Handbook of procedures relating to international labour Conventions and Recommendations - 9

B. Complaints as to the observance of ratified Conventions

76. Main constitutional provisions. Article 26 of the Constitution reads as follows:

1. Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing articles.

2. The Governing Body may, if it thinks fit, before referring such a complaint to a Commission of Inquiry, as hereinafter provided for communicate with the government in question in the manner described in article 24.

3. If the Governing Body does not think it necessary to communicate the complaint to the government in question, or if, when it has made such communication, no statement in reply has been received within a reasonable time which the Governing Body considers to be satisfactory, the Governing Body may appoint a Commission of Inquiry to consider the complaint and to report thereon.

4. The Governing Body may adopt the same procedure either of its own motion or on receipt of a complaint from a delegate to the Conference.

5. When any matter arising out of article 25 or 26 is being considered by the Governing Body, the government in question shall, if not already represented thereon, be entitled to send a representative to take part in the proceedings of the Governing Body while the matter is under consideration. Adequate notice of the date on which the matter will be considered shall be given to the government in question.

77. Other constitutional provisions. The following articles of the Constitution deal with other aspects of the complaints procedure:

article 27: Members' cooperation with a Commission of Inquiry;

article 28: report of the Commission of Inquiry, embodying its findings and recommendations;

article 29: communication and publication of the report of a Commission of Inquiry, indication of governments concerned whether they accept its recommendations, and possible reference to the International Court of Justice (ICJ);

article 31: decision of the ICJ to be final;

article 32: power of the ICJ over the findings or recommendations of a Commission of Inquiry;

article 33: Governing Body recommendation as to action by the Conference in the event of failure to carry out recommendations of Commission of Inquiry or the ICJ;

article 34: verification of compliance with recommendations of Commission of Inquiry or the ICJ and subsequent Governing Body recommendation as to discontinuance of action by the Conference.

78. Commission of Inquiry procedure. There are no standing orders for the procedure of Commissions of Inquiry: the Governing Body has in each case left the matter to the Commission of Inquiry itself, subject only to the Constitution's and its own general guidance. The reports of the respective Commissions of Inquiry describe the procedure followed for the examination of complaints, including the procedure for receiving communications from the parties and other interested persons or organizations and holding hearings.⁸⁶

C. Complaints as to the infringement of freedom of association

1. Governing Body Committee on Freedom of Association⁸⁷

79. Composition and terms of reference. The Committee is a tripartite organ of the Governing Body, comprising nine of its members and nine substitutes, plus an independent Chair. It examines complaints of infringement of freedom of association and submits its conclusions and recommendations to the Governing Body. Complaints may be entertained regardless of whether the country concerned is bound by any of the Conventions in the field of freedom of association.⁸⁸

80. Receivability of complaints

(a) Complaints must be in writing, signed and supported by proof of allegations relating to specific infringements of freedom of association.

(b) Complaints must come from organizations of employers or workers or from governments. An organization may be⁸⁹ --

(i) a national organization directly interested in the matter;

(ii) an international organization of employers or workers which has consultative status with the ILO;⁹⁰

(iii) another international organization of employers or workers, where the allegations relate to matters directly affecting affiliated organizations.

81. Organization of the Committee's work

(a) The Committee meets three times a year.

(b) The Office may at any time ask a complainant to specify what infringements are complained of, where a complaint is not sufficiently detailed.

(c) The Office informs complainants that they should supply any supplementary information intended to substantiate their complaints within one month.⁹¹

(d) The allegations are transmitted by the Office to the government concerned for reply within a given period.

(e) The Committee decides whether to reach a conclusion or ask the government concerned for additional information.

(f) When it adopts conclusions, the Committee may recommend the Governing Body to communicate them to the government concerned, drawing attention to anomalies, and inviting measures to remedy them as well as the transmission of further information on such measures. It may also recommend referral to the Fact-Finding and Conciliation Commission.⁹²

(g) The Committee submits its report on all cases which it has decided warrant further examination to the Governing Body. After approval, it is published in the Official Bulletin.

(h) Where relevant freedom of association Conventions have been ratified by the State concerned, the Committee of Experts on the Application of Conventions and Recommendations will follow the matter up under the regular supervisory machinery. Otherwise, the Committee itself reviews the matter from time to time and may request the Office to ask governments to supply further information on action taken.

2. Fact-Finding and Conciliation Commission on Freedom of Association

82. Composition, terms of reference and procedure. The Commission is composed of nine independent persons appointed by the Governing Body, who normally work in panels of three. It examines complaints of infringements of freedom of association referred to it by the Governing Body, including on the request of a government against which allegations are made.⁹³ The Commission's procedure is comparable to that of a Commission of Inquiry,⁹⁴ and its reports are published.

D. Failure to submit Conventions and Recommendations to the competent authorities

83. Constitutional provision. Article 30 of the Constitution provides:

In the event of any Member failing to take the action required by paragraphs 5(b), 6(b) or 7(b)(i) of article 19 with regard to a Convention or Recommendation, any other Member shall be entitled to refer the matter to the Governing Body. In the event of the Governing Body finding that there has been such a failure, it shall report the matter to the Conference.

XII. Assistance available from the International Labour Office in relation to international labour standards

84. International international labour standards and technical cooperation. The International Labour Office undertakes various kinds of activities designed to assist governments and employers' and workers' organizations fulfil their functions and roles in the standard-setting and supervisory system. These should be seen in the context of the Organization's basic aims and principles as enshrined in its Constitution and international international labour standards, and its overall active partnership policy, which involves working closely with all three constituents in each country in order to ensure that country objectives are identified and served in terms of both international labour standards and technical cooperation.

85. Informal advisory services. The International Labour Standards Department of the International Labour Office in Geneva works together with the Multidisciplinary Teams -- and especially the specialists in international labour standards belonging to those teams -- in the field, to give all kinds of explanations, advice and assistance on the matters dealt with in this Handbook. These services are offered both in response to specific requests received from governments or employers' or workers' organizations and through routine advisory missions and informal discussions initiated by the Office. Matters which may be dealt with include questionnaires on items on the agenda of the Conference for possible new standards; comments of the supervisory bodies and measures they might call for; new legislation call for; government reports to be drafted; documents prepared for submission to the competent authorities; arrangements for consultations between governments and employers' and workers' organizations in relation to international labour standards and ILO activities; ways in which employers' and workers' organizations might fully participate in standard-setting and supervisory procedures.

86. Direct contacts. The direct contacts procedure enables the examination by a representative of the Director-General of the ILO with representatives of the country concerned of problems affecting the ratification or implementation of Conventions or the discharge of obligations relating to Conventions and Recommendations or a case before the Committee on Freedom of Association. According to the principles elaborated by the responsible supervisory bodies, the practical or legal difficulties met with should be sufficiently important to warrant direct contacts. The procedure is as follows:

(a) Direct contacts may be suggested by the Committee of Experts on the Application of Conventions and Recommendations, the Conference Committee on the Application of Standards or the Governing Body Committee on Freedom of Association, or requested by the government concerned.

(b) The Director-General explores the matter with the government concerned, whose full consent must be given.

(c) The points to be dealt with should be clearly specified in advance.

(d) While direct contacts are taking place, the supervisory bodies will suspend their examination of the matters in question for a period not normally exceeding one year, so as to be able to take account of the outcome.

(e) Direct contacts should take a form appropriate to their purpose, which is to enable the government concerned to explain all the elements of the case, in order that the supervisory bodies may in turn be enabled to assess all relevant facts.

(f) Direct contacts should bring together those thoroughly acquainted with all aspects of the matter, including government representatives with sufficient responsibility and experience to speak with authority as to the national situation and their government's attitudes and intentions in the matter.

(g) The Director-General of the ILO will designate a representative who is either an independent person or an ILO official fully conversant with the matter.

(h) The representative of the Director-General may, in agreement with the government concerned, visit the country to hold discussions with government representatives, explain the comments of the supervisory bodies, obtain a detailed acquaintance with the government's position and the exact nature of the difficulties met with, and make available to the supervisory bodies all relevant information supplied by the government.

(i) The representative of the Director-General will, in the course of the assignment, make contact with the employers' and workers' organizations, so as to keep them informed of the topics discussed and elicit their opinions.

(j) The establishment of the direct contacts and the terms of reference of the representative of the Director-General may not in any way be construed as limiting the functions and responsibilities of the supervisory bodies.

⁸⁶ See, for example, Official Bulletin, Vol. LXXIV (1991), Series B, Supplements 2 and 3.

⁸⁷ The procedures of the Committee on Freedom of Association are described in Governing Body decisions taken between its 117th (November 1951) and 209th (May-June 1979) Sessions, and in separate brochures and publications of the ILO.

⁸⁸ This because of the obligation on all member States, by virtue of their adherence to the ILO Constitution, to recognize the principle of freedom of association.

⁸⁹ The Committee itself decides whether a complainant may be deemed an organization for this purpose. The Office is authorized to request further information from a complainant organization in order to ascertain its precise nature.

⁹⁰ At time of printing, the International Organization of Employers; the International Confederation of Free Trade Unions; the Organization of African Trade Union Unity; the World Confederation of Labour; and the World Federation of Trade Unions.

⁹¹ Only new evidence which could not have been adduced within that month will subsequently be receivable.

⁹² See para. 82 below.

⁹³ These may relate to (i) Members which have ratified Conventions on freedom of association; (ii) Members which have not ratified relevant Conventions and which consent to the referral; (iii) non-Members of the ILO which are Member States of the United Nations, where the Economic and Social Council of the UN has transmitted the matter and the State has consented to the referral.

⁹⁴ See para. 78, above.