Handbook of procedures relating to international labour Conventions and Recommendations - 2

I. Adoption of international labour standards

1. Nature and constitutional basis of Conventions and Recommendations. Conventions are instruments which on ratification create legal obligations. Recommendations are not open to ratification, but give guidance as to policy, legislation and practice. Both kinds of instrument are adopted by the International Labour Conference,² and article 19 of the Constitution provides:

1. When the Conference has decided on the adoption of proposals with regard to an item on the agenda, it will rest with the Conference to determine whether these proposals should take the form: (a) of an international Convention, or (b) of a Recommendation to meet circumstances where the subject, or aspect of it, dealt with is not considered suitable or appropriate at that time for a Convention.

2. In either case a majority of two-thirds of the votes cast by the delegates present shall be necessary on the final vote for the adoption of the Convention or Recommendation, as the case may be, by the Conference.

2. Placing an item on the Conference agenda. The agenda of the Conference is settled by the Governing Body (Constitution, article 14). In cases of special urgency or other special circumstances (this has been the case, for example, where a draft Protocol is being considered) the Governing Body may decide to refer a question to the Conference with a view to a single discussion; but otherwise there will be a double discussion (i.e. discussion at two sessions of the Conference) (SO,³ article 34(4), (6) and (7)). The Governing Body may also decide to refer a question to a preparatory technical conference (Constitution, article 14(2); SO, articles 34(5) and 36). The Conference itself may also, by two-thirds of the votes cast by the delegates present, decide to include a subject on the agenda of the following session (Constitution, article 16(3)).

3. Double-discussion procedure. These are the stages in a double-discussion:⁴

(a) The Office prepares a report on law and practice in the different countries, together with a questionnaire. The report and questionnaire request governments to consult the most representative organizations of employers and workers before finalizing their replies and are communicated to governments at least 18 months before the relevant session of the Conference (SO, article 39(1)).

(b) To be reflected in the report, governments' replies must reach the Office not less than 11 months before the relevant session (see SO, article 39(2)).

(c) The Office prepares a further report on the basis of replies received, indicating the principal questions for consideration by the Conference. This report is communicated to governments normally not less than four months before the relevant session (SO, article 39(3)).

(d) These reports are considered by the Conference -- usually in committee -- and if the Conference decides the matter is suitable for a Convention or Recommendation it adopts conclusions and either decides to include the question on the agenda of its following session or asks the Governing Body to include it on the agenda of a later session (SO, article 39(4)).

(e) On the basis of both the replies and the first Conference discussion, the Office drafts Conventions or Recommendations and communicates them to governments within two months of the end of the Conference session (SO, article 39(6)).⁵

(f) Governments are again asked to consult the organizations of employers and workers and have three months to suggest amendments and make comments (SO, article 39(6)).⁵

(g) On the basis of further government replies, a final report containing the (amended) text of Conventions or Recommendations is communicated to governments at least three months before the session of the Conference at which they are to be discussed (SO, article 39(7)).⁵

(h) The Conference decides whether to base its second discussion on the Conventions or Recommendations drafted by the Office and how to consider them -- usually in committee in the first place. Each clause of a Convention or Recommendation is placed before the Conference for adoption, and the drafts thus adopted are referred to the Drafting Committee for preparation of final texts.⁶ Texts of instruments approved by the Drafting Committee are submitted to the Conference for final adoption in accordance with article 19 of the Constitution (see paragraph 1, above, and SO, article 40).

(i) The Conference may, if it rejects a Convention contained in the report of a committee, refer it again to the Committee for transformation into a Recommendation (SO, article 40(6)).

(j) If a Convention fails on a final vote to obtain the necessary two-thirds majority but does obtain a simple majority, the Conference decides whether to refer it to the Drafting Committee for re-drafting as a Recommendation (SO, article 41).

4. Single-discussion procedure. These are the stages in a single-discussion:⁷

(a) The Office prepares a summary report on law and practice in the different countries, together with a questionnaire with a view to the preparation of Conventions or Recommendations,⁸ for communication to governments at least 18 months before the relevant Conference session. Governments are requested to consult the most representative organizations of employers and workers (SO, article 38(1)3).⁹

(b) Governments' replies must reach the Office not less than 11 months before the relevant session (SO, article 38(1)).

(c) On the basis of governments' replies, a final report containing the text of Conventions or Recommendations¹⁰ is communicated to governments at least four months before the opening of the Conference session (SO, article 38(2)).

(d) If the question has been considered at a preparatory technical conference, the Office may either, according to Governing Body decision, communicate to governments a summary report and questionnaire (see (a) and (b), above); or, on the basis of the work of the preparatory technical conference, draft a final report (see (c), above -- SO, article 38(4)).

(e) The final consideration and adoption of Conventions and Recommendations¹¹ under the single-discussion procedure follow paragraph 3(h) to (j), above.

5. Revision of Conventions and Recommendations. Separate procedures for the revision of Conventions and Recommendations are included in articles 43 to 45 of the Standing Orders. However, they are substantially the same as those described in paragraphs 3 and 4 above, and in practice reference is made to the same articles of the Standing Orders.

6. Languages. French and English authentic texts of Conventions and Recommendations¹² are adopted. Official translations may be drawn up by the Office and considered by governments concerned as authoritative (SO, article 42).¹³

7. Special circumstances taken into account. Article 19 of the Constitution also provides:

3. In framing any Convention or Recommendation of general application the Conference shall have due regard to those countries in which climatic conditions, the imperfect development of industrial organization, or other special circumstances make the industrial conditions substantially different and shall suggest the modifications, if any, which it considers may be required to meet the case of such countries.

For this reason, the law and practice reports and questionnaires prepared by the Office in accordance with paragraphs 3 and 4 above request governments to indicate national particularities which might make practical application of instruments envisaged difficult; and to suggest ways of dealing with this. Employers', workers' and governments' delegates at the Conference are also able to draw attention to special national conditions which should be taken into account when new standards are drafted.

8. Flexibility devices. Various means have been used by the Conference to ensure flexibility as regards the scope, methods of application or substantive of obligations of international labour standards.¹⁴ For example:

(a) Clauses laying down modified standards for named countries. These have not been used recently by the Conference.

(b) Adoption of a Convention laying down principles together with (or later supplemented by) a Recommendation giving guidance on technical and practical details of implementation.

(c) Definition of standards in broad wording -- for example, fixing aims of social policy -- which leaves it to national conditions and practices, often after consultation of employers' and workers' organizations, to determine the methods of application (laws, regulations, collective agreements, etc.).

(d) Division of Conventions into Parts or Articles, the obligations of only some of which need to be accepted at the time of ratification, thus allowing future cumulation of obligations as social legislation and ability to implement develop.

(e) Division of Conventions into alternative Parts, the extent or level of obligation varying according to which Parts are accepted.

(f) Clauses allowing (sometimes temporarily) acceptance of a specified lower standard by countries where, for example, no legislation on the subject in question existed prior to ratification or where the economy or administrative or medical facilities are insufficiently developed.

(g) Clauses allowing exclusion of, for example, specified categories of occupations or enterprises or sparsely populated or undeveloped areas.

(h) Clauses allowing separate acceptance of obligations in respect of persons employed in specified economic sectors.

(i) Clauses designed to keep abreast of advances of medical science by referring to "the most recent edition" of a reference work, or keeping a matter under review in the light of current knowledge.

(j) Adoption of an optional Protocol to a Convention, either enabling ratification of the Convention itself with increased flexibility or extending the obligations of the Convention.

(k) Clauses in a Convention which partially revise an earlier Convention, by introducing alternative and more modern obligations, while leaving the Convention open to ratification still in its unrevised form.

9. Conventions and Recommendations as minimum standards. Article 19 of the Constitution further provides:

8. In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation.

10. Consultation of employers' and workers' organizations. In addition to the provisions of the Standing Orders referred to under paragraphs 3 and 4 above, Article 5(1)(a) of the Tripartite Consultation (International Labour Standards) Convention (No. 144) and Paragraph 5(a) of the Tripartite Consultation (Activities of the International Labour Organization) Recommendation (No. 152), 1976, provide that consultations of employers' and workers' representatives should be held on government replies to questionnaires concerning items on the agenda of the Conference and government comments on proposed texts to be discussed.

² As, occasionally, are Protocols, which are partial and optional revisions or amendments of earlier Conventions.

³ Standing Orders of the International Labour Conference, incorporating relevant Standing Orders of the Governing Body.

⁴ The normal time-limits for the various stages in this procedure may be varied where a question has been included on the agenda less than 18 months before the opening of the session at which the first discussion is to take place or where less than 11 months separate the two sessions concerned (SO, article 39(5) and (8)).

⁵ If there is less than 11 months between the two sessions, a programme of reduced intervals may be approved by the Governing Body or its Officers (article 39(8)). At the same time as it asks governments for their comments on proposed Conventions and Recommendations, the Office consults the United Nations and other specialized agencies as to any proposed provisions affecting their activities and brings any comments they make before the Conference together with the government replies (SO, article 39bis).

⁶ See SO, article 6.

⁷ The normal time-limits for the various stages in this procedure may be varied where a question has been included on the agenda less than 26 months before the opening of the session at which the discussion is to take place, and a programme of reduced intervals may be approved by the Governing Body or its Officers (SO, article 38(3)).

⁸ Or a Protocol.

⁹ At the same time as it asks governments for their comments on proposed Conventions and Recommendations, the Office consults the United Nations and other specialised agencies as to any proposed provisions affecting their activities and brings any comments they make before the Conference together with the government replies (SO, article 39bis).

¹⁰ Or Protocols.

¹¹ Or Protocols.

¹² And Protocols.

¹³ See also Final Articles of Conventions and Protocols.

¹⁴ See document GB.244/SC/3/3 (Nov. 1989).