Employers' Handbook on ILO Standards-related Activities

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THE SUPERVISION OF ILS of employers or workers to which copies of its reports to the ILO have been sent (Art. 23, para. 2, ILO Constitution). Cases of non-compliance are reported until they have been resolved. On the other hand, the Committee of Experts also “notes with interest” government measures to ensure a fuller application of ratified Conventions or “expresses its satisfaction” when the necessary changes have been made. A list of such cases of progress is included in a special section of Part One of its Report. l Part Three: General Survey (Report III, Part 1B) Part Three consists of information on law and practice regarding selected Conventions and Recommendations on which reports have been supplied by governments under Article 19, 22 and 35 of the ILO Constitution. (b) The Conference Committee on the Application of Conventions and Recommendations (“Applications Committee”). Since 1927 the ILC has delegated its supervisory function to one of its standing committees, the Applications Committee. Like the ILC itself, the Applications Committee is a tripartite body, representing employers, workers and governments. The work of the Applications Committee (see art. 7 of the Standing Orders of the ILC) consists in considering the measures taken by ILO member States to fulfil their obligations under ILS, in particular regarding ratified Conventions (art. 22, 35, ILO Constitution). The Applications Committee takes as a starting point for its assessment the Report of the Committee of Experts and additional ILS-related information. In order to deliver its mandate in a convincing way and to have an impact, it is indispensable, in the employers’ view, that the Applications Committee – like the Committee of Experts – adheres to the principles of objectivity and impartiality, as well as to the existing rules of interpretation. The work of the Applications Committee is organized along the following schedule: l General discussion This part of the discussion gives the Committee an opportunity to comment on ILS-related matters of principle or general interest, in particular those dealt with in Part One (General report) and Part Three (General Survey) of the Report of the Committee of Experts. l Discussion of individual cases The Committee then discusses a number of selected cases, which are the subject of “Observations” in Part Two of the Report of the Committee of Experts. Governments are invited to respond to the “Observations” orally or in writing, so that the Committee can make an up-to-date evaluation of the problem. Governments may amplify information previously supplied, draw attention to particular difficulties or indicate the steps they have taken or intend to take. Other members of the Committee may comment on the government statement and suggest possible solutions, including technical assistance by the ILO (see Chapter VIII). The Report of the Applications Committee is presented to the plenary of the ILC and later incorporated into the ILC Record of Proceedings. It reflects the 31
32 EMPLOYERS’ HANDBOOK ON ILO STANDARDS-RELATED ACTIVITIES Committee’s discussions and conclusions and gives a topical overview of the application of ILS and problems encountered in this regard. The report also includes “special paragraphs”, which (usually) name countries persistently ignoring their ILS-related obligations. In this case, public pressure will be generated or increased to correct the situation. The employer members of the Applications Committee have equal voting rights with the government and worker members. They can call the attention of the Committee to any matters which they believe should be considered. The active engagement of employer members is essential not least because the evaluation of cases brought before the Committee often has far-reaching consequences for the understanding and interpretation of ILS. Although employer members of the Applications Committee have mostly concurred with the findings of the Committee of Experts and based their conclusions on them, there have been cases of disagreement. One example is the interpretation of Convention No. 87 by the Committee of Experts regarding the “right to strike” (see “Interpretation of Conventions and Recommendations” below). This disparity between the interpretations of the two Committees led to a discussion about the mandates of these two regular supervisory organs and the relationship between them. The Committee of Experts initially held the view that “in so far as its views are not contradicted by the International Court of Justice, they are to be considered as valid and generally recognised” (para. 7, Report of the Committee of Experts, ILC, 1990). The employer members of the Applications Committee, supported by several governments, opposed this statement as it was, in their view, not in keeping with the technical and supportive function of the Committee of Experts. When the Committee of Experts was set up by the ILC in 1926, there was agreement that it “would have no judicial capacity, nor would it be competent to give interpretations of the provisions of the Conventions nor to decide in favour of one interpretation rather than another” (see ILC, 8th session, final record, Appendix V, p. 405). This distribution of roles between the Committee of Experts and the Applications Committee was reaffirmed by the ILO GB in 1947 (“It has been recognised from the outset that the technical examination of the annual reports carried out by the Experts is an indispensable preliminary to the over-all survey of application conducted by the Conference through its Committee on the Application of Conventions”, Minutes of the 103rd session of the GB, December 1947, p. 173) and by the Committee of Experts itself (“The Committee’s basic purposes and principles have, however, remained essentially the same …”, Report of the Committee of Experts, ILC, 63rd Session 1977, para. 29). Furthermore, the employers pointed out that according to Art. 7 of the Standing Orders of the International Labour Conference, the evaluation function of the Applications Committee was unrestricted. Therefore, the views of the Committee of Experts could not take precedence over diverging views held by the Applications Committee. On this intervention, the Committee of Experts in its subsequent report conceded that the employer members of the Applications Committee had “the right to depart” from the Committee of Experts’ views (para. 12, Report of the Committee of Experts, ILC, 1991). The employers concluded that if they had this right then the other members of the Committee and thus the Committee as a whole necessarily must have the same right, too.
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