorily and he hoped that it would be ratified by a larger number of countries.
161. The Secretary-General of Rehabilitation International, speaking also on behalf of Inclusion International and other international non-governmental organizations representing persons with disabilities, supported the point of view of the Committee of Experts and the Worker members in respect of the extension of the protection of Convention No. 111, for those member States having ratified it, to cover persons with disabilities. The speaker considered that, by including disability as one of the categories where these should be no discrimination, the ILO would distinguish itself as defender of the fundamental rights of persons with disabilities.
162. The Worker members emphasized that education, vocational training and retraining were indispensable to the enlargement of employment prospects and maintaining jobs. They regretted the fact that persons with disabilities were too systematically placed into special education. Efforts should be made for their integration in the normal education system, while at the same time establishing specific vocational training programmes with staff specialized in vocational rehabilitation. Moreover, additional efforts should be made for persons suffering from slight or medium-level mental impairment and the right to work both in respect of recruitment and termination should also take into account the goals of integration and equality of opportunity.
163. The Government member of India provided statistical data concerning the significant population of disabled persons in his country. He indicated that, according to the legislation, disabled children must have access to education in an appropriate environment until they reach the age of 18. The legislation further provided for the creation, throughout the country, of special public and private schools for children who need a specific programme. The Government and the local authorities were responsible for providing the necessary equipment for the functioning of these establishments. The jobs available in these establishments would be filled whenever possible by persons with disabilities.
164. The Government member of Canada indicated that federal legislation provided for the review of policy within the terms of legislation which required Crown corporations and some 375 federally regulated employers to report annually on efforts undertaken for the employment promotion of persons with disabilities. The federal Government's activities in this area respected the division of responsibilities between the federal, provincial and territorial governments. The Government member of Greece indicated that national policy concerning persons with disabilities was reviewed according to the needs of these persons and in relation to the labour market. The Government member of the Czech Republic indicated that in spite of difficulties arising out of transition to market economy, national policy and legislation concerning persons with disabilities had been formulated at the very beginning of the transition process in the early 1990s and regularly reviewed: the new National Plan for Equalization of Opportunites for People with Disabilities which was adopted in April 1998 included a new approach and measures to increase employment of these persons.
Rural areas and remote communities
165. The Worker members recalled the information provided in the General Survey that some 80 per cent of disabled persons lived in rural areas and remote communities in developing countries. The precariousness which touches these persons called for particular attention. In this respect, the General Survey noted in particular the organization in certain countries of mobile rehabilitation services. It also made some useful clarification concerning the notion of community-based rehabilitation upon which a number of ILO technical cooperation programmes are based. This system consisted of developing methods and programmes of vocational rehabilitation which get the most out of, in principle, limited means. The Worker members expressed the hope that the ILO would continue to deploy its efforts in this area and allocate new resources to this end.
166. The Employer members drew attention to the need, given the specific problems encountered in the rehabilitation of persons with disabilities in rural areas, to make great efforts to ensure that well-qualified personnel were available in sufficient number for vocational training and rehabilitation of these persons.
167. The Government member of India highlighted the particular seriousness of the problem of vocational training and integration of mentally disabled persons living in rural areas.
168. The representative of the Rehabilitation International, speaking also on behalf of Inclusion International and other organizations representing persons with disabilities, called attention to the hundreds of millions of disabled persons who were living as best they could with their families in isolated areas of Africa and Asia.
Women with disabilities
169. According to the Employer members, the situation of disabled women is even more precarious in countries where they are not the subject of any special consideration in the legislation and development programmes. This problem was brought to light in paragraphs 114 to 120 of the General Survey wherein the Committee of Experts made an appeal to governments to give special attention to this matter. The Employer members drew attention to the interest given by the Committee of Experts to this matter by emphasizing that disabled women were doubly exposed to poverty and social exclusion and by examining the numerous measures adopted by member States to achieve the objectives of the Convention by remedying such a situation. Such measures included national plans, the creation of special authorities and rehabilitation institutions and the involvement of private organizations. It was important for the organizations representing persons with disabilities and the social partners to be adequately involved in all of these measures in order to ensure their success.
170. The Worker members noted the Committee of Experts' special concern for the principle of equal opportunity and treatment as between men and women workers with disabilities.
Promotion of employment opportunities for
disabled persons in the open labour market
171. The Worker members recalled that the Committee of Experts had stressed that the objective of the Convention was to promote employment of disabled persons in the open labour market and that these persons should, so far as possible, have access to normal employment. Work in sheltered employment should be reserved for certain limited categories of persons for whom the severity of the disability made their integration into normal employment impossible. The difficulty, or the improbability, of moving from work in sheltered employment to an ordinary working environment was highlighted by the Committee of Experts in paragraph 182 of the General Survey. Even if legislation and programmes stemmed from good intentions, they were not always as effective in practice.
172. From the Worker members' point of view, the responsible authorities, enterprises and employers' and workers' organizations still had to make considerable efforts in this respect, basing themselves in particular on the indications given in the Convention and Recommendations Nos. 99 and 168 and the large number of national experiences brought to light in the General Survey thanks to the information communicated by the governments on the measures which could be taken to give effect to the relevant provisions of these instruments.
173. The Worker members considered that the transition towards employment in normal enterprises and jobs presupposed a series of effective measures. For many disabled persons, the adaptation of workplaces and equipment would suffice. However, too little attention was given to this aspect and the employers were not always sufficiently informed of the subsidies provided under national legislation for such adaptations. Sometimes the granting of such subsidies was dependent on dissuasive bureaucratic procedures. The situation could undoubtedly be improved through dialogue at the enterprise level, in collaboration, where appropriate, with occupational physicians or specialists in vocational rehabilitation. Even in normal enterprises, disabled workers should not be relegated to sheltered work or services, but should participate as much as possible in the work as a whole, because activities of certain branches of enterprises were often subcontracted, adding to the precarious nature of the jobs concerned. Adaptations necessary to the integration of persons with disabilities in a normal environment were not necessarily costly. It was important to emphasize this fact, particularly as concerns the rural and informal sectors, as was also mentioned by the Committee of Experts when it referred in paragraph 197 to an ILO publication of 1997 on the adaptation of tools used in agriculture and construction in developing countries and countries emerging from armed conflict.
174. As concerns quotas for the employment of disabled persons in the public service and private enterprises, the Worker members pointed out that quotas had the advantage of making it impossible to ignore the need to integrate these persons. The enterprises which adopted a voluntary policy of equality of opportunity were often the most innovative and competitive. In some countries, enterprises most often preferred to free themselves from their obligation by paying a tax designed to finance the policy for disabled persons, while objectively they were in a position where they could employ them. The Worker members considered that, when incentives proved to be insufficient to attain the goal in question, there was reason to envisage the imposition of quotas. If this were not done, persons with disabilities would lose all employment opportunities in a context of increasing globalization which favoured short-term returns.
175. The Employer members stated that compulsory quotas and legal protection against dismissal were protective and promotional measures for persons with disabilities. From their point of view, it was however important to take great care with the detailed implementation of these measures. They considered that individual employers should not have to bear the burden of these measures by, for example, having to pay sick leave in the event of frequent absences or having to provide costly equipment. The expense should be borne by the community as a whole, for example, by providing subsidies for the adaptation of appropriate jobs and incentives for employing persons with disabilities, although it should be realized that moves from sheltered work to the open labour market were very rare. It was particularly important for disabled persons to be covered by social security, especially as concerns sickness, unemployment and retirement benefits. The Employer members drew attention to the need for a rational use of resources, notwithstanding the justice of the cause.
176. The Government member of Denmark mentioned a 1997 survey which showed that, thanks to the joint efforts of the enterprises and the public authorities for the integration of these workers, 10 to 15 per cent of employees in the labour market in his country were persons suffering from a chronic disease which reduced their capacity for work and that only 6,000 of them benefited from special employment with public subsidies. All the others were employed on normal terms in ordinary jobs.
177. The Government member of Italy recalled that, in accordance with the 1968 Act, public and private employers with more than 35 employees had to reserve 15 per cent of their jobs for disabled persons. A new law was to be adopted providing the establishment of special agreements by which, in place of compulsory vocational insertion, the employers would be involved in the hiring process, in order to respond to the respective interests of employers and disabled persons.
178. The Government member of the Syrian Arab Republic indicated that a quota of 2 per cent for disabled workers was set by the legislation in his country. The Government member of the Netherlands pointed out that employment quotas fixed by the legislation in his country at 5 per cent were rarely achieved. The Government member of China indicated that quotas were one of a series of measures which contributed to achieving an employment rate for disabled persons in his country of 90 per cent. For the Government member of the Czech Republic, even enterprises employing mostly persons with disabilities and receiving special financial subsidies from the State had to remain competitive and therefore should employ a reasonable number of workers without disabilities to prepare the groundwork for disabled workers.
179. The Government member of Denmark pointed out in this regard the recent adoption in his country of a law reinforcing existing measures in respect of subsidies for personal assistance to disabled persons in the workplace, preferential treatment for certain jobs and financial assistance for the purchase of equipment and providing care. He also mentioned subsidized continuous training programmes for disabled persons within the framework of a pilot project granting a wage subsidy of up to 50 per cent for a short period in connection with the recruitment of disabled persons who had finished their training.
180. The Employer member of the United States believed that the cost of adaptations concerning vocational rehabilitation and employment of disabled persons should be backed by employers, even if, contrary to the assessment made in a study cited by the General Survey, these costs could reach important sums. The Employer member of Spain was in favour of incentive measures which, he stated, experience had demonstrated to be more effective.
181. The Worker member of Pakistan indicated that the legislation in his country imposed a quota in employment both in the private and the public sectors. The Worker member of Germany favoured a quota system of reserving posts for disabled persons and indicated that the quota in Germany was 6 per cent, while the employers which did not achieve this percentage were obliged to pay a financial contribution in compensation. The Worker member of Italy recognized the usefulness of the quota policy for securing the employment of disabled persons.
Protection of working conditions and social rights of disabled persons
182. The Worker members were particularly concerned about the full application of labour standards in sheltered environments. In numerous countries, the status of persons working in such environments was too uncertain in respect of labour contracts, remuneration, consultation and trade union rights. The Committee of Experts called for supervision in respect of the rights of workers in sheltered structures. The Worker members considered that all labour law should apply to these persons. Various forms of subsidies could aim at compensating an eventual loss of productivity due to disability, so as to ensure, at the least, respect for the minimum wage. The Workers considered it important to express once again, as they had in the general discussion, their concern over the threat hovering over sheltered employment of disloyal competition from prison labour for private enterprises. Recalling the Committee of Experts' emphasis in its General Survey on the need for objective criteria in recruitment decisions, the Worker members underlined that physical strength should only be taken into consideration when it was an inherent requirement for the work to be performed. Protection against dismissal should also be ensured, particularly in the case of workers who were victims of an employment injury or occupational disease.
183. The Government member of Denmark referred to collective agreements which provided for the possibility of recruiting persons whose capacity to work was reduced according to a special scheme both in the public and the private sectors, indicating the special terms concerning not only wages, but also working hours and assigned tasks. Similar provisions were also referred to by the Government member of Greece. The Government member of the United Kingdom indicated certain important adjustments in the labour legislation as concerns the working conditions of disabled persons which were applicable to employers.
184. The Worker member of Canada referring to recent developments in Canada in the areas of employment equity and disability management, pointed out that there had recently been the signing of a memorandum of understanding between the National Institute of Disability Management and Research (NIDMAR) and the ILO. The memorandum concerned the joint development and research which would lead in the not too distant future to the first ever ILO Code of Practice in Disability Management in the Workplace. This document has been signed by the labour and business co-chairs of NIDMAR and an Assistant Director-General of the ILO. Many international players were involved in this exercise which the speaker considered to be an extremely important development in the area of vocational rehabilitation and employment of disabled persons in Canada.
The role of social security schemes
185. The Worker members recalled, as was indicated in Chapter 3 of the Committee of Experts' General Survey, that, dating back to 1944, the International Labour Conference had adopted a Recommendation inviting member States to establish vocational rehabilitation services with the administrative and financial support of the social security schemes. Conventions Nos. 102 and 128 confirmed the principle according to which social security should contribute to the financing of vocational rehabilitation services. Besides its passive function of the payment of benefits, social security should also fulfil an active function by contributing to the strengthening of capacity to perform productive and adapted work which accommodates as best as possible the aptitude and capacity of the worker. The Committee of Experts had recalled in paragraph 202 of its General Survey the importance which the ILO has always attached to the social protection measures that should be provided for each member of society, following from required solidarity measures and individual responsibility. It observed however that social security systems in numerous countries only provide benefits for persons who were disabled following an occupational accident. The Workers stated that respect for the principle of equality of opportunity and treatment should imply that such support be extended to all disabled persons, whatever the origin of the disability. The General Survey observed that disabled persons who receive an invalidity benefit hesitated to engage in the exercise of an activity for fear of losing this benefit. Furthermore, insurance enterprises and social security institutions sometimes had the tendency to push people to accept unskilled jobs and low wages in order to economize on invalidity benefits. Measures should be taken to promote access to employment for these persons while preserving their income security.
186. The Government member of Canada indicated in this regard that the changing characteristics of the active population had led the Government to review income, assistance and services to disabled persons. Since 1995, the Canadian Government had improved the delivery of services under the Canadian Pension Plan Disability Programme.
187. The Worker members first welcomed the high number of interventions on this subject (25), which was one of the highest for discussion on a General Survey. They associated themselves with the statement made by the International Non-Governmental Organizations for Rehabilitation. They recalled that most of the interventions made had stressed the importance of the subject and the objective of the instruments examined which had to be seen as flowing on from Convention No. 111. Noting that several speakers had repeated that the Convention and Recommendations continued to be relevant, and that they could assist and incite member States to develop and implement a satisfactory policy for vocational rehabilitation and employment of persons with disabilities, the workers made reference to the Employer members' statement confirming that these were solid instruments and that the General Survey had supported this opinion.
188. The Worker members recalled that reference was made on several occasions to the fact that there were still too few ratifications of this Convention. However, they pointed out that several governments which had not ratified Convention No. 159 had described their current policy and had informed the Committee of measures and programmes existing at the national level. Moreover, they noted the commitments made in relation to ratification and review of national policies and considered that this discussion on the General Survey should therefore permit the revision and evolution of national policies in this area.
189. Stressing the numerous interesting ideas that had been heard, the Worker members wished to highlight two points in particular: the importance, emphasized on several occasions, of consultation with and participation of organizations representing persons with disabilities and workers' and employers' organizations; and the appeal made to the ILO to give priority attention to activities in favour of persons with disabilities and to the promotion of and assistance towards achieving a higher number of ratifications.
190. Finally, the Worker members emphasized that the discussion on the General Survey had demonstrated that specific effective measures were absolutely essential for the fulfilment of the legitimate aspirations of persons with disabilities to be integrated into society.
191. The Employer members indicated that the long discussion of the General Survey, while constructive and of quality, showed that the subject touched upon several problems for which it was not possible to find complete solutions. Therefore, the different points of view expressed had placed the accent on the efforts of the imagination which was required from all those concerned with this subject, that is governments, public institutions at different levels, as well as employers and workers, in order to adopt an appropriate behaviour towards persons with disabilities. The flexibility of the instrument should be supported as it enabled the adoption of national policy in conformity with the Convention. The accent should also be placed on the possibilities provided by new means of communication so as to enable a better dissemination of information. Several persons had reservations against persons with disabilities, which demonstrated a psychological problem which needed a pedagogical approach by providing better information and education.
192. The Employer members considered that small changes could lead to improving the life of persons with disabilities, as well as their occupational integration. Beyond the matter of vocational rehabilitation which was nevertheless very important, it was necessary to search for the causes for disability in order to eliminate them. The creation of a legal framework in the area of occupational safety and health could constitute a preventive measure. Political decisions, in particular those to wage war, had been causes of disability, but this was outside the mandate of this Committee. The agreement between the Employers and Workers which came out of this discussion should encourage the groups who were working in favour of persons with disabilities to continue. The General Survey as well as the discussion had contributed in a definite manner to the identification and implementation of effective measures in this area in the future.
193. The Committee noted with interest information provided by the Government members of India, Italy, Poland and Turkey that the ratification of Convention No. 159 was envisaged. The Government member of the United Kingdom said that his Government would give further thought to the prospects of ratifying Convention No. 159.
E. Compliance with specific obligations
194. The Committee decided that, in examining individual cases relating to compliance by States with their obligations under or relating to international labour standards, it would apply the same working methods and criteria as last year, as amended or clarified in 1980 and 1987.
195. In applying those methods, the Committee decided, on the proposal of the Worker members supported by the Employer members, to invite all governments concerned by the comments in paragraphs 150 (failure to supply reports on the application of ratified Conventions), 164 (failure to supply first reports on the application of ratified Conventions), 168 (failure to supply information in reply to comments made by the Committee of Experts), 196 (failure to submit), and 200 (failure to supply reports on unratified Conventions and on Recommendations) of the Committee of Experts' report to supply information to the Committee in one half-day sitting to be devoted to those cases. The Committee considered that this approach should in no sense be understood by Governments as dispensing them from the need to take part in the Committee's discussions.
Submission of Conventions and Recommendations
to the competent authorities
196. In accordance with its terms of reference, the Committee considered the manner in which effect is given to article 19, paragraphs 5 to 7, of the ILO Constitution. These provisions require member States within 12, or exceptionally 18, months of the closing of each session of the Conference to submit the Conventions and Recommendations adopted at that session to the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action, and to inform the Director-General of the ILO of the measures taken to that end, with particulars of the authority or authorities regarded as competent.
197. The Committee noted from the report of the Committee of Experts (paragraph 189) that considerable efforts to fulfil the submission obligation had been made in certain States, namely: Burkina Faso, Mozambique.
198. The Committee was informed by various other States of measures taken to bring Conventions and Recommendations before the competent national authorities. It welcomed the progress achieved and expressed the hope that there would be further improvements in States that still experience difficulties in complying with their obligations.
Failure to submit
199. The Committee noted with regret from paragraph 196 of the Committee of Experts' report that no indication was available that steps had been taken in accordance with article 19 of the Constitution to submit the Conventions and Recommendations adopted between 1989 and 1995 by the 76th to 82nd Sessions of the Conference to the competent authorities, in the cases of Afghanistan, Cameroon, Guinea, Haiti, Liberia, Madagascar, Saint Lucia, Sierra Leone, Solomon Islands.
Supply of reports on ratified Conventions
200. In Part B of this report (General questions relating to international labour standards) the Committee has considered amongst other things the fulfilment by States of their obligation to report on the application of ratified Conventions. By the date of the 1997 meeting of the Committee of Experts, the percentage of reports received was 62.8 per cent, compared with 63.3 per cent for the 1996 meeting. Since then, further reports have been received, bringing the figure to 74.2 per cent (as compared with 78.2 per cent in June 1997, 78.9 per cent in June 1996 and 82.0 per cent in June 1995). In 1997, the Committee of Experts noted that 84.3 per cent of the reports on Conventions for which information on practical application was requested contained such information, compared with 70.4 per cent in 1996 and 73.4 per cent in November-December 1995. The Committee emphasizes the importance of sending practical information, without which it is impossible to know if a Convention is actually being applied. The Committee joins the Committee of Experts in appealing to governments to make every effort to include the necessary information in future reports.
Failure to supply reports and information on
the application of ratified Conventions
201. The Committee noted with regret that no reports on ratified Conventions had been supplied for two years or more by the following States: Armenia, Bosnia and Herzegovina, Burundi, Grenada, Liberia, Republic of Moldova, Saint Lucia, Sierra Leone, Somalia and Uzbekistan.
202. The Committee also noted with regret that no first reports due on ratified Conventions had been supplied by the following countries: since 1992, Liberia (Convention No. 133); since 1993, Yemen (Convention No. 159); since 1994, Latvia (Conventions Nos. 111, 122, 135 and 151); since 1995, Armenia (Convention No. 111), Burundi (Conventions Nos. 87, 100 and 111), Kyrgyzstan (Conventions Nos. 133 and 160), Republic of Moldova (Convention No. 105), Nigeria (Convention No. 144), Seychelles (Convention No. 149); since 1996, Armenia (Conventions Nos. 100, 122, 135 and 151), Cyprus (Convention No. 171), Grenada (Conventions Nos. 87, 100 and 144), Latvia (Conventions Nos. 81, 129, 132, 154, 155 and 158), Uzbekistan (Conventions Nos. 47, 52, 103 and 122). It stressed the special importance of first reports on which the Committee of Experts bases its first evaluation of compliance with ratified Conventions.
203. In this year's report, the Committee of Experts noted that 58 governments had not communicated replies to most or any of the observations and direct requests relating to Conventions on which reports were due for examination this year, involving a total of 385 cases (compared with 323 cases in December 1996). The Committee was informed that, since the meeting of the Committee of Experts, 23 of the governments concerned had sent replies, which would be examined by the Committee of Experts at its next session.
204. The Committee noted with regret that no information had yet been received regarding any or most of the observations and direct requests of the Committee of Experts to which replies were requested for the period ending 1997 from the following countries: Afghanistan, Albania, Angola, Antigua and Barbuda, Bahamas, Barbados, Bosnia and Herzegovina, Burundi, Democratic Republic of the Congo, Denmark (Faeroe Islands), Djibouti, France (French Polynesia, Guadeloupe), Ghana, Grenada, Guinea-Bissau, Iraq, Kyrgyzstan, Latvia, Liberia, Libyan Arab Jamahiriya, Madagascar, Mali, Malta, Netherlands (Aruba), Niger, Nigeria, Paraguay, Philippines, Saint Lucia, Seychelles, Sierra Leone, Somalia, Tajikistan.
205. The Committee noted the explanations provided by the Governments of the following countries concerning difficulties encountered in discharging their obligations: Angola, Bahamas, Bangladesh, Barbados, Bolivia, Cameroon, Chile, Côte d'Ivoire, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark (Faeroe Islands, Greenland), Ethiopia, Fiji, France (French Polynesia, Guadeloupe), Gabon, Ghana, Grenada, Guinea, Haiti, Honduras, Iceland, Israel, Kuwait, Lao People's Democratic Republic, Lesotho, Liberia, Libyan Arab Jamahiriya, Malawi, Malaysia, Malta, Republic of Moldova, Morocco, Myanmar, Netherlands (Aruba), Niger, Paraguay, Seychelles, Sierre Leone, Sri Lanka, United Republic of Tanzania, Tunisia, Yemen.
206. The Committee stressed that the obligation to transmit reports is the basis of the supervisory system. It requests the Director-General to adopt all possible measures to improve the situation and solve the problems referred to above as quickly as possible. It expressed the hope that the multidisciplinary teams would give all due attention in their work in the field to standards-related issues and in particular to the fulfilment of standards-related obligations. The Committee also bore in mind the new reporting arrangements approved by the Governing Body in November 1993, which came into operation from 1995.
Application of ratified Conventions
207. The Committee noted with particular interest the steps taken by a number of governments to ensure compliance with ratified Conventions. The Committee of Experts listed in paragraph 174 of its report new cases in which governments had made changes to their law and practice following comments it had made as to the degree of conformity of national legislation or practice with the provisions of a ratified Convention. There were 32 such cases, relating to 22 countries; 2,164 cases of progress have been recorded since the Committee of Experts began listing them in 1964. These results are tangible proof of the effectiveness of the supervisory system.
208. At its present session, the Committee was informed of other instances in which measures had recently been or were about to be taken by governments with a view to ensuring the implementation of ratified Conventions. While it is for the Committee of Experts to examine these measures, the present Committee welcomes them as fresh evidence of the efforts made by governments to comply with their international obligations and to act upon the comments of the supervisory bodies.
209. The Committee thought it appropriate to draw the attention of the Conference to various important cases which it had to consider.
Cases of progress
210. The Committee noted with satisfaction that in a number of cases -- including many involving basic human rights -- governments have introduced changes in their law and practice in order to eliminate divergencies previously discussed by the Committee. It considers highlighting these cases a positive approach towards influencing governments to respond to comments of the supervisory bodies. In this respect, it refers to the report of the Committee of Experts and the discussion of individual cases which appears in Part Two of this report.
211. The Committee considered it appropriate to draw the attention of the Conference to its discussions of the cases mentioned in the following paragraphs, a full record of which appears in Part Two of this report.
212. As regards the application by Myanmar of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee noted the written information communicated by the Government, the statement made by the Government representative and the detailed discussion which took place thereafter. It recalled that this case had been discussed by the Committee consistently for over a decade in 1987, 1989, 1993, 1994, 1995, 1996 and 1997. The Committee could not but deplore the fact that no government report had been received by the Committee of Experts on the application of this fundamental Convention for over three years, despite the repeated calls upon the Government by this present Committee including, in the last two years, in special paragraphs for continued failure to apply the Convention. The Committee was once again obliged to express its profound regret that serious divergencies between the national legislation and practice, on the one hand, and the provisions of the Convention, on the other, continued to exist and deplored the absence of cooperation on the part of the Government in this regard. Extremely concerned over the total absence of progress in the application of this Convention, the Committee once again strongly urged the Government to adopt, as a matter of urgency, the measures and mechanisms necessary to guarantee, in legislation and in practice, to all workers and employers, without distinction whatsoever and without previous authorization, the right to join organizations of their own choosing to protect their interests and the right to affiliate to federations, confederations and international organizations, without interference from the public authorities. The Committee also strongly urged the Government to make without delay substantial progress in the application of the Convention in law and practice in the very near future and urged the Government to supply a detailed report to the Committee of Experts this year.
213. As regards the application by Sudan of the Forced Labour Convention, 1930 (No. 29), the Committee took note of the information supplied by the Government representatives and of the discussion which ensued. The Committee stressed that this was a particularly serious case affecting human rights, as witnessed by its inclusion in a special paragraph last year and the fact that comments had been received from a world organization of workers. The Committee noted the information provided by the Government on measures being taken to track down and bring an end to practices of slavery. In particular, it welcomed the achievements of the recently established Investigating Commission. But the Committee expressed its deep concern and urged the Government to do much more. The Committee insisted that the request for assistance from the Office should address the substance of the problem, and urged the Government in this respect to ask again for assistance which would ensure that there would be a serious attempt to eliminate slavery throughout the country. The Committee expressed the firm hope that the next report to be submitted to the Committee of Experts would contain details of the concrete measures taken, cases brought to justice, numbers of convictions and penalties imposed. It also expressed the firm hope that the next report would describe the measures envisaged so that full application in law and in practice of the Convention could be noted in the very near future.
214. The Committee trusts that the governments concerned will take all measures necessary to correct the deficiencies noted and invites them to consider appropriate forms of ILO assistance, including direct contacts, to ensure that real progress is achieved by next year in the observance of their obligations under the ILO Constitution and the Conventions in question.
Continued failure to implement
215. The Committee recalls that its working methods provide for the listing of cases of continued failure over several years to eliminate serious deficiencies, previously discussed, in the application of ratified Conventions. This year the Committee noted with great concern that there had been continued failure over several years to eliminate serious discrepancies in the application by Myanmar of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
216. The Governments of the countries to which reference is made in paragraphs 212 and 213 are invited to supply the relevant reports and information to enable the Committee to follow up the above-mentioned matters at the next General Session of the Conference.
Supply of reports on unratified Conventions
and on Recommendations
217. The Committee notes that 151 of the 290 article 19 reports requested on Convention No. 159 and Recommendation No. 168 on vocational rehabilitation and employment of disabled persons had been received at the time of the Committee of Experts' meeting, and a further ten since, making 52.1 per cent in all.
218. The Committee noted with regret that over the past five years none of the reports on unratified Conventions and on Recommendations requested under article 19 of the Constitution had been supplied by Afghanistan, Albania, Djibouti, Fiji, Haiti, Lesotho, Liberia, Libyan Arab Jamahiriya, Republic of Moldova, Nepal, Nigeria, Paraguay, Saint Lucia, Solomon Islands, Somalia and Yemen.
Communication of copies of reports to workers'
and employers' organizations
219. Once again this year, the Committee did not have to apply the criterion "The Government has failed during the past three years to indicate the representative organizations of employers and workers to which, in accordance with article 23(2) of the Constitution, copies of reports and information supplied to the ILO under articles 19 and 22 have been communicated".
Participation in the work of the Committee
220. The Committee wishes to express its gratitude to the 59 governments which collaborated by providing information on the situation in their countries and participating in the discussions of their individual cases.
221. The Committee regrets that, despite the invitations, the Governments of the following States failed to take part in the discussions concerning their countries' fulfilment of their constitutional obligations to report: Afghanistan, Albania, Bosnia and Herzegovina, Burundi, Guinea-Bissau, Iraq, Kyrgyzstan, Latvia, Madagascar, Mali, Nepal, Nigeria, Philippines and Tajikistan. It decided to mention the cases of these States in the appropriate paragraphs of its report and to inform them in accordance with the usual practice.
222. The Committee notes with regret that the Governments of the States which were not represented at the Conference, namely Antigua and Barbuda, Armenia, Djibouti, Saint Lucia, Solomon Islands, Somalia and Uzbekistan were unable to participate in the Committee's examination of the cases relating to them. It decided to mention these countries in the appropriate paragraphs of this report and to inform the Governments, in accordance with the usual practice.
* * *
223. The Committee was especially pleased with the constructiveness of its debates this year. At a time when many vital aspects of international labour standards were under consideration by the Conference, the discussions in this Committee continued to be well attended and well informed. The Committee is conscious of its unique role in entertaining frank and positive dialogue in a tripartite context, in the single-minded pursuit of helping member States make progress in the implementation of their standards-related obligations. There were important questions of principle and a number of complex and serious cases to be examined in the Committee this year, but this occurred in a spirit of constructiveness and good faith which engenders the hope of acceptable solutions for all. The Committee welcomes all of this, for the protection of freedom, dignity and living standards -- life itself -- for men, women and children is the underlying and unforgettable purpose behind the work of the supervisory bodies. The Committee is convinced of the enormous contribution to be made to the realization of social as well as economic globalization by the standard-setting and supervisory mechanisms operating under the ILO's Constitution.
Geneva, 16 June 1998.
(Signed) P. van der Heijden, Chair.
C. Aguessy, Reporter.
1. For changes in the composition of the Committee, see the reports of the Selection Committee, Provisional Record Nos. 3 to 3K.
2. Report III to the International Labour Conference -- Part 1A: Report of the Committee of Experts on the Application of Conventions and Recommendations; Part 1B: Vocational Rehabilitation and Employment of Disabled Persons.