CHAPTER. A. Odero and C. Phouangsavath

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1 CHAPTER I NDUSTRIAL R ELATIONS A. Odero and C. Phouangsavath

2 NTERNATIONAL ABOUR TANDARDS: LOBAL PPROACH I L S AG A Instruments Up-to-date instruments Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152) Workers Representatives Convention, 1971 (No. 5) Workers Representatives Recommendation, 1971 (No. 143) Labour Relations (Public Service) Convention, 1978 (No. 151) Labour Relations (Public Service) Recommendation, 1978 (No. 159) Collective Bargaining Convention, 1981 (No. 154) Collective Bargaining Recommendation, 1981(No. 163) Collective Agreements Recommendation, 1951 (No. 91) Consultation (Industrial and National Levels) Recommendation, 1960 (No. 1) Number of ratifications (as of 31 August 2003) Status Conventions whose ratification is encouraged and Recommendations to which member States are invited to give effect. 110 Priority Convention This Recommendation is related to a priority Convention and is considered up to date. 73 The Governing Body has invited member States to contemplate ratifying Convention No. 5 and to inform the Office of any obstacles or difficulties encountered that might prevent or delay ratification of the Convention. The Governing Body has invited member States to give effect to Recommendation No The Governing Body has invited member States to contemplate ratifying Convention No. 151 and to inform the Office of any obstacles or difficulties encountered that might prevent or delay ratification of the Convention. The Governing Body has invited member States to give effect to Recommendation No The Governing Body has invited member States to contemplate ratifying Convention No. 154 and to inform the Office of any obstacles or difficulties encountered that might prevent or delay ratification of the Convention. The Governing Body has invited member States to give effect to Recommendation No The Governing Body has invited member States to give effect to Recommendation No. 91. The Governing Body has invited member States to give effect to Recommendation No

3 I NDUSTRIAL R ELATIONS CHAPTER Requests for information Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92) Co-operation at the Level of the Undertaking Recommendation, 1952 (No. 94) Communications within the Undertaking Recommendation, 1967 (No. 129) Examination of Grievances Recommendation, 1967 (No. 0) Outdated instruments Instruments for which the Governing Body has confined itself at this stage to requesting additional information from member States either on the possible obstacles to their ratification or implementation, or the possible need for the revision of these instruments, or on specific issues. The Governing Body has invited member States to communicate to the Office any additional information on the possible need to replace Recommendations Nos. 92, 94, 129 and 0. Instruments which are no longer up to date; this category includes the Conventions that member States are no longer invited to ratify and the Recommendations whose implementation is no longer encouraged. In the area of industrial relations, no instrument has been considered outdated by the Governing Body. Introduction Industrial relations include, on the one hand, bilateral relations between one or several employers or an employers organization and one or more trade union organizations and, on the other hand, tripartite relations in which, in addition to the actors referred to above, the representatives of the public authorities are also included. Industrial relations cover, in areas of common interest, the whole range of contacts, exchanges of information, discussions, consultations, exploratory talks, negotiations, cooperation activities and disputes (of a legal or economic nature) at the level of enterprises or public institutions, or at a more general, or even national level, as well as the ways and means of settling disputes. The framework of such relations may have differing degrees of formality. For example, in some cases, these relations and the rights, duties and obligations relating to the partners, such as the duty of recognition, good faith, facilities and guarantees to representatives in the discharge of their functions, etc., may be regulated by legislation, collective agreements, codes of conduct established by the parties, arbitration awards or judicial decisions, or finally just left to custom and practice. In any case, ILO Conventions and Recommendations give the autonomy of the parties a central role in industrial relations. The collective rights of workers and employers organizations, and particularly collective bargaining, are vital to industrial relations. These matters have been addressed in Chapters 1 and 2 of this publication, since freedom of association and collective bargaining are fundamental labour rights. Other matters relating to industrial relations have also been covered: the settlement of disputes in Chapter 2 (collective bargaining); collective dismissals for economic, technical or structural reasons in Chapter 8 (employment security); and the facilities and guarantees to be afforded to workers representatives in Chapter 1 (freedom of association)

4 NTERNATIONAL ABOUR TANDARDS: LOBAL PPROACH I L S AG A Moreover, it should be recalled that very many ILO Conventions and Recommendations envisage consultations on the conditions of work of specific categories of workers, as well as other more general matters. This chapter examines the ILO instruments which address cooperation between the social partners (bipartite information, communications and consultations), complaints, voluntary conciliation and arbitration, and tripartite consultation, including on matters relating to international labour standards. With regard to grievances, it should be recalled that the Examination of Grievances Recommendation, 1967 (No. 0), applies both to individual disputes and to disputes relating to several workers, particularly in the event of failure to comply with the provisions of applicable collective agreements, which justifies its analysis in this chapter. However, it should be borne in mind that this Recommendation does not apply to claims of a general nature, nor does it concern procedures for the settlement of collective disputes. Collaboration at the enterprise level The Co-operation at the Level of the Undertaking Recommendation, 1952 (No. 94), which is drawn up in general terms, provides firstly for measures to promote consultation and collaboration between employers and workers at the level of the enterprise on issues of common interest which do not lie within the framework of collective bargaining procedures or which are not normally covered by other procedures for the determination of terms and conditions of employment. It is then indicated that, in accordance with national custom or practice, such consultations and collaboration should be facilitated or implemented by one of the two following methods, or by a combination of them: either by the encouragement of voluntary agreements between the parties, or by laws and regulations establishing consultation and collaboration bodies and determining their scope, competence, structure and methods of operation, taking into account the conditions in the various enterprises. Communications within the enterprise The Communications within the Undertaking Recommendation, 1967 (No. 129), covers communications between management and workers within enterprises. It emphasizes the importance of establishing within enterprises a climate of mutual understanding and confidence that is favourable both to the efficiency of the enterprise and to the aspirations of the workers. It advocates various measures intended to promote such a climate, including the adoption by management of an effective policy of communication with the workers and their representatives. Such a policy should ensure that information is given and that consultation takes place before decisions on matters of major interest are taken by management, in so far as disclosure of the information will not cause damage to either party. After indicating that communication methods should in no way derogate from freedom of association, the Recommendation enumerates and specifies the various elements of a communications policy within the enterprise. 548

5 I NDUSTRIAL R ELATIONS CHAPTER The media of communication include meetings, house magazines, newsletters, noticeboards, etc., as well as media aimed at permitting workers to submit suggestions and express their ideas. The management should provide information regarding general conditions of employment, safety regulations, procedures for the examination of grievances and decisions which affect the situation of the personnel, etc. Tripartite consultations From the very beginning, the fundamental role of the ILO has been to seek the cooperation of employers, workers and governments for the attainment of social justice through the international regulation of labour matters with a view to the establishment of universal and lasting peace. Unchanged for over 80 years, this tripartite structure covering all of its activities is the unique feature of the ILO within the organizations in the United Nations system. However, the effectiveness of tripartite cooperation at the international level has to be based on similar tripartite dialogue at the national level. For this reason, certain provisions of the ILO Constitution (articles 19, 23 and 35) determine the role of organizations of employers and workers in relation to international labour standards. While it should be recalled that the very great majority of international labour Conventions provide, in one form or another, for the consultation and participation of employers and workers in their application, it should be recalled in particular that the International Labour Conference has adopted three specific standards to promote tripartite cooperation at the national level: the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 1); the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144); and the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152). Convention No. 144 and Recommendations Nos. 1 and 152 have been discussed relatively recently during the work of the Committee on Tripartite Consultation at the 83rd Session of the Conference (1996). 1 Following the adoption by the Conference of the conclusions proposed by the Committee on Tripartite Consultation, according to which the ILO should use all appropriate means inter alia to encourage the ratification and/or the effective application of Convention No. 144, Recommendation No. 152 and Recommendation No. 1, the Governing Body selected Convention No. 144 and Recommendation No. 152 as the subject for requesting reports under article 19 of the Constitution. A second General Survey by the Committee of Experts on the 1976 instruments was accordingly submitted to the 88th Session of the Conference (2000) ILO: Tripartite consultation at the national level on economic and social policy, Report VI, ILC, 83rd Session, Geneva, The first General Survey was submitted in June 1982 to the 68th Session of the Conference (ILO: Tripartite consultation, General Survey of the Reports relating to Convention No. 144 and Recommendation No. 152, Report III (Part 4B), ILC, 68th Session, Geneva, 1982). 549

6 NTERNATIONAL ABOUR TANDARDS: LOBAL PPROACH I L S AG A Tripartite consultation at the national level on economic and social policy The Consultation (Industrial and National Levels) Recommendation, 1960 (No. 1), principally covers consultation and cooperation measures to be taken between public authorities and representative organizations of employers and workers at the industrial and national levels to promote mutual understanding and good relations between the three social partners with a view to developing the economy as a whole, or individual branches thereof, improving conditions of work and raising standards of living. The Recommendation proposes various methods of consultation, which have to take into account national custom or practice (voluntary action by employers and workers organizations, promotional action on the part of the public authorities, laws or regulations, or a combination of these methods). The Recommendation also indicates that consultations should not derogate from freedom of association or collective bargaining, and without discrimination of any kind against these organizations on grounds such as race, sex, religion or political opinion. At the same time as adopting Recommendation No. 1 at its 44th Session (1960), the Conference also adopted two observations which place emphasis, in the first place, on the fact that the effective functioning of tripartite cooperation presupposes in particular that all the parties have the will to examine their problems in common in a spirit of good faith, trust and mutual respect and, on the other hand, that the machinery for tripartite cooperation may be very varied and should be adapted to national circumstances. Tripartite consultation on international labour standards Convention No. 144 and Recommendation No. 152 are more specific in scope than Recommendation No. 1, since they address tripartite consultation relating to ILO activities and, more particularly, the ratification and application of international labour standards. When examining these instruments, it should be borne in mind that they address the participation of employers and workers representatives in practically all the stages of the Organization s standard-setting activities, from determining the agenda of the Conference through to the supervision of the application of standards. It was during the discussions held in the Committee on the Application of Standards at the 57th Session of the Conference (1972) concerning an in-depth review by the Committee of Experts of the situation with regard to the role of employers and workers organizations in the implementation of standards that the idea was envisaged of an instrument which specifically addressed the establishment of national tripartite machinery for this purpose. This proposal received very broad support in the Governing Body, which decided at its 191st Session (November 1973) to include on the agenda of the 60th Session (1975) of the Conference an item entitled Establishment of national tripartite machinery to improve the implementation of ILO standards. The Conference adopted Convention No. 144 and Recommendation No. 152 at its 61st Session (1976). 550

7 I NDUSTRIAL R ELATIONS CHAPTER Content of the instruments on tripartite consultation (international labour standards) Convention No. 144, which entered into force on 16 May 1978, had received 110 ratifications as of 31 August In 1979 and 1987, the Convention and Recommendation No. 152 were classified by the Governing Body in the category of instruments, the ratification and application of which should be promoted on a priority basis. States which ratify Convention No. 144 undertake to operate procedures which ensure effective consultations between representatives of the government, of employers and of workers on the following matters: government replies to questionnaires concerning items on the agenda of the Conference and their comments on proposed texts to be discussed by the Conference; the proposals to be made to the competent authority in connection with the submission of instruments in accordance with article 19 of the Constitution of the ILO; the re-examination of unratified Conventions and of Recommendations; reports on the application of ratified Conventions; and proposals for the denunciation of Conventions. The nature and form of the consultation procedures are to be determined in accordance with national practice, after consultation with the representative organizations of employers and workers. For the purpose of these procedures, these organizations freely choose their representatives and must be represented on an equal footing in any bodies through which consultations are undertaken. The consultations must be undertaken at appropriate intervals fixed by common agreement, but at least once a year. The competent authority has to assume responsibility for the administrative support of the consultation procedures and appropriate arrangements must be made with the representative organizations for the financing of any necessary training of participants in these procedures. Finally, after consultation with the representative organizations, the competent authority may decide to issue an annual report on the working of the procedures. Recommendation No. 152 takes up all the provisions of the Conventions and adds that the consultations should also cover the preparation and implementation of legislative or other measures to give effect to international labour Conventions and Recommendations, and on reports to be made under article 19 of the Constitution on the effect given to unratified Conventions and Recommendations. Furthermore, after consultation with the representative organizations, the consultation procedures may be extended to other matters, such as: the preparation, implementation and evaluation of technical cooperation activities in which the ILO participates; the action to be taken in respect of resolutions and other conclusions adopted by the Conference or other meetings convened by the ILO; and measures to improve knowledge of ILO activities. In contrast with the Convention, the Recommendation also proposes examples of consultation machinery: through a committee specifically constituted for questions concerning the ILO; through a body with general competence in the economic, social or labour field; through a number of bodies with specific responsibility; or through written communications, where those involved in the consultation procedures are agreed that such communications are appropriate and sufficient

8 NTERNATIONAL ABOUR TANDARDS: LOBAL PPROACH I L S AG A Principles of the Committee of Experts concerning tripartite consultation (international labour standards) Consultation procedures The fundamental obligation set out in the Convention is to operate procedures which ensure effective consultations between representatives of the government, employers and workers on the matters which are specifically envisaged. These consultations are intended, rather than leading to an agreement, to assist the government or the competent authority in taking a decision. Nevertheless, the consultation procedure may set the objective of reaching a consensus between the various parties. Depending on national practice, consultation can mean either submitting the government s proposed decision to employers and workers representatives, or asking those representatives to help formulate the proposal. It can also be based on an exchange of communications, or on discussions within tripartite bodies. The important factor is that the persons consulted should be able to put forward their opinions before the government takes its final decision. The effectiveness of consultations therefore presupposes in practice that employers and workers representatives have all the necessary information far enough in advance to formulate their own opinions. It should be emphasized in this respect that the mere communication of information and reports transmitted to the Office under article 23, paragraph 2, of the Constitution of the ILO, does not in itself meet the obligation to ensure effective consultations since, by that stage, the government s position will already be final. The obligation of consultation therefore needs to be distinguished both from mere information, from negotiation and also from co-determination, since the consultations are only intended to assist the competent authority in taking a decision concerning ILO standards and activities. However, the results of consultations must not be considered to be binding, since the final decision is taken by the government or the legislator, as appropriate. Another requirement of the Convention is the free choice of the representatives of employers and workers participating in the consultations by their representative organizations, defined as the most representative organizations of employers and workers enjoying the right of freedom of association. The instruments do not indicate the manner in which they are to be designated in practice and leave full latitude to national law and practice. In a memorandum in reply to a request for interpretation from the Government of Sweden, the ILO indicated that the term the most representative organizations of employers and workers in Article 1 of the Convention does not mean only the largest organization of employers and the largest organization of workers. If in a particular country there are two or more organizations of employers or workers which represent a significant body of opinion, even though one of them may be larger than the others, they may all be considered to be most representative organizations for the purpose of the Convention. The government should endeavour to secure an agreement of all the organizations concerned in establishing the consultative procedures provided for by the Convention, but if this is not possible it is in the last resort for the government to decide, in good faith in the light of the national circumstances, which organizations are to be considered as the most representative. 3 3 ILO: Official Bulletin, Vol. LXI, 1978, Series A, No. 3, pp , para

9 I NDUSTRIAL R ELATIONS CHAPTER The reference to the right of freedom of association guarantees that the required consultations take place under conditions in which compliance is guaranteed with the principles set out in the ILO s instruments on freedom of association and collective bargaining, and particularly Conventions Nos. 87 and 98. Finally, the Convention requires that employers and workers be represented on an equal footing on any bodies through which consultations are undertaken. However, this should not be interpreted as imposing strict numerical equality, which is sometimes difficult to achieve, but rather as being intended to ensure that the views expressed are given equal weight. The two instruments also leave great latitude in selecting consultation procedures. Convention No. 144 refers to the procedures in force in each country (Article 2, paragraph 2). Recommendation No. 152 proposes four forms of consultation (Paragraph 2(3)). It is understood that this list is not exhaustive. In this respect, the two general surveys by the Committee of Experts have endeavoured to enumerate the machinery within which the required consultations are held. These appear to be extremely diverse: bodies with special competence for ILO matters; bodies with general competence in the economic, social or labour fields; through a meeting or body set up on an ad hoc basis; or by means of written communications. Functioning of the consultation procedures The Convention and Recommendation contain a series of provisions respecting practical aspects of the functioning of the procedures: responsibility for the administrative support of the procedures has to be assumed by the competent authority. Such support includes making meeting rooms available or the assistance of a secretariat; where necessary, arrangements have to be made for the training of the parties concerned, for which the financing does not necessarily have to be provided only by the government; without systematically covering all the points indicated, the consultations must be held at least once a year. In practice, the frequency of consultations is determined by their subject matter, such as the submission of new instruments to the competent authorities, which requires annual consultations; the organizations participating in the consultations have to be consulted on whether an annual report on the working of the procedures is to be issued. Such a report may, for example, but does not have to contain information on the number of participants and the meetings, the subjects covered, the proposals put forward and the recommendations made. The form taken by this report is left to the discretion of the parties and its purpose is the dissemination of information at both the national and international levels on the procedures adopted and their implementation

10 NTERNATIONAL ABOUR TANDARDS: LOBAL PPROACH I L S AG A Application of the standards and principles in practice The Committee of Experts regularly comments on the application of Convention No. 144, mainly to request clarifications on the implementation of certain provisions. The principal difficulty encountered by the Committee of Experts in assessing the implementation of the Convention consists of the lack of relevant information provided by States parties in the reports that they submit in accordance with article 22 of the Constitution of the ILO. The difficulties encountered most frequently in the implementation of the Convention are: (a) the choice of the most appropriate form of consultation when a change is requested by the organizations; (b) in some countries, difficulties of an administrative, financial or even political nature, which prevent the provision of the administrative support necessary for consultations, which cannot therefore be held at least once a year, as required by the Convention, and as a corollary; (c) hesitancy as regards the responsibility of the partners for the financing of any training necessary for the participants; (d) the absence in reports of full and detailed information on the consultations held during the periods covered; and, finally, (e) failure to consult the representative organizations on the question of issuing an annual report on the working of the procedures. In its latest General Survey on tripartite consultation, 4 the Committee of Experts noted that the difficulties which prevent the proper application of the Convention and the implementation of the Recommendation mostly concern practical obstacles which governments have indicated that they are endeavouring to overcome. Nevertheless, these difficulties do not affect the principle of tripartite consultation, which is no longer contested. In this respect, the Committee of Experts has welcomed the fact that tripartite consultation procedures, in one form or another, now exist in the large majority of member States, including those which have not ratified the Convention. Universal application of the instruments is therefore envisaged in the not too distant future. Voluntary conciliation and arbitration Adopted in 1951, at the same time as the Collective Agreements Recommendation, 1951 (No. 91), the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), primarily addresses voluntary conciliation. In this respect, it advocates in the first place the establishment of voluntary conciliation machinery to assist in the settlement of industrial disputes between employers and workers. Machinery constituted on a joint basis should include equal representation of employers and workers. The procedure should be free of charge and expeditious, with the time limits for the proceedings fixed in advance and kept to a minimum. Provision should be made to enable the procedure to be set in motion either on the initiative of any of the parties to the dispute or ex officio by the conciliation authority. The Recommendation adds that, if a dispute has been submitted to conciliation procedure 4 The General Survey was submitted in June 2000 to the 88th Session of the Conference (ILO: Tripartite consultation, General Survey on the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) and the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152), Report III (Part 1B), ILC, 88th Session, Geneva, 2000). 554

11 I NDUSTRIAL R ELATIONS CHAPTER with the consent of all the parties concerned, the latter should be encouraged to abstain from strikes and lockouts while conciliation is in progress. Finally, the agreements which the parties reach should be drawn up in writing and be regarded as equivalent to agreements concluded in the usual manner. With regard to arbitration, the Recommendation advocates that, if a dispute has been submitted to arbitration for final settlement with the consent of all parties concerned, the latter should be encouraged to abstain from strikes and lockouts while the arbitration is in progress and to accept the arbitration award. A final provision of the Recommendation indicates that none of its provisions may be interpreted as limiting, in any way whatsoever, the right to strike. Examination of grievances within the enterprise The Examination of Grievances Recommendation, 1967 (No. 0), establishes the principle of an appropriate procedure without prejudice to the person concerned (such as, for example, loss of pay) against measures concerning the relations between employer and worker, or which affect conditions of employment or are contrary to the provisions of a collective agreement or other provisions, including those in laws or regulations. The Recommendation is not applicable to cases in which a grievance is a collective claim to be dealt with by means of collective bargaining or under some other procedure for the settlement of disputes. Workers organizations should be associated with employers organizations in the establishment of grievance procedures. These procedures should be effective, simple, rapid, offer every guarantee of objectivity and not restrict the right of the worker to have recourse to the competent authority or the judicial authority. The right to have the case examined at one or more higher levels should be assured from the start. The worker concerned should have the right to be assisted or represented by a representative of a workers organization, to be kept informed of the steps being taken under the procedure and of the action taken on the grievance. Where all efforts to settle the grievance have failed, it should be possible to have recourse to the procedures provided for by collective agreement, to voluntary arbitration, to conciliation or arbitration by the competent public authorities, to the judicial authorities or to any other appropriate procedure

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