Employers' Handbook on ILO Standards-related Activities

THE CREATION OF ILS
should be in a position, with reasonable efforts, to implement and ratify an ILO
Convention.
The most important means to achieve universality is flexibility. The ILO Constitution
requires the ILC, in framing a Convention or Recommendation of a general nature,
to “have due regard to those countries in which climatic conditions, the imperfect
development of industrial organisation, or other special circumstances make the industrial
conditions substantially different” and to “suggest the modifications, if any, which
it considers may be required to meet the case of such countries” (art. 19, para. 3). This
provision corresponds to the principle of uniform application and supervision of ILO
Conventions which means that differing applications of the provisions of a Convention
are not allowed (no “double-standards”), unless this is expressly foreseen in the instrument
itself.
In order to make flexibility an inherent part of the elaboration and implementation
of ILS, a systematic approach is required which involves the following measures and
steps:
l First of all, in the process of elaborating a new instrument, any potential problems
which might arise in the application of a proposed provision must be put forward,
so that they can be understood and taken into account. This is a particular responsibility
for representatives from the type of countries mentioned above in art. 19,
para. 3. Hence, employers’ organizations in developing countries should raise any
potential application problems that draft standards may pose for companies in
their home countries. However, employers’ organizations from industrialized
countries, too, in view of the widely differing labour and social systems among
these countries, need to raise possible difficulties that draft provisions may cause
for their member companies.
l Secondly, the problems raised must systematically be given special attention and
must be taken seriously in the elaboration process. This means that the search
for flexible solutions must take precedence over removing difficulties by means
of majority decisions. Voting should therefore be confined to very exceptional
cases.
l In the past decades, flexibility devices regarding scope, extent of obligations and
methods of application have been developed by the ILC. It is imperative that employers
taking part in the standard-setting process are not only aware of these
means of flexibility, but also take a proactive role in proposing them, wherever
appropriate (see box on following page). Moreover, employers should be creative
in identifying practicable new forms of flexibility.
l Lastly, flexibility needs to be sustained in the implementation and supervision of
ILS and, where the need arises, extended (see Chapter VI). This means, for instance,
that the effect of flexibility devices built into a Convention must not subsequently
be limited by a restrictive interpretation by ILO supervisory bodies (see
Chapter V).
However, flexibility devices, such as exceptions and exemptions, should not be
seen as a justification for the setting of inappropriately high protection levels. This
would be contrary to the function of ILS as universal minimum standards.
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