International Labour Law

International Labour Law

by Prof. N. Valticos

This book was originally published as a monograph in the International

Encyclopaedia for Labour Law and Industrial Relations

1979
Springer-Science+ Business Media, B.V.
Cover design: Pieter 1. van der Sman
ISBN 978-94-017-4404-1 ISBN 978-94-017-4402-7 (eBook)
DOI 10.1007/978-94-017-4402-7

© 1979 Springer Science+Business Media Dordrecht

Originally published by Kluwer, Deventer, The Netherlands in 1979

All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form by any means, electronic, mechanical, photocopying,
recording or otherwise, without the written permission of the publisher.
Foreword

This text was prepared as a monograph for the International Encyclopaedia

for Labour Law and Industrial Relations. It is based on a more detailed work
which appeared in French in 1970 and in Spanish in 1977. The material was
brought up to date and recast to correspond to the type of monographs con-
tained in the Encyclopaedia, which were aimed at providing concise, but
reasonably detailed information and analysis of national laws and practice.
Thus indications concerning the historical background, important as they may
be in the present case, as well as the discussion of a number of theoretical
questions, have had to be considerably reduced. However, detailed, up-to-
date information is provided on the system of international labour standards
and on the substantive provisions of the most important of these international
instruments.
As part of the Encyclopaedia for Labour Law and Industrial Relations, the
present study will most probably reach those engaged in research in the field
of labour law, as well as many employers' organisations and a large section
of the trade union movement. However, it has been considered useful to
publish the study also in book form to facilitate its use in wider circles such
as university teachers and students, diplomats, politicians, international
lawyers, and those engaged in daily trade union activities.
Table of Contents

List of Abbreviations 15

Introduction 17

CHAPTER I. HISTORICAL AND GENERAL BACKGROUND 17

§ 1. Definition 17
§2. Historical development 17
§3. The establishment of the International Labour Organization 18
§4. The activity of the International Labour Organization 19
I. The International Labour Conference 19
II. The Declaration of Philadelphia 19
III. The agreements with the UN and other
international organizations 19
IV. The international labour standards 20
§5. The purpose of international labour standards 20
I. International competition 21
II. Contribution to the consolidation of peace 22
III. Social justice 23
IV. Social and human objectives of economic development 25
V. International movement of workers and goods 25
VI. Consolidation of national labour legislation 26
VII. Source of inspiration for national action 26 ·
§6. International labour standards and technical co-operation 26

CHAPTER II. THE INSTITUTIONAL FRAMEWORK 27

§ 1. The membership of the ILO 27
I. States Members and rules governing membership 27
II. Withdrawal 28
§2. The tripartite structure 29
I. Problems relating to workers' representatives 30
A. The problem of trade union pluralism 30
B. The problem of countries whose trade union
system is not considered to be in conformity
with freedom of association 31
II. Problems relating to employers' representatives 32
§3. The organs of the ILO 34
I. The International Labour Conference 34
II. The Governing Body 36

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III. The International Labour Office 37

IV. Technical committees and meetings 38
V. Regional meetings 38
§4. The competence of the ILO 38
I. The question of agricultural work 39
II. The question of means of production 39
III. The question of the personal work of the employers 40
IV. The question of women holding positions of supervision 40
V. More recent evolution. The competence of the ILO as
redefined by the Declaration of Philadelphia 41
§5. The standard-setting activities of the ILO and other
international organizations 42

CHAPTER III. THE SOURCES OF INTERNATIONAL LABOUR LAW 42

§ 1. ILO Sources 43
I. The Constitution of the ILO 43
II. Conventions and Recommendations 43
A. Nature and characteristics 44
The International Labour Code 46
B. The procedure for the adoption of Conventions
and Recommendations 46
1. The inclusion of items on the agenda
of the Conference 46
2. The discussion and adoption by the Conference 47
C. Tfie problems encountered in framing
Conventions and Recommendations 49
1. The diversity of national conditions 49
a. Universal or regional standards? 49
b. The level of the standards 50
c. The flexibility clauses 51
1. Options allowed to States as
regards obligations undertaken 51
2. Flexibility in the formulation of the standard 52
Flexibility as regards the scope 52
Flexibility as regards the content
of the obligation 52
3. Flexibility as regards the methods of
application 53
d. The drafting of the standard 54
e. Results of flexibility clauses 54
2. The nature of the rights which may be the
subject of international standards 54
3. The choice between a Convention and a
Recommendation 55
4. The adjustment to change. The revision of
Conventions and Recommendations 57
III. Less formal instruments 59

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IV. Interpretation 60
V. Case law 61
VI. Instruments adopted by special Conferences under
the auspices or with the co-operation of the ILO 62
§2. United Nations instruments 63
§3. Regional instruments 64
I. Council of Europe instruments 64
A. European Social Charter 64
B. The European Human Rights Convention 65
C. Social Security instruments 65
II. European Communities standards 66
Ill. Other regional instruments 66
§4. Bilateral treaties 67
I. Labour treaties 67
II. Social insurance treaties 69
Ill. Conclusion 69
§5. Relations between the sources 70
I. The role of the various international sources 70
II. The conflict between international sources 71
A. Preventive steps 71
B. Cases of conflict 72

CHAPTER IV. SELECTED BIBLIOGRAPHY 74

Part 1: The Content of International Labour Law 79

CHAPTER I. FREEDOM OF ASSOCIATION FOR TRADE UNION PuRPOSES 79
§ 1. General outline 79
§2. The Freedom of Association and Protection of the Right
to Organize Convention, 1948 (No. 87) 81
I. The right to establish trade union organizations 81
II. The rights and guarantees of trade union organizations 83
Ill. The right to strike 85
§ 3. The Right to Organize and Collective Bargaining
Convention, 1949 (No. 98) 86
§4. The Workers' Representatives Convention (No. 135)
and Recommendation (No. 143) of 1971 87
§5. The Rural Workers' Organizations Convention (No. 141)
and Recommendation (No. 149) of 1975 89
§6. The Labour Relations (Public Service) Convention (No. 151)
and Recommendation (No. 159) of 1978 90
§ 7. Fields in which additional studies and standards have
been contemplated 91
§8. Other international standards 92
I. Universal standards 92
II. European standards 93

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§9. Bilateral treaties 95

CHAPTER II. FORCED LABOUR 95

§ 1. General outline 95
§2. The Forced Labour Convention, 1930 (No. 29) 96
§3. The Abolition of Forced Labour Convention, 1957 (No. 105) 97
§4. Problems of application of the Forced Labour Conventions 98
I. The problems of forced labour for economic purposes 98
II. The various youth services 99
III. The problems of forced labour for political purposes 101
IV. The problems of forced labour as a means of
labour discipline 101
§5. Other international standards 102

CHAPTER III. DISCRIMINATION IN EMPLOYMENT 104

§ 1. General outline 104
§2. The Discrimination (Employment and Occupation)
Convention and Recommendation, 1958 (No. 111) 105
I. Definition of the term 'discrimination' 106
II. Measures which are not deemed to be discrimination 107
III. Individuals and fields covered 109
IV. Action designed to eliminate discrimination 109
§3. The action in the field of apartheid 111
§4. Other international standards 113

CHAPTER IV. EMPLOYMENT 114

§ 1. General outline 114
§2. Employment policy 116
§3. Unemployment 118
I. The Unemployment Convention, 1919 (No. 2) 118
II. The unemployment of young persons 119
III. The organization of public works 119
§4. Placement 120
I. The abolition or regulation of fee-charging
employment agencies 120
A. The progressive abolition of fee-charging
employment agencies conducted with a view to
profit and the regulation of the other
employment agencies 120
B. The regulation of fee-charging employment
agencies 121
C. Ratification and problems of application of
Convention No. 96 121
D. The problem of temporary work agencies 122
II. The employment service 122
§5. Apprenticeship, vocational guidance and training 123
§6. Other international standards 124

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CHAPTER V. WAGES 125

§ 1. General outline 125
§2. Minimum wage-fixing 126
I. Introduction 126
II. The 1928 Minimum Wage-Fixing Machinery
Convention (No. 26) and Recommendation (No. 30) 127
III. The 1951 Minimum Wage-Fixing Machinery
(Agriculture) Convention (No. 99) and
Recommendation (No. 89) 128
IV. The 1970 Minimum Wage-Fixing Convention (No. 131)
and Recommendation (No. 135) 129
V. The social policy Conventions 130
VI. Provisions concerning special categories of
workers (seafarers and plantations workers) 130
§3. Protection of wages 131
§4. Labour clauses in public contracts 132
§5. Other international standards 133

CHAPTER VI. GENERAL CONDITIONS OF WORK 134

§ 1. Hours of work 134
I. General outline 134
II. The standard of the eight-hour day and the
48-hour week 136
A. The Hours of Work (Industry)
Convention, 1919 (No. 1) 136
B. The Hours of Work (Commerce and Offices)
Convention, 1930 (No. 30) 137
C. The special Conventions 138
III. The standard of the forty-hour week 138
A. The Forty-Hour Week Convention, 1935
(No. 47) 138
B. The special Conventions 139
C. The Reduction of Hours of Work
Recommendation, 1962 (No. 116) 139
IV. Difficulties of ratification and application of the
standards on hours of work 139
V. Other international standards 140
§2. Weekly rest 140
I. General outline 140
II. Weekly rest in industry 141
III. Weekly rest in commerce and offices 141
IV. Other international standards 142
§3. Paid leave 142
I. General outline 142
II. The 1936 Holidays with Pay Convention and
Recommendation 143
III. The 1954 Holidays with Pay Recommendation 144

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IV. The 1952 Standards on Holidays with Pay in

Agriculture 144
V. The 1970 Revised Convention on Holidays with Pay 145
VI. Paid educational leave 146
VII. Public holidays 147
VIII. Other international standards 147
§4. Industrial hygiene and safety 147
I. General outline 147
II. Standards relating to specific risks 148
A. White phosphorus 148
B. White lead 149
C. Anthrax 149
D. The hazards of poisoning arising from benzene 149
E. Occupational cancer 150
F. Radiation protection 150
G. The guarding of machinery 151
H. Maximum weight 151
I. Working environment: atmospheric pollution,
noise and vibrations 152
III. Standards concerning special branches of activity 152
A. Industrial establishments 152
B. Building and construction 152
C. Bakeries 153
D. Work in offices and commerce 153
E. Dock work 153
F. Maritime work 154
G. Other activities 154
IV. Standards concerning methods and institutions
for the prevention of industrial accidents and
the protection of workers' health 154
A. The prevention of industrial accidents 154
B. The protection of workers' health 154
C. The occupational health services 155
V. Standards defining the occupational diseases
which give rise to compensation 155
VI. Future prospects 157
VII. Other international standards 157
§5. Welfare facilities, housing and spare time 158
I. Welfare facilities for workers 158
II. Housing 158
III. Workers' spare time 159

CHAPTER VII. SOCIAL PoLICY 160

§ 1. General principles of social policy 160
§2. Social repercussions of technical progress 161
§3. Multinational enterprises and social policy 162

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CHAPTER VIII. SOCIAL SECURITY 162

CHAPTER IX. INDUSTRIAL RELATIONS 164

§ 1. General outline 164
§2. Collective agreements 165
§3. Voluntary conciliation and arbitration 166
§4. Co-operation at the level of the undertaking 167
§5. Consultation at the industrial and national levels 167
§6. Termination of employment at the initiative of the employer 168
§ 7. Communications and examination of grievances
in the undertaking 170

CHAPTER X. WORK OF WOMEN 171

§ 1. Maternity protection 172
§2. Night work 173
§3. The employment of women in unhealthy or
dangerous occupations 175
§4. Equal remuneration 176
§5. Employment of women with family responsibilities 178
§6. Standards relating to particular aspects of the
work of women 178
§ 7. Other international standards 179

CHAPTER XI. WoRK oF CmLDREN AND YouNG PERSONS 180

§1. The minimum age for admission to employment 181
I. The general standard of 14 years and its variations 181
II. The general standard of 15 years 183
III. Minimum age for certain arduous occupations 183
IV. The principle of the fixing of a minimum age as
an element of social policy 184
V. The consolidated general standard of 1973 184
VI. Problems of ratification and of application of
minimum age Conventions 185
§2. Night work of young persons 186
§3. Medical examination 187
§4. Special provisions contained in Conventions of
general application 189
§5. Other international standards 189

CHAPTER XII. OLDER WORKERS 191

CHAPTER XIII. SPECIAL CATEGORIES OF WORKERS 191

§1. Seafarers and fishermen 191
I. Seafarers 191
A. Special procedure for the framing of standards
concerning employment at sea 192

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Table of Contents

B. The question of the applicability to seafarers of

international labour Conventions of a general
scope 192
C. Conditions for the entry into force of
maritime Conventions 193
D. General outline of the standards relating to
employment at sea 194
II. Fishermen 199
§2. Workers in agriculture 200
§3. Indigenous workers and workers of non-metropolitan
~rr~ri~ W1
I. Indigenous workers 202
A. Recruiting 202
B. The contracts of employment 203
C. Penal sanctions for breaches of contracts of
employment 203
II. Workers in non-metropolitan territories 204
A. Social policy 204
B. Right of association 205
C. Labour inspection 205
D. Labour standards 205
III. Indigenous and tribal populations 206
§4. Public employees 206
§5. Nursing personnel 207

CHAPTER XIV. FOREIGN AND MIGRANT WORKERS 207

§ 1. Conventions dealing specifically with the situation of
foreign and migrant workers 208
§2. General Conventions containing a special provision on
foreign workers 210
§3. Conventions which do not contain any provision on
foreign workers 211
§4. Other international standards 212

CHAPTER XV. LABouR ADMINISTRATION 214

§1. Labour inspection 215
I. General outline 215
II. Labour inspection in industry and commerce 216
A. Convention No. 81 of 1947 216
B. The 1947 Recommendations 218
C. Problems of ratification and of application of
Convention No. 81 218
III. Labour inspection for seamen 219
IV. Labour inspection in agriculture 219
V. Labour inspection in non-metropolitan territories 220
VI. Other international standards 221
§2. Labour administration 221

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 Table of Contents

§3. Labour statistics 221

§4. Tripartite consultation relating to standards 222

CHAPTER XVI. THE REVIEW OF EXISTING STANDARDS 223

Part II: The Implementation of International Labour

Standards 225

CHAPTER I. OBLIGATIONS IN RESPECT OF STANDARDS 225

§ 1. The obligation to submit Conventions and
Recommendations to competent authorities 225
§2. The obligation to respect certain fundamental principles 227
§3. The obligation to supply reports on unratified
Conventions and on Recommendations 228

CHAPTER II. RATIFICATION OF CONVENTIONS AND ENSUING

OBLIGATIONS AND EFFECT 228
§ 1. Ratification of Conventions 228
I. The ratification: concept and procedure 228
II. Present state of ratifications 229
III. State succession 230
§2. Entry into force of Conventions 230
§3. Denunciation of Conventions 231
§4. The obligation to implement ratified Conventions 231
I. Nature of the necessary implementing measures 231
II. International labour standards as minimum standards 232
III. Obligation in respect of non-metropolitan territories 232
IV. The effect of war, force majeure and emergency 233
V. The obligation to supply reports 233
§5. The incorporation of international Conventions into
national law as a result of ratification and the
conflict between international and national rules 234
I. Incorporation of international Conventions into
national law 234
II. The question of self-executing standards 235
III. The conflict between the incorporated international
standards and ordinary laws 237
A. Conflict with earlier law 237
B. Conflict with later law 238
C. European Communities 239
D. European Social Charter 239

CHAPTER III. THE GENERAL SUPERVISORY MAcHINERY OF mE ILO:

(I) THE EXAMINATION OF PERIODICAL REPORTS 239
§ 1. The Committee of Experts on the Application of
Conventions and Recommendations 240

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Table of Contents

§2. The Conference Committee on the Application of

Conventions and Recommendations 242
§3. Direct contracts with governments 242
§4. The main difficulties encountered 243
§5. The results obtained 244

CHAPTER IV. THE GENERAL SUPERVISORY MACHINERY OF THE ILO:

(11) THE EXAMINATION OF COMPLAINTS 245
§ 1. Complaints 245
§2. Representations 248

CHAPTER V. THE SPECIAL MACHINERY IN THE fiELD OF FREEDOM

OF ASSOCIATION 248
§ 1. The Committee on Freedom of Association 249
§2. The Fact-Finding and Conciliation Commission 250

CHAPTER VI. SPECIAL STUDIES AND INQUIRIES, PROMOTIONAL

MEASURES AND TECHNICAL CO-OPERATION 252
§ 1. Special studies and inquiries 252
I. Freedom of association 252
II. Forced labour 254
III. Discrimination 254
§2. Promotional measures: information, education and training 254
§3. Technical co-operation and World Employment Programme 255

CHAPTER VII. MAIN CHARACTERISTICS OF THE SUPERVISORY SYSTEM 256

CHAPTER VIII. SUPERVISORY MACHINERY ESTABLISHED BY

OTHER INTERNATIONAL ORGANIZATIONS 258
§ 1. United Nations instruments 258
§2. Council of Europe instruments 259
I. European Social Charter 259
II. European Social Security Code 260
§3. The instruments of the European Communities 260
CONCLUDING REMARKS: THE OUTLOOK FOR THE FuTURE 261
INDEX 263

14
List of Abbreviations

A.J.I.L. American Journal of International Law.

Ann. Annuaire Fran~ais de droit international.
B.Y.B.I.L. The British Year Book of International Law.
Intern. Lab. Code The International Labour Code. 1
I.L.C. International Labour Conference.
ILO International Labour Office.
I.L.R. International Labour Review.
Minutes G.B. Minutes of the Governing Body of the IL0. 2
O.B. Official Bulletin of the ILO.
Rec. Cours Recueil des Cours de 1' Academie de droit international.
Rec. Proc. Conf. Record of Proceedings of the ILC. 3
Rep. Conf. Com. Report of the Committee on the Application of
Conventions and Recommendations of the ILC.
Rep. Com. Exp. Report of the Committee of Experts on the Application
of Conventions and Recommendations. 4
Rep. D.-G. Report of the Director-General of the ILO.
Rev. crit. Revue critique de droit international prive.
1. Reference is made to Volume I.
2. The first number following this abbreviation refers to the session of the Governing Body.
3. The first number following this abbreviation refers to the session of the Conference.
4. Published as Report III (Part 4) submitted to each ordinary session of the International
Labour Conference.

15
Introduction

Chapter I. Historical and General Background

§ 1. DEFINITION

1. International labour law is understood in the present context as meaning

that part of labour law which has an international source. It therefore covers
the substantive rules of law which have been established at the international
level, as well as the procedural rules relating to their adoption and their
implementation. Questions such as that of determining which national law is
applicable to given labour relations are quite distinct matters, which are gov-
erned by private international law. They will not be dealt with in the present
study.

§2. HISTORICAL DEVELOPMENT

2. Why does international labour law exist? Why was it considered neces-
sary, or useful to adopt at the international level substantive rules on labour
matters? One has to consider their historical development 1 in order to under-
stand fully the role of international standards on labour law. In fact, interna-
tional labour law is almost as old as labour itself, because from the origins of
labour law, it was felt that national legislation on labour matters could not be
solidly established in individual countries if it was not supported by parallel
standards adopted internationally. These standards were considered as a
guarantee against a kind of unfair competition exercised by countries with
inferior conditions of work. This is why the first moves towards international
labour conventions date back to the beginning of the XIXth century. Robert
Owen, in England, J. A. Blanqui and Villerme in France and Ducpetiaux in
Belgium are considered as the precursors of the idea of international regulation
of labour matters, but this idea has been put forward most systematically by
David Legrand, an industrialist from Alsace who defended it and developed it
in repeated appeals addressed, from 1840 to 1855, to the governments of the
main European countries. In the second part of the XIXth century, the idea was
first taken up by private associations. Thereafter, a number of proposals to
promote it were made in the French and the German Parliaments. The first
official initiative came from Switzerland where, following proposals made in
1876 and 1881, and in consultation with the European countries, the Swiss
Government suggested the convening of a Conference on the matter in Bern in

17
3 General Background

May 1890. However, at the last moment, the Emperor of Germany, Wilhelm
II, convened a similar Conference in Berlin. That Conference concluded its
work by adopting mere wishes which were communicated to governments.
However, the move forward continued and it was strengthened in 1897 by the
conclusions of two Congresses, one of workers, held in Zurich, and the other of
professors, administrators, etc. held in Brussels. The latter was followed by the
establishment of an International Association for the Legal Protection of
Workers, the seat of which was in Basle. The activity of this private organiza-
tion was remarkable and it led, in particular, the Swiss Government to convene
in Bern, in 1905 and 1906, international Conferences which adopted the first
two International Labour Conventions. One of these related to the prohibition
of night work for women in industrial employment and the other to the
prohibition of the use of white (yellow) phosphorus in the manufacture of
matches. The adoption of other draft Conventions was interrupted by the
outbreak of the First World War.
1. For a more detailed account of the history of international labour law, see J. Follows,
Antecedents of the International Labour Organization, Oxford, 1951 and J. Shotwell, The
Origins of the International Labor Organisation, New York, 1934, Vol. 1.

§3. THE ESTABLISHMENT OF THE INTERNATIONAL LABOUR ORGANIZATION

3. During the First World War, the trade union organizations of both sides,
as well as those of neutral countries insisted that their voice be heard at the time
of the settlement of peace and that the Peace Treaty contain clauses for
improving the condition of workers. Various trade union Congresses expressed
a similar desire (at Leeds in 1916, Stockholm in 1917, London in 1918, and
Bern in 1917 and 1919). Taking these demands into consideration, the Allied
governments, and in particular those of Great Britain and France, elaborated,
at the end of the war, drafts aiming at the establishment, by the Peace Treaty, of
an international regulation of labour matters. The Peace Conference entrusted
the examination of this question to a special commission known as the Com-
mission on International Labour Legislation. The work of that commission led
to the inclusion, in the Treaty of Versailles and the other Peace Treaties, of Part
XIII, which dealt with labour matters and which provided for the establishment
of an International Labour Organization which might adopt conventions and
recommendations in this field. Conventions would be binding only to States
which ratified them. Proposals made by France and Italy to give conventions
binding character as from their adoption were not accepted, but it was provided
that governments should submit conventions and recommendations to their
'competent authorities', i.e. as a rule, to their Parliament so that the latter could
decide about the effect to be given to them.

18
General Background 4-6

§4. THE ACTIVITY OF THE INTERNATIONAL LABOUR ORGANIZATION

I. The International Labour Conference

4. In October 1919, the International Labour Conference met in Washing-

ton to adopt the first Conventions and to appoint the Governing Body. Since
that date, the International Labour Conference has met regularly in general
once a year, except during the Second World War. Sometimes it has been held
twice a year, one session being devoted to maritime questions. Up to 1978 it
had held 64 sessions.

II. The Declaration of Philadelphia

5. At the end of the Second World War, the International Labour Confer-
ence adopted in May 1944, in Philadelphia, a Declaration which defined again
the aims and purposes of the Organization. This Declaration reaffirmed in
particular, that labour is not a commodity, that 'freedom of expression and of
association are essential to sustained progress', that 'poverty anywhere consti-
tutes a danger to prosperity everywhere' and that 'the war against want
requires to be carried on with unrelenting vigour within each nation, and by
continuous and concerted international effort in which the representatives of
workers and employers, enjoying equal status with those of governments, join
them in free discussion and democratic decision with a view to the promotion of
the common welfare'. The Declaration affirmed that 'all human beings, irres-
pective of race, creed or sex, have the right to pursue both their material
well-being and their spiritual development in conditions of freedom and dig-
nity, of economic security and equal opportunity'.lt also referred to the social
aspect of economic and financial measures (see No. 21 below). The Declara-
tion then defined a number of specific objectives of the ILO, such as full
employment and the raising of living standards, facilities for training policies in
regard to wages, hours of work and other conditions of work calculated to
ensure a just share of the fruits of progress to all, the effective recognition of the
right of collective bargaining, the co-operation of management and labour in
the continuous improvement of productive efficiency, and the collaboration of
workers and employers in the preparation and application of social and
economic measures, the extension of social security measures to provide a basic
income to all in need of such protection, and comprehensive medical care, etc.

III. The Agreements with the UN and Other International Organizations

6. In 1946, an Agreement was concluded between the United Nations and

the ILO. This agreement 'recognizes the ILO as a specialized agency respon-
sible for taking such action as may be appropriate under its basic instrument for
the accomplishment of the purposes set forth therein'. It also provides for

19
7-J) General Background

co-operation and reciprocal representation between the two organizations.

Agreements of co-operation have also been concluded by the ILO with other
Specialized Agencies of the UN System and with regional Organizations.

IV. The International Labour Standards

7. From 1919 to 1978, the International Labour Conference adopted 151

conventions and 159 recommendations. Some of these instruments were
revised to be adapted to changing conception and needs. The conventions and
recommendations adopted related to the widest possible variety of matters of
labour law and social policy: fundamental human rights (such as freedom of
association, abolition of forced labour and elimination of discrimination) em-
ployment problems, conditions of work, social policy, social security, industrial
relations, work of women, protection of young persons and children, condi-
tions of work of special categories of workers. The general trend of these
standards has been the constant broadening of their scope, both as regards the
fields covered, the categories of persons protected and the framework within
which the matters are treated. Thus a number of these instruments go beyond
the traditional field of labour law and touch upon matters of civil liberties and
penal law (as in the field of freedom of association and forced labour), of
property law (as in the case of indigenous workers) etc. An outline of their
content will be given in Part I of the present study. Some illustration will also be
given about the ratifications which these instruments have obtained and the
system of supervision which has been set up to follow and promote their
implementation (Part II).

8. Apart from the ILO standards, an increasing number of bilateral treaties

have been concluded in the field of labour. Finally, more recently, various
international standards in this field have also been adopted within the
framework either of the UN, or of European organizations such as the Council
of Europe and the European Communities. The labour law regulations
adopted within the framework of the European Communities will not be dealt
with in the present study, a special contribution by Professor G. Schnorr being
devoted to that question.

§5. THE PuRPOSE OF INTERNATIONAL LABOUR STANDARDS

9. Various arguments have been advanced over the years in support of

international labour law, and their related importance has varied from one
person to another. One of the oldest ideas which was advanced in favour of
international conventions in the field of labour was that of international com-
petition. Later, at the time of the establishment ofthe ILO, in 1919, the ideas of
social justice and of the consolidation of peace came to the fore. Apart from
these three main reasons, different other functions and aims were later attri-

20
General Background 10-12

buted to international labour standards in the light of the experience that had
been gained.

I. International Competition

10. The argument concerning international competition was used mainly

throughout the XIXth century and during the first years of the XXth. 1 It was
originally developed in answer to those who opposed the adoption of national
legislation on labour matters on the grounds that such legislation would place
the countries concerned in an unfavourable position on the international
market, as it would result in higher prices for the goods of these countries as
compared with those of their competitors. The reply was, therefore, given that
international agreements in the field of labour would avoid international
competition from taking place to the disadvantage of workers, by a kind of
inhuman 'dumping', and would constitute between employers and between
countries, a form of code of fair competition. This argument was put forward
for over a century, by theoreticians as well as by workers, employers and
statesmen.2
1. See Mahaim 'The Historical and Social Importance of International Labor Legislation' in
Shotwell,op. cit, Vol. I, pp. 13-14 and more generally ValticosDroit international du travail,
Paris, 1970, Nos. 1, 5, 7, 10, 16 and 135-136.
2. Thus, the then French Minister of Commerce, Mille rand, wrote in 1904 to the British Home
Secretary that it would be in the interest of the two countries to lead countries such as Belgium
into suppressing night work of women (see Delevingne, 'The Pre-War History of International
Labor Legislation', in Shotwell, op. cit, p. 34).

11. Progressively, however, the argument was used in a less absolute way,
especially as it appeared that competition did not prevent the main industrial
countries of Europe from adopting the first labour laws. When the ILO was
established, the Preamble of Part XIII of the Treaty of Versailles which in fact,
was its Constitution, referred to the idea but rather as an additional reason than
as the main justification for international legislation. The idea, appearing only
after two others had been expressed, was formulated in the following terms:
' ... the failure of any nation to adopt humane conditions of labour is an
obstacle in the way of other nations which desire to improve the conditions in
their own countries'.

12. This argument has generally been given less prominence since it has been
steadily realized that costs and the competitive value of products depend on
many factors other than labour costs (such as the price of raw materials,
available resources and capital, the competence of manpower and of manage-
ment, organization of work, productivity, investment, tax system, available
markets, monetary, tariff and customs matters). The economists were them-
selves rather sceptical about the argument. 1 To give an example, the countries
which are the most successful in the world markets are not always those where
the conditions of work are the less favourable. From another angle, a view
expressed that the competence of the ILO should be limited to cases where the

21
13-16 General Background

element of international competition came into place, was rejected in 1922 by

the Permanent Court of International Justice. 2
1. See Herbert Feis 'International Labour Legislation in the Light of Economic Theory',
l.L.R. April1927, pp. 491-518 and more recently 'Labour Cost as a Factor in International
Trade', l.L.R. May 1954, pp. 425-446.
2. See P. C. I. J, Series 8, Nos. 2 and 3, p. 9.

13. Nonetheless, the argument of international competition remained valid

to some extent, particularly as between countries where conditions were simi-
lar and were not influenced by tariff barriers. For example, it was for reasons
connected with the equalization of costs and competition that the Treaty of
Rome, which set up the European Economic Community, dealt with the
question of equal remuneration for equal work for men and women workers
(Art.ll9). Conversely, as between countries in which conditions differ widely,
the objective is to secure equivalence rather than uniformity of legislation and
costs. Even as between the latter countries, however, the factor of competition
is sometimes taken into account. For instance, it has been suggested that, in
considering the granting of tariff and commercial advantages to developing
countries the acceptance and observance py such countries of fair labour
standards would reduce the risk of unfair competition and would facilitate
international trade. ILO standards and procedures might be particularly useful
in this connection, since they could provide a time-tested and flexible basis for
spelling out minimum conditions of work and for promoting their observance
in the countries concerned.

14. The element of international competition may also be more or less

important according to the subject-matter. Thus, rightly or not, it appeared to
be of greater importance in the field of hours of work - and the ratification of
the relevant Conventions has suffered from this conception- and in the field of
maritime questions.

15. Generally speaking, the factor of international competition, which in its

historical context was a relatively valid argument, is today no longer a primary
justification for international labour Conventions, except in certain special
circumstances. However it remains true that the harmonization of social policy
may help to reduce the opportunities for unfair competition and thereby
safeguard world markets and facilitate economic integration and the move-
ment of capital, goods and manpower.

II. Contribution to the Consolidation of Peace

16. At the end of the First World War a new argument appeared, namely
that injustice in the social field endangers peace in the world and that, there-
fore, action against such injustice serves the cause of peace. As stated in the
Preamble to the Constitution of the ILO ' ... universal and lasting peace can be
established only if it is based on social justice; ... conditions of labour exist

22
General Background 17-18

involving such injustice, hardship and privation to large numbers of people

producing unrest so great that the peace and harmony of the world are imper-
illed', and the paraphrase Si vis pacem cole justitiam was engraved in the
foundation stone of the building of the ILO in 1923. The question has some-
times been asked whether the relationship that is stated to exist between social
justice and universal peace is really valid or whether it is a mere figure of
speech. Albert Thomas, the first Director of the ILO, himself admitted1 that it
would be historically incorrect to accept the formula literally. It should rather
be understood in a broad and indirect sense.
1. Albert Thomas, 'Justice sociale et paix universelle',La Revue de Paris, 15 March 1924, pp.
241-261. See also Phelan, one of his successors, in 'The contribution of the ILO to Peace',
I.L.R. June 1949, pp. 607-632.

17. Thus, it has been pointed out that measures of social justice which
provide, among other things, for trade union rights, are bound to strengthen
democratic regimes, which are more likely than authoritarian governments to
be peace loving. Social peace within countries may also sometimes be related to
international peace inasmuch as internal tensions may have repercussions
abroad. Stress has equally been laid on the positive and dynamic concept of
peace, involving the establishment of stable, just and harmonious conditions
both within individual countries and between different countries, by eliminat-
ing, inter alia, rivalry on world markets arising out of too great a disparity
between labour conditions. It has also been claimed that the establishment of
international labour standards aimed at improving the condition of mankind
develops a common sense of solidarity internationally and fosters a climate of
mutual collaboration and understanding transcending racial and national dif-
ferences. The award of the Nobel Peace Prize to the ILO in 1969 tends to show
that the link between social justice and the consolidation of world peace is still
recognized by a strong current of world opinion.

III. Social Justice

18. The driving force behind the idea of international labour law was not the
notion of social justice not only as a factor of peace, but also for its own sake.
Thus, the Preamble to the Constitution of the ILO quoted above (para. 16),
after having introduced the idea of social justice, went on to say that 'The High
Contracting Parties moved by sentiments of justice and humanity, as well as by
the desire to secure the permanent peace of the world, agree ... etc.' Social
justice is, thus, in its own right, an objective of international labour law even if
little emphasis was laid upon it initially. This was probably due to the fact that it
was a great innovation to introduce such a notion in international law, where
the only case of international action for improving the welfare of men had been
that of slavery. In the field of labour, the humanitarian concern originally
appeared in the face of the conditions of great hardship imposed on the workers
by development industrialization. It was the mainspring of the movement
whose first achievement was the adoption, on both the national and interna-

23
19-20 General Background

tionallevels, of measures to protect children from conditions of work which

had shocked the public conscience. The expression itself of social justice was
introduced in 1919 in the course of the discussions which took place in the
Peace Conference when the original Constitution of the ILO was being drafted
as part of the Treaty of Versailles. This notion has certainly been the most
powerful driving force in the development of international labour law.

19. Of course, since 1919, there has been marked improvement in condi-
tions of work and standards of living in developed countries, although isolated
imbalances and pockets of poverty persist in most of them. However, in the
greater part of the world, social conditions still involve hardship, and in some
cases, are even quite critical. The poorer countries are facing serious problems,
such as poverty, unemployment, lack of adequate administrative infrastructure
and of essential facilities in the field of health and education, and these
problems often lead to importance being attached to the rights of the individual
and of groups. The urgency of finding solutions to these problems make it even
more important to define clear goals for national development and the welfare
of the population, a process in which international standards, used with a
proper sense of priorities, could be of considerable help. In this connection
reference can be made to the emphasis placed on social development in the
Strategy for the Second Development Decade of the United Nations (see
below No. 21). Apart from the problems arising from underdevelopment,
certain essential freedoms affecting trade union rights are more or less severely
restricted or even denied, in almost all parts of the world.

2 0. More generally, the notion of social justice is constantly evolving to keep

pace with rapid technical and social change. A growing need for security and
well-being is accompanied by a desire for more freedom, more equality and a
greater measure of participation in the management of society, as well as for
better 'quality of life' and a substantial improvement in working conditions.
The notion of social justice is now understood in such a wide meaning as to go
far beyond the elimination of the most crying injustices and what was the
original idea of simply protecting the weak. From the onset, Albert Thomas
considered that social justice 'meant much more than the removal of social
injustice. It meant a possible policy through which the individual might attain
his political, economic and moral rights.' 1 It now embraces the general welfare
of mankind in the broad sense, as defined by the Declaration of Philadelphia
(see No.6 above). In the same way as it happened for countries at the national
level, the notion of social justice developed to mean, at the international level,
that the world community is not responsible only for the maintenance of peace
and good relations between States, but also for an active contribution to the
welfare of mankind.
1. Phelan, Yes and Albert Thomas, London 1949, p. 242.

24
General Background 21-22

IV. Social and Human Objectives of Economic Development

21. Soon after the establishment of the ILO, in particular during the crisis in
the thirties, it appeared that social matters could not be dissociated from the
economic problems, and a systematic action was pursued to obtain that
economic policy be guided by social consideration. Thus in 1930, Albert
Thomas underlined that 'the social factor must take precedence over the
economic factor', and these words were repeated by Pope Paul VI when he
visited the ILO in 1969. 1 In the middle of the Second World War, in 1941,
President Franklin Roosevelt declared to the International Labour Conference
that 'economic policy can no longer be an end in itself. It is merely a means for
achieving social justice' .2 The interest of the ILO in economic matters was
confirmed, in 1944, by the Declaration of Philadelphia, where it was stated that
'the central aim of national and international policy' should be to attain the
social conditions described in the Declaration (see No. 5 above) and that 'all
national and international policies and measures, in particular those of an
economic and financial character, should be judged' in the light of these social
objectives. As years went by, the notions of development and of economic
planning became central to national policies, and a new function of interna-
tional labour law became apparent, that is to emphasize the social and human
objectives of development. The concept of development was initially taken as
covering mainly the economic aspects of the problem only. It is recognized now
that economic growth does not automatically ensure social progress. In 1970,
the United Nations General Assembly adopted the International Strategy for
the Second United Nations Development Decade which lays equal emphasis
on social as well as on economic objectives and which has even squarely placed
economics in its social context.3 There is still, nevertheless, a widespread
tendency to give economic development precedence over social considera-
tions. It is, therefore, the function of international labour standards to promote
balanced economic and social progress and to contribute the necessary element
of precision to international action for social development.
1. Rec. Proc. Conf. 53, 1969, p. 79.
2. Rec. Proc. Conf. 1941, p. 158.
3. See Freedom by Dialogue- Economic Development by Social Progress- The ILO Contribu-
tion, Rep. D.-G. to the I.L.C. 1971, pp. 5-9.

V. International Movement of Workers and Goods

22. The first, and most obvious, purpose of international labour legislation
has, from the very beginning, been the regulation of questions having an
international character. This refers principally to migration of workers, which
raises a number of complex problems related to working and living conditions
of the immigrant workers in the countries of immigration. International stan-
dards are also appropriate in respect of the transportation of goods liable to
endanger the safety of the workers and of the users generally.

25
23-25 General Background

VI. Consolidation of National Labour Legislation

23. It has sometimes been argued that even when the labour legislation or
practice of a country has reached a certain level, it may be desirable for that
country to ratify the Convention which provides for the corresponding stan-
dard, because, even if this did not call for any substantial change, it could
contribute to a consolidation of national labour legislation by acting as guaran-
tee against backsliding. Since it is not common for governments to go back on
progress made in the social field, this argument may appear to be somewhat
academic. There have, however, been cases in which the existence of interna-
tional commitments based on ratified Conventions has prevented governments
from adopting retrograde measures they had contemplated, particularly in
times of crisis. In other cases, where retrograde measures had actually been
taken, the supervisory machinery of the ILO has intervened to persuade the
government concerned to restore the previous position.

VII. Source of Inspiration for National Action

24. Apart from the international commitments to which they may give rise,
international labour standards can serve as a general guide and as a source of
inspiration to governments by virtue of the authority which attaches to texts
adopted by an assembly composed of representatives of governments, em-
ployers and workers of nearly all the countries in the world. They may also, for
that reason provide a basis for the claims of the workers and guide the policy of
employers. International labour standards have thus developed into a kind of
international common law, playing a part similar to that played at different
periods in history in the field of civil law, first by Roman law and later by certain
European Codifications. 1 Those in charge of social policies in various countries
have often highlighted this role of international labour law .2 Such a role is of
particular importance at a time when many new countries are engaged in
working out a body of labour legislation and when many of the older countries
are feeling the need to modernize statutes and structures which are becoming
out-of-date. In that way, international standards can contribute both to the
formulation of general policies (in the field of employment and more generally
of social policy) and to the adoption of specific measures in special technical
fields (industrial safety and health, work environment, etc.).
1. See Jenks, 'The Corpus Juris ofSocialJustice', in Law, Freedom and Welfare, London 1963,
p. 105.
2. See Landy, The Influence of international labour standards: possibilities and perfor-
mance', J.L.R. June 1970, pp. 555-604.

§6. INTERNATIONAL LABOUR STANDARDS AND TECHNICAL Co-OPERATION

25. When the ILO was first established, international labour standards were

26
Institutional Framework 26-27
considered as the main, if not the only means at its disposal to reach its
objectives. Since, the means of action of the Organization have been diversified
and technical co-operation, in particular, has been greatly developed during
the past thirty years. Standards and technical co-operation have sometimes
been compared and even contrasted. In fact there is no opposition between
these two methods. In both cases, the aim is to guide and to stimulate govern-
mental action. 1 The problem is not so much of choosing between them than of
combining them in a successful way. Moreover, standards and technical co-
operation are interdependent and complementary methods: technical co-
operation can be facilitated to a large extent if it is based on well-defined and
authoritative standards; conversely, technical co-operation can provide a par-
ticularly effective means of promoting the application of standards. For this
reason, and because legislation is becoming an increasingly necessary instru-
ment of social policy in all countries, international labour standards, const~ntly
up-dated, remain a necessary source of guidance for government action and
hold an important place in the over-all effort of the international community to
improve the welfare of men.
1. See Jenks, Britain and the fLO, The David Davies Memorial Institute of International
Studies, London 1969, pp. 11-12. ·

Chapter II. The Institutional Framework

26. As the instruments adopted by the ILO are the principal source of
international labour law, it is necessary, first of all, to describe the structure of
the International Labour Organization. The ILO is an international, inter-
governmental organization, composed of States, but its special characteristic is
its tripartite structure, i.e. that it comprises representatives not only from
governments but also from employers' and workers' organizations in the
member countries. We shall, therefore, examine these two main points, then
we shall describe the various organs of the ILO and finally the question of its
competence. We shall conclude this chapter by referring to the standard-setting
activities of the ILO and of other organizations.

§ 1. THE MEMBERSHIP OF THE ILO

I. States Members and Rules Governing Membership

27. In view of its very objective, the ILO has always aimed at universality in
its membership. When it was established by the Treaty of Versailles, the 29
States which signed the Treaty were its first members and they invited 13 other
States to join them. Germany and Austria were also admitted by a decision of
the first Conference of the ILO, in Washington, in 1919, while they were not
members of the League of Nations. In the course of the following years, twenty
other States becam·e members of the Organization, most of them (including the
USSR in 1934) following their admission to the League of Nations and two

27
28-30 Institutional Framework

(including the United States in 1934) by being admitted without being mem-
bers of the League. The total membership to the ILO reached 62 States in the
thirties but the international crisis, and afterwards the outbreak of the war, led
a number of States to withdraw from the ILO, between 1935 and 1942, in most
cases following their withdrawal from the League of Nations. The membership
fell to 48 in 1942, but as from the end of the Second World War, the number of
Member States started again to increase progressively with the readmission of
former Members and the admission of newly independent States, generally as a
result of the process of decolonization. On 1 July 1978 the number of Member
States of the ILO stood at 136. Some of these countries are not members of the
UN, while conversely there are some States Members of the UN (most of them
small countries having recently achieved independence) which are not Mem-
bers of the ILO.

2 8. There are two ways for a State to be admitted to membership in the ILO
(Article 1, paras. 2 to 4 of the Constitution of the ILO). First, any State
Member of the United Nations may become a Member of the ILO by com-
municating its formal acceptance of the obligations of the Constitution of the
ILO (in fact most of the admissions to membership have followed this pro-
cedure); secondly, the Conference of the ILO may admit Members by a vote
concurred in by two-thirds of the delegates attending the Session, including
two-thirds of the government delegates present and voting.

II. Withdrawal

29. The Constitution of the ILO, as amended in 1945 (Article 1, paragraph

5), provides for the possibility of withdrawal from the Organization. Such
withdrawal takes effect two years after the date of the reception of a notice by
the State concerned of its intention to withdraw, subject to the Member having
at that time fulfilled its financial obligations arising out of its membership. It is
also expressly stated that when a State Member has ratified International
Labour Conventions, its withdrawal shall not affect the continued validity, for
the period provided for in the Conventions 'of all obligations arising there-
under or relatively thereto', that is both of the obligation to implement the
Conventions and of the obligations relating to the supervision of such
implementation.

30. Apart from the withdrawals which took place between 1935 and 1942, as
stated above (No. 27), some countries withdrew from the ILO at a more recent
date. In certain of these cases, the withdrawals lasted only one or two years, or
the country concerned resumed its participation to the Organization even
before the withdrawal took effect. In other cases, the withdrawal is still effec-
tive; this is the case for Albania (notice given in 1965), Republic of South
Africa (notice given in 1964), Lesotho (notice given in 1969), and the United
States (notice given in 1975).

28
Institutional Framework 31-32

§2. THE TRIPARTITE STRUCTURE

31 . An essential characteristic of the ILO is the fact that it is not composed

only of government representatives, but also of representatives of employers'
or workers' organizations. This is generally described as the principle of
'tripartism',t which is followed in the composition of its various deliberative
bodies, as will be described later.~ This principle also influences, in many
respects, the characteristics as well as the content of the instruments which are
adopted by the Organization.
1. See Jenks, 'The Significance for International Law of the Tripartite Character of the
International Labour Organization', Transactions of the Grotius Society (London) Vol. 22,
1936 and the International Protection of Trade Union Freedom, London 1957, p. 92-141;
Berenstein, Les organisations ouvrieres, leur competence et leur r6/e dans Ia SDN, notamment
dans l'OIT, Paris, 1936; Bernard Beguin, 'ILO and the Tripartite System', International
Conciliation, No. 523 (May 1959); Landelius, 'Workers, Employers and Governments',
Stockholm, 1965; Vogel-Polsky, Du Tripartisme a /'Organisation internationale du Travail,
Brussels, 1966.
2. See below Nos. 43 ss.

32. In establishing the rule of tripartism, the authors of the ILO Constitution
wanted to associate to the government representatives those of the main
elements of production, who are directly concerned with the regulation of
labour matters. By ensuring such a participation, on an equal footing, of
representatives of employers and workers in the decisions which would apply
to them- and it had been said, in 1930, that this sort of participation was thus
more advanced at the international than at the national level - this principle
aimed at inspiring confidence among employers' and workers' representatives,
to entrust them with responsibilities and to associate, with a view to achieving
social peace, these two parties - often opposed to each other - with govern-
mental action. Tripartism also contributes to avoiding decisions being taken in
a purely technocratic spirit and to ensuring a democratic control of the activity
of the Organization. The Organization's tripartite structure has been an un-
deniable source of vigour for the ILO, as it gave it the support not only of the
diplomatic representatives of States, but also of the productive forces of
nations. The participation of workers brought an element of dynamism. As for
employers, if their interest and caution acted at times as a sort of brake, their
participation did not generally result in slowing down unduly the legislative
action of the Organization. In spite of the delay that divergent interests some-
times involved, the tripartite structure of the ILO gave an increased authority
to its decisions, as these were taken with due consideration of the positions of
all parties concerned. However, this structure gave rise to a number of difficul-
ties, which sometimes reached a critical stage, in particular when the creden-
tials of employers' or workers' representatives at the International Labour
Conference were challenged.

29
33-35 Institutional Framework

I. Problems Relating to Workers' Representatives

33. As regards the question of workers' representatives, the greatest difficul-

ties were encountered in relation to their designation by countries in which
there is trade union pluralism and those where it is considered that the trade
union system is not in conformity with the principle of freedom of association.

A. The Problem of Trade Union Pluralism

34. The question of the representation of workers in countries with trade

union pluralism arose in the very first years of the ILO's existence. The
Organization had to request the opinion of the Permanent Court of Interna-
tional Justice in connection with a case concerning the Netherlands. In that
country, there were five trade union organizations, and as these did not agree
on the choice of the workers' delegate, the government appointed the repre-
sentative nominated by three of these organizations which, on aggregate,
grouped slightly more members than the other two. One of the latter, which,
individually, was numerically stronger than the others, challenged the
appointment. The matter was then brought before the Court which considered
in 1922 1 that 'the Workers' Delegates represent all workers belonging to a
particular Member' and that the intervention of industrial organizations in this
connection 'is to ensure, as far as possible, that the governments should
nominate persons whose opinions are in harmony with the opinion of em-
ployers and workers respectively. If, therefore, in a particular country there
exist several industrial organizations representing the working classes, the
Government must take all of them into consideration, when it is proceeding to
the nomination of the Workers' Delegate and his technical advisers.' The Court
observed that 'no suggestion to the effect that only one organization should be
represented is anywhere to be found in the Treaty, which on the contrary,
expressly refers ... to the representation of the workers of each particular
country'. More generally, the Court felt that 'the aim of each government must,
of course, be an agreement with all the most representative organizations ... ,
that, however, is an ideal which it is extremely difficult to attain'. 'What is
required of the governments is that they should do their best to effect an
agreement which, in the circumstances, may be regarded as the best for the
purpose of ensuring the representation of the workers of the country'.
1. Advisory Opinion No.1 of 31 July 1922 (ILO OB, Vol. VI No.7, 16 August 1922, pp.
291-298).

35. These principles have since been followed by the Credentials Committee
of the International Labour Conference and the Conference itself, which has
had to decide, over the years, on numerous appeals concerning countries with a
pluralism of unions. This happened, in particular, in the case of France after the
Second World War. For a number of years there was an agreement only
between three of the trade union organizations, and not the fourth, which had

30
Institutional Framework 36-37

individually the largest membership. In such cases, the Committee considered

that there had been no infringement of the Constitution by the Government
which appointed the Workers' representative in agreement with the three
organizations. However, at one stage, the Committee expressed the wish that
the government should reach an agreement with all the organizations con-
cerned. Such agreement took place in 1965, when the Government decided to
appoint as workers' delegate every year by alternation, a representative of the
three most important workers' organizations of the country. This practice was
followed also by other countries (such as Belgium, since 1960). In other cases,
there have been, at least for a number of years, certain anomalies in countries
where the organization which was the most important numerically was
excluded for many years from the alternation, as general agreement could not
take place between the various representative organizations.

B. The Problem of Countries whose Trade Union System is not Considered to be

in Conformity with Freedom of Association

36. A different series of problems arose as regards the representation of

workers in countries where it was considered that there was no freedom of
association. In some cases, the matter was raised following changes of political
regime and the decision of the new authorities to dissolve existing trade union
organizations or to deprive them of their means of action. In such circum-
stances, the Conference decided to invalidate the credentials of the workers
delegates from Argentina in 1965 and from Venezuela in 1950. These were
exceptional cases.

37. The matter has also arisen in connection with countries whose political
and social system does not recognize, in law or in fact, the principles of freedom
of association for trade union purposes. Such cases gave rise to ample and
heated discussions at the International Labour Conference, and the view of the
majority was that the right of delegates to participate to the work of the
Conference is not linked to the question of the extent to which freedom of
association is observed in the country concerned - as there are other pro-
cedures for that 1 - but to the question of whether these delegates were
appointed in agreement with the organizations which are the most represen-
tative of the workers of the country. It was also argued that in virtue. of the
principle of universality, States with very different political systems are Mem-
bers of the Organization and should be able to participate fully in the work of
the Conference. The matter was first raised in connection with the workers
delegates from Italy, shortly after the establishment of fascism in Italy.
After the Second World War, the problem again faced the Conference
as regards countries with corporatist systems, such as Spain in 1956. In all
these cases the majority of the Conference decided, after long discussions, to
reject the proposals to invalidate the delegates. In the case ofltaly, the workers'
group of the Conference refused to appoint these workers' delegates as
members of some technical committees of the Conference, but the Conference

31
38-40 Institutional Framework

itself decided, in 1933 and 1934, to add an Italian worker delegate in some
committees. In 1961 and 1962, objections against the credentials of workers'
delegates from Portugal were rejected by the Credentials Committee which
considered that the question of freedom of association was not within its
jurisdiction.
1. See below No. 631 ss.

38. The credentials of workers' delegates from communist countries were

also challenged many times. 1 This was done first in 193 7 by the International
Confederation of Trade Unions against the workers' delegates of the USSR. It
was argued that these delegates did not represent free organizations, estab-
lished by the workers themselves, on the basis of freedom of association, but
organizations which were dependent on the same political authorities which
controlled the Government. The Credentials Committee, followed by the
Conference, was unanimous in recognizing the credentials of the delegates and
stated that no evidence has been advanced to show that there existed at that
time another organization representative of. workers in USSR. After the read-
mission of the USSR to the ILO in 1954, a certain number of objections against
the credentials of worker delegates of that country and of Czechoslovakia were
lodged, mainly on the grounds that freedom of association did not exist in these
countries and that the trade union organizations were subservient to the State!
The majority of the Credentials Committee (i.e. the government and the
workers members) referred to the decision of 1937 and considered that, while
freedom of association is cited in the ILO Constitution as an objective of the
Organization, its existence must not be considered to be a prerequisite to
membership or to the exercise of the attributes to membership. The Committee
also stated that if in one country only one trade union organization exists, a
government is entitled to nominate workers' delegates in agreement with that
organization, if it can be presumed actually to represent the majority of the
work people in the country concerned. In conclusion the majority of the
Committee decided that the objections were not well founded 2 and the Confer-
ence followed it by a majority vote.
1. See Jenks, 'The International Protection of Trade Union Rights', in The International
Protection of Human Rights, ed. by Evan Luard, London, 1967, pp. 126-133.
2. Rec. Proc. Conf. 37, 1954, pp. 439-443.

39. Only in one case, that of Hungary, did the Conference, by a great
majority, refuse to admit the workers' delegates, but the reason for this
decision, taken in 1957 and in the two following years, was the Soviet interven-
tion of 1956 in Hungary. A similar decision was also taken in respect of the
employers delegates from Hungary.

II. Problems Relating to Employers' Representatives

40. The main problem relating to employers' representatives was that of the
communist countries. After the USSR became, for the first, time a member of

32
Institutional Framework 41

the ILO, in 1934, the Conference asked the Governing Body in 1936, at the
request of the employers' group, to examine the question of the representation
of States with a socialized economy and the Governing Body in turn requested
the International Labour Office to prepare a report on the matter. The report
was submitted in 1937 and it was stated in it that 'the qualifications which
govern the choice of an employers' delegate may vary at different times
and in different places. They are inevitably dependent upon the form of the
social regime which exists in any given country ... No provision requires
that this employer be a private individual. The State may undertake that duty
and there seems to be no question that in such a case it is the State which
should appoint the employer ... ' 1 When the question of the amendments to the
ILO Constitution were considered, in 1945 and 1946, one of the reasons
adduced not to increase the number of one employers' delegate was that
the existing provisions allowed the appointment of a manager of an under-
taking of the socialized sector when the USSR was member of the ILO from
1934 to 1940. The Delegation on Constitutional Questions added that if
the USSR resumed membership of the ILO 'it would naturally appoint, as
employers' delegate, a representative of the socialized management of the
USSR?
1. Minutes G. B. 78. 193 7, p. 163. During the discussion, Harold Butler, Director of the Interna-
tional Labour Office, referred· to the German terms of Arbeitgeber and Arbeitnehmer and
stated that in every country there were employers who 'had one thing in common, which was
that they gave work in return for money. This was the essential element in an employer',
(Minutes G.B., 79, 1937, pp. 39-40).
2. See I.L.C. 29th Session, Montreal1946. (Report II-I), Reports of the Conference Delega-
tion on Constitutional Questions, p. 91.

41. Serious difficulties arose, however, when the USSR again became
member of the ILO, in 1954. The employers' delegates of 32 countries then
lodged objections against the credentials of the employers' delegates of the
USSR and six other Eastern European countries. This started a controversy
which lasted for many years. In short, the minority of the Credentials Commit-
tee (i.e. the employers' group representatives) considered that there were no
real employers in these countries and that the managers of undertakings were
'merely government agents without a shred of independence', while the fun-
damental principle of the Organization was that the employers' delegate
should represent 'the free association of free Employers'. On the contrary, the
majority of the Committee (i.e. the government and workers' representatives)
referred to the decision of 1937 and stated that there was nothing in the ILO
Constitution which required that the employers should represent private
interests or ownership. It stressed that the role of the employer must, in its
essentials, exist in the structure of any society and that it was not impossible for
States with fully socialized economies validly to nominate a delegate represent-
ing the employers. It also observed that if this were not so, the aims and
purposes of the ILO could not be universally applied. It concluded that the
objections against the nomination of these delegates were not well founded. 1
The report of the minority was rejected by 105 votes against 79 with 26
abstentions. 2 Similar objections were raised in the following few years as

33
42-44 Institutional Framework

regards the USSR and some other countries, but with the same results (apart
from the case of Hungary- see No. 39 above).
1. See Rec. Proc. Conf. 37, 1954, pp. 432-438.
2. While the matter was under discussion, the Governing Body asked the Director-General, in
1955, to have prepared by a Committee of independent persons, which was established under
the chairmanship of Lord McNair, former President of the International Court of Justice, a
Report on the independence of employers' and workers' organizations (Geneva, ILO-OB
1956, para. 341, p. 581). The majority of that Committee concluded that 'there has been a
shift of emphasis in the nature of the contributions to the work of the ILO to be expected from
the employers and workers. Originally employers and workers were represented ... very
largely for the protection and defence of their respective material interests: on the one hand,
the interests of private capital and, on the other, the interests oflabour ... the original purpose
of the separate representation of employers and workers has in the course of the years taken
on wider content and now represents also a combined interest of the two elements in the
productivity of industry and in the function or skill of management in industry.'

42. Apart from this question of credentials, the attendance of employers'

delegates from communist countries gave rise to the problem of their participa-
tion in technical committees of the Conference, as had happened for workers'
delegates between the two Wars. As from 1954, the Conference employers'
group, which establishes a list of employers' delegates for the appointment of
the tripartite Conference Committees, did not include in these lists employers'
delegates from communist countries. These delegates appealed to the Confer-
ence Selection Committee on the proposal of which, from 1954 to 1958, the
Conference admitted them in the Committees as deputy members, i.e. without
right to vote. In 1959, the Conference introduced- in spite of the opposition of
most employers' delegates- a system designed to ensure equality of treatment
to all delegates. By virtue of this system, it is for a Board of independent
persons to decide whether a delegate who appealed to it should be added as a
voting member of a Conference Committee (but no more than two delegates
may be added to each Committee). The decisions of the Appeals Board are
final and cannot give rise to any discussion. This system worked effectively
from 1959 to 1967. Since 1968, the Employers' group itself placed employers'
delegates from communist countries on the lists of employers' members of
various Committees, so that the Appeals Board had no appeal to consider.

§ 3. THE ORGANS OF THE ILO

43. The ILO comprises three main organs. The International Labour Con-
ference, the Governing Body and the International Labour Office. A certain
number of Committees assist it in its work. Moreover, various meetings take
place at the regional level. For a number of years the question of the structure
of the ILO has been discussed in various bodies of the Organization.

I. The International Labour Conference

44. The International Labour Conference is the principal organ of the ILO.

34
Institutional Framework 45-47

It frames and adopts Conventions and Recommendations and is responsible

for following their application (on the basis of a legal and technical examination
made by independent organs and subject to the quasi-judicial procedures
provided for in the Constitution 1). It decides on the admission of new Member
States (except in cases of the automatic admission of Members of the United
Nations). 2 It votes the programme and budget of the Organization. The Con-
ference meets, in principle, at least once a year. It may hold two sessions in a
given year, as in 1976, when the one is the normal one and the other relates to
maritime matters. 3
1. See below No. 620 ss.
2. See above No. 28.
3. See below No. 499.

45. The Conference consists of the delegations of all Member States of the
Organization. As a result of the tripartite structure of the Organization, each
national delegation should have four members, i.e. two government delegates,
one employers' and one workers' delegate. The latter two delegates must be
nominated 'in agreement with the industrial organizations, if such organiza-
tions exist, which are most representative of employers or work-people ... in
their respective countries' (Article 3 §5 of the Constitution). Every delegate is
entitled to vote individually, and it often happens that the employers' and the
workers' delegates vote differently from the government delegates of their
country. In fact, both the employers' and the workers' delegates at the Confer-
ence have established distinct groups which generally review the questions put
to the Conference before they are examined by a tripartite body. If, for one
reason or another, the national delegation does not comprise a workers'
delegate, the employers' delegate has no right to vote and vice versa. In
practice the great majority of delegations are constituted on a tripartite basis.
Each delegate can be accompanied by technical advisers who can represent him
at the various committees which the Conference appoints. There may be no
more than two technical advisers for each of the separate matters which are on
the agenda of the session (Article 3 §2 of the Constitution). In 1978, the
Conference comprised a total of 505 delegates and 1,168 technical advisers.

46. The Conference scrutinizes the credentials of delegates and technical

advisers and can refuse, by a two-thirds majority to admit any delegate or
technical adviser whom it deems not to have been nominated in conformity
with the terms of the Constitution (Article 3 §9 of the Constitution). The
credentials of delegates and technical advisers are examined by a Committee of
three members (Article 5 and 26 of the Standing Orders of the Conference):
one government, one employer and one worker member. The Standing Orders
of the Conference define the cases in which objections against the credentials
are not receivable. When the Credentials Committee is unanimous about the
receivability of the objection, its decision is final and does not call for a
discussion at the Conference.

47. The Conference appoints various Committees which initiate the exami-

35
48-49 Institutional Framework

nation of the questions it has before it and submit reports on which it decides at
its plenary sittings. These Committees also are constituted on a tripartite basis,
apart from the Finance Committee which comprises only government repre-
sentatives. The Selection Committee, which arranges the programme of the
Conference, has a composition analogous to that of the Governing Body. On
the other hand, in all other Committees, each of the three groups has an equal
number of votes and a system of weighted vote is used when each of the
three groups of a commission has a different number of members. At each
session, the Conference appoints a Committee for each of the technical
items on its agenda, plus a Committee on the Application of Conventions
and Recommendations and a Resolutions Committee. It also appoints a
Drafting Committee to draft the final text of Conventions and Recommenda-
tions.

II. The Governing Body

48. The Governing Body has the responsibility of co-ordinating all the
activities of the Organization, of convening the various meetings and of decid-
ing their agenda and their dates. Inter alia, it fixes the agenda of the Confer-
ence, although the latter can itself decide by a majority of two-thirds to include
a subject on its agenda of the following session. The Governing Body appoints
the members of various committees. It examines the conclusions of their
meetings and decides what effect should be given to them. The Governing
Body has important functions in the financial and administrative field and it
discusses the draft programme and budget in great detail before it is submitted
to the Conference for adoption. Finally, the Governing Body elects the
Director-General of the International Labour Office. It meets three times a
year and its session, including those of its committees, last for several weeks. Its
role is essential to ensure the necessary unity in the diversified activities of the
Organization.

49. The Governing Body is elected every three years by the International
Labour Conference (Article 7 of the Constitution). It is constituted on a
tripartite basis. When the ILO was created, in 1919, the Governing Body had
24 members. Now this number has been increased to 56; 28 of them represent
governments, and 14 each the employers and the workers. Ten of the 28
Government members are appointed by the Members of chief industrial
importance. 1 The other States are appointed by the Government delegates at
the Conference (excluding those of the ten Members mentioned above). The
employers' and workers' representatives are elected by the employers and
workers representatives at the Conference, respectively. The Governing
Body elects a chairman and two vice-chairmen from among its members. One
of them must represent a government, and the other two are representatives
of the employers and of the workers respectively. The Governing Body
also appoints various committees among its members. The important func-

36
Institutional Framework 50-51
tions assigned to the Freedom of Association Committee will be described
later. 2
1. Up to November 1977, these States were: the United States (which now have withdrawn
from the Organization), the USSR, China, the United Kingdom, the Federal Republic of
Germany, France, India, Japan, Italy and Canada.
2. See below No. 632.

III. The International Labour Office

50. The International Labour Office is the permanent secretariat of the

Organization. It has a Director-General, who is appointed by the Governing
Body, and, subject to instructions from the latter, is responsible for the efficient
conduct of the International Labour Office. The first Director of the ILO was
Albert Thomas (1919-1932) whose strong personality and political experience
established a tradition of initiative and dynamism as regards the role of the
Director of the ILO .1 The following Directors (Directors-General after the
Second World War) were Harold Butler (1932-1938), John Winant
(1938-1941), Edward Phelan (1941-1948), David A. Morse (1948-1970)
and Wilfred Jenks (1970-1973). Since 1974 the Director-General has been
Francis Blanchard. The functions of the Director-General and of the staff are
exclusively international in character. In the performance of their duties, the
Director-General and the staff may not seek or receive instructions from any
government or from any other authority external to the Organization. Each
Member State of the Organization should respect the exclusively international
character of the responsibilities of the Director-General and the staff and
should not seek to influence them in the discharge of their responsibilities. The
staff of the ILO is bound by Staff Regulations and it can appeal to an Adminis-
trative Tribunal in respect of the observance of his contract of employment and
of the provisions of the Regulations. 2 On 1 July 1978 the regular staff of the
ILO comprised 2,093 officials belong to 102 nationalities. Moreover 662
experts were employed by the ILO for its technical co-operation activities.
1. See Jenks, 'The Continuing Legacy of Albert Thomas' in Social Policy in a Changing World,
ILO, Geneva, 1976, pp. 69-78.
2. The Administrative Tribunal of the ILO has also been accepted by 18 other organizations.

51 . The functions of the ILO are described in general terms by the Constitu-
tion ofthe ILO (Article 10). They include the technical preparation ofthe work
of the Conference and of the Governing Body and the collection and publica-
tion of information on labour problems. More particularly, as regards the
adoption of international labour standards, the Office prepares the reports on
the various items of the agenda of the Conference. For standards which have
been adopted, the Office prepares the documentation necessary for the bodies
entrusted with the supervision of their application. The Constitution (Article
10, paragraph 2) provides that the Office shall accord to governments at their
request all appropriate assistance in connection with the framing of laws and
regulations on the basis of the decisions of the Conference and the improve-

37
52-55 Institutional Framework

ment of administrative practices and systems of inspection, and that it shall

carry out the duties required of it in connection with the effective observance of
Conventions. The Office also provides governments with assistance in the
framework of its technical co-operation programmes which have greatly
expanded in the last 30 years. 1 It also has important. activities in the field of
research, publications and education (mainly workers' education). The ILO has
its headquarters in Geneva but it also has established a network of offices in the
various regions of the world.
1. See Technical Co-operation: New Prospects and Dimensions. Report of the D.-G. to the
I.L.C., 1977 (Part I), ILO, Geneva.

52. In addition to the numerous services of the Office, the ILO has estab-
lished two institutions which function under its auspices: the International
Institute of Labour Studies and the International Centre for Advanced Technical
and Vocational Training which has its seat in Turin.

IV. Technical Committees and Meetings

53. Apart from the Committees established by the Conference and the
Governing Body among their members and the Committees appointed to
supervise the applications of Conventions and Recommendations, a number of
other bodies have been created to assist the ILO in its activities: the most
important are the Joint Maritime Commission, the Advisory Committee on
Rural Development, the Joint Committee on Public Service and the Industrial
Committees. For certain matters, the ILO convenes, when necessary, technical
meetings of experts.

V. Regional Meetings

54. Regional Conferences are held regularly and they group tripartite delega-
tions from the countries of each region, on the same principles as the General
Conference. Regional Conferences cannot adopt conventions or recommenda-
tions, 1 and they study the labour problems of their region and adopt plans of
action or suggestions about the activity of the ILO in this field. There have been
eleven Conferences of American States, five African regional Conferences,
eight Asian regional Conferences, and two European Regional Conferences.
Three Regional Advisory Committees are also associated with the work of the
Governing Body concerning their respective regions.
1. On the question of international and regional standards, see below No. 88.

§4. THE COMPETENCE OF THE ILO

55. The question of the competence of the ILO has been disputed during the
first years of existence of the Organization. 1 It was beyond doubt that, when the

38
Institutional Framework 56-57
ILO was established, the aim was mainly to regulate conditions of work in
industry, and most of the instruments adopted at the first session of the
Organization related to such type of labour. When the ILO planned to consider
other fields, its competence was disputed in some quarters. The objections
were rejected by a great majority of the Conference but in some cases the
matter was submitted to the Permanent Court of International Justice.
1. See Hiitonen, La competence de /'Organisation internationale du Travail, Paris, 1929; Jenks
'La competence de I'OIT. Examen de quatre avis consultatifs rendus par Ia Cour permanente
de Justice internationale', Revue de droit et de legislation comparee, 1937, pp. 156-183 and
586-623; G. Fischer, Les rapports entre l'OITet la Cour permanente de justice internationale,
Geneva, 1945, pp. 319-348.

I. The Question of Agricultural Work

56. The most important case related to the competence of the ILO as regards
agricultural matters, to which the Government of France had objections. 1 In its
consultative opinion No. 2 of 12 August 1922,2 the Court referred to the
problem of national sovereignty which had been raised in the objections to the
ILO's competence and it considered that the question was simply to know what
was the precise meaning of the Treaty of Versailles which had established the
ILO. It pointed out that the 'comprehensive character of Part XIII is clearly
shown in the Preamble' and that 'the language could hardly be more com-
prehensive'. The Court concluded that 'the competence of the ILO does extend
to international regulation of the conditions of labour of persons employed in
agriculture'.
1. The case of the competence of the ILO in this field was presented to the Court by Albert
Thomas, Director of the International Labour Office, who defended successfully the cause of
the Organization against the government of his country.
2. See P.C.I.J. Series B, Nos. 2 and 3, p. 9; O.B. 1922, vol. VI, pp. 339-351.

II. The Question of Means of Production

57. On the other hand, when the question arose as to whether the ILO was
competent to deal with matters of agricultural production- which the Director
of the ILO had himself formally declined as such- the Court, in its opinion No.
3 of 12 August 1922, 1 concluded that 'the organisation and development of the
means of production are not committed to the Organisation', but that 'the
Organisation cannot be excluded from dealing with the matters specifically
committed to it by the Treaty on the grounds that this may involve in some
aspects the consideration of the means or methods of production, or of the
effects which the proposed measures would have upon production'. The Court
gave, as instances, the fact that protection against sickness, disease and injury
may involve the consideration of methods and processes of production, such as
the use of white phosphorus. It was also concluded from this reasoning that the
ILO could, for several reasons, propose the complete abolition of a given
method of production. 2
1. See P.C.I.J. Series B, Nos. 2 and 3, p. 49; O.B. 1922, Vol. VI, pp. 379-382.
2. Jenks, op. cit., p. 620.

39
58-59 Institutional Framework

III. The Question of the Personal Work of the Employers

58. The question of the personal work of the employers was raised in relation
to a case where the problem was whether, in order to protect workers against
night work in the baking industry, an ILO Convention could also provide that
the employers themselves should be prohibited from doing the same work. The
matter was brought to the Court at the request of the employers' members of
the Governing Body of the ILO. In its advisory opinion No. 13 of 23 July
1926, 1 the Court based itself on arguments similar to those of its opinion No.2.
It reaffirmed the exceedingly broad character of the Conference of the ILO,
while observing that the Organization has no legislative power and that each
Member State is free to adopt or reject any Convention or Recommendation
and to object to the inclusion of a particular matter in the Organization's
activities. The Court also considered that, if the objects of the Organization
defined in Article 427 of the Treaty of Versailles emphasized the importance,
from an international point of view, of the welfare of wage-earners, 'this
enumeration is neither complete nor final'. Further, the Court referred to cases
of national and international practice where the incidental regulation of the
personal work of the employers was potentially involved and in which no
objection was raised against such regulation. Replying to another objection, it
stated that the Treaty made no distinction between principles and provisions to
ensure their application, and that the Court concluded unanimously that 'it is
within the competence of the ILO to draw up and to propose labour legislation
which in order to protect certain classes of workers, also regulates incidentally
the same work performed by the employer himself.'
1. I.C.P.J. Series B, No. 13, p. 6; Vol. XI, 1926, pp. 302-316; Jean Morellet, 'The Compe-
tence of the ILO: A further decision of the Permament Court of International Justice'; l.L.R.
Oct. 1926, pp. 459-475.

IV. The Question of Women Holding Positions of Supervision

59. A still more general question was indirectly raised a few years later. The
matter as such was not that of the competence of the ILO but merely of the
scope of a given Convention and the question put to the Court was whether the
Night Work (Women) Convention, 1919 (No.4) applied to women who hold
positions of supervision or management and are not ordinarily engaged in
manual work. The more general competence of the ILO to deal with persons
who were not engaged in manual work was not challenged, but Judge Anzilotti,
in a dissenting opinion, expressed the view that 'the regulation of the conditions
of employment of manual workers is the essential and normal task of the
Organisation'. In its advisory opinion of 15 November 1932, 1 the majority of
the Court replied in the affirmative to the question which was put to it.
Referring to the opinion of Anzilotti, the Court stated that 'it is certainly true
that the amelioration of the lot of the manual workers was the aim of Part XIII
of the Treaty of Versailles' but that 'it is not disposed to regard the sphere of

40
Institutional Framework 6tkil

activities of the ILO as circumscribed so closely, in respect of the persons with

which it was to concern itself, as to raise any presumption that a labour
Convention must be interpreted as being restricted in its operation to manual
workers, unless a contrary intention appears'. The Court also stated that 'the
limits of the sphere of the ILO are not fixed with precision or rigidity' and that
the text 'of Part XIII does not support the view that it is workers doing manual
work- to the exclusion of other categories of workers- with whom the ILO was
to concern itself.
1. I.C.P.J, Series AlB, 1932, No. 50, p. 365; O.B. Vol. XVII No.5, 1932, pp. 129-197.

V. More Recent Evolution. The Competence of the ILO as Redefined by the

Declaration of Philadelphia

60. The various opinions of the International Court, and especially the first
one, settled definitely the question of the wide competence of the ILO. There
have, at times, been more limited objections, as in 1926, when the employers'
delegates to the Conference questioned the competence of the ILO as regards
the transport of migrants but the objection was rejected by the International
Labour Conference.

61. The general character of the competence of the ILO was still more
clearly underlined after the Second World War by the general nature of the
terms of the Declaration of Philadelphia 1 which replaced the 'general prin-
ciples' of the Treaty of Versailles. The wording of the Declaration of Philadel-
phia resulted in widening the constitutional foundation of the competence of
the Organization from two points of view: as regards the subject matter, that
competence was no longer to be limited strictly to conditions of work, but
extended more generally to conditions of life, sometimes in co-operation with
other international agencies. 2 As regards the persons to be covered, the Organ-
ization was henceforth in a position to deal with all categories of workers, i.e.
non-manual as well as manual, independent workers as well as wage-earners, 3
civil servants as well as persons working in the private sector. Certain Conven-
tions, in particular in the field of human rights, expressly use terms such as
'workers and employers without distinction whatsoever' .4 Furthermore, in a
number of fields, such as social security, forced labour or discrimination, ILO
Conventions cover not only workers of all categories but can extend to the
entire population.
1. See above No. 5.
2. See below No. 533 as regards the Indigenous and Tribal Populations Convention, 1957
(No. 107).
3. Thus, as early as 1921 the right of association (agriculture) Convention (No. 11) related
generally to 'workers engaged in agriculture'. Much later, in 1958 when the Discrimination
(Employment and Occupation) Convention (No. 111 ), the Swiss Government was of the
opinion that this instrument should not cover independent workers, as this was outside the
scope of relations between employers and workers, but the text finally proposed and adopted
did cover independent persons and the point was not pressed.
4. Freedom of Association Convention, 1948 (No. 87), Article 2.

41
62-66 Sources of Labour Law

62. This extension also resulted in ILO Conventions not only dealing with
labour law or more generally social law matters, but in the ILO competence
covering the wider ground of social and economic policy and to a certain extent,
civil rights. 1
1. See below under freedom of association (No. 183) and forced labour (No. 224).

63. As had been written already in the thirties, 1 the competence of the ILO is
not enclosed within rigid limits but it includes all labour matters. In the light of
the evolution of social problems, the Organization may have to deal with
questions which were not expressly provided for when it was created. It is a
'continuous creation'. 2 lts functions did not appear any longer to be limited to
the protection of the underprivileged, but more generally to ensuring the
co-ordination of social policy throughout the world.
1. Scelle, L'Organisation internationale du Travail et le BIT, Paris, 1930.
2. Morellet, op. cit., p. 475.

§5. THE STANDARD-SETTING ACTIVITIES OF THE ILO AND OTHER INTERNATIONAL

ORGANIZATIONS

64. When the ILO was established, its main means of action was the adop-
tion of international Conventions and Recommendations, as appears from the
large place devoted to standard-setting in its Constitution. Although the means
of action of the ILO have been diversified, in particular by the development of
technical co-operation in the last thirty years, standard-setting still plays a key
role and practically every year new standards are adopted, while systematic
action aims at giving effect to former standards. 1
1. See below, Part II.

65. More recently, mainly after the Second World War, other organizations,
either universal - and in particular the United Nations itself, or regional -
mainly European Organizations such as the Council of Europe, and the Euro-
pean Organizations, but also American and Arab - have also adopted a
number of international standards related to the field of labour. The following
chapter will be devoted to these various sources of international labour law and
to the relations between them.

Chapter III. The Sources of International Labour Law

66. The sources of international labour law are mainly to be found in the
Conventions and Recommendations adopted by the ILO, but, as has just been
said, various instruments adopted by other organizations- such as the United
Nations or various regional organizations- also deal with labour matters either
as such or from the point of view of human rights. These various instruments
differ as regards their legal character; some, such as ILO conventions, the UN
Covenants on human rights, the European Social Charter, etc. are designed to

42
Sources of Labour Law 67-69

create legal obligations for the States which ratify them (and the supra-national
regulations of the European Committees have even an immediate effect on
Member countries). Other- declarations of principle, recommendations etc. -
have no mandatory force but are essentially guides to national action. The
distinction is, however, not absolute, as Conventions produce a substantial part
of their practical effect as standard-defining as well as obligation-creating
instruments. Over the years an important case-law has also been progressively
established by the bodies appointed to supervise the application of these
standards. Finally, a very important number of bilateral treaties have bee·n
concluded to regulate the admission and conditions of work of nationals of each
contracting country in the territory of the others.

§ 1. ILO SOURCES

67. ILO sources of international labour law can be found in the Constitution
itself of the Organization, in the numerous Conventions and Recommenda-
tions adopted by it, and in a number of less formal instruments. Apart from
these formal sources, reference should be made to the interpretation of the
ILO Constitution and Conventions and to what can be described as case-law. A
final category comprises the instruments adopted by special Conferences con-
vened by the ILO.

I. The Constitution of the IW

68. While the Constitution of the ILO contains mainly provisions relating to
the organs and the functioning of the Organization, it also lays down a number
of general principles which have come to be regarded in certain respects as a
direct source of law. Such principles are contained in the Preamble to the
Constitution and in the Declaration concerning the Aims and Purposes of the
Organization, adopted by the Conference in Philadelphia in 1944 and incorpo-
rated in the ILO Constitution in 1946. ILO bodies have frequently drawn legal
consequences from them, particularly in the field of freedom of association and
in the field of racial discrimination (Apartheid), and States Members of the
ILO have been regarded as bound to some extent by these constitutional
principles (see infra Nos. 631 and 260).

II. Conventions and Recommendations

69. The ILO Conventions and Recommendations are, by far, the main
source of international labour law. This is due to their number (from 1919 to
1978, 151 Conventions and 159 Recommendations were adopted) but also to
their detailed character and the increasingly broad field which they cover.

43
70-73 Sources of Labour Law

A. Nature and Characteristics

70. International labour Conventions and Recommendations differ from the

point of view of their legal character: Conventions are instruments designed to
create international obligations for the States which ratify them, while
Recommendations are not designed to create obligations but to provide
guidelines for government action.

71. More particularly international labour Conventions have a number of

specific features 1 which can be grouped under three main ideas. Firstly, they
are adopted in an institutional framework. Thus the adoption of Conventions
does not follow the type of diplomatic negotiation which is usual in the case of
treaties, but it is prepared by discussions in an assembly which has many points
in common with parliamentary assemblies. 2 This also partly explains the fact
that unanimity is not necessary for the adoption of Conventions. 3 The institu-
tional character of these instruments also explains the rules relating to their
signature and to the deposit of ratifications. For the same reason, the interpre-
tation 'Of Conventions cannot be given by the States parties to them, but can be
given only by the International Court of Justice. 4 Similarly, the revision of a
Convention cannot be decided by the States parties to it, but by the General
Conference, which is the legislative body of the Organization.
1. As regards the specific character of international labour Conventions, much has been
written, especially in the thirties. See in particular Scelle, op. cit. pp. 181-185; Jenks, 'Some
characteristics of international labour conventions', Canadian Bar Review, Vol. XIII, 1935,
pp. 448-462 and 'Are International Labour Conventions Agreements between Govern-
ments?', ibid. Vol. XV, 1973, pp. 574-578; Morellet, 'Un type original de traites, les
conventions internationales du travail', Rev. crit. de. d.i.p, 1938, pp. 1 et 5.
2. See Valticos, 'Diplomacy in an Institutional Framework: Some AspectsofiLO Practice and
Experience', La Communita Internazionale, 197 4, pp. 3-21.
3. See below Nos. 73 and 83.
4. See below No. 117.

72. A second characteristic is that, as a consequence of the tripartite structure

of the ILO, 1 the International Labour Conference, which adopts Conventions
and Recommendations, is not constituted by representatives of governments
only, but also of representatives of employers and workers, 2 each delegate
being entitled to vote individually. This is one of the reasons why ratification
of a Convention cannot be made subject to reservations. 3
1. See above Nos. 31 ss.
2. See in particular Wilfred Jenks 'The Significance for International law of the Tripartite
character of the International Labour Organisation', op. cit. pp. 45-81.
3. See below No. 577.

73. Thirdly, the desire to make Conventions particularly effective explains

another series of characteristics, such as the rules- which were innovations in
international law - that a two-thirds majority is sufficient for the adoption of
Conventions and Recommendations and that governments should submit
Conventions and Recommendations to their competent authorities, i.e. as a

44
Sources of Labour Law 74-75

rule to their Parliaments, 1 the obligation of States to supply reports - when

requested to do so by the ILO -on Conventions which they have not ratified, as
well as on Recommendations, 2 the effects of ratification as regards the applica-
tion of ratified Conventions to non-metropolitan territories (which went
further than the classical 'colonial clause'),3 the practice of new Member States
to confirm the obligations previously accepted on their behalf by the State
responsible for their international relations, 4 the provision of Article 1, para-
graph 5 of the ILO Constitution according to which the withdrawal of a State
from the ILO does not affect the validity of the obligations resulting from a
ratified Convention, and the setting up, by specific provisions of the Constitu-
tion and by a series of decisions which followed, of a sophisticated system of
supervision. 5
1. See below No. 569 ss.
2. See below No. 575.
3. See below No. 587.
4. See below No. 582.
5. See below No. 606 ss.

74. The various special features of international labour Conventions gave

rise, in the early years of the introduction of this type of instrument, to a famous
theoretical discussion about the real nature of these Conventions. Georges
Scelle, 1 in particular, maintained ILO Conventions were not of a contractual
type, but amounted, in a way, to 'international laws', and that the International
Labour Conference, which adopted them, was an 'international legislative
body'. According to this view, Conventions were legislative instruments,
requiring only a 'conditional act', namely ratification- which could be analysed
as being simply an accession to a pre-existing act - to acquire the force of an
internal law. There is a large amount of truth in the views of Georges Scelle. In
fact, international labour Conventions represent a compromise between the
notions of contract-making treaties and law-making treaties. 2
1. Scelle, op. cit., pp. 182-185.
2. See in this connection Albert Thomas, Preface to Georges Scelle's l'OIT et le B.I.J. pp.
XIV-XV.

75. Thus, international labour Conventions have preserved certain features

of traditional treaties. Despite the more radical proposals submitted in 1919
when the system was established by the Peace Conference, a Convention is
binding on a State only if it has been ratified by it. Similarly, the influence of the
older notion of multilateral treaties can be found in the rule according to which
the entry into force of a Convention requires a minimum number of ratifica-
tions, though usually not more than two. 1 The same can be said about the rule,
established after detailed theoretical discussions around 1930 about the legal
effects of the revision of international labour Conventions: according to that
rule, when a Convention is revised, the former text continues to be binding on
the States which ratified it in its original form until they have ratified it in its
revised form. 2
1. See below No. 583.
2. See below No. 104.

45
76-77 Sources of Labour Law

The International Labour Code

76. While the international labour Conventions and Recommendations

which were adopted over the years are separate legal instruments, they consti-
tute, from a certain point of view, a comprehensive whole which has often been
described as the 'International Labour Code' .1 The term should not be taken
literally, as the various Conventions of which the 'Code' is composed may give
rise to independent international obligations and as its content is in constant
development and revision. It is, however, justified by the fact that the instru-
ments which constitute the 'Code' form a coherent whole and are, as has been
said, all cast to a large extent, in the same mould, although the technique in
drafting Conventions has undergone a considerable change over the years. The
term 'International Labour Code' has also been given to a methodical and
systematic presentation of international labour standards compiled by the
International Labour Office. 2
1. See Jenks 'The Corpus Juris of Social justice', in Law, Freedom and Welfare, London, 1963,
pp. 102-113; See also Wolf, 'L'interdependance des conventions internationales de travail',
Rec. Cours, 1967-II, pp. 117-219.
2. The International Labour Code 1951 (2 vols. ILO, Geneva 1952), which contains a
systematic presentation of the standards adopted up to that date.

B. The Procedure for the Adoption of Conventions and Recommendations

1. The Inclusion of Items on the Agenda of the Conference

77. The decision to include the adoption of a Convention or a Recommenda-

tion as an item on the agenda of the International Labour Conference is taken,
as a rule, by the Governing Body of the ILO in the light of proposals submitted
by the Director-General of the International Labour Office. In making such
proposals the Director-General places before the Governing Body a brief
survey of the legislation in force in the various countries and of the main
methods of its application, as regards the various questions among which a
choice has to be made. The Conference may also decide itself by a majority of
two-thirds to place an item on the agenda of the next Session. In settling the
agenda of the Conference, the Governing Body has also to consider sugges-
tions made by governments or by representative organizations of employers
and workers or by any public international organization. In past years, some
important Conventions 1 were adopted as a result of requests addressed to the
ILO by the Economic and Social Council of the United Nations. In the first of
these cases, the Council acted following a request from the World Federation
of Trade Unions and the American Federation of Labour. The Government of
any Member State may object to the inclusion of any item in the agenda of the
Conference, and the Conference itself must then decide, by a two-thirds
majority, whether the item shall remain on the agenda.
1. The Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) and the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

46
Sources of Labour Law 78-81

78. In some cases, especially when questions are of a technical nature, the
Governing Body refers a matter to a preparatory technical Conference, 1 which
normally is of tripartite composition. In the case of maritime questions, they
are considered in the first place by a joint Maritime Commission (comprising
representatives of shipowners and seafarers) and subsequently by a prepara-
tory technical Conference.
1. This happened, e.g. for matters such as fishermen, employment policy, maximum weight to
be carried by one person.

2. The Discussion and Adoption by the Conference

79. The procedure followed for the consideration of a draft Convention or

Recommendation by the Conference is usually that described as 'double dis-
cussion', 1 i.e. that the question is discussed at two successive annual sessions of
the Conference. Under the existing rules2 the International Labour Office first
prepares a preliminary report setting out the law and practice in the different
countries on the question concerned, together with a questionnaire which is
intended to obtain the views of governments as to the international standards
which they regard as practicable or desirable. On the basis of the replies
received from governments, the ILO draws a further report indicating which
are the principal questions which appear to require consideration by the
Conference. This report serves as a basis for the first discussion of the question
by the Conference.
1. Articles 39--41 of the Standing Orders of the Conference.
2. Articles 39--41 of the Standing Orders of the Conference.

80. During the first discussion, the question is first referred to a special
technical committee appointed by the Conference for each of the items on its
agenda and constituted on a tripartite basis. The Committee, and then the
Conference, decide whether the matter is suitable to form the subject of a
Convention or Recommendation and adopt such conclusions as they see fit.
Finally, the Conference decides whether the question shall be included in the
agenda of its next session.

81. On the basis of this first discussion, the International Labour Office then
prepares a proposed draft of a Convention or Recommendation which it
forwards to governments for their observations. In the light of such observa-
tions a final report incorporating any necessary amendments to the texts is
drawn up and sent to governments three months before the session of the
Conference at which the second discussion is to be held. The question is then
again considered in the first place by a technical committee and the texts
adopted by the committee are submitted to the full Conference, which consid-
ers them article by article before deciding whether to adopt them as a whole. If
approved, the texts are referred to the drafting committee of the Conference,
which prepares a final text to be submitted to the Conference for final adop-
tion.

47
82-85 Sources of Labour Law

82. In cases of special urgency or where other special circumstances exist, the
Governing Body may, by a majority of three-fifths, decide to refer a question to
the Conference for a single discussion. This procedure is simpler than the
double discussion procedure, but it still entails the preparation of reports,
questionnaires and draft texts by the International Labour Office and consulta-
tion of governments before the Conference discussion. It is used but rarely, and
usually in the case of items that have already been considered by a preparatory
technical conference.

83. Whatever procedure is followed, a majority of two-thirds of the votes of

the delegates attending the Conference (governments, employers and work-
ers) is required for the adoption of a Convention or Recommendation. When a
Convention or Recommendation has been adopted by the Conference two
copies are signed by the President of the Conference and by the Director-
General of the ILO. Because of the institutional and tripartite structure of the
ILO, this formality replaces the practice of signature by the States, which is
usual in the case of traditional diplomatic tteaties.

84. The authentic texts of Conventions and Recommendations are the Eng-
lish and French versions. An official text is established at the same time in
Spanish, a working language of the ILO. A Russian translation is also prepared
by the ILO, and German texts are established jointly by the German-speaking
States Members of the Organization, in co-operation with the ILO, at transla-
tion Conferences held after each session of the Conference. In a number of
other countries too, ILO Conventions have been translated into the national
language.

85. A procedure similar to that for the adoption of Conventions and

Recommendations is followed in the case of revision of these instruments. 1 The
Governing Body decides whether it is desirable to place the question of the
revision of a Convention or Recommendation in whole or in part on the agenda
of the Conference. It does so on the basis of information supplied by the
International Labour Office and following consultation with the Governments.
The Governing Body has to define exactly the question or questions which it
places on the agenda of the Conference in view of the partial or total revision of
the instrument under consideration. The Office then submits to the Conference
draft amendments drawn up in accordance with the conclusions of the Govern-
ing Body. The examination of the draft revision by the Conference follows a
procedure analogous to that of the second discussion in the case of a double
discussion procedure. In 1965, the Governing Body also adopted a simplified
procedure for the technical revision of certain strictly limited provisions of a
Convention, but this procedure has not yet been used.
1. See Articles 43 to 45 ofthe Standing Orders of the Conference; more generally on revision,
see below No. 108 ss.

48
Sources of Labour Law 86-88

C. The Problems Encountered in Framing Conventions and Recommendations

86. In framing Conventions and Recommendations various problems of

substance or form are encountered. They relate in particular to the diversity of
national conditions for which the instrument should cater, which in turn raises
the question as to whether universal standards are appropriate, what should be
the level of the standards and what flexibility clauses should be incorporated in
the Conventions. They also relate to the nature of the rights that may be the
subject of international standard, to the choice between the form of a Conven-
tion or a Recommendation and to the adjustment of instruments to change,
which raises the question of their revision.

1. The Diversity of National Conditions

87. Since international labour Conventions and the Recommendations are

intended to produce effects .- and in the case of the former to create legal
obligations - in countries with very different economic, social and political
conditions, as well as different constitutional and legal systems, the diversity of
the conditions prevailing in the world raises a number of questions.

A. UNIVERSAL OR REGIONAL STANDARDS? 1

88. The first question would be whether it would not be more appropriate to
formulate regional rather than universal standards, since, in spite of sometimes
great differences which are to be found between more or less developed
countries within the same region, the great regions of the world are, on the
whole, more homogeneous than the world community taken as a whole. The
idea of regional action in this field has also been encouraged by the very
existence of regional organizations, some of which have endeavoured, by such
action, to emphasize the identity of the region concerned and to develop the
activity of the organization itself. Regional standards undoubtedly have been
very useful2 by supplementing universal standards or dealing with matters of
specific interest for the region under consideration (as in the case of the ·Rhine
boatmen or workers occupied in international transport in Europe). However
regional standards cannot replace universal standards altogether, as the coexis-
tence of different sets of regional standards would tend to accentuate rather
than to reduce existing discrepancies between the different parts of the world.
It would also eliminate the spur for emulation and the factor of harmonization
provided by universal standards. In the case of coexistence or regional with
universal standards, the danger would reside in their overlapping, as a multipli-
city of standards would lead to divergencies between them and to both the
universal and the regional instruments being discredited. Reference is often
made to the meeting in 1972 of the African Advisory Committee of the ILO, in
the course of which it was underlined that 'any attempt to adopt standards on a
regional basis would be a backward step and would produce anomalies and

49
89 Sources of Labour Law

tensions between different regions' and that 'sub-standards for sub-humans

had no place in the IL0'. 3 When, in 1976, the Governing Body of the ILO
considered the request of a wide in-depth review of international labour
standards, it concluded that 'Conventions should remain universal in character
and that the special needs of countries should be taken into account through
appropriate provisions in these instruments' .4 The ILO has therefore
approached the matter as one of framing universal standards capable of being
applied in differing circumstances.
1. See Valticos 'Normes universelles et normes regionales dans le domaine du travail' in
Societe fran~;aise pour le droit international, Colloque de Bordeaux, Regionalisme et Univer-
salisme dans le droit international contemporain, Paris, 1977, pp. 289-307; Wolf, 'Y a-t-il un
droit social regional?' eod. lo. pp. 309-312
2. About these regional standards, see below Nos. 116 and 122 ss.
3. See Minutes G.B. 170, 1967, p. 82, para. 156.
4. See ILO document GB. 199/9/22 (Rev.), Appendix, para. 15.

B. THE LEVEL OF THE STANDARDS

89. As Conventions and Recommendations are generally directed to coun-
tries with very different economic, social and political conditions, as well as
different constitutional and legal systems, they raise the problem of the appro-
priate level of the standards which they should set. The Constitution of the ILO
already contained a general indication to that effect when it provided that: 'in
framing any Convention or Recommendation of general application, the Con-
ference shall have due regard to those countries in which climatic conditions,
the imperfect development of industrial organization, or other special circum-
stances 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'. Guidelines were also provided in 1946 by a Conference
Delegation on Constitutional questions which pointed out 1 that the interna-
tional standard should not be an obviously impracticable one, or one which can
be attained only by a very limited number of countries, as it will not then serve
as an immediate target for national action in most countries, though it may
come to be regarded as a distant or ultimate objective. On the other hand, it
was stated, a standard which represents no substantial advance upon average
existing practice is also of very limited utility, as the purpose of standards is not
simply to harmonize legislation, but primarily to promote generalized progress.
In 1963, the Director-General of the ILO also stressed, 2 in the same connec-
tion, that 'the terms of Conventions should, unless they deal exclusively with a
simple issue of fundamental principle and contain no detail, be sufficiently
flexible in character to be susceptible of application under widely varying
national conditions', that a Convention should not contain rigid requirements
in regard to matters in respect of which national practice may reasonably vary
widely; it should not enter into too much 'administrative detail', but that 'this
general approach should not, of course, be carried to the point at which a
Convention ceases to be worth having ... A measure of flexibility the result of
which is that a large proportion of the Members of the Organization are not
called upon to do more than they are already doing may deprive an interna-

50
Sources of Labour Law 90-91
tional standard of much of its value as a stimulus to further action and achieve-
ment'. The problem, is not only to decide, in each case, what the appropriate
level of a standard should be. It is, more generally, to avoid that the standard
may concern only a more or less limited group of countries because of its level,
whatever it may be. The aim, therefore, has increasingly been to frame stan-
dards which will be relevant to the greatest number of countries. To this end,
various types of flexibility clauses have been devised and included in several
Conventions.
1. l.L.C. 29th Session, Montreal, 1946, Constitutional Questions. Part I, Reports
of the Conference Delegation on Constitutional Questions (Report II (1)), ILO, 1946,
p. 63.
2.1.L.C. Ref. D.-G. 1963, p. 169.

C. THE FLEXIBILITY CLAUSES 1

90. Some of the earlier Conventions, in particular four of the Conventions
adopted in 1919, specified that certain named countries, because of the state of
their development, might observe a standard lower than the general standard.
This type of clause was soon abandoned and recourse was had to more refined
and more diversified clauses of a general character. They can be grouped under
various categories.
1. See McMahon, 'The Legislative Technique of the ILO', B.Y.B.l.L., vol. 41, 1965-66, pp.
31-68; Valticos and Wolf, 'L'OITet les pays en voie de developpement; techniques d'elabora-
tion et mise en oeuvre de normes universelles' in Societe franc;aise pur le droit international,
Colloque d'Aix-en-Provence, Pays en voie de developpement et transformation du droit
international, Paris 1974, pp. 127-146.

I. Options Allowed to States as Regards Obligations Undertaken

91. Certain types of flexibility clauses give States the possibility of choosing,
at the time of ratification, by means of a formal declaration, the extent of the
obligations which they decide to undertake. This is the case for some Conven-
tions consisting of several parts of which ratifying States can accept only one or
a minimum number. Naturally, States which make use of such a possibility may,
at a later stage, extend their acceptance to other parts of the Convention, and
this type of clause thus permits the progressive application of the Convention as
a whole. A well-known illustration of this formula has been the Social Security
(Minimum Standards) Convention, 1952 (No. 102) which comprises nine
parts, at least three of which must be accepted on ratification. 1 A slightly
different formula which is used in certain Conventions, 2 allows certain parts of
them or annexes to them to be excluded from the ratification. In a different
case, a Convention comprises two parts, the one involving strict obligations and
the other less strict ones,3 and States have the option to accept either of these
parts at the time of ratification. Finally, another type of clause, which has been
used in particular in some Conventions on minimum age 4 and on holidays with
pay5 allows States to specify, at the time of ratification, the exact level of the
standard which they undertake to observe and as a rule the standard thus

51
92-94 Sources of Labour Law

specified by ratifying States may not be lower than a minimum laid down in the
Convention.
1. Another example is the Equality of Treatment (Social Security) Convention, 1967 (No.
118).
2. E.g. Labour Inspection Convention, 1947 (No. 81); Migrant Workers' Conventions (No.
97 of 1949 and No. 143 of 1975); Labour Statistics Convention, 1938 (No. 63).
3. Fee-charging Employment Agencies (Revised), 1949 (No. 96) which gives the option
between the progressive abolition and the regulation of these agencies.
4. No. 138 of 1973.
5. No. 132 of 1970.

2. Flexibility in the Formulation ofthe Standard

92. The drafting itself of the standard is often flexible enough to give gov-
ernments a certain amount of latitude in its implementation.

FLEXIBIUTY AS REGARDS THE SCOPE

93. Sometimes the flexibility resides in the way in which the scope of the
Convention is defined, in particular as regards the persons to be covered or the
regions in which the Convention must be JDade applicable. In some cases1
governments may decide for themselves, subject to certain consultations, what
the scope of the Conventions shall be, or they may be permitted to exclude
certain categories of persons or undertakings,2 or again the definition of the
persons covered may be based on a specified percentage of the wage earners or
the population of the country concerned.3 Sometimes, exceptions are allowed
for certain parts of the country which are sparsely populated or insufficiently
developed.4 In the case of a number of Conventions which cover a particular
branch of the economy, such as industry, it is provided that governments may
themselves define the line of division separating that branch from others. 5
1. E.g. various Conventions on minimum wage-fixing machinery (Nos. 26 and 99), on labour
inspection (No. 81) and on holidays with pay in agriculture (No. 101).
2. E.g. Conventions of night work (women) (Nos. 41 and 89), holidays with pay (No. 52),
protection of wages (No. 95) and maternity protection (No. 103, revised).
3. Many social security conventions (in particular the 1952 social security (minimum stan-
dards) (No. 102) Convention.
4. More than ten Conventions (Nos. 24, 25, 62, 63, 77, 78, 81, 88, 94, 95, 96).
5. E.g. The Hours of Work (Industry) Convention, 1919 (No. 1) and the Weekly Rest
(Commerce and Office) Convention, 1957 (No. 106).

FLEXIBIUTY AS REGARDS THE CONTENT OF THE OBLIGATION

94. There are various cases where the formulation of the basic substantive
rule itself makes provision for flexibility. This applies in particular to certain
:prom~tional' conventions, which do not set a definite objective to be attained
tmmedtately, b~t formulate a general policy in a given field to be followed by
each country wtth due regard to its particular circumstances. The most well-
known cases in this connection are the Conventions dealing with social policy
(No. 117 '?f 1962), equal remuneration (No.100 of 1951), equal opportunity
and equahty of treatment (No. 111 of 1988).

52
Sources of Labour Law 95-98

95. This method is generally coupled with the device of including only the
fundamental principles in the Conventions and in adopting at the same time a
supplementary Recommendation - i.e. a non-binding instrument- containing
more detailed suggestions for their implementation. Some sixty Conventions
are based on this method.

96. Flexibility may also be attained by the use of general terms such as
'appropriate measures', 'adequate protection', 'sufficient number', or 'appro-
priate arrangements', or by requiring certain measures to be taken only in so far
as they may be 'necessary'. Conventions such as these might be used to provide
loopholes for evasion if their application was not, as we shall see (see infra Nos.
606 ss), subject to a close system of supervision.

97. Conventions also often allow for exceptions to the general rule which
they establish. There have been various types of such exceptions. Apart from
the exceptions for certain named countries (see above para. 90), which are no
longer resorted to, certain Conventions 1 authorize countries which do not yet
have any regulations on the subject to ratify on the basis of a standard lower
than the general standard. More recently, many of the social security Conven-
tions2 permit countries 'whose economy and medical facilities are insufficiently
developed' to have recourse to specified temporary exceptions. Exceptions are
also sometimes permitted on account of special circumstances (materials sub-
ject to rapid deterioration, exceptional cases of pressure of work, processes
necessarily continuous in character etc.) and adjustment of the standard in
respect of night work to climatic conditions is also allowed. Moreover, special
arrangements are permitted under certain conditions, or the application of
certain Conventions may be suspended in the event ofwar,Jorce majeure or, if
in the case of serious emergency, the national interest demands it.
1. E.g. The 1946 Medical Examination (Young Persons) Convention (Nos. 77 and 78) and
Night Work (Young Persons) Convention (Non-Industrial Occupations), (No. 79).
2. E.g. Nos. 102 of 1952 and 121 of 1964.

3. Flexibility as Regards the Methods of Application

98. One of the devices which is most frequently used seeks flexibility as
regards the methods of application of the standard. Originally, many Conven-
tions provided that effect should be given to them through 'national legisla-
tion', but this term has always been interpreted in a very broad sense. 1 Gener-
ally, having regard to the fact that the ILO Constitution provides, in Article 19,
para. 5(d), that a State which ratifies a Convention shall take 'such action as
may be necessary to make effective the provisions of such Convention', cus-
tom, administrative measures or, in certain circumstances, collective agree-
ments2 may, in principle, suffice to give effect to Conventions. It is, moreover,
expressly stated in some Conventions, that effect may be given to them by
methods appropriate to national conditions and practice, which can be national
laws or regulations, collective agreements, arbitral awards, etc. or a combina-
tion of these means. Clauses of this type appear in a number of Conventions,

53
99-102 Sources of Labour Law

such as those, mentioned above, relating to equal remuneration (No. 100 of

1951) and to discrimination in employment (No. 111 of 1968).3
1. See Intern. Lab. Code 1951, note 43 under Article 380, pp. 307-308.
2. For the application of Conventions by means of collective agreements, see Intern. Lab.
Code, pp. LXXVI-LXXVIII; Jenks, 'The Application of Conventions by means of Collective
Agreements', Zeitschrift fiir Auslandisches, Offentliches Recht und Volkerrecht, Aug. 1958
(Festgabe Makarov), pp. 197-224; Wolf, 'L'application des conventions par voie de conven-
tions collectives'. Ann. 1974, pp. 103-114.
3. See also Conventions on weekly rest in commerce and offices (No. 106 of 1957), holidays
with pay (No. 132 of 1970), protection of workers' representatives (No. 135 of 1971) and
several maritime Conventions (e.g. No. 91 of 1949, No. 109 of 1958 and No. 146 of 1976).

99. Some Conventions have also been deliberately so drafted as to permit

their application by means of action by federal authority .1
1. See Conventions on Reduction of hours of work in public works (No. 51 of 1936), Labour
Clauses in Public Contracts (No. 94 of 1949), Labour Inspection (No. 81 of 1947), Migrant
Workers (No. 97 of 1969) and Discrimination in Employment (No. 111 of 1958).

D. THE DRAFTING OF THE STANDARD

100. Apart from the diversity of national conditions, there are also other
reasons which call for flexibility in the formulation of standards. These are the
differences between legal systems- in particular between common law and civil
law countries- or between constitutional systems- federal and unitary- so that
it is necessary to avoid too strict and detailed drafting and to leave to States a
certain choice- as was seen in No. 97 above- as regards the legal methods of
application.

E. RESULTS OF FLEXIBILITY CLAUSES

101. While there have been cases in which the effort to introduce the
necessary flexibility in Conventions has not been completely successful or has
gone too far and consequently certain Conventions still contain an element of
rigidity or, on the contrary, have been drafted in too loose terms, one may
consider that existing ILO Conventions, on the whole, are neither too stringent
to be beyond the reach of developing countries nor so flexible as to be devoid of
interest for the more advanced ones. It is significant, in this connection, that the
average number of ratifications per country naturally is higher for the indus-
trialized States, but that about 60 per cent of the ratifications have been
deposited by developing countries and that, in 1977, about three quarters of
the ratifications received came from developing countries.

2. The Nature of the Rights which May Be the

Subject of International Standards

102. There is a wide difference in the nature of the rights which may be the
subject of international standards. Some of these rights lend themselves to

54
Sources of Labour Law 103-104

immediate application to individuals (such as minimum age, holidays with pay

of a specified duration, freedom of association) and they might be considered
as self-executing in countries where the constitutional system provides that
ratified treaties become automatically part of the law of the land. On the
contrary, other rights are more of a programmatic nature, i.e. they consist of a
general statement of the objectives aimed at and lay programmes of action,
which require measures to be taken by governments, sometimes on a long-term
basis, and do not create any direct individual claim for protected persons. This
can be said for employment policy, social security, action against discrimina-
tion and equal remuneration (if one considers the terms of ILO Convention
No. 100). 1
1. See Jenks, 'Work, Leisure and Social Security as Human Rights in the World Com-
munity', Journal of the International Commission of Jurists, June 1968, pp. 49-58;
Valticos 'The International Labour Organisation. Its Contribution to the Rule of Law
and the International Protection of Human Rights', same Journal, December 1968, pp.
14-16.

3. The Choice between a Convention and a Recommendation

103. At the time of the drafting and adoption of a new instrument, the
question of whether it should take the form of a Convention or a Recommenda-
tion is often discussed in view of the differences existing between these two
types of instruments from the point of view of their legal character (see above
No. 70) and of their respective roles. The Convention certainly is the typical
instrument of international labour legislation. 1 When the establishment of the
present system of international labour standards was considered by the Peace
Conference in 1919, Conventions were the only type of instrument envisaged
at the outset of the discussions. The idea of Recommendations was introduced
later in the course of these discussions, with a view to meeting the difficulties
and objections of the United States. However, it was also realized at that time
that Recommendations might serve to deal with certain matters about which
the adoption of a Convention would not be possible or appropriate. 2 Later, in
1946, when the ILO Constitution was amended, it was specified in Article 19,
para. 1 that it would rest with the Conference to determine whether the
proposals before it 'should take the form: (a) of an international Convention,
or (b) of a Recommendation to meet circumstances where the subject, or any
aspect of it, dealt with is not considered suitable or appropriate at that time for
a Convention.'
1. Scelle, op. cit. p. 167.
2. See O.B. Vol. I (1919-1920), p. 264.

104. In the light of the above principle the role of Recommendations1 has
become clearer over the years, while still frequently disputed in particular
cases. It has often happened that a Recommendation has been considered
more appropriate when a subject has not yet been ripe for the adoption of a
Convention. Thus, in a number of cases, the adoption of a Recommendation

55
105-107 Sources of Labour Law

has paved the way for the adoption of a Convention on the same subject,
several years later. 2
1. See I.L.C. 29th Session (Montreal, 1946), Report II (1) Constitutional Questions, Part I,
Reports of the Conference Delegation on Constitutional Questions, pp. 37-38 (No. 45) and
62-64 (Nos. 73-74). See also Scelle, op. cit., pp. 167-169, Troclet, Legislation sociale inter-
nationale, Brussels, 1952, pp. 517-518, 637-641, Paul Ramadier, 'Conventions and Recom-
mendations de l'OIT', Droit social1951, pp. 598-603.
2. This was the case for the Recommendations on Labour Inspection, 1923 (No. 20) and on
Social Security, 1944 (Nos. 67 and 69).

105. A second function of a Recommendation, which has become increas-

ingly important, is to supplement a Convention. Now it is common practice,
followed in the case of over 60 Conventions, to adopt, on the same subject, a
Convention laying down the basic rules and a Recommendation containing
more detailed provisions for their application which might furnish guidelines
for governments without the Recommendation having the binding force of a
Convention. 1 In some cases, in particular in the field of social security, the
supplementary Recommendation sets a higher standard than the Convention.
1. This was the case, for instance, to refer to some of the most important instruments, for the
Conventions and the Recommendations on Minimum Wage-Fixing (Convention No. 26 and
Recommendation No. 30 of 1928), Employment Service (Convention No. 88 and Recom-
mendation No. 83 of 1948), Equal Remuneration (Convention No. 100 and Recommenda-
tion No. 90 of 1951) Discrimination in Employment (Convention and Recommendation No.
111 of 1958) and Employment Policy (Convention and Recommendation No. 122 of 1964).

106. A third function of Recommendations is to deal with matters concern-

ing which the standards laid down have to be of so technical and detailed a
character that they may call for frequent adjustment to the situation in different
countries, or the nature of which is such that there are wide variations in
circumstances and practices from one country to another. Among such subjects
reference can be made to industrial relations, training, workers' housing,
employment of women with family responsibilities. The form of a Recommen-
dation has been preferred in such cases because strict international obligations
could hardly be contemplated in the fields concerned.

107. Generally, however, the Recommendation, as a form of instrument,

has often been objected to, generally by the workers, especially when it is
envisaged as the only instrument- and not as supplementary to a Convention-
to deal with a given subject. The objections are due to the fact that Recommen-
dations are weaker instruments than Conventions. They cannot be the subject
of international commitments, nor can their application be supervised as
strictly and regularly as that of Conventions. 1 Recommendations have, there-
fore, frequently been considered as poor relations of Conventions. Neverthe-
less, they perform a useful function in cases where Conventions would prob-
ably not have been adopted or, if adopted, would not have been widely ratified,
and where the existence of international standards embodied in a Recommen-
dation may sometimes exercise a substantial influence on national law and
practice.2

56
Sources of Labour Law 108-109

1. See below Nos. 575 and 606 ss.

2. The influence of Recommendation (No. 119) concerning the Termination of the Employ-
ment Relationship, 1963 if one of the most obvious instances of the influence of a Recommen-
dation. See Com. Exp. 1974 (Part 4B), p. 90; E. Yemin, 'Job Security: influence of ILO
Standards and recent trends', l.L.R., Jan-Feb. 1976, pp. 17-33; Kahn-Freund, Labour and
the Law, 2nd ed., London, 1977, p. 42.

4. The Adjustment to Change. The Revision of

Conventions and Recommendations

108. Principles governing revision. The developments which may occur in

social needs and conceptions or the difficulties which may be encountered in
the implementation of certain standards make it sometimes necessary to revise
international labour standards with a view to adjusting them to changing
circumstances or to experience. Such revision raises, apart from the procedural
questions already referred to above, 1 a more general question of policy: that of
deciding how closely revision should seek to adapt the international standard to
changes in ideas and needs. Naturally, labour legislation, whether international
or national, cannot be a rigid and immutable code. It must be responsive to
changing conceptions and even techniques. Therefore, the revision of Conven-
tions should be made possible without having to face insuperable legal ob-
stacles. On the other hand, however, the legal rules laid down by international
labour standards must have a minimum of stability and provide a certain
measure of security in international relations. They should not be amended too
frequently of for considerations which are temporary in nature. In order to
reconcile these requirements of change and of stability, the revision procedure
has been made subject to time limits and formalities, which, without being
excessive, are designed to prevent over-hasty decisions.
1. No. 85.

109. Clauses relating to Revision. The first ILO Conventions contained a

clause providing that at least once in ten years the Governing Body of the ILO
should present a report on the working of the Convention and consider the
desirability of placing on the Agenda of the Conference the question of its
revision. This standard clause was modified in 1949 to provide for greater
flexibility by enabling the Governing Body to present such reports only when it
considered it necessary .1 Meanwhile, in 1928, when the first ten-year period for
the consideration of the possible revision of the Conventions adopted in 1919
was about to expire, the question of the procedure for revision and the effect of
revision on the original Convention was the subject of extensive discussion and
of wide differences of opinion in the Governing Body. Some employer mem-
bers of the Governing Body were of the opinion that international labour
Conventions were not contracts between States, but 'conditional international
laws' and that the new Convention should accordingly replace the original one.
The then Legal Adviser of the ILO (Jean Morellet) took the opposite view on
the ground that, in spite of their special character, international labour Con-
ventions entailed legal obligations between the States parties to them, and that
57
110-112 Sources of Labour Law

one Convention could not be automatically substituted for another when the
first had been ratified and come into force.
1. Moreover the 1961 Final Articles Revision Convention (No. 116) amended the final
articles which were contained in earlier Conventions to adapt them to the new formula.

110. Finally, the solution adopted was to include in the Conventions adopted
after 1929 a clause providing:
a. that the adoption of a new revising Convention would not entail the abroga-
tion of the original Convention;
b. that the original Convention should cease to be open to ratification as from
the date when the new Convention came into force; and
c. that ratification by a Member State of the new Convention should automati-
cally involve the denunciation by it of the original Convention.
A few years later, in 1933, this clause was refined to allow the International
Labour Conference discretion to decide, when adopting a revised Convention,
that its entry into force should not have the effect of closing the original
Convention to ratification and that its ratification by a State would not auto-
matically entail the denunciation by that State of the original Convention. This
latitude may sometimes be useful, especially to keep the earlier Convention
open to ratification by States which have not yet reached a stage of develop-
ment which would allow them to ratify the most recent standard. It has been
used in certain cases. 1
1. See the Employment Injury Benefits Convention, 1964 (No. 121), Article 28.

111. Use made of revision procedures. In the light of the principles, rules and
procedures described above, some forty Conventions have been formally
revised by subsequent Conventions. A number of these revisions have been
aimed at making the wording of the original Convention more flexible in order
to take account of the difficulties experienced and to facilitate ratification, as in
the case of night work of women (apart from the more basic re-examination of
the whole principle, which is presently under way). In other cases, on the
contrary, revision was designed to raise the earlier standard and provide for
greater protection (as in the case of occupational diseases and of minimum age
of admission to employment). Sometimes, these two types of operations were
combined. Another reason which led to revision was the need to take account
of technological changes (thus the first discussion for the revision of Conven-
tion no. 32 on dock work has taken place in 1une 1978). Some Conventions have
each undergone more than one revision in the course of years: there were two
revisions of the convention concerning night work by women 1 and three revisions
of the wages, hours of work and manning on board ship Convention. 2
1. Convention No.4 of 1919 revised by Conventions Nos. 41 and 89 of 1934 and of 1948 and
the matter is again under consideration, as stated above.
2. Convention No. 57 of 1936 is revised by Conventions Nos. 76, 93 and 109 of 1946, 1949
and 1958.

112. Apart from formal revisions, there have also been cases of the adoption
of Conventions which, although not revisions in a technical sense, have sup-

58
Sources of Labour Law 113-116

plemented earlier instruments, or dealt with the same subjects from a different
angle. This will be explained later in respect of the forced labour Conventions, 1
of the social policy Conventions2 and of the 1952 Social Security (Minimum
Standards) Convention (No. 102).3
1. See below Nos. 214 ss.
2. See below No. 409.
3. See below Nos. 418 ss.

113. In the case of Recommendations, formal revision is not as frequent or

as necessary as for Conventions, since they do not involve international obliga-
tions. However, it may sometimes be useful to state expressly that a new
instrument supersedes an earlier one, in order to make it clear to governments
that it is the new instrument which should guide their action. Such a course was
followed in the case of vocational training Recommendations. 1 It may also be
desirable where a Recommendation is supplementary to a Convention and the
latter is being revised, to proceed as well with the revision of the Recommenda-
tion, as was done in the case of migrant workers. 2
1. Recommendations No. 117 of 1962 and No. 150 of 1975.
2. Migration for Employment Recommendation (Revised), 1949 (No. 86).

III. Less Formal Instruments

114. The ILO has also laid down standards in certain types of instruments
which are less formal than Conventions and Recommendations. This is the
case, in the first instance, of Resolutions adopted by the International Labour
Conference. Some of these resolutions are currently used by the various
supervisory bodies of the ILO as guidelines and terms of reference for the
appraisal of national situations and the recommendations addressed to gov-
ernments. This applies in particular to the 1952 Resolution concerning the
independence of the trade union movement and to the 1970 Resolution
concerning trade union rights and their relation to civil liberties (which were
referred to by the Commission of Inquiry in the case of Greece in 1970 and by
the Fact-finding and Conciliation Commission in the case of Chile in 1974). 1
1. See below Nos. 183 and 638.

115. Other types of standards are embodied in the resolutions and conclu-
sions of technical committees of experts and of meetings or bodies set up to deal
with particular sectors (industrial committees, etc.) or particular subjects, such
as social security and occupational health and safety, multinational enter-
prises, 1 statistics, etc. or of technical regional conferences and meetings.
1. See below No. 415.

116. These various types of texts vary considerably, first as regards their subject
matter: some deal with basic principles while others are of a very practical technical
nature. They also differ in respect of the weight they carry. None have the authority
of Conventions and Recommendations, but a resolution adopted by the Con-

59
117-120 Sources of Labour Law

ference carries more weight than the conclusions of a less comprehensive body.
The value of such texts lies mainly in the fact that they are adopted by bodies
representative of the interests concerned. Resolutions adopted by the Inter-
national Labour Conference have also been important in certain cases for the
development of the programme of the ILO in certain fields. This was the case as
regards labour-management relations, workers' education, rural development
and more recently, in 1975, working conditions and environment.

IV. Interpretation

117. The ILO Constitution provides (Article 37) that any question or dis-
pute relating to the interpretation of the Constitution itself or of international
labour Conventions must be submitted to the International Court of Justice
(formerly the Permanent Court of International Justice). This provision has
been resorted to only on a very few occasions, during the early years of the
existence of the Organization. As indicated above, 1 the Court was called upon,
on four occasions between 1922 and 1932, to give advisory opinions and the
first three related exclusively to the question of the competence of the ILO.
The fourth, while having also an indirect bearing on that question, referred
expressly to the meaning to be attributed to the scope of the Night Work
(Women) Convention, 1919 (No. 4). 2
1. No. 55-59 above.
2. No. 59 above.

118. In 1946, as a result of amendments made to the ILO Constitution, a

second paragraph was added to Article 37, with a view to giving greater
flexibility to methods of interpretation by providing also for the possibility of
appointing a tribunal for the expeditious determination of any dispute or
question relating to the interpretation of a Convention. No recourse has so far
been had to this provision.

119. Finally, the Director-General of the ILO is frequently consulted by

governments as to the interpretation of Conventions and the opinions which he
gives, with the proviso that he has no special competence in the matter, are
communicated to the Governing Body of the ILO and published in the Official
Bulletin, and seem to be tacitly accepted. They provide authoritative documen-
tation on the subject and have acquired considerable weight. 1 A very large
number of such opinions have been given by the ILO over the years.
1. In this connection, see Jenks, 'The Interpretation of International Labour Conventions by
the International Labour Office', British Yearbook of International Law, Vol. 20, 1939, pp.
132 and following, and 'The Corpus Juris of Social Justice' in Law Freedom and Welfare,
London, 1963, pp. 121 and following.

120. Lastly, legal opinions on important matters were given in memoranda

from the Director-General or the Legal Adviser of the ILO concerning ques-
tions connected with the constitutional framework of ILO Conventions, such

60
Sources of Labour Law 121-123
as the nature of the competent authority contemplated by Article 19 of the
Constitution of the IL0 1 and the practice of reservations to multilateral Con-
ventions.2 In the latter case an ILO memorandum was submitted to the Inter-
national Court of Justice in the genocide case and it set forth the reasons why
international labour Conventions cannot be ratified subject to reservations.3
1. See O.B. Vol. XXVI, 1944, pp. 205-221. On this question see below Nos. 569 ss.
2. See O.B. vol. XXXIV, 1951, pp. 274-312.
3. On this question see below No. 577.

V. Case Law

121. In the course of the years, the quasi-judicial bodies which, as will be
explained later, 1 have been set up to supervise the implementation of interna-
tional labour standards, have often had to reach conclusions as to the precise
scope and meaning of ILO Conventions, as they were requested to assess the
extent to which these Conventions are implemented. A body of case-law has
thus been progressively built up.
1. See below Nos. 608 ss, 632 ss.

122. This has been the case, in particular, of the Committee of Experts on
the Application of Conventions and Recommendations which, since 1927, has
examined every year the reports of governments on the application of Conven-
tions which they have ratified. The interpretative function of the Committee is
not based on any explicit authority, but it derives logically from its mandate and
the nature of its task. As the Committee itself put it, 'the Committee's terms of
reference do not require it to give interpretation of Conventions, competence
to do so being vested in the International Court of Justice by Article 37 of the
Constitution. Nevertheless, in order to carry out its function of evaluating the
implementation of Conventions, the Committee has to consider and express its
views on the meaning of certain provisions of Conventions' .1 Such a function is
all the more important as, during the more recent period, a number of interna-
tional labour Conventions have, in an effort to obtain greater flexibility, been
drafted deliberately in general terms, 2 so that the Committee of Experts has
had to interpret and define more precisely their meaning and scope. This has
happened in particular in the cases of the instruments dealing with forced
labour, freedom of association and discrimination in employment.3
1. Rep. Com. Exp. 1977, p. 11, para. 32.
2. See above Nos. 96 and 100.
3. See the 'general surveys' submitted by the Committee of Experts on forced labour (1962
and 1968), freedom of association (1959 and 1973) and discrimination in employment (1963
and 1971). ·

123. Particular importance also attaches to the case law established by the
Freedom of Association Committee 1 which has dealt with some one thousand
cases since it was first set up in 1951. Faced with a wide variety of situations, the
Committee, while relying at the outset on the general standards laid down in
the ILO Conventions concerning freedom of association, was gradually led to

61
124-126 Sources of Labour Law

frame principles defining more closely and in some respects supplementing and
even extending those expressly embodied in the Conventions. The principles
thus established by the Committee refer, in particular, to the right to strike,
collective bargaining and the more general civil liberties on which the effective
exercise of the right of association depends. The most significant part of this
case law has been published. 2
1. See below No. 633.
2. Freedom ofAssociation, Digest of Decisions ofthe Freedom ofAssociation Committee ofthe
Governing Body of the fLO, Geneva, 2nd edition, 1976.

VI. Instruments Adopted by Special Conferences under the Auspices or with the
Co-operation of the ILO

124. In a number of cases, special governmental Conferences have been

convened by the ILO outside its institutional framework to deal with questions
which concerned only a limited number of countries and therefore were not
suitable for regulation by Conventions of a universal character. Special Con-
ferences have also been convened by the ILO jointly with other international
organizations in order to deal as a whole with a subject falling within the
competence of several international organizations.

12 5. Among the instruments adopted by Special Conferences of the first

type, reference can be made to the Agreements concerning Rhine Boatmen,
which were adopted in 1950 by an intergovernmental Conference attended by
Belgium, France, the Federal Republic of Germany, the Netherlands, Switzer-
land, the United Kingdom and the United States. The Conference was pre-
ceded in 1949 by a special tripartite Conference comprising representatives of
Rhine shipowners and boatmen. The Central Commission for Rhine naviga-
tion was associated with the various stages of the proceedings. The Govern-
mental Conference adopted two Agreements, one concerning social security,
and the other concerning conditions of employment, including hours of work,
overtime, rest periods and holidays. These agreements were revised in 1961
and in 1954 and 1963 respectively and came into force a few years after their
adoption following their ratification by all the States bordering the Rhine and
by Belgium. Another Convention of this type was the European Convention
concerning Social Security for Workers Engaged in International Transport,
which was adopted in 1956 by an intergovernmental Conference convened by
the ILO. The Convention was open to signature by governments of European
countries Members of the ILO. It came into force in 1958, and an arrangement
supplementing it in 1960.

126. Mention should also be made of two Conventions adopted by Confer-

ences convened by other organizations jointly or with the co-operation of the
ILO. Thus, the International Convention on the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations was adopted in
Rome in 1961 by a Diplomatic Conference convened jointly by the ILO,

62
Sources of Labour Law 127-130

UNESCO and the Bureau of the International Union for the Protection of
Literary and Artistic Works. This Convention came into force in 1964. In a
different field, a Recommendation concerning the Status of Teachers was
adopted in October 1966 by a special intergovernmental Conference convened
by UNESCO and attended by a delegation of the Governing Body of the ILO
and representatives of the International Labour Office.

127. As will be indicated later, 1 the ILO has also been associated with the
preparation of instruments adopted by regional organizations such as the
Council of Europe and the European Communities.
1. See below No. 134.

§2. UNITED NATIONS INSTRUMENTS 1

128. While the United Nations Organization does not deal with labour
matters as such, and recognizes the ILO as the specialized agency responsible
for taking appropriate action for the accomplishment of the purposes set out in
its Constitution,2 some UN instruments of more general scope have also
covered labour matters. Thus, in respect of slavery the 1926 Convention was
framed under the auspices of the League of Nations and the supplementary
Convention on this subject was adopted in 1956 under the auspices of the
United Nations.
1. Apart from the universal instruments adopted in the framework of the UN system, refer-
ence should also be made to some instruments, such as the Red Cross Conventions of 12
August 1949 relating to the treatment of prisoners of war and to the protection of civilian
persons in the time of war, which also include provisions concerning the employment of these
categories of persons (See Wolf, L'interdependance, pp. 187-193).
2. This is recognized in the 1946 Agreement between the two organizations.

129. More recently, labour questions have been touched on by the United
Nations mainly in the instruments concerning human rights. A number of
provisions concerning labour matters are contained in the 1948 Universal
Declaration of Human Rights and in the two 1966 International Covenants on
Human Rights which entered into force at the beginning of 1976, when they
were ratified by 35 States each. 1 The Covenant on Civil and Political rights
includes provisions concerning non-discrimination, forced labour and freedom
of association for trade union purposes. The Covenant on Economic, Social
and Cultural Rights contains a large number of provisions relating to labour,
such as non-discrimination, the right to work, the right to form trade unions,
the right to strike, the right to social security, protection of and assistance to
family - specifically maternity leave and protection of children and young
persons- the right to an adequate standard of living and the right to the highest
attainable standard of health.
1. As at 1 July 1978, the Covenants had been ratified by some 50 States each.

130. Because of their comprehensive nature, the Covenants are drafted in

63
131-134 Sources of Labour Law

general terms, and the various rights relating to labour which they recognize
are dealt with in a less precise and detailed way than ILO standards. As regards
substance, ILO instruments often provide a greater protection, except on
certain points of detail. However, in some fields like agricultural work and
occupational safety and health, further development of ILO's standard-setting
activity could help to promote the practical implementation of the rights
proclaimed in the Covenants. An example in that direction is provided by the
more recent Working Environment (Air Pollution, Noise and Vibration) Con-
vention, 1977 (No. 148) and Recommendation (No. 156).

131. A year before the adoption of the Covenants, i.e. in December 1965,
the United Nations General Assembly adopted a Convention on the Elimina-
tion of All Forms of Racial Discrimination, which came into force in January
1969. 1
1. See below No. 708.

132. Mention should also be made of the 1951 Convention relating to the
Status of Refugees, which came into force in 1954, and which provides that
refugees should receive the same treatment as nationals in the field of employ-
ment and - subject to certain reservations - of social security. A similar
provision appears in the 1954 Convention on the Status of Stateless Persons,
which came into force in 1960.

§3. REGIONAL INSTRUMENTS

133. Since a number of regional organizations, mainly at the European level,

were created after the end of the Second World War, these organizations have
adopted a number of instruments relating to human rights and, more speci-
fically to labour matters, while, for the reasons given above, 1 the standards
framed by the ILO remain universal in character. Regional standard-setting
has certainly led to useful results in Europe, although more in the field of
human rights than in that of labour.
1. See above No. 88.

I. Council of Europe Instruments

A. European Social Charter

134. Numerous instruments on social questions have been adopted by the

Council of Europe. The most comprehensive one is the European Social
Charter 1 which was drawn up with the technical help of the ILO and signed in
1961 and has so far been ratified by eleven of the twenty Member States of the
Council of Europe. Its ratification is subject to acceptance of at least ten of the
nineteen articles or 45 of the 72 paragraphs of Part II of the Charter, including
a compulsory nucleus of at least five of the seven articles regarded as the most

64
Sources of Labour Law 135-136
important. The provisions of the European Social Charter have been based to a
large extent on the relevant ILO standards, 2 but in view of the comprehensive
nature of the instrument they are not drafted with the same degree of detail and
precision. As regards substance, the standards set in the Charter are, by and
large, equivalent to those contained in ILO Conventions and Recommenda-
tions; in some cases they go further or cover matters for which no ILO
standards exist, while in other cases they are at a lower level. The most original
feature of the Charter is that it recognized the rights of workers and employers
to collective action in case of conflicts of interest, including the right to strike,
subject to obligations that might arise out of collective agreements previously
entered into and to some further restrictions. 3
1. See in particular Van Asbeck, 'La Charte sociale europeenne: sa portee juridique, sa mise
en oeuvre', Melanges Rolin, para. 1964, pp. 417--448; Kahn-Freund, 'The European Social
Charter' in European Law and the Individual ed. by F. G. Jacobs, Amsterdam, 1976, pp.
181-211; Valticos 'La Charte sociale europeenne, sa structure, son contenu, le controle de son
application', Droit social, 1963, pp. 466--482; Wiebringhaus, 'La Charte sociale europeenne',
Ann. 1963, pp. 709-721, and the special numbers of Rassegna del Lavoro (Rome), October
1961 and of the Revue de I' Institut de Sociologie (Belgium), 1966, I, pp. 9-141.
2. For a comparison, see ILO 'The European Social Charter and International Labour
Conventions', I.L.R. Nov. and Dec. 1961, pp. 354-375 and 462--477.
3. The machinery established for supervising the implementation of the Charter is examined
later (Nos. 709-710).

B. The European Human Rights Convention

135. The European Convention for the Protection of Human Rights and
Fundamental Freedom, which was concluded in Rome in 1950 and has been
ratified by all the Member States of the Council of Europe, deals essentially
with civil and political rights, but it also deals with certain rights falling within
the field of international labour law, such as the right not to be required to
perform forced or compulsory labour and the right to form trade unions, and it
specifies that the rights and freedoms laid down in the Convention shall be
enjoyed without discrimination on any ground.

C. Social Security Instruments

136. In the course of years, the Council of Europe has developed a long-term
programme in the field of social security with the technical help of the ILO, and
this action resulted in the adoption of a number of instruments. After the 1953
two European Interim Agreements on Social Security, which were sup-
plemented by a European Convention concerning Social and Medical Assis-
tance, the basic instrument has been the 1964 European Code of Social
Security. This Code was based on the ILO Social Security (Minimum Stan-
dards) Convention, 1952, 1 but it improved to a certain extent the level of
protection provided for its ratification and it was supplemented by a Protocol
which itself provided for higher standards. The Code and the Protocol both
came into force in 1968. The Code has now been ratified by eleven countries,

65
137-140 Sources of Labour Law

six of which also accepted the Protocol. At a later stage, in 1972, a European
Convention on Social Security provided for equality of treatment in respect of
social security, as between nationals and aliens, the maintenance of rights
acquired abroad and the transfer of benefits from one country to another. It
entered into force in March 1977 and has been ratified by four countries.
1. See below No. 420.

II. European Communities Standards

137. While the main purpose of the European Communities is of an

economic nature, they have also set themselves a number of social objectives.
Provisions of a social character are therefore to be found both in the basic
treaties which have established the Communities and in the various acts
{regulations, directives and recommendations) provided under the Com-
munities legal system. This question is dealt with in a special contribution by
Professor Schnorr1 and reference is therefore made to this contribution.2
1. Labour Law within the European Communities.
2. For former studies of this question, see also Ribas, La politique sociale des Communautes
europeennes, Paris, 1969; Megret-Louis-Vignes-Waelbroeck, Le droit de Ia Communaute
economique, vol. 7, Politique sociale, Brussels, 1973, Lyon-Caen et Ribettes-Tillhet, 'Droit du
travail dans les Communautes europeennes, Juris-classeurs travail, Paris, fascicule 7-3;
Lyon-Caen, Droit social international et europeen, Paris, 4th ed. 1976; Valticos, Droit interna-
tional du travail, pp. 162 ss.

ill. Other Regional Instruments

13 8. In other geographical and political frameworks various instruments

have also been adopted about labour matters. Thus the Contracting Parties of
the Treaty of Brussels, later the Western European Union, Benelux and the
Nordic Council framed a number of instruments which had been adopted
earlier than those of the European Communities and were on a narrower basis.

139. In Eastern Europe, the Council for Mutual Economic Assistance estab-
lished in 1949 was authorized to pass recommendations on matters of
economic, scientific and technical co-operation, while decisions are adopted
only on procedural and organizational matters. In 1971, the member countries
adopted a Comprehensive Programme of socialist economic integration. More
particularly in the social field, co-operation is achieved through bilateral
agreements.

140. In the American Region, a Social Security Convention prepared with

the assistance of the ILO, was adopted in 1967 by the Organization of Central
American States (ODECA). As regards the six countries of the Andean group,
the Committee of the Agreement of Cartagena adopted in February 1977, an
instrument on social security and another one on the migration of workers.
From a more general point of view, the Organization of American States

66
Sources of Labour Law 141-144
adopted in 1948 the American Declaration of tqe Rights and Duties of Man,
which deals in general terms with a number of economic and social rights, and
the Inter-American Charter of social guarantees. In 1969, it adopted an
American Convention on Human Rights, which contains in particular provi-
sions concerning freedom of association and forced labour. This Convention
entered into force in July 1978.

141. In the Middle East, the League of Arab States drew up in 1967, an Arab
Convention on Labour Standards1 which has been influenced by the ILO
standards and provides that it shall not affect any Conventions or international
treaties that are more favourable to the beneficiaries. More recently, the Arab
Labour Organization drafted a number of Conventions on various labour
matters.
1. See ILO Legislative Series, 1967-Int. 1.

142. In Africa itself, a General Social Security Convention 1 drafted by the

African, Malagasy and Mauritius Organization with the assistance of the ILO,
was adopted in January 1971.
1. ILO Legislative series, 1971-Int. 2.

§4. BILATERAL TREATIES

I. Labour Treaties

143. Bilateral treaties in the labour field aim at regulating the admission to
and conditions of employment in each of the contracting countries of workers
who are nationals of the other country. Such treaties are based on the principle
of the assimilation of the nationals of each contracting State to the nationals
of the other country in which they are resident. 1 The number of bilateral
treaties is large and is constantly increasing. 2 Their scope has broadened and
they have become considerably diversified. However they follow a number of
set patterns.
1. As regards the difference between bilateral treaties and international labour Conyentions
from the standpoint of reciprocity, see Jean Morellet 'La notion de reciprocite dans les traites
de travail et les conventions internationales du travail', Rev. crit. 1931, pp. 642-656.
2. A list of the principal international treaties, agreements or arrangements, published in the
Intern. Lab. Code, Vol. II, pp. 1105-1173, includes more than 850 titles for the period
between 1858 and 1953. The most important are listed in the Chronological Index of the
Legislative Series, a periodic publication of the ILO. There have been several hundred since
1960.

144. Originally, provision concerning labour matters (immigration, etc.)

were included in treaties of a more general nature (such as treaties of friendship
and trade or navigation treaties). Now, employment questions, particularly
where wage-earning employment is concerned, are generally dealt with in
special treaties of various kinds. Initially, such treaties applied to limited
subjects or groups (immigration, seamen, payment of wages, transfer of sav-
67
145-146 Sources of Labour Law

ings). Later on, the conclusion of bilateral treaties of a more general type
came to be considered necessary when restrictions began to be placed on
the employment of aliens and when labour legislation for the protection
of workers began to develop. The purpose of such general treaties was
henceforth to regulate the conditions of employment of nationals of one con-
tracting country resident in the other and to assimilate them to a certain
extent to national workers in respect of conditions of employment and social
security.

145. In the development of the bilateral regulation of employment condi-

tions, the labour treaty between France and Italy of 1904 has been an impor-
tant departure. This treaty did not only prescribe various measures for the
protection and assimilation of the nationals of the two contracting countries. It
also included an undertaking by Italy to complete the organization of its labour
inspection service and to reduce the hours of work of women in industry. The
two parties also undertook to publish an annual report on the application of
their legislation on the employment of women and children. Then, the French
Government, while granting benefits and safeguards to the many Italian work-
ers in France, also sought to ensure that Italian competition should not be
favoured by too low a level of employment conditions. This treaty served as a
model for the conclusion of several agreements between European countries
concerning compensation for industrial accidents, which put the nationals of
the contracting countries on an equal footing in this respect and confirmed the
principle of the application of the law of the country in which the accident took
place.

146. After the First World War, bilateral Conventions on emigration and
immigration were concluded between various countries. While most of them
dealt only with the emigration of individuals, some contained also provisions
on organized recruitment. As from that time, the number of bilateral agree-
ments concerning the immigration of foreign workers has multiplied, especially
after the Second World War. 1 The matter has also been dealt with in other
types of agreements, such as those concerning employment, movement of
persons or manpower. The main subject-matter of all such agreements is the
recruitment and immigration of workers, and they usually also prescribe equal
treatment in various fields for the workers of the contracting parties. Some-
times they also deal with other questions, such as the reuniting of families and
vocational training.
1. E.g. the agreements concerning emigration and immigration between France and Poland of
3 September 1919 and between France and Czechoslovakia of 20 March 1920, the Evian
Agreement of 1962 which contained provisions regulating the immigration into France of
Algerian workers and was followed by an Agreement of 27 December 1968, and the Franco-
Portuguese Protocol of 29 July 1971. See also the agreements or Conventions on Migration
between the Federal Republic of Germany and Spain on 29 March 1960, between Belgium
and Turkey of 16 July 1964, between Spain and Paraguay of II January 1965, between
Australia and the Netherlands of 20 July 1968 and between the Netherlands and Tunisia of 8
March 1971. ·

68
Sources of Labour Law 147-149
147. In some cases migration has been covered by labour treaties of a more
general character1 which also make fuller provision, on the basis of reciprocity,
for the granting of complete equality of rights to the nationals of the contracting
countries in certain branches of social insurance or social assistance. Bilateral
agreements were also concluded for special categories of workers (mine work-
ers, frontier workers, seasonal workers, etc.).
1. E.g. the labour treaty of 30 September 1919 between France and Italy, the treaty of 24
December 1924 between Belgium and France, amended in 1939, the treaty of 1 August 1946
between France and Switzerland.

II. Social Insurance Treaties 1

148. The development of social insurance and social assistance led to the
conclusion of special Conventions in this field. The scope of such Conventions,
which was limited at first to matters such as workmen's compensation, was
gradually enlarged. Their original subject was equality of treatment as between
nationals of the contracting countries, but the Conventions were later extended
to cover questions concerning the applicable national legislation and conflict of
laws, maintenance of the acquired rights of migrants or rights in the course of
acquisition and co-operation between national social security institutions.
Bilateral agreements have often been based on the provisions of the relevant
ILO Conventions.2 Some bilateral agreements are confined to one or more
branches of social security, while Conventions of a more general kind cover all
the contingencies provided for in social security legislation, including unem-
ployment and family dependants. As a rule, and subject to certain qualifica-
tions, these Conventions made the law of the country of employment applic-
able to compensation for social risks. In respect of rights in the course of
acquisition, they make it possible for insured persons to totalize the periods of
insurance recognized in the two countries and ensure the maintenance of
acquired rights to benefit.
1. For more detail see Valticos, Droit international du travail, pp. 180-188.
2. In particular, the maintenance of Migrants' Pensions Rights Convention, 1935 (No.
48).

III. Conclusion

149. The great majority of existing bilateral agreements on labour matters

relate to social security. Next come those concerning migration, the movement
of persons and seasonal workers, social policy, seamen and technical co-
operation. Most of these agreements are concluded by European States, on
matters such as social security, recruitment, placement and employment of
foreign workers. Between Eastern European countries agreements relate to
social security and co-operation on social matters. 1 A different type of agree-.
ment is that concluded between developed and developing countries2 - some-

69
150-152 Sources of Labour Law

times between a State and former colonies after the latter became indepen-
dent~ - on technical co-operation matters.
1. E.g. Agreements of 11 December 1959 between the USSR and Bulgaria concerning social
security, Convention of 14 March 1960 between Bulgaria and Rumania concerning co-
operation in the field of social problems and Convention of 25 January 1957 between Bulgaria
and Czechoslovakia respecting co-operation in the field of social policy, amended on 27 March
1972.
2. Agreements of 9 December 1965 between the Netherlands and Peru and of 2 March 1966
between the Netherlands and the Philippines on questions of training.
3. E.g. the general Convention of 13 October 1962 between Belgium and Rwanda concerning
co-operation and technical assistance.

150. Generally speaking, bilateral treaties and agreements still have an

important part to play in spite of the multiplication of conventions of world-
wide or regional scope. They are particularly useful in making the adjustments
necessitated by the variety of national legislations, in supplementing the inter-
national standards, in prescribing rules for the implementation of international
principles, and in dealing with subjects, such as bilateral co-operation, which
are not covered by more general standards. However, bilateral treaties and
agreements also have certain defects. They may involve a certain amount of
confusion, sometimes be incomplete or make use of out-of-date formulas. They
may also, by improving, in a country, the conditions for the nationals of a given
State, cause resentment at the treatment of others. Such defects are, neverthe-
less, mitigated by the multiplication of bilateral arrangements and the fact that
the latter are often based on similar models or on multilateral or international
conventions which can also, to a certain extent, fill in the gaps in the network of
bilateral agreements.

§5. RELATIONS BETWEEN THE SOURCES

I. The Role of the Various International Sources

151 . The role and purpose of the various international sources of labour law
varies to a certain degree. The difference is clear between bilateral treaties, on
the one hand, and universal or regional standards, on the other. As indicated
above, the main purpose of bilateral treaties and agreements is to determine
the conditions of entry and of employment in each contracting country for the
nationals of the other, while the object of universal Conventions (and to a great
extent of regional conventions) is to establish within all countries (or within the
countries which belong to the regional organization concerned) and in prin-
ciple for all workers, whether national or foreign (or citizen of another country
member of the regional organization concerned) conditions of employ-
ment which conform to the standards which these treaties or conventions lay
down.

152. Regional standards are much more similar to universal Conventions,

although their application is limited to the nationals of the States which belong

70
Sources of Labour Law 153-154

to the regional Organization in the framework of which they were adopted- as

in the case of European Communities instruments- or to the nationals of the
contracting parties (European Social Charter). Although there is some dupli-
cation between regional standards and universal Conventions, the practical
value of regional standards- mainly at the European level-lies mainly in the
possibility which they offer of laying down standards which are more progres-
sive than the world-wide standards, of dealing with the special problems of the
region concerned, of securing greater uniformity of law within it, or of provid-
ing more extensive reciprocal advantages. Another reason which prompted the
adoption of regional standards was the more general desire of some regional
organizations to create instruments appropriate to the geographical and politi-
cal entity which they represent.

II. The Conflict between International Sources

A. Preventive Steps

153. The plurality of international sources of law made it necessary to

consider various sorts of steps aiming at preventing the adoption of universal or
regional standards which would be in conflict against one another. These steps
consist mainly in measures of co-ordination and consultation at the time when
standards of common interest are being worked out. Arrangements for this
purpose are frequently provided in the agreements between the various organ-
izations of the United Nations System, as well as between each of them and
various regional organizations. In fact, such consultation has actually taken
place in many cases and in various forms. In particular, the European Organ-
izations have often consulted the ILO or have associated it with their work
when preparing instruments on labour matters. Thus, the drafting of the
European Social Charter1 was preceded, in 1958, by discussion at a tripartite
Conference of European States who were Members both of the Council of
Europe and of the ILO, convened by the ILO at the request of the Council of
Europe. This consultation produced positive results, as the unanimous recom-
mendations of that Conference were practically all adopted and embodied in
the final text of the Charter. Similarly, the instruments on social security
formulated by the Council of Europe and the EEC were prepared with the
technical help of the ILO and even on the basis of specific texts drafted by the
ILO.
1. See above No. 134.

15 4. A second device adopted to avoid any conflict is the insertion in the

most recent of the instruments concerned, of compatibility clauses stating that
there is no contradiction between two successive instruments. Thus the 1966
International Covenants on Human Rights include both a general safeguarding
clause 1 and a special clause relating to freedom of association2 which lay down

71
155-157 Sources of Labour Law

that nothing in the Covenants shall prejudice the guarantee provided for in the
relevant Conventions.
1. Each of these two Covenants provides (Article 5, para. 2) that 'No restriction upon or
derogation from any of the fundamental rights recognised or existing in any country in virtue
of law, conventions, regulations or custom shall be admitted on the pretext that the present
Covenant does not recognise such rights or that it recognises them to a lesser extent.'
2. Article 8, para. 3 of the International Covenant on Economic, Social and Cultural Rights
provides that 'Nothing in this Article shall authorise States Parties to the International Labour
Convention of 1948 concerning Freedom of Association and Protection of the Right to
Organise to take legislative measures which would prejudice, or apply the law in such a
manner as would prejudice, the guarantees provided for in that Convention'. Article 22, para.
3 of the International Covenant on Civil and Political Rights contains a similar provision.

155. Finally, in order to avoid conflict between the interpretations or find-

ings of the bodies established by the different organizations to supervise the
application of instruments dealing with analogous matters, various steps have
been taken such as the participation of observers from the other organization
concerned, the communication of copies of government reports submitted to
that organization and of comments by its supervisory bodies, etc. This is often
expressly provided in the instruments themselves (International Covenants on
Human Rights, European Social Charter, European Code of Social Security). 1
1. See in this connection below Nos. 707, 709 and 711.

B. Cases of Conflict

156. As a result of the adoption, by various organizations, of instruments

which sometimes deal with the same matters, it may happen that the standards
laid down in these instruments differ between themselves in spite of the
preventive measures which have just been described. Such differences do not
mean that there will necessarily be a conflict between the standards concerned.
Two formal conditions must be met for a genuine conflict to arise in such cases.
Firstly, the instruments in question must be such as can give rise to interna-
tional obligations (that is conventions, treaties, etc.) and not mere recommen-
dations, though some confusion may no doubt result from discrepancies even
between standards which are only recommended to governments. Secondly,
there would really be a conflict if a State were actually bound by two separate
instruments laying down contradictory standards. However, in a more general
way, the more existence of instruments setting different standards, even if not
ratified, may also be a source of confusion, particularly to a State wishing to
decide which of the instruments to ratify and implement.

157. The general question of conflict between international standards was

originally considered in international law in connection with cases of conflict
between bilateral treaties. The criteria adopted in such cases 1 were based
sometimes on the assimilation of the treaties to Jaws or to contracts and
sometimes to less formal considerations. They all involve great difficulties in
themselves and are, moreover, inadequate in the case of international labour
72
Sources of Labour Law 158-161
conventions because of the predominantly multilateral and institutional
character of these conventions and of the subjects with which they deal.
1. See below No. 162.

158. For the solution of a conflict between instruments on labour matters,

the main criterion should be the 'progressive' nature of labour law, whether
national or international. The purpose of international labour law is to promote
social progress. This being so, a conflict between international labour standards
cannot be resolved merely by applying formal criteria. The decisive factor
should be the substantive criterion deriving from the purpose and the content
of the standard. Consequently, in the event of conflict, preference must be
given in principle to the standard which is the most favourable to the workers.
This criterion is expressly recognized in respect of the relationship between
international and national labour standards, as the ILO Constitution provides
(Art. 19, para. 8) that an international standard represents a minimum stan-
dard in relation to national legislation, and that the latter may ensure more
favourable conditions to the workers. 1 The same principle should logically
apply in regard to the relationship between different international labour
standards. As a result, there would be no real incompatibility between two
international instruments if one of them provides a higher standard of protection
than the other. The implementation of the higher standard will necessarily
entail implementation of the lower one. This criterion also meets the principle
of the independent character of concurrent treaties, in virtue of which a State
bound by two (or more) instruments laying down different standards remains
bound, in respect of each instrument, by the standard which that instrument
prescribes and must therefore discharge the obligations arising out of both.
1. See below No. 586.

15 9. In considering the possibility of conflict, account should also be taken of

the fact that competing international standards generally do not deal with their
subject-matter in the same degree of detail. Thus, the International Covenants
on Human Rights and the European Social Charter are drafted in more general
terms than the specific provisions of ILO Conventions or bilateral treaties. As a
result, the criterion of the most specific standard, provided that it is not less
favourable to the workers, may also be applicable in accordance with the
general principles of law.

160. In case a conflict arises between two different bilateral treaties, which
are applicable to the nationals of different States, there is usually no obstacle
for the two treaties to be executed concurrently, subject to any problems that
might arise in connection with the most favoured clause.

161. In the last resort, there can be a real conflict of concurrent standards
only if these differ not in respect of the level of protection provided or of the
categories of persons covered, but in respect of the type of protection provided
or of the basic principles involved. In fact, such cases are exceptional. If

73
162 Selected Bibliography

compatibility cannot then be secured by the cumulative implementation of the

two instruments concerned and if the principle of the most favourable provi-
sion cannot lead to a solution, it will be necessary to have recourse to the
criteria of more general application which have been suggested in cases of
conflict between treaties in general. The various criteria which have been put
forward in this connection include those of the hierarchy of norms, of lex
posterior derogat priori (and the various other formulae applicable to conflicts
between national laws), of the respect of acquired rights, of pacta sunt ser-
vanda, of good faith, of effectiveness, of the rule which has the greatest positive
effect, of the distinction between multilateral and bilateral treaties. All these
criteria have limitations. 1 The matter is dealt with to a certain extent in the
1969 Vienna Convention on the Law of Treaties, but the relevant provision
(Article 30) does not cover all types of situations.
1. See Rousseau, Droit international public, Vol. I, Paris, 1970, pp. 151-163; Valticos, Droit
international du travail, pp. 188-190.

Chapter IV. Selected Bibliography

162. Collection of Texts and Official Publications of the ILO
- Constitution ofthe International Labour Organization and Standing 0 rders of
the International Labour Conference (ILO, Geneva, 1977).
-Conventions and Recommendations 1919-1966 (ILO, Geneva, 1966) (The
instruments adopted in subsequent years are published in the Official Bulle-
tin of the ILO).
- ILO Official Bulletin (ILO, Geneva, 1919-.... ).
-The International Labour Code 1951 (2 val., ILO, Geneva, 1952).
- Record of Proceedings of the Sessions of the International Labour Confer-
ence.
-Minutes of the ILO Governing Body.
-Reports of the Committee of Experts on the Application of Conventions and
Recommendations.
- ILO Legislative Series.
-International Labour Review.
-The Impact of International Labour Conventions and Recommendations
(ILO, Geneva, 1976).
-International Labour Standards -A Workers' Education Manual (ILO,
Geneva, 1978).

BOOKS AND ARTICLES

ABDEUAOUAD, A., 'The influence of international labour Conventions on

Tunisian legislation', l.L.R .. , March 1965, pp. 191-209.
AGO, R., 'La codification du droit international et les problemes de sa realisa-
tion', Recueil d' etudes en hommage a Paul Guggenheim, Geneve, 1968, pp.
93-131.

74
Selected Bibliography

Van ASBECK, F. M., 'Quelques aspects du controle international non judiciaire

de I' application par les gouvernements de conventions internationales ',Neder-
lands Tijdschrift voor Internationaal Recht, 1959, pp. 27-41. -
AYISSI MVODO, V., and LE FAOU, R., 'Influence ofinternationallabour
standards on the legislation of Cameroon', I.L.R., August-September 1973,
pp. 163-185.
BADAOUI, A. Z., 'The influence of international labour Conventions on the
Arab Labour Standards Convention', I.L.R., November 1970, pp. 475-496.
BERENSTEIN, A., 'The influence of international labour Conventions on
Swiss legislation', I.L.R., June 1958, pp. 495-518.
CASHELL, M., 'Influence on Irish law and practice of international labour
standards', I.L.R., July 1972, pp. 47-73.
CASSESE, A., 'II controllo internazionale sui rispetto della liberta sindacale nel
quadro delle attuali tendenze in materia di protezione internazionale dei diritti
dell'uomo', Communicazione e Studi, vol. XII, Milan, 1966, pp. 293-418.
DAHL, K. N., 'The influence of fLO standards on Norwegian legislation',
I.L.R., September 1964, pp. 226-251.
FRIED, E., Rechtsvereinheitlichung im internationalen Arbeitsrecht, A. Metz-
ner Verlag, Frankfurter/M.-Berlin, 1965.
'The European Social Charter and international labour standards', I.L.R.,
November 1961, pp. 354-375, and December 1961, pp. 462-477.
'The influence of international labour Conventions on Nigeria labour legisla-
tion', I.L.R., July 1960, pp. 26-43.
IVANOV, S. A. 'International labour Conventions and the USSR', I.L.R.,
April 1966, pp. 401-413.
JENKS, C. W., 'Les fonctions et les formes de Ia Legislation internationale du
travail', Melanges Ernest Mahaim, Sirey, Paris, vol. 11-1935, pp. 561-569.
-The Significance for International Law of the Tripartite Character of the
International Labour Organisation, 22 Trans. Grot. Soc. 45-81, 1936.
-Are International Labour Conventions Agreements between Governments?
15 Can. Bar. Rev. 574-578, 1937.
- 'Les instruments internationaux a caractere collectif', Rec. Cours 69,
1939-111.
-The International Protection of Trade Union Freedom, Stevens and Sons,
London, 1957.
- The Application of International Labour Conventions by Means of Collective
Agreements, ZaORV 19, 1958 (Festgabe Makarov), 197-224.
-Human Rights and International Labour Standards, Stevens and Sons, Lon-
don, F. A. Praeger, New York 1960.
-The Corpus Juris of Social Justice, in Law, Freedom and Welfare, Stevens and
Sons, London, 1963.
-The International Protection of Trade Union Rights, in The International
Protection of Human Rights, edited by Evan Luard, Thames and Hudson,
London, 1967.
-Human Rights, Social Justice and Peace - The Broader Significance of the
ILO Experience, in International Protection of Human Rights, Proceedings
of the Seventh Nobel Symposium, Oslo, September 1967, edited by Asbjorn

75
 Selected Bibliography

Eide and August Schou, Almqvist and Wiksell, Stockholm, 1967, 227-
260.
-Social Justice in the Law of Nations -The ILO Impact after Fifty Years,
Oxford University Press, London-Oxford-New York, 1970.
-Social Policy in a Changing World, Selected Speeches, ILO, Geneva,
1976.
JOHNSTON, G. A., The International Labour Organization, Europa Publ.,
London, 1970.
-'The Influence of international labour standards on legislation and practice in
the United Kingdom', I.L.R., May 1968, pp. 465-487.
JUVIGNY, P., to Organization internationale du Travail, Jurisclasseur du
travail, Ed. techniques, Paris, fascicule 11.1.
KAHN-FREUND, 0., 'The European Social Charter', in European Law and
the Individuals, edited by F. G. Jacobs, North-Holland Publishing Cy.,
Amsterdam, 1976, 181-211.
KLOTZ, V., 'Der Einfluss der Ubereinkommen der Internationalen Arbeits-
organisation auf die innerstaatliche Gesetzgebung', Bundesarbeitsblatt, Bonn,
1973, No. 10, pp. 499-504.
LANDY, E. A., The Effectiveness of International Supervision- Thirty Years
of ILO Experience, Stevens and Sons, London, and Oceana Publ., New
York, 1966.
-'The Influence of International Labour Standards: Possibilities and Perfor-
mance', I.L.R., June 1970, pp. 555-604.
LYON-CAEN, G., Droit social international et europeen, 4e ed., Dalloz, Paris,
1976.
LYON-CAEN, G., et RIBBETTES-THIL LHET, D., Droit du travail dans les
Communautes europeennes, Jurisclasseur du travail, Ed. techniques, Paris,
fascicule 7.3.
McMAHON, J. F., 'The legislative techniques of the International Labour
Organisation', B. Y.B.l.L., Vol. 41, 1965-1966, pp. 1-102.
MORELLET, J., Un type original de traites: les conventions internationales du
travail, Rev. crit. 1938, pp. 1 s.
MORELLET, J., 'The influence of international labour Conventions on French
legislation', I.L.R., April 1970, pp. 331-358.
OECHSLIN, J. J., 'Le Code international du travail', Revue fran~aise des
affaires sociales, April-June 1969, pp. 55-72.
PESIC, R., 'International labour standards and Yugoslav legislation', I.L.R.,
November 1967, pp. 443-467.
PLAT A-CASTILLA, A., 'International labour standards and Colombian legis-
lation', l.L.R., February 1969, pp. 137-158.
VON POTOBSKY, G., 'Protection of Trade Union Rights: Twenty Years'
Work by the Committee on Freedom of Association', I.L.R., January 1972,
pp. 69-83.
RIBAS, J.-J., Lapolitiquesociale des Communauteseuropeennes, ed. Eurolibri,
Dalloz et Sirey, Paris, 1969.
RIVA-SANSEVER INO, L., 'The influence of international labour Conven-
tions on Italian labour legislation', l.L.R., June 1961, pp. 576-601.

76
Selected Bibliography

SCELLE, G., L'Organisation internationale du Travail et le BIT, Riviere, Paris,

1930.
SCHNORR, G., 'The influence of ILO standards on law and practice in the
Federal Republic of Germany', I.L.R., Decembt.or 1974, pp. 539-564.
SHOTWELL, J. T., The origins of the International Labor Organization, New
York, Columbia University Press, 1934, 2 val.
TROCLET, L.-E., Legislation sociale internationale, ed. Libr. encyclopedique,
Bruxelles, 1952.
-Elements de droit social europeen, Ed. de l'Institut de sociologie de l'Univer-
site libre de Bruxelles, Bruxelles, 1963.
TROCLET, L.-E., and VOGEL-POLSKY, E., 'The influence of international
labour Conventions on Belgian labour legislation', l.L.R., November 1968,
pp. 389-424.
VALTICOS, N., Droit international du travail, val. 8 of the 'Traite de droit du
travail' ed. by Camerlynck, Dalloz, Paris, 1970, and Supplement (Mise a
jour), 1973.
- Derecho Internacional del Trabajo, Tecnos, Madrid, 1977.
- Un systeme de controle international: Ia mise en oeuvre des conventions
internationales du travail, Rec. Cours 123, 1961-1, pp. 315-407.
-Conventions internationales du travail et droit interne, Rev. crit. 1955, no. 2,
pp. 251-288.
-'The influence of international labour Conventions on Greek legislation',
l.L.R., June 1955, pp. 593-615.
- Les conventions internationales du travail devant le juge fran~ais, Rev. crit.
1964. no. 1, pp. 41-72.
-La Charte sociale europeenne. Sa structure, son contenu, le controle de son
application, Droit social 1953, pp. 466-482.
-La Commission d'investigation et de conciliation en matiere de liberte syn-
dicale et le mecanisme de protection internationale des droits syndicaux, Ann,
1967, pp. 445-468.
- Une nouvelle experience de protection des droits de l'homme: le groupe
d'etude de l'OIT charge d'examiner la situation en matiere de travail et en
matiere syndicate en Espagne, 4.nn. 1970, pp. 567-590.
- Les systemes de controle ·non judiciaire des instruments internationaux
relatifs aux droits de l'homme, Melanges offerts a P. Modinos (Problemes
des droits de I' homme et de /'unification europeenne), Paris, 1968, pp. 331-
356.
VALTICOS, P., Fifty Years of Standard-Setting Activities by the ILO, l.L.R.,
September 1969, pp. 201-237.
- Universalite des droits de l'homme et diversite des conditions nationales, in
Rene Cassin Amicorum discipulorumque Liber, val. I, Pedone, Paris, 1969,
pp. 383-403.
- Les normes de /'Organisation internationale du Travail en matiere de protec-
tion des droits de l'homme, Human Rights Journal, val. IV-4, 1971, pp.
691-771.
-La protection internationale de Ia liberte syndicale vingt-cinq ans apres,
Human Rights Journal, val. VII-1, 1974, pp. 5-39.

77
 Selected Bibliography

- Les methodes de Ia protection internationale de Ia liberte syndicate, Rec. Cours

144, 1975-1, pp. 79-138.
- Un double type d'enquete au Chili, Ann. 1975, pp. 483-502.
- L'inspection internationale dans le droit international du travail, in L'inspec-
tion internationale, edited by G. Fischer and D. Vignes, Bruylant, Brussels,
1976, pp. 379-437.
- Les effets des conventions internationales du travail en Suisse, Memo ires de Ia
Faculte de droit de l'Universite de Geneve, 1976, pp. 327-345.
-Droit international du travail et droit interne fran~ais, Travaux du Comite
fran~ais de droit international prive, 1973-1975, Paris, Dalloz, 1977, pp.
11-37.
- Normes universelles et normes regionales dans le do maine du travail, Societe
franc,;aise pour le droit international, Colloque de Bordeaux, Regionalisme et
universalisme dans le droit international contemporain, Paris, 1977, pp.
289-307.
- Le droit international du travail a l'heure du bilan, Tendances du droit du
travail fran~ais contemporain- Etudes offertes a G. H. Camerlynck, Dalloz,
Paris, 1978,pp. 3-25.
-The International Protection of Economic and Social Rights, Rechten van de
mens in mundiaal en europees perspectief, Stichting Ars Aequi, Maarssen
(Netherlands), 1978, pp. 142-184.
-'Mise en parallele des actions et des mecanismes de controle au niveau du
Conseil de /'Europe et de /'Organisation internationale du Travail' in La
Charte sociale europeenne, Brussels, 1978.
VALTICOS, N., and WOLF, F.,L'Organisation internationaledu Travailetles
pays en voie de developpement: techniques d' elaboration et mise en oeuvre de
normes universelles, Societe franc,;aise pour le droit international, Colloque
d' Aix-en-Provence, Pays en voie de developpement et transformation du droit
international, Pedone, Paris, 1974, pp. 127-146.
WIEBRINGHAUS, H., La Charte sociale europeenne, Ann., 1963, pp.
709-721.
- L'etat d' application de Ia Charte sociale europeenne, Ann. 1973, pp. 928-940.
WOLF, F., L'interdependance des conventions internationales du travail, Rec.
Cours 121, 1967-III, pp. 117-219.
-Aspects judiciaires de Ia protection internationale des droits de l' homme,
Human Rights Journal, vol. IV-4, 1971, pp. 773-838.
- Les conventions internationales du travail et Ia succession d'Etat, Ann. 1961,
pp. 742-751.
- L'application des conventions internationales du travail par voie de conven-
tions collectives, Ann. 1974, pp. 103-114.

78
 163-165

Part I. The Content of International

Labour Law

163. The present part will deal with the content of international labour law.
In view of the great number of instruments concerned and of the detailed
character of many of them, it will naturally not be possible to give here more
than an outline of the content of these standards. The survey will mainly cover
ILO standards but it will also point out standards adopted within the
framework of other organizations.• The standards described relate to funda-
mental human rights (as in the case of freedom of association, forced labour
and discrimination), employment, wages, general conditions of work (hours of
work, weekly rest, annual holidays with pay, hygiene and safety, etc.), social
policy, social security, industrial relations, work of women, work of children
and young persons, special categories of workers (such as seafarers, agricul-
tural workers and indigenous workers), migrant and foreign workers and
labour administration. Mention will also be made of the problems encountered
in the framing and application of some of these standards. The ratification
figures for the most important of the Conventions concerned will be those
applying in December 1978.
1. Apart from those of the European Communities to which a separate contribution by
Professor Schnorr is devoted.

Chapter I. Freedom of Association for Trade Union Purposes

§ 1. GENERAL OUTLINE

164. The standards on freedom of association for trade union purposes have a
special place in international labour law, as it is an essential means for workers to
defend their interests and a particular aspect of the right of association in general,
and is therefore considered among the fundamental human rights. Moreover it
has a special importance because of the tripartite structure of the ILO.

165. As early as 1919, freedom of association was mentioned in the constitu-

tional provisions of the ILO. The Preamble of Part XIII of the Treaty of
Versailles listed the 'recognition of the principle of freedom of association'
among the objectives of the Organization, and the General Principles which
were enunciated in Article 427 contained a provision on 'the right of associa-
tion for all lawful purposes by the employed as well as by the employers'. In the
years which followed, the ILO tried to confirm this general principle in Con-
ventions dealing more specially with this matter.

79
166-170 Freedom of Association

166. A first Convention (No. 11) concerning the right of association in

agriculture was adopted in 1921, but it provided only that States should 'secure
to all those engaged in agriculture the same rights of association and combina-
tion as to industrial workers'. This Convention, which is now ratified by 98
States, proved, in certain cases, to be of considerable practical importance, as it
resulted in extending to workers in agriculture trade union rights which were
previously recognized only to those in industry. However, its scope remained
limited since it did not lay down any substantive rule on the content of the right
to association and since agricultural workers could enjoy this right only to the
extent to which industrial workers enjoyed it. 1
1. See the opinion to this effect given in 1925 by the International Labour Office and the
conclusions, approved by the Governing Body of the ILO in 1938, of the Committee
appointed to consider a representation under Article 24 of the Constitution of the ILO (Intern.
Lab. Code, note 12 under Art. 867).

167. To lead to the adoption of a Convention containing substantive provi-

sions on the right of association, the ILO undertook, in the twenties, a wide-
ranging inquiry on the situation in the world in this connection. 1 In 1927, a draft
Convention was submitted to the International Labour Conference but this
attempt was abandoned. 2
1. ILO: Freedom of Association (Studies and reports, Series A, Nos. 28 to 32), five volumes,
ILO, Geneva, 1927-1930.
2. This failure was due directly to two different amendments which were proposed in the
course of the discussions: the one aimed at providing for the right not to associate together
with the right to associate, and the other at making the establishment of trade unions
dependent on the observance of legal formalities; the workers' delegates feared that such a
provision might permit the existence of trade unions to be subjected to previous authorization.
Apart from these points, more general political considerations, related to the existence of
totalitarian regimes in the world, contributed to the failure of the attempts which followed to
adopt international instruments on freedom of association.

168. It was only after the Second World War that a new attempt could meet
with success. Already in 1944 the Declaration of Philadelphia affirmed that
'freedom of expression and of association are essential to sustained progress',
while the principle of freedom of association was maintained in the Preamble of
the Constitution. The Declaration also referred to 'the effective recognition of
the right of collective bargaining, the co-operation of management and labour
in the continuous improvement of productive efficiency, and the collaboration
of workers and employers in the preparation and application of social and
economic measures.

169. In 194 7 a Convention (No. 84) was adopted to provide for the right of
association in non-metropolitan territories. It was the first international
instrument to contain substantive provisions on the right of association and on
the settlement of labour disputes. It has been ratified by four countries and is
still applicable to 28 territories.

170. In the same year, the Economic and Social Council of the United
Nations, following requests from the World Federation of Trade Unions and

80
Freedom of Association 171-173
from the American Federation of Labour, asked the ILO to place on the
agenda of the International Labour Conference the question of trade union
rights. As a result the International Labour Conference adopted in 1948 the
Freedom of Association and Protection of the Right to Organize Convention
(No. 87), which was complemented, the following year, by the Right to Organ-
ize and Collective Bargaining Convention (No. 98). These two instruments will
be described in greater detail below. 1 In 1950 a special procedure was also
established to afford greater international protection in the field of freedom of
association, 2 and important case law has been established over the years. 3 In
1961 provisions on freedom of association were also included in the European
Social Charter. 4
1. Nos. 172 ss.
2. See below No. 631 ss.
3. See below No. 633.
4. See below Nos. 208-218.

171. In the ILO itself, various Recommendations dealing mainly with mat-
ters of industrial relations were adopted from 1951 to 1967. 1 More recently the
ILO Conference adopted in 1971 a Convention and a Recommendation on
workers' representatives, in 1975 a Convention and a Recommendation on
rural workers' organizations, and in 1978 a Convention and a Recommenda-
tion on labour relations in the public service. Various studies have been or will
be undertaken about other aspects of freedom of association.
1. See below Nos. 422 ss.

§2.THE FREEDOM OF ASSOCIATION AND PROTECTION OF THE

RIGHT TO ORGANIZE CONVENTION, 1948 (No. 87)

172. The Freedom of Association and Protection of the Right to Organize

Convention, 1948 (No. 87) is the basic instrument for the international protec-
tion offreedom of association. 1 It has been ratified by 91 States. It deals, on the
one hand, with the right of employers and workers to establish trade union
organizations (which it defines in Art. 10 as 'any organization of workers or
employers for furthering and defending the interests of workers and of em-
ployers') and, on the other, with the rights and guarantees which such organiza-
tions should enjoy.
1. As regards Conventions Nos. 87 and 98, see the general surveys prepared in 1959 and 1973
by the Committee of Experts on the Application of Conventions and Recommendations. See
also Freedom of Association. An International Survey, ILO, 1975, and Erstling, The Right to
Organise, ILO, 1977.

I. The Right to Establish Trade Union Organizations

173. The Convention provides (Art. 2) that 'workers and employers, with-
out distinction whatsoever, shall have the right to establish and, subject only to
the rules of the organization concerned, to join organizations of their own
choosing without previous authorization'.

81
174-176 Freedom of Association

174. The scope of this provision is very wide, as it refers in particular to

workers 'without distinction whatsoever'. The Convention aimed at excluding
any discrimination in trade union matters and it was stated in this connection
that 'freedom of association was to be guaranteed not only to employers and
workers in private industry, but also to public employees, and without distinc-
tion or discrimination of any kind as to occupation, sex, colour, race, creed,
nationality or political opinion. 1 The armed forces and the police are the only
categories in respect of which the Convention (Art. 9) leaves countries free to
determine the extent to which the Convention shall apply.
1. See Rec. Proc. Conf 31, 1948, p. 476.

175. The Convention also provides that the establishment of an occupa-

tional organization should not be subject to 'previous authorization', which
means that formalities could be prescribed by law- as is usual in most countries
-but they should not be equivalent, in practice, to previous authorization nor
constitute an obstacle amounting in fact to prohibition. It is also specified (Art.
·7) that the acquisition of legal personality by the occupational organizations
shall not be made subject to conditions of such a character as to restrict the
application of the Convention.

176. Finally, when it refers to 'organizations of their own choosing' the

Convention requires that there should be freedom of choice as to the organiza-
tions which workers, in particular, may wish to establish or to which they may
wish to join. Any legal provision which would limit or refuse such freedom of
choice at the plant or at the occupational or national level would be at variance
with the basic principle of the Convention. Serious difficulties are met, in this
connection, especially with the system of trade union monopoly imposed by
law which exists in many countries, where the legislation allows for the exis-
tence of only one organization for a particular category of workers. Although it
is not the purpose of the Convention to make trade union diversity an obliga-
tion, the Convention requires this diversity to remain possible. 1
The system of trade union monopoly is often linked with the economic, social
or political conditions or systems of the countries concerned and has been
explained by various reasons such as the desire to avoid a multiplicity of unions,
especially in the case of newly independent States which refer in particular to a
concern to avoid a dispersion of efforts in national development. 2 In commun-
ist countries with planned economy, the role of trade unions has undergone a
considerable change and the fact that the national Constitution provided that
the Communist Party was the leading core of all organizations of working
people has been discussed in this connection. More generally, in countries
where only a single political party may exist, the political system is bound to
influence the organization of trade unions.
1. On this question see Rep. Com. Exp. 1973 (Vol. 48), paras. 68-78, pp. 29-33; and 1977,
paras. 63-64, p. 22.
2. About the views according to which freedom of association would be a hindrance to
economic development, see Guy Caire, Freedom ofAssociation and Economic Development,
ILO, Geneva, 1977.

82
Freedom of Association 177-180
177. Such difficulties arise only to the extent that the single trade union
organization is instituted or maintained by legislation and not when it only is a
factual situation in which workers or their trade unions join together voluntar-
ily in a single organization. As regards the dangers deriving from a multiplicity
of unions, it would not be incompatible with Convention No. 87 that the most
representative trade unions be recognized as having certain special rights,
principally with regard to collective bargaining, provided that the determina-
tion of the most representative trade union organizations is made in an objec-
tive and independent manner, that it can be reconsidered periodically and that
it does not affect the right of other trade unions to function in a normal way.

II. The Rights and Guarantees of Trade Union Organizations

178. Having dealt with the right of workers and employers to establish trade
union organizations, the Convention defines the rights and guarantees which
these organizations should enjoy, and specifies that 'the public authorities shall
refrain from any interference which would restrict this right or impede the
lawful exercise thereof (Art. 3, para. 2).
179. Among the rights which it recognizes (Art. 3, para. 1) the Convention
mentions in the first place the right of the organizations to draw up their
constitutions and rules. In certain countries the legislation indicates, sometimes
in a rather detailed manner, the various subjects which should be dealt with in
the rules of trade unions. Such provisions may aim at protecting the rights of
individual members. They would be compatible with the Convention only if
they conform to the principles of freedom of association and if approval of the
rules is not within the discretionary powers of the public authorities.
180. The Convention also provides for the right oforganizations to elect their
representatives in full freedom. In many countries the legislation lays down
conditions for the eligibility to trade union office and requirements concerning
the election and removal of officers. 1 Problems relating to compatibility with
the Convention arise mainly from provisions in regard to nationality, occupa-
tional status, political belief or affiliation, penal record and re-election. Provi-
sions requiring trade union officers to be nationals of the country are frequent
and their compatibility with the Convention depends to a great extent on how
they are applied in practice and which are the local circumstances. As r-egards
provisions which lay down that a person elected must actually be employed in
the occupation concerned their purpose has sometimes been explained as being
designed to prevent that trade unions be controlled by politicians. However, in
many countries, the labour force could not provide qualified leadership
entirely from its own ranks. Moreover, a restriction of this kind might encour-
age acts of interference by employers, such as the dismissal of a worker holding
trade union office, which would result in his losing such office. Accordingly a
certain flexibility should be introduced in such provisions.
1. See ILO, Eligibility for trade union office, Geneva, 1972; B. Gernigon, Tenure of Trade
Union Office, ILO, Geneva, 1977.

83
181-183 Freedom of Association

181. Thirdly, the Convention provides for the right oforganizations to organ-
ize their administration and activities and to formulate their programmes. This
provision does not affect legislative requirements such as those on the conven-
ing of general meetings, etc.the purpose of which is to guarantee the demo-
cratic participation of the members and when the application of the rules is
mainly left to the members themselves. The question is more complex when the
unions are under the obligation to report, in particular on financial matters, 1 to
the public authorities on their administration. Legislation giving the adminis-
trative authorities the right, at their entire discretion, to investigate the internal
affairs of a union would not be in conformity with the Convention. Supervision
of union finances by the authorities should not normally exceed periodical
reporting requirements. More generally, it would be important that the person
to whom the unions might be required to report would enjoy a certain indepen-
dence and be subject to judicial control.
1. See, more generally, ILO, The Public Authorities and the Right to Protection o fTrade Union
Fund and Property, Geneva, 1974.

182. The right of trade unions to organize their activities raises two impor-
tant questions, that of the right to strike 1 and that of the political activities of
trade union organizations. In a number of coimtri~s, the law prohibits political
activity by trade unions in general terms. The supervisory bodies of the ILO
have taken the view that, while this is a complex matter as it is difficult to define
a clear line of division between political and trade union activities, a general
prohibition of political activities is both incompatible with the Convention and
unrealistic in practice. The interpretation which would be given to such a
provision could restrict the possibilities of action of the organization. These
bodies felt that States should be able, without prohibiting a priori and in
general terms all political activities by occupational organizations, to entrust to
the judicial authorities the task of repressing abuses which might, in certain
cases, be committed by organizations which had lost sight of the fact that their
fundamental objective should be the economic and social advancement of their
members.
1. See below No. 188.

183. In a more general way, the freedom of action of occupational organiza-

tions depends to a great extent on the civil liberties which are recognized in the
country concerned. Freedom is indivisible and cannot be guaranteed only to an
isolated sector. The ILO has often stressed the inter-relationship between
trade union rights and civil liberties, and in 1970 the International Labour
Conference adopted, without opposition, a resolution on this subject, where it
stated that the rights conferred upon workers' and employers' organizations
must be based on respect for those civil liberties which have been enunciated, in
particular, in the Universal Declaration of Human Rights and in the Interna-
tional Covenant on Civil and Political Rights and that the absence of these civil
liberties removes all meaning from the concept of trade union rights. In this
resolution, the Conference stressed the following rights which it considered
essential for the normal exercise of trade union rights:
84
Freedom of Association 184-188

a. the right to freedom and security of person and freedom from arbitrary
arrest and detention;
b. freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers;
c. freedom of assembly;
d. the right to a fair trial by an independent and impartial tribunal;
e. the right to protection of the property of trade union organizations. 1
1. See on this question Report VII submitted to the 54th Session of the International Labour
Conference (1970). See also the report of the Commission of Inquiry established to consider
complaints relating to the observance by Greece of the freedom of association Conventions
(O.B., Sp. Suppl., Vol. LIV, 1971, No.2, paras. 280-281) and the report ofthe Fact-Finding
and Conciliation Commission as regards the case of Chile (The Trade Union Situation in
Chile), ILO, 1975, paras. 538-540). On these complaints see below Nos. 626 and 638.

184. Apart from the rights of occupational organizations, the Convention

provides for an additional guarantee (Art. 4) by declaring that workers' and
employers' organizations shall not be liable to be dissolved or suspended by
administrative authority. The purpose of this provision is to ensure that dissolu-
tion or suspension are surrounded by the requisite guarantees which are
normally ensured by judicial procedure.

185. It is also provided (Art. 5 of the Convention) that occupational organ-

izations shall have the right to establish and join federations and confederations,
and that any such organizations, federation or confederation shall have the
right to affiliate with international organizations of workers and employers. In
addition, the rights and guarantees that the Convention provides for occupa-
tional organizations shall apply to federations and confederations (Art. 6), in
particular as regards the acquisition of legal personality (Art. 7).

186. Finally, in Art. 8, para. 1, the Convention lays down that, in exercising
the rights provided for 'workers and employers and their respective organiza-
tions, like other persons or organized collectivities, shall respect the law of the
land'. However, in order to avoid that such a reference to national law should
deprive the Convention of its substance, para. 2 of this Article stresses that 'the
law of the land shall not be such as to impair, nor shall it be so applied as to
impair, the guarantees provided for in this Convention'.

187. Moreover, in a general provision (Art. 11), the Convention specifies

that States which ratify this instrument undertake 'to take all necessary and
appropriate measures to ensure that workers and employers may exercise
freely the right to organize'.

III. The Right to Strike

188. While Convention No. 87 does not deal expressly with the right to
strike, a case law on that matter has been progressively developed by the
various supervisory bodies. 1 In the first place, on the basis of Art. 3, 8 and 10 of

85
189-190 Freedom of Association

the Convention, the Committee of Experts has considered2 that a general

prohibition of strikes constitutes a considerable restriction of the opportunities
open to trade unions for furthering and defending the interests of their mem-
bers and of the right of trade unions to organize their activities. The Freedom of
Association Committee3 has also stressed repeatedly, when examining various
complaints on the matter, that 'the right to strike by workers and their organ-
izations is generally recognized as a legitimate means of defending their occu-
pational interests'. These two bodies felt, however, that some restrictions on
the right of strike are acceptable in certain cases, as in the civil service, in
essential services, in emergencies or until existing facilities for negotiation,
conciliation and arbitration can be brought to bear, or to fulfil certain pro-
cedural conditions. The Freedom of Association Committee has underlined,
however, that in such cases where restrictions or prohibition are imposed,
there should be adequate guarantees to safeguard the interests of workers who
are thus deprived from an essential means of defending their occupational
interests. These safeguards should take the form of adequate, impartial and
speedy conciliation and arbitration proceedings in which the parties concerned
can take part at every stage and in which the awards are binding in all cases on
both parties. These awards should be fully and promptly implemented.
1. As regards provisions relating to the strike which can be found in other international
instruments, see below No. 205 and No. 211.
2. See Rep. Com. Exp. 1973, Vol. 4B, Nos 107-114, pp. 44-47.
3. See Digest ofdecisions ofthe Freedom ofAssociation Committee, quoted above under para.
123.

§3. THE RIGHT TO ORGANIZE AND COLLECTIVE BARGAINING CONVENTION,

1949 (No. 98)
'
189. The Right to Organize and Collective Bargaining Convention, 1949
(No. 98), which has been ratified by 105 States, provides in the first place (Art.
1) that 'workers shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment' .1 This provision aims at protect-
ing workers and trade union leaders against victimization by their employers
both at the time of taking up employment and in the course of their employ-
ment relationship.
1. See more generally in this connection Bartolomei de Ia Cruz, Protection against anti-union
discrimination, ILO, Geneva, 1976.

190. Thus the Convention specifies that such protection shall apply more
particularly in respect of acts calculated to make the employment of a worker
subject to the condition that he shall not join a union or shall relinquish trade
union membership. In this connection, the question of the validity of union
security arrangements, about which views differ considerably from one country
to another, was raised but the Conference Committee which was discussing the
draft of this instrument stated, in its report, that Convention No. 98 'could in no
way be interpreted as authorizing or prohibiting union security arrangements,

86
Freedom of Association 191-196

such questions being matters for regulation in accordance with national prac-
tice'.1
1. Rec. Proc. Conf 32, 1949, p. 468.

191. The Convention also provides that the protection shall equally apply in
respect of acts calculated to cause the dismissal of or otherwise prejudice a
worker by reason of union membership or because of participation in union
activities outside working hours or, with the consent of the employer, within
working hours.

192. Another aim of the Convention is protection, primarily of trade unions,

against acts of interference, although the matter is mentioned in respect of both
workers' and employers' organizations. According to Art. 2, 'workers' and
employers' organizations shall enjoy adequate protection against any acts of
interference by each other or each other's agents or members in their estab-
lishment, functioning or administration'. In particular, acts designed to pro-
mote the establishment of workers' organizations under the domination of
employers' organizations or to support workers' organizations by financial or
other means, with the object of placing such organizations under the control of
employers or employers' organizations are described as constituting such acts
of interference.

193. To ensure respect for the above provtstons, Art. 3 provides that
machinery appropriate to national conditions shall be established where neces-
sary.

194. Moreover, in order to create conditions for successful voluntary negoti-

ation between employers and workers, it is provided, in Art. 4 of the Conven-
tion that 'measures appropriate to national conditions shall be taken, when
necessary, to encourage and promote the full development and utilization of
machinery for voluntary negotiation between employers or employers' organ-
izations and workers' organizations, with a view to the regulation of terms and
conditions of employment by means of collective agreements'.

195. Finally, as regards the scope of the Convention, the same formula is
applied as in Convention No. 87 in relation to the armed forces and the police, 1
but the Convention also adds that it does not deal with the position of public
servants engaged in the administration of the State and that it should not be
construed as prejudicing their rights or status in any way. 2
1. See No. 174 above.
2. As regards civil servants see No. 202 below.

§4. THE WORKERS' REPRESENTATIVES CONVENTION (No. 135)

AND RECOMMENDATION (No. 143) OF 1971

196. Freedom of association cannot be fully implemented if it is not recog-

87
197 Freedom of Association

nized at the plant level as well as at the national or occupational level. This
explains the adoption, in 1971, of a Convention (No. 135) 1 and a Recommen-
dation (No. 143) concerning the protection and the facilities to be afforded to
workers' representatives in the undertaking. The Convention provides that
workers' representatives2 in the undertaking shall enjoy effective protection
against any act prejudicial to them, including dismissal, based on their status or
activities as a workers' representative or on union membership or participation
in union activities, in so far as they act in conformity with existing laws or
collective agreements or agreed arrangements. Appropriate facilities should
also be afforded to workers' representatives in order to enable them to carry
out their functions promptly and efficiently. The Convention contains some
clauses of flexibility by stating that account should be taken of the characteris-
tics of the industrial relations system of the country and the needs, size and
capabilities of the undertaking concerned, that the granting of such facilities
shall not impair the efficient operation of the undertaking concerned, and
finally that effect may be given to the Convention through national laws or
regulations or collective agreements, or in any other manner consistent with
national practice.
1. This Convention has been ratified by 32 States.
2. The Convention defines the term 'workers' representatives' as meaning persons who are
recognized as such under national law or practice, whether they are trade union represen-
tatives or elected representatives and adds that national laws or regulations, collective agree-
ments, arbitration awards or court decisions may determine the type of workers' represen-
tatives which shall be entitled to the protection and facilities. Where there exist in the same
undertaking both trade union representatives and elected representatives, measures shall be
taken to ensure that the existence of the latter is not used to undermine the position of the
trade unions concerned or their representatives and to encourage co-operation between the
elected representatives and the trade unions concerned and their representatives.

197. The Recommendation lists the various measures which could be taken
to ensure effective protection of workers' representatives, such as definition of
the reasons justifying termination of their employment; requirement of consul-
tation with, an advisory opinion from, or agreement of an independent body,
public or private, or a joint body, before the dismissal becomes final; special
recourse procedure open to workers' representatives who consider that their
employment has been unjustifiably terminated, or that they have been sub-
jected to an unfavourable change in their conditions of employment or to
unfair treatment; provision for an effective remedy in respect of the unjustified
termination of employment which, if possible under the law of the country
concerned, should include reinstatement; provision for laying upon the em-
ployer, in the case of any alleged discriminatory dismissal or unfavourable
change of the conditions of employment, the burden of proving that such action
was justified; priority with regard to the retention in employment of workers'
representatives in case of reduction of the work force. Such a protection should
also apply to workers who are candidates for election as workers' represen-
tatives and to workers who have ceased to be workers' representatives. Persons
who, upon termination of their mandate as workers' representatives in the
undertaking in which they have been employed, resume work in that undertak-

88
Freedom of Association 198-200

ing, should retain or have restored all their rights, including those related to the
nature of their job, to wages and to seniority.

198. The Recommendation also lists the facilities to be afforded to workers'

representatives. They should be afforded the necessary time off from work,
without loss of pay or social and fringe benefits, for carrying out their repres-
entation function in the undertaking. They may be required to obtain permis-
sion from their supervisor before they take time off from work but su~h
permission should not be unreasonably withheld. Reasonable limits may be set
on the amount of time off. Workers' representatives should also be afforded
the necessary time off for attending trade union meetings, training courses,
seminars, congresses and conferences. Time off for that purpose should be
afforded without loss of pay or social and fringe benefits, and the question of
who should bear the resulting costs may be determined at the national level.

199. Workers' representatives should be granted access to all work places in

the undertaking, where this is necessary to enable them to carry out their
representation functions. They should be granted without undue delay access
to the management of the undertaking and to management representatives
empowered to take decisions, as may be necessary for the proper exercise of
their functions. As regards trade union dues, workers' representatives author-
ized to do so by the trade union should be permitted to collect them regularly
on the premises of the undertaking. Workers' representatives acting on behalf
of a trade union should be authorized to post trade union notices on the
premises of the undertaking in a place or places agreed on with the manage-
ment and to which the workers have easy access. They should also be permitted
to distribute news sheets, pamphlets, publications and other documents of the
union among the workers of the undertaking. Such notices and documents
should relate to normal trade union activities and their posting and distribution
should not prejudice the orderly operation and tidiness of the undertaking. The
management should make available to workers' representatives such material
facilities and information as may be necessary for the exercise of their func-
tions. Trade union representatives who are not employed in the undertaking
but whose trade union has members employed in it should be granted access to
the undertaking.

§5.THE RURAL WORKERS' ORGANIZATIONS CONVENTION (No. 141)

AND RECOMMENDATION (No. 149) OF 1975

200. A Convention and a Recommendation adopted in 1975 dealt more

particularly with the right of all rural workers, whether they are wage earners or
self-employed, to establish and join organizations of their own choosing with-
out previous authorization. The Convention 1 provides that the principles of
freedom of association shall be fully respected and reaffirms the main prin-
ciples of Convention No. 87.2 It adds that it shall be an objective of national
policy concerning rural development to facilitate the establishment and

89
201-202 Freedom of Association

growth, on a voluntary basis, of strong and independent organizations of rural

workers as an effective means of ensuring the participation of rural workers,
without discrimination, in economic and social development and in the benefits
resulting from it. It provides, in particular, for the adoption and implementa-
tion by States of policies of active encouragement to these organizations,
particularly with a view to eliminating obstacles to their establishment, their
growth and the pursuit of their lawful activities.
1. This Convention has been ratified by 13 States.
2. See Nos. 172-187 above.

201. The Recommendation contains more detailed provisions about the role
of organizations of rural workers and the various means of encouraging their
growth. These means comprise legislative and administrative measures, public
information, education and training and financial and material assistance.

§6. THE LABOUR RELATIONS (PuBLIC SERVICE) CONVENTION (No. 151)

AND RECOMMENDATION (No. 159) OF 1978

202. In 1978, a Convention (No. 151) and a Recommendation (No. 159) on

Labour Relations in the Public Service 1 dealt in particular with the right to
organize of public employees. The provisions concerning the protection against
acts of anti-union discrimination are analogous to those of the Right to Organ-
ize and Collective Bargaining Convention, 1949 (No. 98). 2 The Convention
provides in particular 'that such protection shall apply more particularly in
respect of acts calculated to (a) make the employment of public employees
subject to the condition that they shall not join or shall relinquish membership
of a public employees' organization; (b) cause the dismissal of or otherwise
prejudice a public employee by reason of membership of a public employee's
organization or because of participation in the normal activities of such organ-
ization'. The Convention also provides for complete independence of public
employees' organizations from public authorities and from adequate protec-
tion against any acts of interference by a public authority in their establishment,
functioning or administration, such as acts designed to promote the establish-
ment of public employees' organizations under the domination of a public
authority, or to support public employees' organizations by financial or other
means, with the object of placing such organizations under the control of a
public authority.3 The Convention also deals with appropriate facilities which
should be afforded to the representatives of recognized public employees'
organizations to enable them to carry out their functions promptly and effi-
ciently, both during and outside working hours. The granting of such facilities
should not impair the efficient operation of the administration or service
concerned. The Convention also deals with procedures for determining terms
and conditions of employment and with the settlement of disputes (through
negotiation between the parties, or through independent and impartial
machinery, such as mediation, conciliation and arbitration, established in such
a manner as to ensure the confidence of the parties involved). Finally, it

90
Freedom of Association 203

provides that public employees shall have, as other workers, the civil and
political rights which are essential for the normal exercise of freedom of
association, subject only to the obligations arising from their status and the
nature of their functions. The Recommendation which complements the Con-
vention adds that the determination of the organizations to be granted the
rights provided for under the Convention should be based on objective and
pre-established criteria with regard to their representative character, that the
procedures for recognition of public employees' organizations should not be
such as to encourage the proliferation of organizations covering the same
categories of employees. The Recommendation also deals with certain aspects
of the procedures for determining terms and conditions of employment. As for
the facilities to be afforded to representatives of public employees' organiza-
tions, it recommends that regard be had to the Workers' Representatives
Recommendation, 1971 (No. 135).4
1. See No. 535 below.
2. See No. 190 above.
3. Compare No. 192 above.
4. See No. 197 above.

§ 7.
FIELDS IN WHICH ADDITIONAL STUDIES AND STANDARDS
HAVE BEEN CONTEMPLATED

203. The 1970 resolution quoted above (No. 183) on trade union rights and
their relation to civil liberties suggested that a further study should be made
about a certain number of matters with a view to considering further action to
ensure respect for trade union rights. It mentioned in particular the following
questions: right of trade unions to excercise their activities in the undertaking
and other work places; right of trade unions to negotiate wages and all other
conditions of work; right of participation of trade unions in undertakings and in
the general economy; right to strike; right to participate fully in national and
international trade union activities; right to inviolability of trade union prem-
ises as well as of correspondence and telephonic conversations; right to protec-
tion of trade union funds and assets against intervention by the public
authorities; right of trade unions to have access to media of mass communica-
tion; right to protection against any discrimination in matters of affiliation and
trade union activities; right of access to voluntary conciliation and arbitration
procedures; and finally right to workers' education and further training. Work
has already been done on certain of these matters, as can be seen from the
studies referred to above, 1 and even standards were adopted on the first of
these subjects.2 Further studies are being prepared.
1. See footnotes under Nos. 176, 180, 181 and 189.
2. See above Nos. 196 ss.

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204-205 Freedom of Association

§8. OTHER INTERNATIONAL STANDARDS

I. Universal Standards

204. In 1948, the Universal Declaration of Human Rights provided (Art. 23,
§ 4) that 'Everyone has the right to form and to join trade unions for the
protection of his interests'.

205. A more detailed provision is to be found in the 1966 Inter-

national Covenant on Economic, Social and Cultural Rights, that is Article
8 which provides that the State Parties to the Covenant 'undertake to
ensure:
a. The right of everyone to form trade unions and join the trade union of his
choice, subject only to the rules of the organization concerned, for the
promotion and protection of his economic and social interests. No restric-
tions may be placed on the exercise of this right other than those prescribed
by law and which are necessary in a democratic society in the interests of
national security or public order or for the protection of the rights and
freedoms of others;
b. The right of trade unions to establish national federations or confederations
and the right of the latter to form or join international trade union organiza-
tions;
c. The right of trade unions to function freely subject to no limitations other
than those prescribed by law and which are necessary in a democratic society
in the interests of national security or public order or for.the protection of the
rights and freedoms of others;
d. The right to strike, provided that it is exercised in conformity with the laws of
the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces or of the police or of
the administration of the State.
3. Nothing in this article shall authorize States Parties to the International
Labour Organization Convention of 1948 concerning Freedom of Associa-
tion and Protection of the Right to Organize to take legislative measures
which would prejudice, or apply the law in such a manner as would prejudice,
the guarantees provided for in that Convention.'
This provision is not as detailed as Convention No. 87. Moreover, the
restrictions which it authorizes might reduce considerably the extent of the
protection which it affords. This applies to the limitations which, contrary to
Convention No. 87, are permitted as regards the members of the administra-
tion of the State. This is also the case as regards the limitations 'which are
necessary in a democratic society in the interests of national security or public
order or for the protection of the rights and freedoms of others', for which there
is no equivalent in Convention No. 87. However, the obligations arising from
that Convention are expressly reserved by the saving clause contained in Art. 8,
para. 3 of the Covenant. On the other hand, this Article recognizes the right to

92
Freedom of Association 206-209
strike, but it leaves the conditions of its exercise to the discretion of national
legislations.

206. The International Covenant on Civil and Political Rights, which was
adopted at the same time as the other Covenant, also refers, in general terms, ~o
the right to form trade unions, in the wider framework of freedom of associa-
tion. Article 22, para. 1 of that Covenant provides that 'Everyone shall have
the right to freedom of association, including the right to form and join trade
unions for the protection of his interests'. In its paragraph 2, it contains a clause
authorizing restrictions in terms similar, though not identical, to that contained
in Art. 8, para. 1 (a), second sentence, of the Covenant on Economic, Social
and Cultural Rights. The same provision also authorizes restrictions as regards
the members of the armed forces and the police, but, contrary to the other
Covenant, not of the administration of the State. From this point of view its
scope is closer to that of Convention No. 87.

II. European Standards

207. Two instruments of the Council of Europe refer to trade union rights.
The first is the European Convention on Human Rights of 1950. Article 11 of
the European Convention is drafted in terms which are very similar to those
which were used later in the International Covenant on Civil and Political
Rights referred to in the previous paragraph: that is that the right of everyone
'to form and to join trade unions for the protection of his interests' is mentioned
in general terms, in the framework of freedom of association in general, that
the Convention authorizes the same type of restrictions 'which are necessary in
a democratic society in the interests of national security or public safety, for the
prevention of disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others', and that the Convention also
authorizes restrictions for the members of the armed forces and the police, but
equally for members of the administration of the State, contrary to what was
finally decided for the International Covenant on Civil and Political Rights.

208. The European Social Charter is more specific on the matter. Article 5
deals with the main point of the right to organize, though not in as precise a way
as ILO Convention No. 87. 1 It provides that: 'With a view to ensuring or
promoting the freedom of workers and employers to form local, national or
international organizations for the protection of their economic and social
interests and to join those organizations, the Contracting Parties undertake
that national law shall not be such as to impair, nor shall it be so applied as to
impair, this freedom.'
1. See Valticos, 'La Charte sociale europeenne', Droit social, Sept.-Oct. 1963. p. 471, and
'The European Social Charter and International Labour Standards', l.L.R., Nov. 1961, pp.
363-364.

209. There was some controversy about the exceptions provided by the

93
210-211 Freedom of Association

Charter. The initial draft provided for exceptions as regards armed forces and
the police, as in the case of ILO Convention No. 87, 1 but also included the
administration of the State. Following comments by the Tripartite Conference
and the Consultative Assembly, 2 the reference to possible exceptions in respect
of officials and employees of the State administration was deleted. Moreover
the provision about the remaining two possible exceptions was worded in
different terms for either case. The final text now reads as follows: 'The extent
to which the guarantees provided for in this Article shall apply to the police shall
be determined by national laws or regulations. The principle governing the
application to the members of the armed forces of these guarantees and the
extent to which they shall apply to persons in this category shall equally be
determined by national laws or regulations.' The Committee of Experts
appointed under the Charter concluded from this wording that the Charter
permits a State to limit in any way and even to suppress entirely the freedom to
organize of members of the armed forces. On the other hand, a State is only
permitted to limit the freedom of organization of the members of the police,
but is not justified in depriving them of all the guarantees provided for in the
Article. 3 From that point of view the Charter went further than the similar
provision in Convention No. 87.
1. See above No. 174.
2. See above No. 153.
3. See Council of Europe, Committee of Independent Experts on the European Social
Charter, Conclusions I, Strasbourg, 1969-1970, p. 31.

210. Article 6 of the Charter relates to the right to bargain collectively and its
first provision contain the undertaking by Contracting Parties:
'1. to promote joint consultation between workers and employers;
2. to promote, where necessary and appropriate, machinery for voluntary
negotiation between employers or employers' organizations and workers'
organizations, with a view to the regulation of terms and conditions of
employment by means of collective agreements;
3. to promote the establishment and use of appropriate machinery for concilia-
tion and voluntary arbitration for the settlement of labour disputes.'

211. The most original feature of the Charter is that it was the first interna-
tional instrument which dealt expressly with the right to strike. In accordance
with a proposal by the Tripartite Conference, 1 followed by. the Consultative
Assembly, Article 6, para. 4 of the Charter provides for the recognition of 'the
right of workers and employers to collective action in cases of conflicts of
interest, including the right to strike, subject to obligations that might arise out
of collective agreements previously entered into'. An Appendix to the Charter
also adds an understanding that each Contracting Party may 'regulate the
exercise of the right to strike by law, provided that any further restrictions that
this might place on the right can be justified under the terms of Article 31 '.
Article 31 relates to restrictions 'necessary in a democratic society for the
protection of the rights and freedoms of others or for the protection of public
interest, national security, public health, or morals'. While the Charter did not

94
Forced Labour 212-214

specify whether the recognition of the right to strike means that a strike should
not be considered as implying the breach of the contract of employment, the
Committee of Experts appointed under the Charter considered that a national
rule according to which a strike terminates the contract of employment is not
compatible with the respect for the right to strike as envisaged by the Charter. 2
1. For more details about the discussions in the Tripartite Conference, see 'The European
Social Charter and International Labour Standards' quoted above, pp. 364-365.
2. Conclusions I, quoted above, p. 39.

212. At the time of the framing of the Charter, a question arose in connec-
tion with Article 1, para. 2 which referred to the right of the worker 'to earn his
living in an occupation freely entered upon'. The question related to the fact
that, as stated above, 1 some countries authorize the so-called trade union
security clauses or practices, under which employment in certain occupations
may be restricted to workers belonging to a particular trade union, while in
other countries such clauses or practices are illegal. The solution followed in
this case was similar to that applied by the ILO when Convention No. 98 was
adopted. 2 The Appendix to the Charter contains a provision to the effect that
Article 1, para. 2 'shall not be interpreted as prohibiting or authorizing union
security clause or practice'.

§9. BILATERAL TREATIES

213. Bilateral treaties sometimes contain clauses which assimilate the

nationals of the two Contracting Parties as regards, in particular, various trade
union functions which generally are reserved to nationals.
1. See above No. 190.
2. Op. Joe. cit.

Chapter II. Forced Labour

§1. GENERAL OUTLINE

214. While the first international action relating to slavery dates back to the
beginning of the 19th century, with the Congress of Vienna, forced labour
questions as such were taken up systematically only after the First World War.
The international regulation of forced labour followed upon the work of the
League of Nations on Mandated Territories and the adoption of the 1926
Slavery Convention. In that year the ILO Governing Body appointed a Com-
mittee of Experts on Native Labour whose first task was the study of the
systems of forced or compulsory labour existing at that time, especially in
countries which were not self-governing. Its work led to the adoption in 1930 of
the Forced Labour Convention (No. 29) and two complementary Recommen-
dations (Nos. 35 and 36). While of general application, the Convention related
mainly to forms of forced labour which were practised for economic purposes

95
215 Forced Labour

in countries which were under colonial administration and in certain indepen-

dent States at a similar stage of development. After the Second World War,
attention was drawn to systems of forced labour also used as a means of
political coercion. The United Nations created therefore, in conjunction with
the ILO, an Ad hoc Committee of Forced Labour, which was entrusted with
carrying out an inquiry into allegations relating to the existence of certain forms
of forced labour. The inquiries carried out in 1951-1953 by this Committee
and, from 1956 to 1959, by an ILO Committee on Forced Labour revealed the
existence in the world of systems of forced labour of a serious nature as a means
of political coercion or for economic purposes. They paved the way for the
adoption, in 1957, by the International Labour Conference, of a new Conven-
tion, the Abolition of Forced Labour Convention (No. 105). The 1930 and
1957 Conventions have been ratified by a very large number of States but their
application has given rise to important problems. In relation with some of these
problems a Recommendation was adopted in 1970 about Special Youth
Schemes. Provisions prohibiting forced labour are also contained in other
instruments such as the Employment Policy Convention, 1964 (No. 122) in
virtue of which States should formulate and apply an active policy aimed at
promoting full productive and freely chosen,.employment. However, the pres-
ent chapter will be focused on the Conventions which deal specifically with this
matter.

§2. THE FORCED LABOUR CONVENTION, 1930 (No. 29)

215. This Convention is the ILO instrument which has obtained the greatest
number of ratifications, i.e. 119. It is, moreover, applicable to 35 non-
metropolitan territories. 1 Convention No. 29 provided for the progressive
suppression of forced labour and, pending its suppression, its use only for
public purposes and as an exceptional measure, subject to the conditions and
guarantees set forth in detail in the various Articles of the Convention. Forced
labour is defined as 'all work or service which is exacted from any person under
the menace of any penalty and for which the said person has not offered himself
voluntarily'. Certain obligations are not included in the definition of forced
labour, such as compulsory military service in the case of 'work of a purely
military character', 'normal civic obligations', prison labour (to the extent that
it is exacted as a consequence of a conviction in a court of law and provided that
the work or service is carried out under the supervision and control of a public
authority and that the person is not hired to or placed at the disposal of private
individuals, companies or associations), work in cases of 'force majeure' and
minor communal services. The Convention provides for the progressive aboli-
tion of forced or compulsory labour exacted as a tax and forced and compulsory
labour to which recourse is had for the execution of public works by chiefs who
exercise administrative functions. It calls for the immediate abolition of forced
labour in certain instances: women, men under 18 and over 45 years of age,
disabled persons; work for the benefit of private individuals or associations;
work underground in mines; work for public purposes which is not of present or

96
Forced Labour 216

imminent necessity and is not a precaution against famine or a deficiency of

food supplies; work used as a method of collective punishment. It is forbidden
to give persons who do not exercise administrative functions the power to exact
forced labour. In all other cases, recourse to forced labour may be authorized
provided that the work is of important direct interest for the community called
upon to do the work, that the work is of present or imminent necessity, only for
public purposes and as an exceptional measure, and subject to certain guaran-
tees designed to protect the health, safety and welfare of the workers involved
and ensure the continuance of normal family life and social relationships.
Finally various measures must be taken to ensure the effective application of
the standards established by the Convention (detailed regulations, complaints
procedures, penalties in the event of the illegal exaction of forced labour). It
should be added that few countries are now in a position to avail themselves of
the transitional provisions of the Convention.
1. The Convention had previously been declared applicable to a much greater number of
territories, which have since become independent and in most cases Members of the ILO. In
such cases the countries concerned have, as a rule, confirmed the obligations undertaken on
their behalf and the declaration was replaced by a ratification (see below No. 582). In certain
cases, the States concerned have cancelled modifications subject to which the declarations had
been made.

§3. THE ABOLITION OF FORCED LABOUR CONVENTION, 1957 (No. 105)

216. The Abolition of Forced Labour Convention, 1957 (No. 105) has been
ratified by 102 States and declared applicable to 35 territories. It is couched in
general terms and calls for the immediate and complete abolition of any form of
forced labour for the following five purposes:
1. as a means of political coercion or education or as a punishment for holding
or expressing political views or views ideologically opposed to the estab-
lished political, social or economic system;
2. as a method of mobilizing and using labour for purposes of economic
development;
3. as a means of labour discipline;
4. as a punishment for having participated in strikes;
5. as a means of racial, social, national or religious discrimination.
The general character of the terms of this Convention given rise to certain
questions relating to its legal scope. The Committee of Experts on the Applica-
tion of Conventions and Recommendations has considered that, 'in referring to
the use of "any form" of forced labour in the five cases which it listed, the
Convention prohibits, in these cases, forced labour resulting from a conviction
in a court of law as well as other forms of forced labour' .1 Apart from this legal
question, the application of both Conventions has also given rise to serious
problems of substance.
1. See Rep. Com. Exp. 1962, pp. 194-195, para. 8-10;ibid, 1968, pp. 213-215, para. 83-88,
and also pp. 182-183, para. 17-18 (for the contrary view).

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217-218 Forced Labour

§4. PROBLEMS OF APPLICATION OF 1HE FORCED LABOUR CONVENTIONS

217. The problems of application of the forced labour Conventions have

varied according to the periods and the countries. They have been often
described and discussed. 1 Initially they were mainly related to problems of
labour exacted for economic purposes. More recently difficulties have been
experienced in relation with various types of youth services. The application of
the provision of the 1957 Convention which prohibit forced labour as a means
of political coercion or as a punishment for holding or expressing certain
political views has also raised serious questions.
1. See the general surveys made by the Committee of Experts on the Application of Conven-
tions and Recommendations in 1962 and in 1968, and the discussion of the main problems at
the International Labour Conference in 1968 Rec. Proc. Con f., 52, 1968, pp. 589-593, paras.
42--60). A new survey will be made by the Committee of Experts in 1979.

I. The Problems of Forced Labour for Economic Purposes

218. When the first forced labour Convention was adopted, in 1930, the
principal aim of this instrument was to fight against the forms of forced labour
for economic purposes which were practised· in colonial territories in order to
obtain labour which was not forthcoming spontaneously and this was done
within a system of administration which relied to a great extent on traditional
tribal relationships. Since that time, radical changes have taken place. Most of
the colonial countries have attained independence since the early sixties. The
problems of the newly independent States and the changed conditions of the
labour market substantially altered the position. While one still finds pieces of
legislation providing for compulsory mobilization of labour which are
remnants of the past, the situation is no longer characterized by reluctance of
populations to offer their services for wage-earning services. On the contrary,
most of these countries are faced with problems of rural exodus and therefore
of finding employment for large numbers of work-seekers, particularly the
young. Certain governments have resorted to various measures of a compul-
sory character in order to rapidly eliminate the resulting difficulties. Thus many
have referred to the needs of economic development to explain legislative
measures which gave them wide powers of compulsory assignment or requisi-
tion of labour. Such measures, which were not compatible with the ILO
Conventions, gave rise to objections by the supervisory bodies of the ILO. The
governments concerned often replied by stating that in fact these measures
were not applied in practice, and added that they intended to change the
legislation in question with a view to bringing it into conformity with the
Conventions. More generally, the kind of problems which some governments
thought it possible to resolve by authoritarian measures are signs of an imbal-
ance in the utilization of a nation's manpower and the remedy may lie in an
over-all employment policy. 1 In any event, in recent years, progress has been
achieved in several developing countries in the elimination of legislation pro-
viding for compulsory labour for economic purposes.
1. Rep. Com. Exp. 1968, p. 237, para. 139.

98
Forced Labour 219-222

II. The Various Youth Services

219. While linked to a certain extent with the previous one, a special prob-
lem arose with the establishment of various formulae of mobilization of youth
which were introduced in particular in newly independent countries. At one
stage, a trend was noted to provide for compulsory participation to youth
services- or analogous services- created in a number of countries. It should be
noted in this connection that when Convention No. 29 was adopted in 1930, it
had prohibited, after serious differences of views in the Conference, the use of
persons performing compulsory military service for work which will not be of a
purely military character. More recently, various forms of national service have
been instituted parallel to military service. Thus there may be cases where
conscripts in the armed forces can be employed for non-military purposes, as
well as cases of national service in units distinct from the army, and cases of
service required in relation to or on completion of studies.
220. The objective of such systems was not always of a purely economic
character. Frequently they were also designed to promote education and
vocational training, thus providing qualifications which would facilitate the
future resettlement of those concerned and serve the economy of the countries;
they also aimed at allowing unoccupied people to escape unemployment,
giving them habits of work, and promoting the creation of productive employ-
ment; they also sought to ensure to the entire population the services of young
graduates and specialists which it needed. Governments have sometimes felt
that some forms of compulsion as regards the participation in such systems
were necessary, as transitory or exceptional measures, in order to contribute to
a more rapid start .of the development of the country. While these various
reasons could be understood, emphasis was also put on the risk of abuse which
such compulsory measures involved, on the danger that they would progres-
sively lose their transitory and exceptional character and on the fact that, even
in terms of efficiency, compulsory schemes could finally prove more costly and
less efficient than voluntary schemes. 1
1. See The ILO and Human Rights, Rep. D.-G. to the 52nd Session of the I.L.C., Geneva,
1968, pp. 42-45.

221 . These problems, which were relatively new, raised serious difficulties as
regards the application of the Forced Labour Conventions. 1 They also called
for a more accurate assessment of the objectives pursued by the legislation which
introduced the various schemes in question and of the real conditions in which
they functioned. The ILO was thus led to undertake special research on these
different types of schemes.2
1. See Rep. Comm. Exp. 1968, pp. 203-208, paras. 63-69, Rep. Conf Com. 1968, pp.
591-592, paras. 51-54.
2. See studies published in thei.L.R. in January 1966, May 1966 and, in the issue of April
1967 (pp. 315-326), a general article on the matter by C. Rossillion: 'Youth Services for
Economic and Social Development: a General Review'.

222. In view of the importance of the problem, the Conference adopted in

99
223 Forced Labour

1970 a Recommendation (No. 136) concerning youth employment and training

schemes for development purposes. The first discussion, in 1969, was long and
at times heated. The workers members, as well as a number of governments
were opposed to any formula according to which participation in work would
not be voluntary, while other governments, and in particular a number of
African governments, considered that it could be necessary to provide for the
compulsory character of certain programmes, either because of their educa-
tional nature or because of the needs of development. Finally a compromise
formula was adopted, following a rather close vote. The representatives of a
number of African governments expressed reservations about the formula
which was adopted, as they considered it to be too rigid and restrictive. While
stating that their 'primary interest is in voluntary participation in the schemes'
and that they 'are by no means asking for a blank cheque in order to embark on
getting cheap and forced labour through the back door', they expressed the
desire to provide a safety valve that would permit an element of compulsion in
operating special youth schemes, which would be used only in exceptional
circumstances when national interests were .at stake and required it. 1 On the
other hand, the workers' representatives stated that they were not convinced of
the need for compulsory participation and believed that 'compulsory schemes
can only lead to exploitation and to political and military coercion'.2
1. Rec. Proc. Conf, 53, 1969, p. 449.
2. Op. cit., p. 450.

223. The final text of the Recommendation provides as a general principle

(para. 7) that 'participation in special schemes should be voluntary; exceptions
may be permitted only by legislative action and where there is full compliance
with the terms of existing international labour Conventions on forced labour
and employment policy'. It states more specifically that 'schemes in respect of
which exceptions may be permitted may include:
a. schemes of education and training involving obligatory enrolment of unem-
ployed young people within a definite period after the age limit of regular
school attendance;
b. schemes for young people who have previously accepted an obligation to
serve for a definite period as a condition of being enabled to acquire educa-
tion or technical qualifications of special value to the community for
development'.
The Recommendation also suggests that 'where such exceptions are so permit-
ted, participants should, to the greatest possible extent, be given a free choice
among different available forms of activity and different regions within the
country and due account should be taken in their assignment of their qualifica-
tions and aptitudes'. Although no comprehensive survey of the situation
regarding special youth schemes has been made, schemes involving compul-
sory participation appear to be now in operation only to a limited extent.

100
Forced Labour 224-226

III. The Problems of Forced Labour for Political Purposes

224. Another aspect of the questions dealt with in the 1957 Convention (No.
105) relates to forced labour for political purposes. The difficulties encoun-
tered in this field arise mainly from the imposition of penal labour on persons
sentenced as a result of certain acts or activities, such as expression of opinions,
etc. In a number of countries, the legislation contains penal provisions of a wide
scope which might permit the imposition of sanctions involving an obligation to
work as a measure of political coercion or as a punishment for persons who hold
or express certain views. Some of these provisions prohibit the expression of
any opposition of a political or ideological character to the established system,
while others relate to given ideological doctrines or tendencies. Problems may
also arise from the large discretionary powers of preventive control, not subject
to judicial appeal, which the legislation of certain countries has granted to the
executive or various administrative authorities and by virtue of which individu-
als may find themselves exposed to the application of penal sanctions involving
compulsory labour as a means of political coercion or as a punishment for
expressing views. Extensive or unduly prolonged recourse to emergency pow-
ers or suspension of constitutional guarantees may result in a similar possibility.
In all cases where limitations on freedom of expression and related rights are
enforced by sanctions involving liability to penal labour, it becomes necessary
to examine to what extent these limitations are legitimate safeguards in a
democratic society or on the contrary must be considered an undue impairment
of the rights and freedoms in question. 1
1. See Rep. Com. Exp. 1968, pp. 238-240, paras. 140-146.

IV. The Problems of Forced Labour as a Means of Labour Discipline

225. Convention No. 105 prohibits forced or compulsory labour as a means

of labour discipline. Provisions applicable to workers generally which permit
this type of compulsory labour- that is to ensure the performance by a worker
of his service under compulsion of law or as a punishment for breaches of
labour discipline- are now found in some countries only, but there is still a
rather great number of provisions on labour discipline in the public service and
as regards seafarers. In this field it is necessary to take account of the need to
protect the general public interest, but only to the extent that there may exist an
effective danger, not mere inconvenience, and provided the workers concerned
remain free to terminate their employment by reasonable notice.

226. While Convention No.105 prohibits forced labour 'as a punishment for
having participated in strikes', the reports of the Conference Committee which
considered the draft Convention indicated agreement that 'in certain circum-
stances penalties could be imposed for participation in illegal strikes and that
these penalties might include normal prison labour' .1 It therefore appeared to
the supervisory bodies2 not incompatible with the Convention to impose penal-
101
227-229 Forced Labour

ties for participation in strikes in essential services, provided that compensa-

tory guarantees in the form of appropriate alternative procedures for the
settlement of disputes are granted. Procedural requirements- such as previous
notice - may also be imposed, or the right to resort to strike action may be
suspended during conciliation and arbitration proceedings. The procedures
should, however, be adequate, impartial and speedy. Such temporary restric-
tions must be distinguished from systems of compulsory arbitration. Where the
penalties take the form of civil sanctions (such as damages or dismissal), the
Convention can have no application.
1. See Rec. Proc. Conf., 40 1957, p. 709, para. 14.
2.Rep. Com. Exp. 1968, pp. 217-218, paras. 94-99.

227. Convention No. 105 also prohibits forced or compulsory labour 'as a
means of racial, social, national or religious discrimination'. Such instances are
now few, as there is a growing body of constitutional and legislative guarantees
of equality of citizens. There are still, however, some cases of punishment
involving an obligation to perform labour for non-observance of laws affecting
certain persons defined in terms of their race or social group.
228. In a general way, resort to forced or compulsory labour for political or
social purposes can be the reflexion of problems which present themselves in
countries which undergo rapid change and development. More generally cer-
tain limitations may be imposed on the rights of individual in the wider interest
of society. However, within these limits, the individual must be protected
against any compulsion in his work and any coercion through forced or compul-
sory labour in industrial relations and in the exercise of his rights as a citizen.
'The concept of freedom here involved is not a negative one, but presupposes
the development of opportunities for all to participate fully and responsibly in
the economic, social and political life of their community.' 1
1. See Rep. Com. Exp. 1968, p. 240, para. 146.

§5. OTHER INTERNATIONAL STANDARDS

229. The Universal Declaration of Human Rights, which, as the Interna-

tional Covenant on Civil and Political Rights was also to do, established that
'No one shall be held in slavery or servitude' (Art. 4), also affirmed that 'everyone
has the right ... to free choiCe of employment' (Art. 23). The International
Covenant on Economic, Social and Cultural Rights also provided for the recogni-
tion, as part of the right to work, of 'the right of everyone to the opportunity to gain
his living by work which he freely chooses or accepts' and prescribed that the State
Parties to the Convention 'will take appropriate steps to safeguard this right'
(Art. 6, para. 1). The International Covenant on
Civil and Political Rights
refers to forced labour in greater detail. After laying down (Art. 8, para. 3)
a. that 'No one shall be required to perform forced or compulsory labour', it
gives certain definitions of forced labour in the following terms:
b. Para. 3(a) shall not be held to preclude, in countries where imprisonment
with hard labour may be imposed as a punishment for a crime, the perfor-

102
Forced Labour 230-233
mance of hard labour in pursuance of a sentence to such punishment by a
competent court;
c. For the purpose of this paragraph, the term 'forced or compulsory labour'
shall not include:
i) Any work or service, not referred to in sub-paragraph b), required of a
person who is under detention in consequence of a lawful order of a
court, or of a person during conditional release from such detention;
ii) Any service of a military character and, in countries where conscien-
tious objection is recognized, any national service required by law of
conscientious objectors;
iii) Any service exacted in cases of emergency or calamity threatening the
life or well-being of the community;
iv) Any work or service which forms part of normal civil obligations.'

230. The above provisions which they follow closely the wording of the
European Convention on Human Rights and, to a certain extent, that of the
1930 Convention give a wider latitude than the ILO standards. 1
1. See Comparative Analysis of the International Covenants on Human Rights and Interna-
tional Labour Conventions and Recommendations, ILO, O.B., vol. LII, 1969, No. 2, pp.
181-216.

231. At the regional level, the 1950 European Convention on Human

Rights also prohibits forced labour (Art. 4, paras. 2 and 3) in terms similar, to a
large extent, to those which were to be used later in the International Covenant
on Civil and Political Rights. 1 As these provisions are, to a certain extent, less
precise than the 1930 ILO Convention, the European Commission of Human
Rights has decided some cases submitted to it, in a less strict manner than if
they had had to be considered in the light of the ILO standards.
1. Article 4, paras. 2 and 3 of the European Convention reads as follows:
'2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article, the term "forced or compulsory labour" shall not include: a.
any work required to be done in the ordinary course of detention imposed according to the
provisions of Article 5 of this Convention (relating to the right to liberty and security of the
person) or during conditional release from such detention; b. any service of a military
character or, in case of conscientious objectors in countries where they are recognized, service
exacted instead of compulsory military service; c. any service exacted in case of an emergency
or calamity threatening the life or well-being of the community; d. any work or service which
forms part of normal civic obligations.'

232. The American Convention on Human Rights, signed in November

1969, contains provisions which follow closely those of the European Conven-
tion, with some differences, the most important of which is that it contains an
additional guarantee using the wording of ILO 1930 Forced Labour Conven-
tion (No. 29), to the effect that any work or service exacted from a person as a
consequence of a conviction in a court of law must be carried out under the
supervision and control of a public authority and that the said person shall not
be hired or put at the disposal of private individuals, companies or associations.

233. As regards the European Social Charter, Article 1, para. 2 states that

103
234-236 Discrimination in Employment

the Contracting Parties undertake 'to protect effectively the right of the worker
to earn his living in an occupation freely entered upon'.

Chapter III. Discrimination in Employment

§ 1. GENERAL OUTLINE

234. The freedom of choice of employment, which the forced labour Con-
ventions aim at ensuring, would often be meaningless if individuals were
subjected to discrimination which would limit their opportunities for finding
employment or which would put them at a disadvantage in respect of condi-
tions of employment. Discrimination in itself has a humiliating character, and is
incompatible with human dignity. At the national level discrimination
increases the tensions between various groups of which it already is an indica-
tion. Internationally, the bad relations between populations of different racial
or ethnic origin or of different religious or cultural or linguistic traditions are
among the most serious threats to world peace. In this field ILO standards have
a double aim: to eliminate inequality of treatment and to promote equality of
opportunity.

235. At the level of its constitutional instruments, the ILO established the
principle of non-discrimination in the Declaration of Philadelphia, adopted in
1944 and incorporated in its Constitution. As said above, 1 this Declaration
affirms in this connection that 'all human beings, irrespective of race, creed or
sex, have the right to pursue both their material well-being and their spiritual
development in cbnditions of freedom and dignity, of economic security and
equal opportunity'. We shall see soon2 that direct legal consequences followed
from this provision as regards the action of the ILO in the field of apartheid.
1. See above No. 5.
2. See below Nos. 259-261.

23 6. At the level of the standards contained in its Conventions, the question

of discrimination was initially considered in a somewhat fragmentary way and
from different points of view until it was dealt with as an overall problem. Thus
the first Conventions in this field aimed at protecting special groups of workers
against particularly serious types of discrimination: this was the case for
women, foreigners, migrant workers, rural workers, workers in non-
metropolitan territories, indigenous and tribal populations, plantations work-
ers, etc. In other cases international standards protected all workers against
certain forms of discrimination e.g. in the fields of employment service, and
more generally employment, abolition of forced labour, vocational training,
remuneration, social security, dismissal etc. The standards adopted in these
different fields are explained in the relevant chapters of this study. In some
instruments with a wider scope, the protection of various categories of workers
is ensured by the generality of the terms used. As was said about the 1948
Freedom of Association Convention, a. provision relating to workers and

104
Discrimination in Employment 237-241
employers 'without distinction whatsoever' clearly aimed at prohibiting any
possible discrimination in this field. It has been also said that the 1957 Aboli-
tion of Forced Labour Convention prohibits the resort to forced labour 'as
means of racial, social, national or religious discrimination'.

237. The principle of non-discrimination was expressed in a more general

way in a 1947 Convention {No. 82) which related to social policy in non-
metropolitan territories and which provided (Art. 18) for the abolition of 'all
discrimination among workers on grounds of race, colour, sex, belief, tribal
association or trade union affiliation', and this in a wide range of fields and in
particular in respect of labour legislation, admission to employment, vocational
training, conditions of work, collective bargaining and wage rates. This Con-
vention was revised in 1962 with a view to making the continued application
and ratification of the new instrument (Convention No. 117) possible for
independent States. 1
1. As regards these Conventions, see below Nos. 409-412.

238. Following a resolution of the Economic and Social Council of the

United Nations 1 in order to complete these various instruments by means of a
set of comprehensive standards, the ILO adopted in 1958 a Convention and a
Recommendation concerning Discrimination in Employment and Occupation
(No. 111). These two instruments are the basic instruments in this field. 2
1. Resolution 545 C(XVIII) of 29 July 1954 inviting the ILO to undertake the study of
discrimination measures in the field of employment and occupation.
2. For the various instruments adopted by the ILO in this field, see Discrimination in Em-
ployment and Occupation: Standards and Policy Statements Adopted under the Auspices ofthe
ILO, ILO, 1967.

239. The policy of apartheid of the Government of South Africa also gave
rise to very acute problems.

240. Finally, as discrimination in employment and occupation are a particu-

lar aspect of the more general phenomenon of discrimination, mention should
also be made in this context of the instruments adopted in this connection by
the United Nations and by UNESCO, as well as at the European level.

§2. THE DISCRIMINATION (EMPLOYMENT AND OCCUPATION) CONVENTION

AND RECOMMENDATION, 1958 (No. 111) 1

241. The Discrimination (Employment and Occupation) Convention, 1958

(No. 111) has been ratified by 96 States.
1. See in this connection the general surveys prepared in 1963 and in 1971 by the Committee
of Experts for the Application of Conventions and Recommendations. See also Fighting
Discrimination in Employment and Occupation (A Workers' Education Manual), ILO, 1968.
As regards national legislation and procedures in this field, see Equality in respect ofEmploy-
ment under Legislation and other National Standards, ILO, 1967, and Special national pro-
cedures concerning non-discrimination in employment -A practical guide, ILO, 1975.

105
242-247 Discrimination in Employment

I. Definition of the Term 'Discrimination'

242. The Convention defines the term 'discrimination' as including 'any

distinction, exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin, which has the
effect of nullifying or impairing equality of opportunity or treatment in em-
ployment or occupation'.

243. The term 'race' cannot be given a very precise scientific definition, the
essential point being the way in which the persons concerned consider their
differences, and the attitudes resulting therefrom in their relations with one
another. Discrimination on account of race or colour stems, as a rule, from
prejudice, but it is often also the result of differences in the degree of social and
economic advancement and may be complicated by conflicts of economic and
sometimes political interests.

244. Discrimination on grounds of sex seems to be the most frequent ob-

stacle met by countries in connection with the ratification of the Convention.
The difficulties relate both to access by women to employment and to condi-
tions of employment, and in particular to equal remuneration. 1
1. See in this connection below, Nos. 455 ss.

245. The term 'national extraction' does not refer to the position of persons
of foreign nationality as such, which is dealt with by other standards, 1 but to
distinctions made in a country between nationals of that country on the ground
of foreign ancestry or foreign birth. 2 Consequently it includes discrimination
against persons who have acquired the nationality of the country concerned
through naturalization, or are descended from foreign immigrants, or belong to
groups of different national extraction living together in the same State.
1. See below Nos. 537 ss.
2. See Rec. Proc. Con f., 42, 1958, p. 710; and Memorandum ofthe ILO in reply to a request
from the Government of Tunisia, O.B. vol. XLII, 1959, No.7, pp. 395-397; Rep. Com. Exp.
1963, pp. 183-184, paras. 27-28.

246. The problem of discrimination on the basis of 'social origin' arises in an

extreme form where society is divided into classes or 'castes', the members of
which cannot have access to certain categories of employment. In societies in
which such rigid classifications have disappeared, prejudice or privilege based
on social origin may arise if steps are not taken to offer to certain classes of
society the same opportunities for training and opportunities to move up the
occupational ladder as are available to others. Social origin may also be
considered as presumptive evidence of certain political opinions which work
either to the advantage or disadvantage of the persons concerned.

247. While referring specifically to the various grounds for which it prohibits
discrimination, the Convention adds that the term 'discrimination' also
includes 'such other distinction, exclusion or preference which has the effect of
106
Discrimination in Employment 248-250
nullifying or impairing equality of opportunity or treatment in employment or
occupation as may be determined by the Member concerned after consultation
with representative employers' and workers' organizations, where such exist,
and with other appropriate bodies'. The other grounds of discrimination to
which attention has been given in certain countries include language, age,
disablement and membership or non-membership of a trade union. Other ILO
instruments also refer to additional grounds of discrimination, such as marital
status. 1 This is the case in the Termination of Employment Recommendation,
1963 (No. 119) which provides that marital status should not constitute a valid
reason for termination of employment, as sometimes happens in the case of
married women.
1. This is the case for the Termination of Employment Recommendation, 1963 (No. 119),
which provides that marital status, inter alia, should not constitute valid reason for termination
of employment.

248. It should also be noted that the discriminatory situations to which the
Convention refers are those which have their origin, not only in law, but also-
as this happens very frequently- in practice. Moreover, the Convention does
not cover only the provisions or practices whose stated aim is to establish or
maintain discrimination, but also those cases where discriminatory situations
have been the objective consequences of provisions intended to be applicable
to all. This results from the generality of the terms of the Convention, which
relates the term of discrimination to distinctions, exclusions or preferences
which have the effect of nullifying or impairing equality of opportunity or
treatment.

II. Measures which are not Deemed to be Discrimination

249. There are certain distinctions, exclusions or preferences which are not
deemed to be discrimination. The Convention refers to those which are based
on the inherent requirements of a particular job, those which relate to activities
prejudicial to the security of the State and those which constitute special
measures of protection or assistance.

250. The Convention states, in the first place (Art. 1, para. 2) that 'any
distinction, exclusion or preference in respect of a particular job based on the
inherent requirements thereof shall not be deemed to be discrimination'. In
this connection distinctions based on sex for certain jobs requiring a high
degree of physical effort were considered as coming under this heading (as well
as under that of special measures of protection). However, it would be incom-
patible with the Convention to exclude women from certain responsible posi-
tions, for example in the civil service, or to take into account political opinions
for appointments in the civil service, apart from certain senior administrative
posts involving special responsibility in the implementation of government
policy. As regards national extraction, certain temporary restrictions concern-
ing access by recently naturalized persons to certain official posts are found in

107
251-252 Discrimination in Employment

the legislation of certain countries and it was felt that 'the desire for assurance
as to the durability and finality of the person's attachment to his new national-
ity' could be taken into account in this connection. 1
1. See Rep. Com. Exp. 1963, pp. 191-192, paras. 41-43.

251. A second category of measures which the Convention (Art. 4) does not
deem to be discrimination are those 'affecting an individual who is justifiably
suspected of, or engaged in activities prejudicial to the security of the State,
provided that the individual concerned shall have the right to appeal to a
competent body established in accordance with national practice'. The purpose
of this provision is to safeguard the security of the State, while affording certain
guarantees to the persons concerned. Its first requirement is that there should
be individual activities (or a strong presumption of such activities) which are
prejudicial to the security of the State. Measures taken merely as a result of
membership of a particular group or community would therefore have a
discriminatory character. Secondly, there should be a right of appeal, and this
presupposes that there should be a 'body' to which appeals can be made, which
should be independent from administrative or governmental authority, hier-
archically above the authority which took the measure, offering guarantees of
independence and impartiality, in a position to ascertain the reasons underly-
ing the measure taken and giving the appellant facilities for fully presenting his
case. 1
1. See Rep. Com. Exp. 1963, pp. 193-194, paras. 47-49.

252. A third category of measures which are not deemed to be discrimina-

tion are 'special measures of protection or assistance provided for in other
Conventions or Recommendations adopted by the International Labour Con-
ference' (Art. 5). This provision mainly relates to the standards concerning the
employment of women or indigenous populations. It is also provided that any
Member State may, after consultation with representative employers' and
workers' organizations, 'determine that other special measures designed to meet
the particular requirements of persons who, for reasons such as sex, age, disable-
ment, family responsibilities or social or cultural status, are generally recognized to
require special protection or assistance, shall not be deemed to be discrimination'.
In relation to measures of this kind the question has arisen as to whether distinc-
tions or preferences resulting from arrangements made in countries comprising
heterogeneous population groups may be considered to be part of a policy
promoting equality of opportunity and treatment. There are, for example,
measures which provide that a certain number of posts should be filled by
members of special categories of the population, previously placed on footing
of inferiority, in order to further their employment prospects and social
advancement. It was felt that arrangements of this kind may be considered as
not constituting discrimination if their effect is to secure an equilibrium be-
tween the different communities and ensure protection of minorities, or to
compensate for discrimination against the economically less advanced popula-
tion group. The compatibility of such measures with the Convention depends

108
Discrimination in Employment 253-254
greatly on the factual situation which would justify them and from their
application in practice. 1
1. See Rep. Com. Exp. 1963, pp. 189-191, para. 39.

III. Individuals and Fields Covered

253. The Discrimination Convention and Recommendation refer to em-

ployment and occupation in a general way, and they contain no provision
limiting their scope, as regards either individuals or occupations. They cover all
human beings and all sectors of activity, public service or private employment,
independent workers as well as wage-earners or salaried employees. The two
instruments provide expressly that 'the terms "employment" and "occupa-
tion" include access to vocational training, access to employment and to
particular occupations, and terms and conditions of employment'. According
to the more specific provisions of the Recommendation (para. 2b) all persons
should enjoy equality of opportunity and treatment in respect of the following
fields:
i) access to vocational guidance and placement services;
ii) access to training and employment of their own choice on the basis of
individual suitability for such training or employment;
iii) advancement in accordance with their individual character, experience,
ability and diligence;
iv) security of tenure of employment;
v) remuneration for work of equal value;
vi) conditions of work including hours of work, rest periods, annual holidays
with pay, occupational safety and occupational health measures, as well as
social security measured and welfare facilities and benefits provided in
connection with employment.
It is added in the Recommendation (para. lf) that 'employers' and workers'
organizations should not practise or countenance discrimination in respect of
admission, retention of membership or participation in their affairs'.

IV. Action Designed to Eliminate Discrimination

254. The Convention and the Recommendation describe in general terms

the action designed to eliminate discrimination and emphasize more the objec-
tives to be attained than the means to be used to that effect. The first undertak-
ing of States Parties to the Convention (Art. 2) is to declare a national policy
designed to promote equality of opportunity and treatment in respect of
employment and occupation. Secondly, the obligation of States Parties is to
pursue such policy. However, the Convention provides that the implementa-
tion of this policy must be made 'by methods appropriate to national conditions
and practice'. It does not therefore require that a given method be resorted to
or that all discrimination be immediately eliminated. The objective of the
national policy should certainly be to eliminate all the types of discrimination

109
255-257 Discrimination in Employment

referred to by the Convention, but the latter leaves it to the discretion of States
to adopt the methods and the timing of its application. The method will largely
depend on the nature and extent of the problem in each country, as well as on
its legal system and its practice. It will also often happen that the process of
elimination of discriminatory practices cannot but be gradual.

255. The Convention lists, however (Art. 3) a number of measures to be

taken by States in carrying out a national policy against discrimination. It
provides that each State bound by the Convention 'undertakes, by methods
appropriate to national conditions and practice -
a. to seek the co-operation of employers' and workers' organizations and other
appropriate bodies in promoting the acceptance and observance of this
policy;
b. to enact such legislation and to promote such educational programmes as
may be calculated to secure the acceptance and observance of the policy;
c. to repeal any statutory provisions and modify any administrative instructions
or practices which are inconsistent with the policy;
d. to pursue the policy in respect of employment under the direct control of a
national authority;
e. to ensure observance of the policy in the activities of vocational guidance,
vocational training and placement services under the direction of a national
authority.'

256. Various other measures are also listed in the Recommendation, such as
promoting, where practicable and necessary, the observance of the principles
of non-discrimination, in respect of employment and vocational guidance, etc.
other than those under the direct control of a national authority, by various
methods such as encouraging State, provincial or local government depart-
ments or agencies and industries and undertakings operating under public
ownership or control to ensure the application of the principles, making eligi-
bility for contracts involving the expenditure of public funds dependent on
observance of the principles and eligibility for grants to training establishments
and for a licence to operate a private employment agency or a private voca-
tional guidance office dependent on observance of the principles. The Recom-
mendation also contemplates the establishment of appropriate agencies for the
purpose of promoting application of the policy and in particular to take
measures to foster public understanding and acceptance of the principles of
non-discrimination and to examine and investigate complaints. It advocates
continuing co-operation of the competent authorities with appropriate bodies
to consider what further measures may be necessary, as well as with the
authorities responsible for action against discrimination in other fields.

257. In considering the various measures which are advocated by the Con-
vention and the Recommendation and their respective roles, account should be
taken of the situations which these measures should remedy and the double
objective which is aimed at: the elimination of inequality of treatment and the
promotion of equality of opportunity. In this connection, discrimination no

110
Discrimination in Employment 258-260

longer results generally from legislation (apart from some exceptional cases)
but from factual situations and from the attitudes of mind and behaviour of
individuals or groups, due to prejudice or interest. The fight against such a
social phenomenon should therefore not be limited to legislative action, but
should also comprise practical measures and in particular educational pro-
grammes. Moreover, inequality of opportunity and of treatment often results
from inequality in the economic condition of various ethnic groups or simply
from differences in individual situations due to education and training
received, sex or the milieu in which people are living. Thus action in favour of
real equality of opportunity calls for extensive measures in the field of educa-
tion, and of vocational training, of placement services and of social promotion.
These measures should be part in the wider framework of long-term policies of
sustained and balanced economic growth which could guarantee to the whole
community opportunities for technical training and employment.

258. In these circumstances, taking account of the nature of the problems to

be solved as well as of the provisions of the Convention, the adoption of
legislative steps cannot be considered as being necessary and sufficient in all the
fields covered by the Convention. However, among the various methods which
can be followed by means of a national policy of equality of opportunity and of
treatment, legal standards have an important role to play. First, because in any
event the Convention contains the obligation to repeal any legislative provision
which might be incompatible with a non-discriminatory policy. Secondly,
because official legal standards may be very influential in rallying public
support to a national policy of equality in the field of employment. However,
the scope and the precise legal effects of national standards in this matter, as
well as the fields which such standards should cover could well vary consider-
ably in relation to each national situation and each legal system.

§3. THE ACTION IN THE FIELD OF 'APARTHEID'

259.Apartheid, which is practised in the Republic of South Africa differs

basically from the situation in other countries where a certain measure of
discrimination still persists. In South Africa, racial segregation constitutes the
deliberate policy of the government and its effects in the field of employment
are particularly severe. The effect of the South African legislation is to deprive
African workers of opportunities for training, employment and promotion to a
large number of jobs, by the application of a system of barriers based on race, to
subject these workers to lower wages and conditions of work, to deprive the
greater part of African workers of any job security, and reduce their status to
that of migrant workers, to exclude African workers from the normal system of
collective bargaining, to refuse to recognize officially trade unions of African
workers and to prohibit these workers from going on strike, subject to heavy
penalties.

260. For these reasons the International Labour Conference adopted

111
261 Discrimination in Employment

unanimously, in 1964, a 'Declaration concerning the policy of apartheid in

labour matters in the Republic of South Africa'. This Declaration is based on
the principle, contained in the Declaration of Philadelphia, according to which
'all human beings, irrespective of race, creed or sex, have the right to pursue
both their material well-being and their spiritual development in conditions of
freedom and dignity, of economic security and equal opportunity'. It was also
based on the fact that, by virtue of the Constitution of the ILO, which the
Republic of South Africa had undertaken 'to perform and carry out', the
Organization was created for the promotion of the objects set forth, in particu-
lar, in the Declaration of Philadelphia. On this basis, the International Labour
Conference, 'acting as spokesman of the social conscience of mankind', con-
demned the policy of apartheid and called upon the government of South
Africa to renounce it by repealing the various provisions by which it was
created. At the same time, the ILO established a detailed programme for the
elimination of apartheid in labour matters, which contains specific recommen-
dations on the changes which should take place in three broad areas, namely
equality of opportunity in respect of admission to employment and training,
freedom from forced labour and freedom of association and the right to
organize.

261. The Conference also requested the Director-General of the ILO to

follow the situation in South Africa and to submit to it every year a special
report concerning the application of the Declaration. While the government of
South Africa withdrew from the ILO shortly afterwards, special reports on its
policy of apartheid continue to be submitted each year to the International
Labour Conference. These reports analyse the events which have taken place
in this field both in South Africa (and they concentrate every year on one or
more aspects of the labour situation in South Africa) and at the international
level. They tend to show the way to a change of policy and they indicate, in this
connection, the positive methods which should be taken in the field of labour in
order to ensure the transition from a society established on the principle of
separation of races to a society based on equality of opportunity and of
treatment. 1 Studies were also made of the problems of discrimination in labour
matters in Namibia and in Southern Rhodesia. 2 In June 1978, the Conference
held a special sitting on apartheid3 and its President concluded by expressing
the wish that a Committee or Special Tripartite Group be set up to promote
efficient compliance with action against apartheid in labour matters.
1. For the 'Declaration concerning the policy of apartheid of the Republic of South Africa', the
'ILO Programme for the Elimination of Apartheid in Labour Matters in the Republic of South
Africa' and the two special reports submitted to the Conference in 1965 and 1966, see
'Apartheid' in Labour Matters, Geneva, 1966. The subsequent reports, from 1967 to 1978, are
available as special reports submitted to the corresponding sessions of the Conference. A
booklet on The fLO and Apartheid was published in 1969 and more recent editions have been
published since.
2. See Labour and Discrimination in Namibia, ILO, Geneva, 1977, and Labour Conditions
and Discrimination in Southern Rhodesia (Zimbabwe), ILO, Geneva, 1978.
3. See Provisional Rec. Proc. Conf. 1978, Nos. 19 and 20, pages 19/1 to 20/21.

112
Discrimination in Employment 262-265

§4. OTHER INTERNATIONAL STANDARDS

262. The 1948 Universal Declaration on Human Rights provided in Article 2

that everyone is entitled to all the rights and freedoms which are set forth in the
Declaration 'without distinction of any kind, such as race, colour, sex, lan-
guage, religion, political or other opinions, national or social origin, property,
birth or other status'. A provision drafted in analogous terms but formulated as
an undertaking of States Parties is contained in the International Covenant on
Economic, Social and Cultural Rights (Art. 2, para. 2). As both the Declaration
and the Covenant also deal with the free choice of employment1 and other
rights in the labour field, the principle of non-discrimination should apply to all
these rights. This principle.is specifically reaffirmed in some other provisions of
the Covenant, as in the field of remuneration (Art. 7a). The Covenant on Civil
and Political Rights also contains a general provision (Art. 2, para. 1) similar to
that of the Covenant on Economic, Social and Cultural Rights.
1. See above No. 229.

263. As regards more particularly racial discrimination, the General

Assembly of the United Nations adopted first, in November 1963, a Declara-
tion on the Elimination of All Forms of Racial Discrimination and later, in
December 1965, an International Convention on that subject. The Convention
entered into force in January 1969 and has been ratified by 100 States. After
having recalled in its Preamble that the States Parties bear in mind, in particu-
lar, the ILO Convention and Recommendation concerning discrimination in
respect of employment and occupation, the UN Convention, which adopts
certain of the definitions of these standards, provides (Art. 5) that 'States
Parties undertake to prohibit and to eliminate racial discrimination in all its
forms and to guarantee the right of everyone, without distinction as to race,
colour, or national or ethnic origin, to equality before the law in the enjoyment'
of a certain number of rights. Among these rights the Convention refers to
economic, social and cultural rights, and in particular to the rights to work, to
free choice of employment, to just and favourable conditions of work, to
protection against unemployment, to equal pay for equal work, to just and
favourable remuneration, the right to form and join trade unions, the right to
housing, the right to public health, medical care, social security and social
services and the right to education and training.

2 64. In the field of education, the General Conference of UNESCO adopted

in December 1966 a Convention and a Recommendation against Discrimina-
tion in Education. The Convention entered into force in May 1962.

265. At the regional level, the instruments are less numerous and less
precise. Thus, it has been considered that discrimination in employment is
implicitly prohibited by a provision (Art. 1, para. 2) of the European Social
Charter relating to 'the right of the worker to earn his living in an occupation
freely entered upon'. 1 The European Convention on Human Rights provides
113
266 Employment

more specifically (Art. 14) that the enjoyment of the rights and freedoms set
forth in this Convention- and which, as stated above, include the prohibition of
forced labour and the right to form and join trade unions - 'shall be secured
without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status'.
1. The question of equal remuneration between men and women, which will be dealt with later
(Nos. 455 ss.), is covered by a special provision of the Charter.

Chapter IV. Employment

§ 1. GENERAL OUTLINE

266. While, for the individuals concerned, employment is the basic condition
for all other labour rights, the level of employment in a country is, more
generally, a basic element for the development, the prosperity and the stability
of the nation. Moreover, problems of employment and of population can have
international repercussions. Problems of employment vary considerably from
one region to another and between developed and developing countries. In
Europe, the memories of the big economic depression of the thirties had
dimmed, at least until a few years ago, but they inspired, after the Second
World War, policies aiming at ensuring full employment. In the developed
countries, most of which had practically reached full employment, the problem,
until recently, was mainly to ensure the expansion of the economy while
maintaining stability of prices and the highest possible level of employment.
Under certain conditions, these three objectives did not seem to be incompat-
ible. They were even interrelated and could reinforce one another through an
active employment policy. However, the recession of the most recent period
gave an acute character to the problem of employment, even in developed
countries, while outside Europe unemployment and underemployment con-
tinued to prevail in large parts of Africa, Asia and the Americas. The adoption
of international labour standards cannot, of course, bring by itself a solution to
the problem. Employment raises broad questions of economic financial and
monetary policy which go well beyond labour problems in the strict sense 1 and
it finally calls for action of a practical character. International standards can,
however, establish principles which might promote systematic and coordinated
national and international action.
1. The relationship between economic and social matters has been often discussed since the
establishment of the ILO. In the thirties, at the time of the massive unemployment caused by
the economic crisis, the International Labour Conference adopted, in 1932, a resolution
recommending the launching of big international and national works, the settlement
of the general problems of currency and training and the examination of the problems of
production and international trade. In 1944, the Declaration of Philadelphia underlined the
link between the social objectives of the ILO and international and national policies of an
economic and financial character and affirmed that these policies should be judged from
the point of view of their repercussion on the achievement of fundamental social objec-
tives.

114
Employment 267-269
267. In this connection, ILO standards have, since the establishment of the
organization, followed an evolution and a development corresponding to the
change in the situation and conditions since 1919. Initially, the questions
which, in the field of employment, were given more attention were the immedi-
ate problems of unemployment, and later of placement. The Preamble of the
ILO Constitution listed 'the prevention of unemployment' among the main
objectives of the organization. Unemployment was the subject, in 1919, of the
second Convention adopted by the ILO. Moreover the special problems of the
unemployment of young persons, as well as the organization of public works,
first as a means of action against unemployment, and later on from a more
general point of view, were the subject of various Recommendations. As far as
placement is concerned, it was regulated, in the first instance, for seamen, by a
Convention of 1920. At a later stage, the fee-charging employment agencies
were dealt with by a Convention (No. 34) of 1933 which was to be revised in
1949. Vocational education, vocational training and apprenticeship have also
been the subject of various Recommendations, most of which were adopted
shortly before the Second World War. The question of migrant workers was
also dealt with at that period, in instruments which related both to questions of
employment and to equality of treatment, and which were revised at a later
stage. 1 Useful as these may have been, the standards thus adopted in that first
period were mainly centered, in the field of employment, on immediate prob-
lems and they had a rather fragmentary character.
1. See below Nos. 539 ss.

268. In this field as in others, the 1944 Declaration of Philadelphia gave to

the ILO a source of inspiration and the basis of a comprehensive programme
for the years to come. The Declaration of Philadelphia put special emphasis on
full employment but it also underlined the importance of economic growth. It
stressed the need for coordinated international action bearing on the various
economic factors which can influence employment and development. It refer-
red to the employment of workers in the occupations in which they can have the
satisfaction of giving the fullest measure of their skill and attainments and make
their greatest contribution to the common well-being. It stressed, more gener-
ally, the need for a 'fuller and broader utilization of the world's productive
resources' and for effective international and national action, including meas-
ures to expand production and consumption, to avoid severe economic fluctua-
tions, to promote the economic and social advancement of the less developed
regions of the world, etc.

269. During the years which followed, the ILO developed both its standard-
setting and its practical activities in the field of employment. As compared with
those adopted during the preceding period, the new standards have a more
systematic character and provide an overall view of the question. Thus a 1948
Convention and Recommendation dealt in detail with the organization of the
public employment service. The following year, these standards were sup-
plemented by the revision of the 1933 Fee-charging Employment Agencies
Convention. In the field of vocational training, standards more adapted to

115
270-272 Employment

present conditions were adopted in 1962 and they were followed, in 1975, by
two instruments, wider in conception on vocational guidance and vocational
training in the development of human resources. However, it is mainly in the
field of employment policy that the standard-setting activity of the ILO has
been of the greatest importance: by the breadth of their conception, the
Convention and Recommendation adopted on this subject in 1964 have
become fundamental instruments in this field.

270. As regards the practical activities of the ILO, the majority of such
activities relate to questions concerning employment. In 1969, the ILO
launched a World Employment Programme which aimed at giving active
encouragement to the adoption of national development policies which treat
employment as one of their priority objectives. In June 1976, the ILO con-
vened a Tripartite World Conference on Employment, Income Distribution
and Social Progress, and the International Division of Labour. The question of
the follow-up of that Confere~ce has been placed on the agenda of the 1979
General Conference (for a general discussion on basic needs).

§2. EMPLOYMENT POLICY

271. The first suggestions for an active employment policy can be found in a
1937 Recommendation on public works. A more comprehensive approach to
the organization of employment, introducing the concepts of full employment
and of a systematic use of human and material resources, was attained in
Recommendations Nos. 71, 72 and 73 of 1944 and they helped to determine
the description of the functions of the employment service as spelled out in the
1948 Convention and Recommendation. 1 The latest stage of the standard-
setting activities of the ILO in the field of employment was the adoption in
1964, of the Employment Policy Convention and Recommendation, 2 which
placed the problem in a wider context, were based on the concept of economic
growth and duly took account of the human factor in the development of the
economy. During the same period, the OECD Council adopted a recommen-
dation on manpower policy as a means for the promotion of economic growth.
1. See below No. 290.
2. About these instruments, see the general Survey of the Committee of Experts (Report III,
Part 4B) in 1972.

272. The Employment Policy Convention, 1964 (No. 122), provides, for
each State which ratifies it, the obligation to declare and pursue, as a major
goal, an active policy designed to promote full, productive, and freely chosen
employment. This policy should aim at ensuring that there is work available for
all who are available for and seeking work; that work should be as productive as
possible, and that there should be freedom of choice of employment and the
fullest possible opportunity for each person to qualify for, and to use his skills
and endowments in, a job for which he is well suited, irrespective of race,
colour, sex, religion, political opinion, national extraction or social origin. The

116
Employment 273-274
employment policy should take due account of the stage and level of economic
development and be pursued by methods appropriate to national conditions
and practices. The measures to be adopted for attaining the objectives specified
by the Convention should be decided on and kept under review within the
framework of a co-ordinated economic and social policy, and steps should be
taken as may be needed, including, when appropriate, the establishment of
programmes. Representatives of employers and workers should be consulted
concerning employment policies, with a view to taking fully into account their
experience and views and securing their full co-operation in formulating and
enlisting support for such policies.

273. While the guidelines contained in the Convention are in rather general
terms, they are supplemented by the much more detailed and precise provi-
sions which are contained in the Employment Policy Recommendation (No.
122). This Recommendation defines, in the first instance, the objectives of
employment policy, and then deals with its general principles as well as with the
general (long-term and short-term) and selective measures of such policy. It
also considers the employment problems associated with economic underde-
velopment and more particularly investment and income policy, promotion of
industrial and of rural employment and population growth. The Recommenda-
tion also refers to action by employers and workers and their organizations and
to international action to promote employment objectives. Finally an annex to
the Recommendation contains very detailed suggestions concerning methods
of application.

274. The Employment Policy Convention and Recommendation are con-

sidered as being among the fundamental instruments of the ILO. They are also
those which are the most directly connected with its practical activities, and in
particular its World Employment Programme, 1 launched in 1969. Some gov-
ernments consider that they cannot ratify the Convention because they think it
is impossible to realize its objective in due course. In fact the Convention does
not require States to undertake to achieve full employment within a given time
limit but rather to pursue a policy designed to promote it. Other problems
relate to the inadequacy of the administrative structure of certain countries.
Generally speaking, the present number of ratifications of the Convention ( 63)
is very satisfactory and its implementation is followed closely by the supervis-
ory bodies of the ILO. In the years which followed the adoption of the
Convention, the size of the employment problem became more and more
apparent, with an estimated 300 million unemployed and underemployed in
the Third World and the prospect of having to create 1000 million new jobs in
the next 25 years. In addition, the concern for the problems of unemployment
and underemployment extended to the problem of poverty, which touches a
great number of workers who are employed but do not have a sufficient
income. In 1976, therefore, the ILO convened a Tripartite World Conference
on Employment, Income Distribution and Social Progress and the Interna-
tional Division of Labour, 2 which adopted a detailed Declaration of Principles
which constitute the guidelines for a Programme of Action in this field. It is

117
275-276 Employment

stated in the Declaration that a priority objective of national development

plans and policies should be the promotion of employment and the satisfaction
of the basic needs of each country's population. The Conference saw increased
productive employment as a vital factor in the basic needs strategy designed to
provide a national minimum level for such essentials as food, shelter, clothing
and community services. It spelled out the implications of such a policy in the
field of international co-operation. The programme of action also focused on
three aspects of the effort to promote employment: international action to limit
the harmful effects of migration on people and their countries; the develop-
ment of technologies which are best suited to the resources and future
development potential of developing countries; and determined efforts to
achieve full employment in developed countries. It was not possible to reach
consensus on the role of multinational enterprises in developing countries.3 In
June 1979 the International Labour Conference will have on its agenda the
question of the follow-up of the World Employment Conference (Basic Needs)
for a general discussion resulting possibly in the adoption of standards.
1. The World Employment Programme was one of the main contributions of the ILO to the
Second United Nations Development Decade. In the framework of this programme employ-
ment strategy missions were sent, as from 197Q, to Columbia, Sri Lanka, Iran, Kenya,
Philippines, Dominican Republic and Sudan and recommendations in the field of employment
policy were prepared for the governments concerned. Other studies and reports were pre-
pared for various other governments and regional employment teams have been active in
many countries of Latin America, Africa and Asia.
2. See Employment, Growth and Basic Needs. A world problem. ILO 1976. Report of the
Director-General of the ILO, on the basis of which the work of that Conference was based.
3. As regards multinational enterprises, see below No. 415.

275. In the field of standards, the 1976 World Employment Conference

stated that Member States should ratify the Employment Policy Convention
(No. 122)- but also that the question of its revision should be considered-that
States should also implement and safeguard fair labour standards, such as the
right to organize and to engage in collective bargaining, as laid down in
Conventions Nos. 87, 98 and 135 and implement active labour market policies
of the type set forth in the Human Resources Development Convention, 1975
(No. 142) and Recommendation (No. 150).

§3. UNEMPLOYMENT

I. The Unemployment Convention, 1919 (No. 2)

276. Unemployment was dealt with in one of the first Conventions of the
ILO, Convention No. 2 of 1919, which has been ratified by 50 States. The
Convention provides for the establishment, in ratifying countries, of a system
of free public employment agencies, under the control of a central authority.
Committees including representatives of employers and workers should be
appointed to advise on the carrying on of these agencies. Where both public
and private free employment agencies exist, steps should be taken to co-
118
Employment 277-278
ordinate their operations. The Convention also referred to systems of insur-
ance against unemployment. The principles contained in the Convention were
naturally essential for any action against unemployment, but they called for still
more precise standards. As will be said below, various instruments deal in
detail with the organization of an employment service 1 and with unem-
ployment insurance. 2 In order to fight against unemployment, Recommenda-
tions were also adopted in two more specific fields: the unemployment of
young persons and the organization of public works.
1. See below No. 290.
2. See below Nos. 418 ss.

II. The Unemployment of Young Persons

277. With a view to supplementing a 1934 convention and recommendation

on unemployment insurance and assistance, a Recommendation (No. 45) on
unemployment among young persons was adopted the following year. In the
Preamble, this instrument emphasized that involuntary idleness may under-
mine the characters and diminish the occupational skill of young persons and
menace the future development of nations. Taking into account the experience
already gained in many countries, the Recommendation advocated a series of
concrete measures dealing with the school-learning age, the age for admission
to employment, general and vocational education, recreational and social
services for the young unemployed and action by trade organizations and
private organizations. It also suggested the establishment of special employ-
ment centres for young unemployed persons, attendance at which should be
strictly voluntary and which should offer various guarantees. Other suggestions
related to the organization of public works for unemployed young persons,
placing services and the development of opportunities for normal employment
and the compilation of special statistics showing the extent of unemployment
among persons below the age of 25. The question of special youth employment
and training schemes for development purposes has been already dealt with
above. 1
1. See Nos. 222-223 above.

III. The Organization of Public Works

278. One of the traditional means of combating unemployment has always

been public works, and the Conference has suggested, as from 1919, in the
Unemployment Recommendation (No.1), that States reserve public works as
far as practicable for periods of unemployment. In 1937 the Public Works
(International Co-operation) Recommendation (No. 50) was the first to
launch the idea of an international plan of public works, while the Public Works
(National Planning) Recommendation (No. 51) advocated a number of meas-
ures aiming at a suitable timing of public works in such a way as to reduce
industrial fluctuations and unemployment. After the Second World War, these

119
279-282 Employment

standards were supplemented by the Public Works (National Planning)

Recommendation, 1944 (No. 73) which, apart from the concern for a proper
timing of public works, sprang from needs arising out of the war.

§4. PLACEMENT

279. Already dealt with in principle in Convention No.2 of 1919, which had
provided for the establishment of a system of public employment agencies, and
in Convention No. 9 of 1920 for seafarers, the question of placement was
afterwards approached under its two complementary aspects: that of the
abolition- or regulation- of fee-charging employment agencies and that of the
organization of a public employment service.

I. The Abolition or Regulation of Fee-Charging Employment Agencies

280. While Recommendation No.1 of 1919 suggested the prohibition of the

establishment of fee-charging employment agencies and, for agencies already
existing, a system of government licences and their abolition as soon as pos-
sible, it was a Convention No. 34 of 1933 which dealt with these agencies in a
more general way. As it was ratified only by a limited number of countries (no
more than ten), it was revised in 1949 to make it more flexible. The new
Convention relating to Fee-Charging Employment Agencies (No. 96) of 1949,
gives to States which ratify it the choice between two alternatives: either the
progressive abolition of fee-charging employment agencies conducted with a
view to profit and the regulation of other agencies, or the regulation of
fee-charging employment agencies in general.

A. The Progressive Abolition of Fee-Charging Employment Agencies

Conducted with a View to Profit and the Regulation of the
Other Employment Agencies

281. For governments which accept the first alternative, the Convention
provides that fee-charging employment agencies conducted with a view to
profit should be abolished within a limited period of time determined by the
competent authority. This abolition should not take place until a public em-
ployment service is established. Different periods may be prescribed for the
abolition of agencies catering for different classes of persons. During the period
preceding abolition, these agencies shall be subject to supervision and shall
only charge fees and expenses approved by the competent authority, which
shall consult the employers' and workers' organizations concerned.

282. Exceptions to the abolition of these employment agencies may be

allowed by the authorities in exceptional cases in respect of categories of
persons, exactly defined by national legislation, for whom appropriate placing

120
Employment 283-287

arrangements cannot conveniently be made within the framework of the public

employment service, but only after consultation of the organization of emp-
loyers and workers concerned. The agencies for which such an exception is
allowed shall be subject to the supervision of the competent authority. They
shall be required to be in possession of a yearly licence renewable at the
discretion of that authority. They shall only charge fees and expenses on a scale
approved by that authority. They shall place or recruit workers abroad only if
permitted to do so and under conditions determined by the legislation. The
reports on the application of the Convention• should include information
concerning the exceptions allowed, the number of agencies concerned and the
scope of their activities, the reason for the exceptions and the arrangements for
supervision of the activities of those agencies.
1. See below Nos. 591-592.

2 83. Fee-charging employment agencies not conducted with a view to profit

shall be required to have an authorization and shall be subject to the supervi-
sion of the authorities. Charges and recruitment abroad are submitted to
conditions similar to those mentioned above.

284. As regards non-fee-charging agencies, the competent authority should

satisfy itself that they carry on their operations gratuitously.

285. Penalties, including the withdrawal of the licence or authorization

should be prescribed in case of violation of the provisions of the convention or
of the legislation giving effect to them.

B. The Regulation of Fee-Charging Employment Agencies

286. The second alternative given to ratifying States is to accept, instead of

the abolition, the regulation of Fee-Charging agencies. In this case, their
obligations in respect of fee-charging employment agencies conducted with a
view to profit are analogous to those provided for, under the first alternative, in
respect of the agencies conducted with a view to profit for which exceptions are
allowed. As regards the other categories of agencies, and the questions of
penalties and of information to be supplied in annual reports, the rules are
similar in both cases.

C. Ratification and Problems of Application of Convention No. 96

287. Convention No. 96 has been ratified by 36 States, the great majority of
which have accepted the first alternative offered by the Convention, i.e. the
progressive abolition of fee-charging agencies conducted with a view to profit
and the regulation of the other agencies. The application of the Convention has
given rise to certain problems as regards the placement of performers and
domestic servants.

121
288-289 Employment

D. The Problem of Temporary Work Agencies

2 88. In recent years, with the development of temporary work agencies, the
question has arisen as to whether these agencies are covered by the Conven-
tion.1 The question was put to the ILO in 1965 by the Government of Sweden
and the reply2 was that these agencies are covered by the definition of fee-
charging employment agencies conducted with a view to profit given by the
Convention (any agency which acts as an intermediary for the purpose of pro-
curing employment for a worker or supplying a worker for an employer). The
opinion of the ILO was that the Convention is applicable even to cases in which
a contractual relationship is established between the worker and an agency and
not between the worker and the person or undertaking at whose disposal he is
placed by that agency, as the essential test is the actual nature of the transaction
rather than its legal form. Account was also taken, in this connection, of a
number of elements: the temporary work agency assumes no responsibility for
the work performed; the temporary worker is paid only when he is placed at the
disposal of a third party; it is the third party who decides what work is to be
carried out and supervises its execution, and the temporary worker is under his
authority; in many cases he becomes an integral part of the personnel of the
undertaking making use of his services. This being so, while the agencies
concerned should be considered as covered by the Convention, it may well be
that the public employment service would be reluctant to assume the special
type of duty which the temporary employment agencies undertake for their
clients. Governments may therefore feel that they could resort, in respect of
these agencies, to the exceptions allowed by the Convention for the 'categories
of persons for whom appropriate placing arrangements cannot conveniently be
made within the framework of the public employment service'. Governments
should then consult the employers' and workers' organizations and observe,
mutatis mutandis, the measures of supervision and the limitations provided for
in such cases by the Convention.
1. See Valticos, 'Temporary Work Agencies and International Labour Standards', l.L.R.
January 1973, pp. 43-56; Travail temporaire dans Ia societe moderne, Actes de Ia Conference
internationale de l'Institut international du travail temporaire, Bruxelles, 1976.
2. See O.B. July 1966, pp. 390-396.

II. The Employment Service

289. The abolition of fee-charging employment agencies conducted with a

view to profit can naturally be envisaged- and this is recognized by convention
No. 96- only to the extent to which there exists a public employment service,
which should be able to perform the functions which were filled by these
agencies. The obligation to establish a system of public employment agencies
was provided for in general terms by Convention No.2 as early as in 1919.
Some years later, in 1933, with a view to supplementing Convention No. 34,
which envisaged the abolition of fee-charging employment agencies, a

122
Employment 290-293

Recommendation (No. 42) advocated various measures, such as having

specialized offices for particular occupations, aimed at solving the difficulties
which would arise if these public employment offices were not in a position to
take the place completely of the fee-charging agencies which would be
abolished. It was, however, only in 1948 that the Employment Service Conven-
tion (No. 88) introduced precise standards on the organization of a public
employment service.

290. Convention No. 88 of 1948 provides that ratifying States shall maintain
or ensure the maintenance of a free public employment service, the essential
duty of which shall be to ensure the best possible organization of the employ-
ment market as an integral part of the national programme for the achievement
and maintenance of full employment and the development and use of produc-
tive resources. It contains detailed provisions relating to the organization of the
service and its co-operation with other bodies with a view to ensuring effective
recruitment and placement. It provides for the co-operation of representatives
of employers and workers through advisory committees and other arrange-
ments. It defines the functions of the employment service and the measures
which should be taken by it and refers to the needs of particular categories of
applicants. The Convention also contains provisions on the status and the
conditions of service of the staff of the employment service. A Recommenda-
tion (No. 83) was adopted at the same time as the Convention and contains a
number of supplementary provisions.

291. The convention has been ratified by 66 States. In 1971 it was

denounced by Italy (because employers and workers were not participating in
equal numbers in the employment committees) and by the United Kingdom
(because the Government was considering introducing a system of charges to
employers for services in connection with professional and executive vacan-
cies). The Government of the United Kingdom stated however that in all other
respects it would consider itself still bound by the Convention and would, on a
voluntary basis, supply reports on its application.

292. The difficulties encountered in the ratification and the application of

the Convention sometimes relate to the actual establishment of an employment
service which, in certain countries, faces budgetary difficulties and personnel
problems. In other cases, the obstacles are due to the organization, the compe-
tence and the working of the existing service, as they are not in full conformity
with the standards of the Convention. However, the Convention has influenced
the establishment and the organization of numerous national employment
services and many governments continue to take it into account in the progres-
sive development of these services.

§5. APPRENTICESHIP, VocATIONAL GUIDANCE AND TRAINING

293. The Preamble of the ILO Constitution already referred in 1919, to 'the

123
294-295 Employment

organization of vocational and technical education' among the improvements

to be made in conditions of work. In 1921 a Recommendation (No. 15) was
adopted as regards the development of technical agricultural education and, in
1937, together with various instruments concerning the building industry, a
Recommendation (No. 56) referred to vocational education in that industry.
The problem as a whole was however first dealt with in detail in two Recom-
mendations of 1939 concerning Vocational Training (No. 57) and Apprentice-
ship (No. 60). After the Second World War, while further Recommendations
dealt with vocational training of special categories of workers, as in the case of
seafarers (No. 77 of 1946), fishermen (No. 126 of 1966), and in agriculture
(No. 101 of 1956) a recommendation of a general character (No. 87) on
vocational guidance was adopted in 1949 and it was followed, in 1950, by a
Recommendation (No. 88) on vocational training of adults, including disabled
persons. In 1962, the question of vocational training was dealt with in a more
up-to-date Recommendation (No. 117) of a wider scope, which replaced the
previous Recommendations on the subject. Finally, in 1975, two more broadly
conceived instruments were adopted: the Convention (No. 142) and Recom-
mendation (No. 150) concerning vocational guidance and vocational training
in the development of human resources. The latter instrument, which is very
detailed, supersedes Recommendations Nos. 87 of 1949, 101 of 1956 and 117
of 1962. Apart from these various instruments, which deal mainly with voca-
tional training, many Conventions and Recommendations relating to other
questions (social policy, plantations, indigenous and tribal populations) also
include provisions on vocational training.

§6. OTHER INTERNATIONAL STANDARDS

294. The Universal Declaration of Human Rights affirms (Art. 23 para 1)

that 'everyone has the right to work, to free choice of employment ... and to
protection against unemployment'. In the International Covenant on Economic,
Social and Cultural Rights (Art. 6), it is also provided that the States Parties
'recognize the right to work, which includes the right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts, and
will take appropriate steps to safeguard this right', and that the steps to be
taken by a State Party 'to achieve the full realization of this right shall include
technical and vocational guidance and training programmes, policies and tech-
niques to achieve steady economic, social and cultural development and full
and productive employment under conditions safeguarding fundamental poli-
tical and economic freedoms to the individual'.

295. At the European level, the European Social Charter contains certain
provisions in the field of employment. It provides in particular that Contracting
Parties undertake 'to accept as one of their primary aims and responsibilities
the achievement and maintenance of as high and stable a level of employment
as possible, with a view to the attainment of full employment' (Art. 1, para 1).
The reference to full employment was included in this provision following a

124
Wages 296-298

suggestion of the workers' members at the Tripartite Conference and in view of

the fact that such an objective had also been mentioned in the Employment
Service Convention, 1948 (No. 88) of the ILO. There was unanimous agree-
ment on the inclusion of such a reference. Under the European Social Charter
also States Parties undertake 'to establish or maintain free employment
services for all workers (Art. 1, para 3)' and 'to provide or promote appropriate
vocational guidance, training and rehabilitation'. In other provisions it deals
with the right to vocational training (Art. 10) and the right of physically or
mentally disabled persons to vocational training, rehabilitation and social
resettlement (Art. 15.) On the whole, these various provisions follow to a large
extent, although in general terms, the corresponding standards of the ILO and
in their final wording account was taken of suggestions put forward at the
Tripartite Conference.

296. As for the European Communities, they have devoted an important

part of their activities to problems of employment, and this will be shown in the
study relating to these Communities.

297. Finally, as indicated above/ bilateral agreements of varying scope are

often concluded on the immigration of foreigners, circulation of persons,
employment or manpower, and they contain mainly provisions on the recruit-
ment and immigration of workers, on equality of treatment and sometimes on
facilities to bring families together and on vocational training. Provisions on the
training of executives are sometimes included in agreements on cultural, scien-
tific and technical co-operation.
1. See above Nos. 143-150.

Chapter V. Wages
§ 1. GENERAL OUTLINE

298. While wages are one of the main elements of conditions of employment
and constitute an important question of labour law, it is clearly difficult to
regulate the subject internationally in any precise way. There have naturally
been various provisions of a general character about wages in international
instruments. Thus, in 1919, the preamble of the ILO Constitution refused to
'the provision of an adequate living wage' and Art. 41 of the original text
(Article 427 of the Treaty of Versailles) included, among the General Prin-
ciples of the Organization, 'the payment to the employed of a wage adequate to
maintain a reasonable standard of life as this is understood in their time and
country'. In 1944, the Declaration of Philadelphia reaffirmed the need for 'a
minimum living wage to all employees and in need of such protection'. Other
international instruments, and in particular the Universal Declaration of
Human Rights, also refer to the principle of 'just and favourable remunera-
tion', as this will be seen later. 1 However, to reach concrete results, interna-
tional action has of course to go beyond general principles. On the other hand,

125
299-301 Wages

there is a field in which it would be hardly possible to envisage precise interna-

tional regulations: this is the actual amount of the wages, as this depends closely
on the economic, social and political conditions of each country. Nevertheless,
there are other - and important - aspects of wages on which it appeared
possible, and even essential, to establish more precise international standards.
1. See below No. 323.

299. Thus, standards were first set for the cases of exceptionally low wages.
As from 1926, several instruments were adopted to provide for minimum-wage
fixing machinery for such cases, and more recent instruments of wider scope
complemented them in 1970. Another problem has been that of protecting
wages in general against various types of abuse. This was the subject of 1949
instruments on protection of wages, which can be related to instruments
adopted the same year on labour clauses in public contracts. The question of
wages naturally also raises the well-known principle of equal pay. In this
connection, the general problem of discrimination in employment has been
discussed above 1 and the more specific question of equal remuneration be-
tween men and women will be dealt with below .2 Some other special aspects of
remuneration (such as in the case of holidays with pay and of overtime) will also
be mentioned in a different chapter. 3
1. See Nos. 234-265.
2. See Nos. 455 ff.
3. See, for overtime, No. 335 below.

§2. MINIMUM-WAGE FIXING

I. Introduction

300. Following an inquiry made by the ILO as from 1921, the International
Labour Conference adopted in 1928 a Convention (No. 26) and a Recommen-
dation (No. 30) concerning minimum wage-fixing machinery. These two
instruments did not cover agriculture, for which a special Convention and
Recommendation were adopted in 1951. The 1928 and 1951 Conventions do
not lay down any rule as to the level of the wages; they only provide for the
establishment of minimum wage-fixing machinery. However the Recommen-
dations which supplement them list certain criteria for the determination of
these wages. More recently, the question of the revision of the 1928 instru-
ments arose because of the fact that they were concerned only with machinery
for minimum wage-fixing without requesting the actual determination of such
wages. The Conference adopted, therefore, in 1970, a Convention (No. 131),
supplemented by a Recommendation on minimum wage-fixing, specially as
regards developing countries.

301. Apart from these instruments of general application, provisions on

minimum wage-fixing can be found in instruments concerning special
categories of workers, such as seafarers (who have been, as will be seen later, 1

126
Wages 302-303

the only category for which the amount of a minimum wage has been specified
in an ILO Convention) and workers in non-metropolitan territories and in
plantations. Resolutions relating to minimum wages have also been adopted by
the International Labour Conference (in particular in 1945, 1948 and 1949)
and by various Regional Conferences of the ILO. The question has also been
discussed at meetings of industrial committees and analogous bodies.
1. See below No. 508.

II. The 1928 Minimum Wage-Fixing Machinery Convention (No. 26)

and Recommendation (No. 30)

302. The Minimum Wage-Fixing Machinery Convention, 1928 (No. 26)

provides that ratifying States undertake to create or maintain machinery
whereby minimum rates of wages can be fixed for workers employed in certain
of the trades (the term includes manufacture and commerce) or parts of trades
(and in particular in home working trades) in which no arrangements exist for
the effective regulation of wages by collective agreement or otherwise and
wages are exceptionally low. The intention was to provide for the obligation to
create, but not necessarily to operate wage-fixing machinery, and this opinion
was based on the view that 'if the machinery existed, its application would
necessarily follow in those cases in which the need for it was felt' .1 Before the
machinery is applied in a trade or part of trade, representatives of the em-
ployers and workers concerned should be consulted. Employers and workers
concerned should also be associated in the operation of the machinery in equal
numbers and on equal terms. The minimum rates fixed should be binding on
the employers and workers concerned. They should not be subject to abate-
ment by individual nor (except by authorization of the competent authority) by
collective agreement. The Convention also provides for the establishment of a
national system of supervision and sanctions, to ensure that persons concerned
are informed of the minimum rates of wages in force and that wages are not
paid at less than these rates. A worker who has been paid wages at less than the
rates in question shall be entitled to recover, by legal proceedings, the amount
by which he has been underpaid, subject to certain limitation of time. Informa-
tion on the practical application of the Convention should be communicated to
the ILO at periodic intervals.
1. See Intern. Lab. Code, note 95 under Art. 225, p. 171.

303. The supplementary Recommendation (No. 30) spelt out certain gen-
eral principles on the matter. In particular, it advocated that investigations be
conducted by the minimum wage-fixing machinery in the trade or part of trade
concerned. It also called attention to the principle that men and women should
receive equal remuneration for work of equal value. The Recommendation
also indicated various means designed to secure greater authority for the rates
that may be fixed (in particular by the direct and joint participation of the
employers and workers concerned in the deliberations and decisions and by the
participation of one or more independent persons selected, as far as possible in
127
304-306 Wages

agreement with or after consultation with the employers' and workers' repre-
sentatives). It was also stated that, for the purpose of determining the minimum
rates, the wage-fixing body should take account of the necessity of enabling the
workers concerned to maintain a suitable standard of living and of having
regard to the rates of wages paid for similar work. Provision should also be
made for the review of the rates fixed. The Recommendation also referred to
arrangements for informing the employers and workers of the rates in force,
official supervision of the rates actually paid, penalties as well as preventive
measures.

304. Convention No. 26 has been ratified by more than ninety States. The
reasons for which a number of States have not yet ratified it1 often relate to the
fact that its ratification is not considered to be useful in view of the existing
national situation or system in the field of wages. Reference has been made, in
this connection, to the existence of a highly developed system of collective
bargaining and the scope of collective agreements which can be extended to all
employers and workers. In other cases, the ratification is prevented by more
substantial reasons, such as the difficulty of obtaining agreement on the rates of
minimum wages or problems in relation with the consultation of employers and
workers. In some cases, the obstacles to ratification are attributed to the federal
structure of the country or to the fact that direct intervention of the government
in wage-fixing would be considered to be incompatible with the economic
system of the country.
1. See in this connection Rep. Com. Exp. 1969, pp. 225-226.

Ill. The 1951 Minimum Wage-Fixing Machinery (Agriculture)

Convention (No. 99) and Recommendation (No. 89)

305. Convention No. 99, which was adopted in 1959 follows the provisions
of Convention No. 26. It applies to agricultural undertakings and related
occupations, but allows governments to exclude certain categories of persons.
It authorizes the partial payment of minimum wages in kind under certain
conditions. States are free to decide the nature and form of the minimum
wage-fixing machinery, after consultation of representative organizations of
employers and workers. Employers and workers concerned shall take part in
the operation of the machinery on a basis of complete equality. Minimum rates
of wages fixed shall be binding, but the competent authority may permit
exceptions in individual cases, to prevent curtailment of the opportunities of
employment of physically or mentally handicapped workers. The Convention
contains provisions similar to those of Convention No. 26 as regards publicity,
supervision and penalties and the right of workers to recover the amounts by
which they have been underpaid.

306. A special feature of Recommendation No. 89, which supplements the

Convention, is that, after stating that, in the determination of minimum wages,
account should be taken of the necessity of enabling the workers concerned to

128
Wages 307-310

maintain a suitable standard of living, it listed a certain number of factors in this

connection: the cost of living, fair and reasonable value of services rendered,
wages paid for similar or comparable work under collective bargaining agree-
ments in agriculture, and the general level of wages for work of a comparable
skill in other industries in the area where the workers are sufficiently organized.
The Recommendation also follows the main provisions of that of 1928, which
have been described above. 1 It adds that a sufficient number of qualified
inspectors, with powers analogous to those provided by the Labour Inspection
Convention, 1947 (No. 81), 2 should be employed. It also suggests, in order to
facilitate supervision, that employers might be required to issue workers pay
books or similar documents containing the necessary information.
1. See above No. 303.
2. See below No. 556.

307. Convention No. 99 has been less widely ratified than Convention No.
26 (46 ratifications). The reasons for which certain countries have not ratified it
are similar to those which prevented them from ratifying Convention No. 26. 1
In other cases, non-ratification is due to the fact that there is no supervision or
appropriate system of labour inspection covering wages in agriculture. Some-
times reference has been made to the relative inexistence of agriculture.
1. See above No. 304. See also Rep. Com. Exp. 1969, pp. 228-229.

IV. The 1970 Minimum Wage-Fixing Convention (No. 131)

and Recommendation (No. 135)

308. As stated above, it was found, more recently, that the standards set in
1928 were no longer sufficient and the International Labour Conference
adopted, in 1970, a Convention (No. 131) supplemented by a Recommenda-
tion (No. 135) on minimum wage-fixing, with special reference to developing
countries. These instruments stressed that the 1926 and 1951 Conventions had
played a valuable part in protecting disadvantaged groups of wage earners, but
that the time had come to adopt a further instrument complementing these
conventions and providing protection for wage-earners against unduly low
wages, which, while of general application, would pay special regard to the
needs of developing countries.

309. The States which ratify the Convention (now 23) undertake to establish a
system of minimum wages which covers all groups of wage earners whose terms
of employment are such that coverage would be appropriate. These groups
would be determined by the competent authorities in each country, in agree-
ment or after full consultation with the representative organizations of em-
ployers and workers. States should list in their first reports on the application of
the Convention the groups which may not have been covered and the reasons,
and state in subsequent reports the position in respect of these groups.

310. It is provided that minimum wages shall have the force oflaw and shall

129
311-313 Wages

not be subject to abatement, and that failure to apply them shall make the
person concerned liable to penal or other sanctions. The elements in the
determination of the level of minimum wages shall, as far as possible include: a.
the needs of the workers and their families, taking into account the general
level of wages in the country, the cost of living, social security benefits, and the
relative living standards of other social groups, and b. economic factors, includ-
ing the requirements of economic development, levels of productivity and the
desirability of obtaining and maintaining a high level of employment. Machin-
ery for fixing minimum wages for the groups protected and adjusting them
from time to time should be created or maintained. It should be adapted to
national conditions and requirements. The Convention also provides for full
consultation of representative organizations of employers and workers con-
cerned and for direct participation, in the operation of the machinery, of
representatives of these organizations and of persons with recognized compe-
tence. Finally, the Convention refers to measures of inspection and other
necessary measures to ensure the effective application of all provisions relating
to minimum wages.

311. The 1970 Recommendation deals with the purpose of minimum wage-
fixing, the criteria for determining the level of the minimum wages, the cover-
age of the system, the machinery itself, the adjustment of minimum wages and
enforcement.

V. The Social PoUcy Conventions

312. Two Conventions dealing with social policy, the one adopted in 1947
(No. 82) and relating to non-metropolitan territories and the second, adopted
in 1962 (No. 117) and dealing more generally with the Basic Aims and
Standards of Social Policy, 1 contain provisions relating to minimum wage-
fixing machinery, based on the principles defined in the existing instruments on
minimum wage-fixing. However the Social Policy Conventions also stress that
'the improvement of standards of living shall be regarded as the principal
objective in the planning of economic development'. 2 They provide, from that
point of view, for measures to secure for independent producers and wage-
earners conditions which will give them scope to improve living standards by
their own efforts and will ensure the maintenance of minimum standards of
living.
1. On these Conventions, see below Nos. 409-412.
2. Art. 6 of Convention No. 82 and Art. 2 of Convention No. 117.

VI. Provisions Concerning Special Categories of Workers

(Seafarers and Plantations Workers)

313. As stated above, the Wages, Hours of Work on Board Ship and Man-
ning Convention, which has been revised several times, and lastly in 1958, is

130
Wages 314-316

the only ILO instrument which fixes a specific amount as a minimum wage.
Higher amounts have been fixed, first in the complementary Recommendation
(No. 109) of 1958, later in a resolution adopted by the Maritime Conference in
1970, and more recently by the Joint Maritime Commission in 1976. The
amounts are determined in pounds sterling and US dollars, but the salary can
be paid in the equivalent in another currency. It was felt possible to determine a
minimum wage in the maritime field because of the international character of
this industry, but the attempt has not been successful. The Convention has not
obtained the number of ratifications necessary for its entry into force. 1
1. See also below No. 508.

314. Finally, the 1958 Plantations Convention, contains provisions about

minimum wage-fixing which are analogous to those included in the 1947 Social
Policy (Non-Metropolitan Territories) Convention (No. 82) and based on the
Minimum Wage-Fixing Conventions.

§3. PROTECTION OF WAGES

315. Following studies conducted by the ILO on the truck system and similar
practices, certain provisions on protection of wages were included, in 1939 and
in 194 7 in Conventions concerning contracts of employment of indigenous
workers and social policy in non-metropolitan territories. The matter after-
wards became the subject of two instruments of more general application: the
1949 Protection of Wages Convention (No. 95) and Recommendation (No.
85). The purpose of these instruments was to protect the workers against
practices which might place them under the excessive dependence of the
persons who employ them and also to ensure the prompt and full payment of
wages.

316. After defining the term 'wages', and the persons to whom it applies, the
Convention allows the exclusion of certain persons who are not employed in
manual labour or are employed in domestic service. As regards substance, the
Convention set a number of standards relating to the form in which the wages
should be paid, the conditions to which partial payment in kind should be
subject, and the freedom of the worker to dispose of his wages, it prohibits
coercion to make use of the works stores operating in the undertaking. When
access to other stores is not possible, the goods in stores operating in the
undertaking should be sold at fair and reasonable prices; when run by the
employer, the stores should not be operated for the purpose of securing a
profit. The Convention also includes provisions on limitations to deductions
from wages, protection against attachment or assignment to the extent neces-
sary for the maintenance of the worker and his family, the treatment of workers
as privileged creditors in the event of bankruptcy or judicial liquidation of an
undertaking, the regular payment of wages, the day and place of payment,
information of workers, penalties and other measures to ensure the application
of the Convention.

131
317-320 Wages

317. The Recommendation adopted at the same time as the Convention

contains a number of complementary provisions as regards deduction from
wages, periodicity of wage payments, notification to workers of wage condi-
tions, wages statements and payroll records, and association of workers in the
administration of works stores.

318. The difficulties which have prevented a number of governments from

ratifying the Convention 1 sometimes lie in the compulsory character of most of
its provisions, while in the countries concerned the principle of freedom of
negotiation, in particular in the field of wages, is generally accepted. In other
countries, the main difficulty is found to be the scope of the Convention, which
is wider than that of national legislation. Some countries have stated that
particular provisions of the Convention, such as that on works stores, were not
given effect to in their legislation. The federal structure of certain States has
also raised problems in two countries.
1. See Rep. Com. Exp. 1969, pp. 230-232.

§4. LABOUR CLAUSES IN PuBLIC CONTRACTS

319. The main reason which led to the adoption of standards concerning
labour clauses in public contracts is that, as public contracts are as a rule
awarded to the undertakings which offer the most favourable terms, the parties
tendering for the public contract might be tempted, in order to obtain the
contract, to reduce the labour costs by paying lower wages and affording less
satisfactory conditions of work than those practiced in similar industries. More
generally, the adoption of good labour standards by the public authorities may
have a positive influence on the standards followed in the occupations and
industries concerned.

320. The International Labour Conference therefore adopted in 1949 a

Convention (No. 94) and a Recommendation (No. 84) on Labour Clauses in
Public Contracts. The Convention applies to all contracts which are passed by a
public authority (the central authority of a Member State), involve the expen-
diture of public funds and the employment of workers by the other party, and
are for the construction, etc., of public works, the manufacture, etc., of
materials, supplies or equipment or the performance of supply of services.
Exclusions are authorized for contracts involving the expenditure of an amount
not exceeding a certain limit, subject to consultation with the organization of
employers and workers concerned. The contracts to which the Convention
applies should include clauses ensuring to the workers concerned wages
(including allowances), hours of work and other conditions of labour which are
not less favourable than those established for work of the same character by
collective agreement, arbitration award or national laws or regulations. The
Convention also deals with measures to ensure fair and reasonable conditions
of health, safety and welfare for the workers concerned. It contains provisions
relating to the publicity of the instruments giving effect to the Convention, a

132
Wages 321-325

system of inspection, to sanctions (such as the withholding of contracts) and

measures for enabling the workers concerned to obtain the wages to which they
are entitled (in particular by the withholding of payments under the contract).

321. The complementary Recommendation advocates that similar clauses

be used in cases when private employers are granted subsidies or are licensed to
operate a public utility. It also describes the questions which should be dealt
with - either directly or by reference to appropriate provisions contained in
laws, collective agreements, etc.- in the labour clauses of the public contracts.

322. The ratification and application of the Convention have met with
certain difficulties. Thus the view was held by certain governments that it was
not necessary to include in public contracts the labour clauses specified in the
Convention since the social legislation of these countries was applicable to all
workers, and consequently also to those employed by parties to public con-
tracts. On this Convention, the Committee of Experts on the Application of
Conventions has observed that the fact that the labour legislation of a country is
applicable to all workers does not exempt the States bound by the Convention
from the obligation to include labour clauses in public contracts, as the provi-
sions contained in national legislation often set only minimum standards which
can be exceeded by collective agreements. Following this clarification, a
number of governments took the necessary measures for the inclusion of
labour clauses in public contracts.

§5. OTHER INTERNATIONAL STANDARDS

323. The Universal Declaration ofHuman Rights affirms that 'everyone who
works has the right to just and favourable remuneration ensuring for himself
and his family an existence worthy of human dignity .. .' (Art. 23, para. 3).
Similarly, the International Covenant on Economic, Social and Cultural Rights
refers to 'remuneration which provides all workers, as a minimum, with: 1. Fair
wages and equal remuneration for work of equal value without distinction of
any kind ... ; 2. A decent living for themselves and their families .. .' (Art.
7(a)).

324. As for the European Social Charter, it includes, in accordance with a

recommendation made by the Tripartite Conference following a suggestion
from the workers, the undertaking of Contracting Parties 'to recognize the
right of workers to a remuneration such as will give them and their families a
decent standard of living' (Art. 4, para. 1). The Charter also deals with
deductions from wages and provides that such deductions should be permitted
only under conditions and to the extent prescribed by national laws or regula-
tions or fixed by collective agreements or arbitration awards' (Art. 4, para. 5).

325. Finally, as already stated! bilateral treaties frequently include clauses

providing that the wages of migrant workers who are nationals of one contract-

133
326-329 Conditions of Work

ing State should not be lower than those of the corresponding nationals of the
country of immigration.
1. See above Nos. 143 ss.

Chapter VI. General Conditions of Work

§ 1. HOURS OF WoRK

I. General Outline

326. The reduction of hours of work and in particular the eight-hour day had
been since the middle of the 19th century one of the most constant demands of
the labour movement and it proved to be the most prized of their achievements.
In the early days of industrialization it was not uncommon that working hours
amounted to 14 or 16 per day, but they were progressively reduced to 12, 11
then 10 per day and the latter figure was of fairly general application in Europe
at the beginning of the First World War. During and at the end of the war, the
pressure brought by organizations of workers accelerated the progress towards
the eight hour day. It was introduced progressively in various countries of
Europe and in the United States, either by law or by collective agreements.

327. It is therefore not surprising that, at the establishment of the ILO, the
eight-hour day was placed among its chief objectives. The Preamble of P~rt
XIII of the Treaty of Versailles referred to 'the establishment of a maximum
working day and week' among the measures urgently required to improve the
conditions of labour; similarly, the General Principles which Article 427 of the
Treaty considered as being of special and urgent importance included 'the
adoption of an eight-hour day or a forty-eight hour week' as the standard to be
aimed at where it has not been attained.

328. The question of the application of the principle of the eight-hour day or
of the 48 hour week was therefore the first to be placed on the agenda of the
first session of the International Labour Conference, which met in Washington
in October 1919. The Hours of Work (Industry), 1919 which sanctioned this
principle and put it in concrete form was the first Convention to be adopted by
the Conference, with an almost unanimous vote (83 votes to two, with one
abstention).

329. However, in the years which followed, the ratification of the Conven-
tion came up against great difficulties and gave rise to heated discussions. 1 The
economic problems of the post-war period, the exaggerated fears as regards the
effect which the eight-hour day might have on production, 2 the obsession with
international competition and some legal problems on the scope of the Con-
vention hindered the great industrial European States from ratifying. Although
legislation and practice in Europe, Australia, and many countries in Latin
America had introduced the eight-hour day and the 48-hour week, many States

134
Conditions of Work 330-331
hesitated to commit themselves, by ratifying the Convention, for a period of ten
years. The discussions and the uncertainty went on for several years with ups
and downs. The Ministers of labour of the industrial countries of Western
Europe met twice, in particular in London in 1926, to discuss the problem and
at one stage the obstacles seemed to have been overcome. In 1924 and 1929,
Germany and Great Britain appeared to be on the point of ratifying but new
difficulties arose at the last moment. Finally, of the countries which partici-
pated in the London Conference, only Belgium ratified unconditionally, while
France, through fear of competition, ratified in 1927, subject to the condition
of the ratification of the Convention by Germany and Great Britain, despite
the fact that the 1919 Convention had, as a rule, been largely drafted on the
basis of French legislation. Austria and Italy also ratified conditionally. In 1931
Albert Thomas, in describing the vicissitudes of the Convention, wondered
what was 'the magic spell' which still held the Governments back.3
1. See Scelle, op. cit., pp. 258-268; Schaper,Albert Thomas, Assen (Netherlands), 1959, pp.
251-255.
2. See the experience of Belgium where, in spite of the introduction of the eight-hour day in
1924, economic activity continued to make progress (Troclet and Vogel-Polsky 'The influence
of international labour conventions on Belgian Labour Legislation', l.L.R. November 1968,
p. 403.)
3. Rec. Proc. Conf. 15, 1931, p. 7.

330. It was felt at that time that the fact that the Convention was not ratified
by the major industrial countries had been a serious setback for the ILO. This is
largely true, but nevertheless the Convention exercised a considerable influ-
ence. Its very existence contributed to the consolidation of the eight-hour day
standard and put a check on attempts to bring it into question after the First
World War. The Convention also exercised a positive influence in many
countries 1 which, on ratifying it, introduced its provisions into their legislation,
which became the first national measures to limit the duration of work of
adults. The influence of the Convention was also felt in countries which did not
ratify it. 2
1. This was the case in countries like Belgium, Chile, Greece, Romania (see The International
Labour Organization- The first decade, London, 1931, pp. 300 ss.) and also India (V. K. R.
Menon, 'The influence of International Labour Conventions on Indian Labour Legislation',
I.L.R. June 1956, pp. 551 ss.)
2. See The International Labour Organization, op. lac. cit.

331. A new attempt was made by the ILO in the field of hours of work when
it adopted, in 1930, a Convention providing for the same standard of an
eight-hour day and 48-hour week, but in commerce and offices. Similar con-
ventions for other occupations (mines in 1931 and road transport in 1939)
followed, but the demand for a 40-hour week had already appeared and was
making progress. In fact, the new methods of production, then the crisis in the
thirties brought about a new reduction of hours of work in many of the major
industries in the United States and the introduction of the five-day week of 40
or 45 hours. Envisaged by a resolution adopted by the Conference in 1932 as a
means to combat economic depression and unemployment, the reduction of
the working week to 40 hours became a new objective for international

135
332-334 Conditions of Work

regulation. A first attempt was made in 1934 to have adopted two Conventions
on that basis (the one for industry and the other for commerce and offices) but
it was not successful, as the draft instruments did not obtain the necessary
majority. A different formula was then tried, that of a Convention affirming
merely the principle of 40 hours, with the understanding that distinct instru-
ments would deal with its application in various sectors of the economy. This
was Convention No. 47 of 1937. In fact in the course of the following years
some special Conventions were adopted for certain sectors, but it did not prove
possible to do so for a sizeable number of other activities. In 1939, the
examination of draft Conventions the aim of which was to generalize the
reduction of the working week to 40 hours was postponed sine die because of
the international situation.

332. After the Second World War and the first period of reconstruction, the
question of the reduction of the hours of work was raised once more, and once
more the attempt was not successful. A first draft Recommendation, in 1961,
did not obtain the necessary majority, but the Conference adopted, the follow-
ing year, a Recommendation (No. 116) providing for the progressive reduction
of hours of work to the 'social standard' of 40 hours. It will also be seen 1 that, in
the maritime field, a Convention on hours of work on board ships - already
mentioned as it also dealt with wages- adopted in 1936 and repeatedly revised
since has not yet come into force.
1. See below No. 508.

333. In all, 14 Conventions and 10 Recommendations have been adopted on

hours of work, apart from the instruments on connected questions, such as
weekly rest, and from provisions on hours of work included in Conventions on
other aspects of conditions of work. The standard-setting activity of the ILO in
this field has been one of those where the greatest difficulties have been
encountered. Convention No. 1 on the eight-hour day and 48-hour week has
now been ratified by more than 40 countries, but it is not ratified or in force as
regards some great industrial countries where this standard has been exceeded
in certain respects. The facts that certain provisions of the Convention may be
too strict or that, in some countries, hours of work are settled by collective
agreements may explain the position, but only to a certain extent. In any event,
the general influence of the various standards on hours of work cannot be
denied.

II. The Standard of the Eight-Hour Day and the 48-Hour Week

A. The Hours of Work (Industry) Convention, 1919 (No.1)

334. Convention No. 1 applies to persons employed in public or private

industrial undertakings and it defines of these undertakings. It provides
that the working hours shall not exceed eight in the day and 48 in the
week.

i36
Conditions of Work 335-338

335. The Convention authorizes various exceptions. It excludes persons

holding positions of supervision or management, and persons employed in a
confidential capacity. When the hours of work on one or more days of the week
are less than eight, the limit may be exceeded on the remaining days, but not by
more than an hour. It is also permissible to exceed the eight-hour limit in the
case of shift work, but the average number of hours over a period of three
weeks should not exceed the general standard of the Convention. Exceptions
are also permitted in cases of accident, actual or threatened, of urgent work to
be done to machinery or plant, or of force majeure, but only so far as may be
necessary to avert serious interference with the ordinary working of the under-
taking. In the case of necessarily continuous processes, the convention author-
izes an average of 56 hours in the week. In exceptional cases where the
standard of the eight-hour day and 48-hour week cannot be applied, the daily
limit of work can be calculated over a longer period, with the agreement of the
occupational organizations concerned. Finally the Convention authorizes a
number of permanent and temporary exceptions. Regulations should be made,
after consultation with the organizations concerned, to fix the maximum of
additional hours authorized. The rate of pay for overtime shall not be less than
one and one-quarter times the regular rate. The Convention - like a limited
number of other Conventions- authorizes the suspension of its application in
the event of war or other emergency endangering the national safety.

336. The Convention also provides that employers should notify workers of
the hours of work and rest intervals and should keep a record of additional
hours worked. It specifies that it should be made an offence against the law to
employ a person outside the hours provided in the Convention.

B. The Hours of Work (Commerce and Offices) Convention, 1930 (No. 30)

337. Convention No. 30, which has been ratified by some 30 States, sets the
same standard as Convention No. 1, but it is applicable to persons employed in
commercial undertakings, including postal, telegraph and telephone services,
and in establishments and administrative services in which the persons em-
ployed are mainly engaged in office work. It applies to both public and private
establishments.

338. The Convention allows certain exceptions. It also authorizes the max-
imum hours of work in the week to be so arranged that hours of work in any day
do not exceed ten hours. It permits, under certain conditions, an increase of the
hours of work in the day for the purpose of making up hours of work which have
been lost in case of local holidays, accidents of force majeure. It authorizes, in
exceptional cases, the distribution of hours of work over a period longer than
the week, provided that the average hours of work do not exceed 48 hours in
the week and that hours of work in any day do not exceed ten hours. It also
provides, as does Convention No. 1, for various permanent or temporary
exceptions, and has analogous provisions as regards overtime.

137
339-342 Conditions of Work

339. Provisions similar to those of Convention No. 1 also deal with consulta-
tion of employers and workers' organizations and measures of information and
enforcement (with an additional provision about inspection).

C. The Special Conventions

340. On the basis of the general standard set in the two Conventions
described above, 1 two further conventions were adopted for special sectors of
activity. The one relates to coal mines. Although work in mines is covered by
Convention No. 1, a special Convention, adopted in 1931 (No. 31) and revised
in 1935 (No. 46) limited the working time spent in underground hard coal
mines to seven hours and 45 minutes in the day as a rule and required also that
weekly rest be observed. The entry into force of the Convention was made
subject to special conditions, and the ratifications necessary to this effect have
not been obtained.
1. The general standard was also reaffirmed in the Reduction of Hours of Work Recommen-
dation, 1962 (No. 116) which, while providing for the reduction of hours of work to forty per
week, advocated that, when the duration of the normal working week exceeds 48 hours,
immediate steps should be taken to bring it down to this level, without any reduction of the
wages of the workers.

341. Another special Convention, adopted in 1939, relates to hours of work

and rest periods in road transport (Convention No. 67). This instrument also
was based on the 48-hour week, but because of the detailed and somewhat rigid
character of its provisions it was ratified by four countries only. The Interna-
tional Labour Conference held a first discussion, in June 1978, on the possibi-
lity of adopting new instruments in this field and decided that this item shall be
included in the agenda of its 1979 session with a view to the adoption of a
Convention and a Recommendation.

III. The Standard of the Forty-Hour Week

A. The Forty-Hour Week Convention, 1935 (No. 47)

342. Adopted in 1935, the Forty-Hour Week Convention (No. 47) entered
into force only in 194 7 and has not yet obtained more than six ratifications.
States which ratify it are not required to do more than declare their approval of
the principle of the 40-hour week, applied in such a manner that the standard of
living is not reduced in consequence, and of the taking or facilitating of
appropriate measures to secure this end. States bound by the Convention also
undertake to apply this principle to classes of employment in accordance with
the detailed provisions to be prescribed by any separate Conventions which it
may ratify.

138
Conditions of Work 343-345

B. The Special Conventions

343. As provided for by the 1935 Convention, the ILO started to prepare
special Conventions with a view to regulating the application of the 40-hour
principle in different sectors. Already in 1934, a Convention (No. 43) had set,
for automatic sheet-glass works, a working week of 42 hours, and had provided
that the length of a spell of work could not exceed eight hours. The sall_le
standard was set, the following year, by a Convention (No. 49) concerning
glass-bottle works. In 1936 and 1937, in two Conventions (Nos. 51 and 61),
relating respectively to public works and to the textile industry, the standard
was reduced to an average 40-hour week, with a number of exceptions. The
general structure of these Conventions followed to a certain extent that of
Conventions Nos. 1 and 30. These various Conventions were ratified by a very
limited number of countries, while the attempts to lay down similar Conven-
tions in certain other fields were not successful.

C. The Reduction of Hours of Work Recommendation, 1962 (No. 116)

344. This Recommendation provides that each State should formulate and
pursue a national policy designed to promote by methods appropriate to
national conditions and practice and to conditions in each industry the adop-
tion of the principle of the progressive reduction of normal hours of work with a
view to attaining the social standard of the forty-hour week. It also provides
that immediate steps should be taken to bring down to 48 the duration of the
normal working week where it exceeds this level. The Recommendation men-
tions the various elements which should be taken into account in connection
with the reduction of hours of work (e.g. the level of economic development
and various economic factors such as the risk of creating inflationary pressures,
the progress achieved or possible in raising productivity by the application of
modern technology, automation and management technique, the need in
developing countries for improving the standard of living of their people, etc.).
The Recommendation also describes the stages by which the principle of the
progressive reduction of hours of work may be applied and the priorities to
follow. It specifies the methods of application of the measures advocated, as
regards the definition of hours of work, their determination, the exceptions
authorized, overtime consultation of employers and workers and supervision.

IV. Difficulties of Ratification and Application of the Standards on Hours of

Work

345. The obstacles to ratification and the difficulties of application of the

standards on hours of work related to different questions. In certain cases they
are due to the general economic conditions of the countries concerned, while in
other cases they relate to the implementation of various provisions of the

139
346-348 Conditions of Work

instruments concerned. In particular, difficulties have appeared as regards the

methods of application (in countries like the United Kingdom where hours of
work are mainly regulated by collective agreements), the scope of national
legislation (which is sometimes more limited than that of the Conventions) or
the distribution of hours of work which, in many countries, is made over a
longer period than is provided for in the Conventions. The most frequent
difficulties relate to the exceptions which may be authorized. Problems are also
encountered as regards the limitation and remuneration of overtime and the
supervision of the application of the provisions on overtime. Finally, in certain
countries, the difficulties arise from the federal structure of the State.

V. Other International Standards

346. The Universal Declaration of Human Rights (Art. 24) and, more
recently the International Covenant on Economic, Social and Cultural Rights
(Art. 7, para. d) provide for the 'reasonable limitation of working hours', but
without specifying any given duration.

347. Similarly, under the European Social Charter (Art. 2, para. 1) the
Contracting Parties undertake 'to provide for reasonable daily and weekly
working hours, the working week to be progressively reduced to the extent that
the increase of productivity and other relevant factors permit'. At the Tripar-
tite Conference of 1958, the workers' members proposed that the hours of
work should be specified and that the objective should be set at the 40-hour
week. This request was not accepted by the majority of the Tripartite Confer-
ence, nor subsequently by the Governmental Social Committee of the Council
of Europe, notwithstanding the Consultative Assembly's opinion in favour of a
reference to the 40-hour week. The Social Charter also refers (Art. 4, para. 2)
to 'the right of workers to increased rates of remuneration for overtime
work, subject to exceptions in particular cases'.

§2. WEEKLY REST

I. General Outline

348. Weekly rest was one of the first questions dealt with by the ILO. It was
mentioned in the general principles contained in Article 427 of the Treaty of
Versailles and as soon as 1921 the International Labour Conference adopted a
Convention concerning weekly rest in industry and a Recommendation con-
cerning weekly rest in commerce and offices. On this latter question the
adoption of a Convention was interrupted by the outbreak of the Second World
War and this was finally only brought about in 1957. Weekly rest is also dealt
with in Conventions relating to seafarers 1 and plantation workers. 2
1. See below No. 508 about the Wages, Hours of Work and Manning (Sea) Convention
(Revised), 1958 (No. 109) which also provides for reduced hours of work on the weekly day of
rest when the vessel is in port.

140
Conditions of Work 349-351
2. The Plantations Convention, 1958 (No. 110) includes the main provisions of Convention
No. 14.

II. Weekly Rest in Industry

349. The Weekly Rest {Industry) Convention, 1921 (No. 14) which has
been ratified by some 90 States defines its scope on terms anologous to those of
the Hours of Work {Industry) Convention, 1919 (No. 1). It provides that the
whole of the staff employed in any industrial undertaking, public or private,
shall enjoy, in every period of seven days, a period of rest comprising at least
twenty four consecutive hours. Wherever possible, this period of rest should be
granted simultaneously to the whole of the staff of each undertaking and should
coincide with the days already established by the traditions or customs of the
country or district. The Convention authorizes a number of exceptions for
which, as far as possible, compensatory periods of rest should be provided. As
in the case of the Hours of Work {Industry) Convention, 1919 (No. 1), it
provides that the employers should take certain measures to inform the staff of
the days and hours of rest. The main difficulties in the application of the
Convention have related to its scope.

III. Weekly Rest in Commerce and Offices

350. The WeeklyRest(Commerce andOffices)Convention, 1957 {No.106)

applies to trading establishments as well as to establishments, institutions and
administrative services, whether public or private, in which the persons em-
ployed are mainly engaged in office work, including offices of persons engaged
in the liberal professions. It also covers the services of a certain number of other
establishments. Finally it may equally be applicable to persons employed in
certain kinds of establishments (such as those providing personal services, post
and tele-communications services, newspaper undertakings and theatres,
etc.) to the extent that the States which ratify the Convention specify in
a declaration accompanying or following the ratification. The Convention
authorizes a number of exceptions, special schemes and temporary exemp-
tions.

351. As in the case of industry, the Convention sets the standard ofa weekly
rest period of not less than 24 hours in the course of each period of seven days.
It includes similar provisions as regards the simultaneous character of the rest
and its coincidence with the day established by the traditions or customs of the
country or district. A Recommendation (No. 103) which was adopted at the
same time as the Convention advocates that the period of rest be at least of 36
hours, if possible consecutive. It also recommends various improvements as
regards a number of provisions of the Convention. The Convention specifies
that the application of the standards on weekly rest should not result in any
reduction of the income of the persons covered. Appropriate measures of

141
352-356 Conditions of Work

supervision and inspection, and if appropriate of sanctions, are also provided

for by the Convention.

352. The Convention has been ratified by 46 States. The main difficulties in
the way of its ratification relate to its scope, the conditions to which exceptions
to weekly rest are subject and the supervision of the effective application of the
relevent provisions.

IV. Other International Standards

353. As in the case of hours of work, the Universal Declaration of Human

Rights states in general terms (Art. 24) that 'everyone has the right to rest and
leisure', and the Covenant on Economic, Social and Cultural Rights also refers
(Art. 7 al d) to rest and leisure without being more specific.

354. The European Social Charter (art. 2 para 5) contains the undertaking of
contracting parties 'to ensure a weekly rest period which shall, as far as
possible, coincide with the day recognized by tradition or custom in the country
or region concerned as a day of rest'. A proposal to provide that the weekly rest
be of an uninterrupted duration of at least 36 hours was submitted by the
Consultative Assembly, but was not accepted by the Governmental Social
Committee.

§3. PAID LEAVE

I. General Outline

355. As it happened at the national level, the right of workers to annual

holidays with pay was recognized at the international level much more recently
than was the case for the reduction of the hours of work and for weekly rest.
Until1936, there were relatively few countries whose legislation provided for
annual holidays with pay applicable to the whole of workers, while in countries
where the question was regulated by collective agreements, it was not a
common practice to grant holidays on such a general basis. The evolution
gained in impetus as from 1936 with the adoption, on the one hand, of ILO
Convention No. 52 and, on the other hand, of the French Act of 20 June 1936.
Convention No. 52 was itself the result of prolonged efforts. The question had
been already raised at the first session of the International Labour Conference
in 1919 and it was placed four times on its agenda before being adopted, in
1936.

356. At the time of its adoption, Convention No. 52 had been considered as
an advanced standard. Since, however, in view of the extension which holidays
with pay have taken and the continuing increase of their duration (as there are
now few countries where the legal holiday is of less than two weeks), the need

142
Conditions of Work 357-359

was felt after some time of setting a higher standard. This was achieved first by a
recommendation (No. 98) adopted in 1954, which provided that the duration
of the holiday should be at least two weeks per year. At the same period, a
Convention and a Recommendation on Holidays with Pay in Agriculture were
adopted in 1952 and provisions on this subject were included in the Plantations
Convention, 1958. Special conventions also dealt with the question of holidays
with pay as regards seafarers. 1 The first of these instruments were adopted in
1946 and 1969 and they fixed the duration of the holidays at not less than 18
working days in the case of masters, officers or operators and not less than 12
working days in the case of the other members of the crew.
1. See below No. 509.

357. However the basic instrument still was the 1936 Convention and the
standard which it had set became more and more outdated. It was revised in
1970, by Convention No. 132 which provided for a three-week annual paid
holiday. More recently, in 1976, the maritime session of the International
Labour Conference revised the 1949 maritime convention in the light of the
general Convention of 1970. Meantime, in 1974, the new notion of paid
educational leave was introduced by a Convention and a Recommendation.

II. The 1936 Holidays with Pay Convention and Recommendation

358. The Holidays with Pay Convention, 1936 (No. 52), which has been
ratified by some 50 States is applicable to a large variety of undertakings and
establishments, public or private, which it lists, and which are engaged in
industrial or commercial activities. It authorizes a very limited number of
exceptions. It provides that the persons protected shall be entitled after one
year of continuous service to an annual holiday of at least six working days. The
holiday should be of at least twelve days for persons under 16, including
apprentices. Public and customary holidays and interruption of attendance at
work due to sickness should not be included in the annual holiday with pay.
During his holiday, the worker should receive either his usual remuneration,
including the cash equivalent of his remuneration in kind, or the remuneration
determined by collective agreement.
359. The convention specifies that any agreement to relinquish the right to
an annual holiday or to forgo such a holiday shall be void. It does not contain
any provision on the possible postponement or accumulation of the holiday. It
was felt 1 that as regards any part of the holiday which exceeds the minimum
duration prescribed by the Convention, a postponement would not be incom-
patible with it, nor with the interests of both employers and workers, and th.at
exceptions could also be acceptable in cases where a worker has been unable to
take his holidays for a valid reason beyond his control. It is however essential to
maintain the principle that, in the course of the year, the worker must be
granted at least part of his leave in order to enjoy a minimum amount of rest
and leisure.
1. Rep. Com. Exp. 1964, pp. 271-273, paras. 177-181.

143
360-363 Conditions of Work

360. The Convention also provides that if a person engages in paid employ-
ment during the course of his holiday, he may be deprived of his right to
payment in respect of that period. If a worker was dismissed for a reason
imputable to the employer before he has taken a holiday due to him, he should
receive, in respect of every day of holiday due, the remuneration provided by
the Convention. Finally, the employers should keep a record of leaves and
States should establish a system of sanctions.

361. Among the various obstacles to ratification and application of the

Convention, reference can be made to its scope, to the fact that in certain
countries the question is regulated principally by way of collective agreements,
and to certain special provisions of the Convention, such as that according to
which public holidays and days of sickness should not be included in the annual
holiday. Difficulties are also found in a number of countries as regards the
prohibition of agreements to relinquish the right to a holiday, or the silence of
the Convention as regards the possibility to divide the holiday or postpone it to
another year.

III. The 1954 Holidays with Pay Recommendation

362. The Holidays with Pay Recommendation, 1954 (No. 98), which applies
to all employed persons, with the exception of seafarers and agricultural
workers, set the standard of two working weeks for twelve months of service
(proportionally to the length of service performed with one or more employers
during the year). It provided for a longer period for young workers under 18.
The Convention referred to the remuneration which should be granted during
the holiday and included, more generally, various provisions on the conditions
under which the holiday should be taken, and which are often left to be
determined by the appropriate machinery in each country. It provided that the
standards which it set may be given effect by means of public or voluntary
action, through legislation, statutory wage fixing machinery, collective agree-
ments or arbitration awards, or in any other manner consistent with national
practice. It added, however, that the adoption of any of these procedures
should not prejudice the particular concern of governments to call into action
all appropriate constitutional or legal machinery when voluntary action, action
by employers' and workers' organizations or collective agreements do not give
speedy and satisfactory results.

IV. The 1952 Standards on Holidays with Pay in Agriculture

363. The standards concerning holidays with pay in agriculture are con-
tained in a Convention (No. 101) and a Recommendation (No. 93) adopted in
1952. The Convention itself, which has been ratified by some 40 States, does
not specify the precise duration of the holiday. It provides that workers em-
ployed in agricultural undertakings and related occupations should be granted

144
Conditions of Work 364-367

an annual holiday with pay after a period of continuous service with the same
employer, and that the minimum duration of the annual holiday with pay shall
be determined by national laws or regulations, collective agreement, or arbitra-
tion award, or b~ special bodies, etc. The Recommendation refers to a
minimum length of one working week for a period of one year's continuous
service. The Convention includes a series of provisions which are analogous to
those of Conventions No. 52, but leave a greater freedom to governments in
some respects. On certain of these points, the Recommendation contains more
detailed provisions and gives some general guidelines.

364. As regards plantation workers, the 1958 Convention (No. 110) repro-
duced most of the provisions of the 1952 Holidays with Pay in Agriculture
Convention (No. 101).

V. The 1970 Revised Convention on Holidays with Pay

365. As the need was more and more felt to adapt earlier standards, and in
particular the 1936 Convention (No. 52) to more recent trends, a revised
Convention on annual holidays with pay was adopted in 1970. The new
Convention (No. 132), which has been ratified by 13 States, specifies in the first
instance that its provisions, in so far as they are not otherwise made effective by
means of collective agreements, arbitration awards, court decisions, statutory
wage fixing machinery or in such other manner consistent with national
practice, shall be given effect by national laws or .regulations. It applies to all
employed persons, with the exception of seafarers. Limited categories of
persons can be excluded under certain conditions. Ratifying States may accept
the obligations of the Convention separately in respect of employed persons in
economic sectors other than agriculture and in agriculture.

366. The Convention provides that each ratifying State shall specify the
length of the holiday in a declaration appended to its ratification, and that the
holiday shall not be less than three working weeks for one year of service. A
longer period may be notified by a further declaration. When the length of
service in a year is less than twelve months, a holiday with pay proportional to
the length of service should be granted, but a minimum period of no more than
six months may be required for entitlement to holiday. Absence from work for
reasons beyond the control of the person concerned, as illness, injury or
maternity shall be counted as part of the period of service. On the other hand,
public and customary holidays shall not be counted as part of the holiday and,
under conditions to be determined at the national level, periods of incapacity
for work resulting from sickness or injury may not be counted as part of the
holiday. The Convention also deals with the remuneration of the worker during
the holiday.

367. As regards the division of the annual holiday into parts, it may be
authorized by the national authorities but, unless otherwise provided in an

145
368-369 Conditions of Work

agreement applicable to the employer and the employed person concerned,

one of the parts should consist of at least two uninterrupted working weeks.
The uninterrupted part should be granted and taken no later than one year, and
the remainder no later than 18 months, from the end of the year in respect of
which the holiday entitlement has arisen. Any part of the holiday which
exceeds a stated minimum may be postponed beyond that period with the
consent of the employed person concerned. In principle, the time at which the
holiday is to be taken shall be determined by the employer after consultation
with the employed person concerned or his representatives, account being
taken of the work requirements and the opportunities for rest and relaxation
available to the employed person. Upon termination of employment, an em-
ployed person who has completed a minimum period of service of six months
should receive a holiday with pay proportional to the length of his service, or
compensation, or the equivalent holiday credit.

368. The Convention includes the provisions of earlier instruments accord-

ing to which agreement to relinquish the right to holiday or to forgo it shall be
null and void or prohibited. It authorizes national authorities to adopt special
rules in respect of cases in which the employed person engages, during the
holiday, in a gainful activity conflicting with the purpose of the holiday. Finally
the Convention refers to measures to ensure the proper application and
enforcement of the provisions concerning holidays with pay, by means of
inspection or otherwise.

VI. Paid Educational Leave

369. In 1974, the Conference adopted a Convention (No. 140) and a

Recommendation (No. 148) concerning paid educational leave. The Conven-
tion, which has been ratified by 13 States, provides that ratifying States should
formulate and apply a policy designed to promote, by methods appropriate to
national conditions and by stages as necessary, the granting of paid educational
leave for the purpose of training at any level, general, social and civic education
and trade union education. It specifies the objectives of such a policy, in
particular the acquisition, improvement and adaptation of occupational and
functional skills, the promotion of employment and job security in conditions
of scientific and technological development and economic and structural
change; competent and active participation of workers and their represen-
tatives in the life of the undertaking and of the community; human, social and
cultural advancement of workers; and generally the promotion of appropriate
continuing education and training and helping workers to adjust to contem-
porary requirements. This policy should take account of the stage of develop-
ment and the needs of the country and be coordinated with general policies
concerning employment, education, training and policies concerning hours of
work. The leave might be granted by legislation, collective agreements, arbitra-
tion awards and any other means consistent with national practice. The public
authorities, employers' and workers' organizations and education and training

146
Conditions of Work 370-373
institutions should be associated with the formulation and application of the
policy. The financing should be on a regular and adequate basis and in accor-
dance with national practice. The leave should not be denied to workers on the
grounds of race, colour, sex, religion, political opinion, national extraction or
social origin. Periods of paid educational leave should be assimilated to periods
of effective service for the purpose of establishing claims to social benefits and
other rights deriving from the employment relation. These essential provisions
are supplemented by the Recommendation, which deals, in particular, with the
formulation of policy and methods of application, with measures for promotion
of paid educational leave, with financing and with conditions for granting of
paid educational leave.

VII. Public Holidays

3 70. There are no ILO standards relating to public holidays as such. It is only
provided that public and customary holidays should not be included in the
annual holiday with pay.

VIII. Other International Standards

371. The Universal Declaration ofHuman Rights (Art. 24) and the Covenant
on Economic, Social and Cultural Rights (Art. 7, para. d) recognized in general
terms the right of everyone to 'periodic holidays with pay' but did not specify
the duration of such holidays. The latter provision also provided for 'remunera-
tion for public holidays'.

372. The European Social Charter (Art. 2, para. 3) provided for 'a minimum
of two weeks annual holiday with pay' and added (Art. 2, para. 4) that workers
engaged in dangerous or unhealthy occupations should be entitled to addi-
tional paid holidays or reduced working hours. It also provided that the
duration of the annual holiday with pay should not be less than three weeks for
persons under 18 (Art. 2, para. 7). The Worker members of the Tripartite
Conference, and subsequently the Consultative Assembly proposed that the
minimum duration of the holiday with pay be fixed at three weeks in general
and at four weeks for persons under 18 years, but these proposals were not
accepted. The Charter also includes an undertaking of the Contracting Parties
'to provide for public holidays with pay' (Art. 2, para. 2).

§4. INDUSTRIAL HYGIENE AND SAFETY

I. General Outline

373. The questions of industrial hygiene and safety were, even before the
establishment of the ILO, among the first to be dealt with at the international

147
374-375 Conditions of Work

level, as it has also been the case at the national level. There were two reasons
for that: firstly, these questions affect directly the health and even the life of
workers, and secondly, some of the measures which are necessary for the
protection of workers call more particularly for a concerted international
action for reasons of a technological or simply economic and commercial
nature. The Preamble of the ILO Constitution already referred to 'the protec-
tion of the worker against sickness, disease and injury arising out of his
employment'. A large part of ILO standards, i.e. more than 50 Conventions
and 50 Recommendations relate, directly or indirectly, to hygiene and safety. 1
The present section will refer only to those standards which concern principally
this question. The matter is however also dealt with in instruments concerning
social security (e.g. as regards medical care) and the work of women or young
persons (e.g. as regards medical examination). 2
1. See in this connection Robert and Parmeggiani, 'Fifty Years of International Collaboration
in Occupational Safety and Health', I.L.R., January 1969.
2. Thus, reference can be made to the Conditions of Employment of Young Persons (Under-
ground Work) Recommendation, 1965 (No. 125) which contains precise provisions on
questions of heatlh, safety and welfare.

374. The standards adopted in the field of hygiene and safety related, in most
cases, to specific risks or hazards or to problems of safety and hygiene concern-
ing special branches of activity. Other instruments dealt with the more general
questions of the methods and institutions for the prevention of industrial
accidents and the protection of workers' health (more particularly the occupa-
tional health services). While these various standards aimed mainly at preven-
tive action, others related to the definition of occupational diseases which
would give rise to compensation and are therefore of interest also from the
point of view of social security. Apart from the various Conventions and
Recommendations adopted in this field, numerous model codes and codes of
practice, as well as the important studies published by the IL0 1 contribute to
the information of the public authorities and of professional circles.
1. E.g. the Encyclopedia of Occupational Safety and Health, 5th impression, 1976 and the
publications of the International Occupational Safety and Health Information Centre, which
was created by the ILO in 1959.

II. Standards Relating to Specific Risks

A. White Phosphorus

375. As it has already been said, 1 a Convention on the Prohibition of the Use
of White Phosphorus in the Manufacture of Matches had been adopted as early
as in 1906, before the establishment of the ILO. In 1919, at its first session, the
International Labour Conference requested all member States, by a special
recommendation (No. 6), to adhere to the 1906 Convention if they had not
done so. The Convention has been ratified by some 50 States.
1. See above No. 2.

148
Conditions of Work 376-378

B. White Lead

376. In the same year of its establishment, the ILO was faced with an
occupational disease which had been more harmful than white phosphorus:
that was lead poisoning, which was caused by lead compounds, and in particu-
lar white lead. A Recommendation (No. 4) concerning the protection of the
health of women and of young persons under 18 years against lead poisoning
was adopted in 1919. The more general question of the use of white lead in the
painting of the buildings was raised at the same time. The studies made by the
ILO showed the very serious risks due to lead compounds, and in particular
white lead, and the question was brought before the International Labour
Conference in 1921 for the adoption of a Convention. However, while the
gravity of risks due to lead compounds was generally admitted, views differed
as regards the measures which should be taken. There were objections to the
prohibition of the use of white lead, especially because of the interests of the
manufacturers of white lead. Finally, the Conference decided, after a long
debate, in favour of the prohibition, on the basis of a formula of compromise.
The White Lead (Painting) Convention, 1921 (No. 13) was thus adopted
almost unanimously. This Convention prohibits the use of white lead and
sulphate of lead and all products containing these pigments, but only in the
internal painting in buildings. It authorizes a number of exceptions. On the
other hand, it provides for various measures of hygiene. Fifty-two States have
ratified the Convention, but many industrial States have not yet done so.
Nevertheless, lead is now less prevalent, and this may be due to the influence
which the Convention has had, even in countries which did not ratify it.

C. Anthrax

377. At the same session of 1919, the Conference also adopted a Recom-
mendation (No.3) concerning the Prevention of Anthrax and in particular the
disinfection of wool. However, more concrete results could not be achieved.

D. The Hazards of Poisoning Arising from Benzene

378. At a more recent date, i.e. in 1971, the Conference adopted a Conven-
tion (No. 136), which has been ratified by more than 20 States since, and a
Recommendation (No. 144) concerning the hazards of poisoning due to ben-
zene. This Convention applies to all activities involving exposure of workers to
the aromatic hydro-carbon benzene C6 H 6 and to products the benzene content
of which exceed 1 per cent by volume. It provides that whenever harmless or
less harmful substitute products are available, they should be used instead of
benzene, subject to certain exceptions. The use of benzene and of products
containing benzene should be prohibited in certain work processes. Occupa-
tional hygiene and technical measures should be taken to ensure effective

149
379-380 Conditions of Work

protection of workers exposed to benzene, and in particular to prevent the

escape of benzene vapour into the air of places of employment. The Conven-
tion describes certain of these measures. Moreover, pregnant women and
nursing mothers, as well as young persons under 18 years, should not be
employed in work processes involving exposure to benzene. As for the
Recommendation, it contains additional provisions in this field, in particular
about the restrictions to the use of benzene, occupational prevention, hygiene
in work, medical prevention and workers education.

E. Occupational Cancer

379. In 1974, the Conference adopted a Convention (No. 139)- ratified by

14 States until now- and a Recommendation (No. 147) concerning occupa-
tional cancer. Under the Convention, ratifying States should periodically
determine the carcinogenic substances and agents to which occupational
exposure shall be prohibited or controlled. They should make every effort,
inter alia, to have carcinogenic substances and agents replaced, to prescribe the
measures to be taken to protect workers against the relevant risks, to supply all
available information to workers concerned, and to ensure that they are
provided with medical examinations, tests or investigations as are necessary.
The Recommendation includes detailed provisions, in particular on preventive
measures, on supervision of health of workers, on information and education,
and on measures of application.

F. Radiation Protection

380. At a relatively recent date, international standards were adopted for

the protection of workers against ionizing radiations. The effect of X-rays and
radioactive substances had already been studied by the ILO as from 1930 and
the pathological manifestations due to such rays and substances had been
included in the list of occupational diseases of the 1934 Convention (No. 42).
In 1949, the ILO entrusted a group of experts to supplement the Model Code of
Safety Regulations for Industrial Establishments (for the guidance of govern-
ments and industry) by a chapter concerning dangerous radiations. The Model
Code of Safety Regulations (Ionising Radiations) which was prepared then was
later updated in 1957, 1959 and 1965. Meanwhile, as from 1955, when, in
connection with the first UN International Conference on the peaceful uses of
atomic energy, the ILO submitted a substantial study concerning the protec-
tion of workers against radiation, the preparatory work for the adoption of a
Convention in this field was undertaken. It was completed with the adoption, in
1960, of the Convention (No. 115)- ratified by 35 States- and the Recom-
mendation (No. 114) on the protection against radiations. These instruments
apply to all activities involving exposure of workers to ionizing radiations in the
course of their work and they put an emphasis on the necessary preventive
measures, both medical and technical. The standards included in the Conven-

150
Conditions of Work 381-382
tion and the Recommendation, as well as in the Model Code, were themselves
clarified by a series of illustrated practical guides which supplied useful details
of application. The technological changes which have taken place more
recently will probably call for a revision of this Convention.

G. The Guarding of Machinery

381. For a number of years, the ILO had been trying to find a solution to the
serious risks caused by inadequately guarded machinery. The adoption of
international standards was made difficult by the great variety of machinery
and of the ways to use them, and also at the level of international trade, by the
differences between the prescriptions of the various countries. Initially, only a
Recommendation (No. 32) could be adopted, in 1929. Finally, in 1963, the
International Labour Conference succeeded in adopting a Convention (No.
119), now ratified by 35 States and a Recommendation (No. 118) on the
guarding of machinery. The Convention applies to all power-driven machinery,
new or second-hand. It provides that the sale or hire of machinery of which the
dangerous parts are without appropriate guards should be prohibited. As
regards the use of machinery, the prohibition is extended to its point of
operation. The Convention also defines the obligations of employers to inform
workers of the dangers arising in the use of machinery. As regards sale and hire
of machinery, the obligation to ensure compliance rests on the vendor, the
person letting out on hire or transferring the machinery, or the exhibitor, and,
where appropriate, on their agents. As regards use, the responsibility rests on
the employer. The Recommendation clarifies certain provisions of the Con-
vention, and it extends its scope to the manufacture and the exhibition of
machinery.

H. Maximum Weight

382. In spite of technical progress, manual work remains the lot of the
greater part of mankind and it is still usual, even in developed countries. To
face such a frequent cause of accidents, the International Labour Conference
adopted, in 1967, a Convention (No. 127)- now ratified by 20 States- and a
Recommendation (No. 128) on maximum weight. The Convention establishes
the general principle that no worker shall be required or permitted to engage in
the manual transport of a load which, by reason of its weight, is likely to
jeopardize his health or safety. It provides in particular that States shall take
appropriate steps to ensure that workers assigned to manual transport ofloads,
other than light loads, receive adequate training or instruction in working
techniques. Suitable technical devices should also be used, as much as possible.
The assignment of women and young workers to manual transport of loads
other than light loads should be limited and, where they are engaged in the
manual transport of loads, the maximum weight of such loads should be
substantially less than that permitted for adult male workers. As for the

151
383-385 Conditions of Work

Recommendation, it deals more particularly with various measures of training,

of safety and of hygiene which should be taken in this field, and with technical
devices to be used. It also provides that the maximum permissible weight for
adult male workers should not be more than 55 kilos, that it should be
substantially less for women workers and for young workers, and that the
minimum age for assignment to regular manual transport of loads should be 18
years.

I. Working Environment: Atmospheric Pollution, Noise and Vibrations

383. The problem of the working environment was the main theme of the
discussion at the International Labour Conference in June 1972. The Confer-
ence had before it a report of the Director-General of the ILO on Technology
for Freedom (Man in his Environment) and it adopted a Resolution concerning
the contribution of the ILO to the protection and enhancement of the envi-
ronment related to work. More recently, in 1977, the Conference adopted a
Convention (No. 148) and a Recommendation (No. 156) concerning the
Working Environment (Air Pollution, Noise and Vibration). The Convention,
which applies to all branches of economic activity contains a number of general
provisions on the measures to be taken in this field, and then it deals more
specifically with preventive and protective measures. The Recommendation
contains more detailed provisions, as regards these preventitive measures, and
it also deals with the supervision of the health of the workers, training, informa-
tion and research.

III. Standards Concerning Special Branches of Activity

A. Industrial Establishments

384. In the field of industrial establishments in general, the ILO adopted, in

1929 a Recommendation (No. 31), dealing with the prevention of industrial
accidents. At a later stage, a Model Code of Safety Regulations for Industrial
Establishments for the Guidance of Governments and Industry was approved by
a tripartite technical Conference, and was since supplemented and revised
many times. The standards contained in this Model Code, as in the case of
similar other such Codes, or Codes of practice, do not involve commitments for
States, but this text has nevertheless exercised a considerable influence on the
establishment of national safety regulations.

B. Building and Construction

385. Very detailed standards were also adopted as regards the industry of
building and construction. This was done in the Safety Provisions (Building)
Convention, 1937 (No. 62) which has been ratified by 27 States and which was
supplemented by four Recommendations (Nos. 53 to 56) in the same year.

152
Conditions of Work 386-388

C. Bakeries

386. Reasons of health are behind the prohibition of night work in bakeries,
which was provided by a Convention (No. 20) adopted in 1925 and ratified by
16 States up to now. In this connection, the Convention prohibits the work both
of employers and of workers taking part in the making of bread and other flour
confectionery, and this type of prohibition had- as said above 1 - raised the
question of the competence of the ILO to decide about a standard on such a
question, but the Permanent Court of International Justice pronounced itself in
the affirmative. One of the reasons for which this Convention has obtained a
limited number of ratifications only is to be found in the system of work by
shifts, which functions in the great modern bakeries.
1. See above No. 58.

D. Work in Offices and Commerce

387. Standards on questions of hygiene as regards work in offices and

commerce were laid down in a Convention on Hygiene (Commerce and
Offices), 1964 (No. 120), which has been ratified by some 40 States and
supplemented the same year by a Recommendation (No. 120).

E. Dock Work

388. Standards concerning dock work were contained in the Marking of

Weight (Packages Transported by Vessels) Convention, 1929 (No. 27) -
ratified by 55 States- and mainly in the Protection Against Accidents (Dock-
ers) Convention (Revised), 1932 (No. 32) - ratified by some 40 States - in
which very detailed provisions deal with the measures of safety which should be
taken on shore and on board ships to protect against accidents the workers
engaged in loading and unloading. Moreover a code of practice on safety and
health in dock work was established in 1956 and the 4th edition appeared in
1971. The Convention was supplemented by a Recommendation (No. 40)
adopted the same year, in which States concerned were asked to confer with a
view to securing reasonable uniformity in the application of the Convention,
including more particularly the mutual recognition of the arrangements made
for testing, examining and annealing and of relevant certificates and records.
More recently, the changes in technical processes rendered necessary the
revision of Convention (No. 32) and a first discussion in this connection took
place in 1978. Following this discussion, the International Labour Conference
decided that this item shall be included in the agenda of its 1979 Session with a
view to the adoption of a Convention and a Recommendation. The more
general problem of the social repercussions of new methods of cargo handling
in docks is referred to later. 1
1. See below No. 413.

153
389-392 Conditions of Work

F. Maritime Work

389. Many Conventions and Recommendations concerning seafarers and

fishermen relate to hygiene and safety. They will be mentioned in greater detail
in the chapter relating to that category of worker. 1
1. See below No. 510.

G. Other Activities

390. Among other activities about which provisions relating to hygiene and
safety were adopted, reference can be made to the Plantations Convention,
1958 (No. 110) which provides (Art. 89-91) that medical services should be
available for plantation workers and their families. Model Codes, guides or
codes of practice have also been established as regards activities such as work in
mines, agriculture and forestry.

IV. Standards Concerning Methods and Institutions for the Prevention of

Industrial Accidents and the Protection of Workers' Health

A. The Prevention of Industrial Accidents

391. In 1923 already, the labour inspection Recommendation (No. 20)

provided that labour inspectors should be entrusted with various tasks aiming
at the prevention of industrial accidents. A few years later, in 1929, the
question of the prevention of industrial accidents as such was dealt with in a
special Recommendation (No. 31). This instrument advocated the adoption of
a series of measures based on the experience which, at that time, had been
gained in different countries. These measures included inquiry into the causes
and circumstances of accidents, the collection and collation of statistics relating
to industrial accidents, the development of labour inspection, the adoption of
concrete measures, described in detail and aiming at the improvement of
safety, the co-operation of employers and workers, the establishment of exhibi-
tions, the publication of monographs, the inclusion in the curricula of the
schools of appropriate lessons, the adoption of legislative instruments, the
co-operation of insurance institutions and companies in the work of accident
prevention.

B. The Protection of Workers' Health

392. After the Second World War, the Protection of Workers' Health
Recommendation, 1953 (No. 97) provided for a number of detailed measures
of protection against the risks to the health of workers in places of employment,
medical examination of workers employed in occupations involving special

154
Conditions of Work 393-394
risks to their health, the notification of occupational diseases, first aid and
emergency treatment. At the same time, the International Labour Conference
adopted a special resolution in which it asked States to encourage measures for
the training of physicians qualified in occupational health and to study the
organization of industrial medical services.

C. The Occupational Health Services

393. After having taken shape during the First World War, as a result of the
initiative of Albert Thomas, then Minister of Munitions of France, occupa-
tional health services developed by becoming more and more integrated within
the industrial establishment for which they were responsible, in order to be in a
position to fulfil the very wide mission with which they are now entrusted. In
1959, the International Labour Conference, on the basis of the work of a group
of experts from different countries, adopted a Recommendation (No. 112) on
occupational health services in places of employment, which defined these
services and provided in some detail what should be their organization and
functions which should be essentially preventive. It also contained provisions
on the personnel and equipment of these services. The Recommendation set
the principle of full professional and moral independence of the physicians in
occupational health services in relation with the employer and the workers. It
also set the principle that these services should not involve the workers in any
expense. This Recommendation has been the first international instrument
dealing with the problem of the workers' health in its relation with the exercise
of the medical profession and it has exercised a considerable influence. 1 While
a number of countries have reservations because of the orientation of the
Recommendation towards mainly preventive occupational medicine, this
instrument appears to have retained its general usefulness, but the workers
consider that a Convention should be envisaged on the subject.
1. The Committee of Experts on the Application of Conventions and Recommendations
made, in 1970, a general survey of the effect given to this instrument.

V. Standards Defining the Occupational Diseases which

Give Rise to Compensation

394. Naturally, it was not sufficient to provide for the prevention of occupa-
tional accidents and diseases. It was also necessary to establish standards
relating to their compensation. While this question belongs to social security, 1
it may be useful to refer here to the main aspects of the system of compensation
of occupational deseases organized by ILO standards. This system is based on a
list of diseases which should be considered as being of occupational origin when
they affect workers who are engaged in determined trades, industries or
processes. The principle of the double list establishes a presumption for the
occupational origin of the disease and exempts the worker from the burden of
the proof, which would often have been difficult to produce so that compensa-

155
395-398 Conditions of Work

tion would be problematical. This overriding concern prevailed over objections

based on the difficulties of a fully satisfactory definition of occupational
diseases and of the inconveniences of too rigid a framework.
1. In this connection see briefly below No. 418.

395. The first Convention on workmen's compensation for occupational

diseases was adopted in 1925 (Convention No. 18), and has been ratified by 59
States. It gave a list of only three diseases (poisoning by lead, poisoning by
mercury and anthrax infection) but a Recommendation (No. 24) adopted the
same year asked each country to adopt a simple procedure by which the list of
diseases considered occupational in its national legislation may be revised. The
1925 Convention was revised in 1934 and the new Convention (No. 42), which
has been ratified by some 50 States, includes a list of ten occupational diseases. 1
Following the introduction in this new list of silicosis, the importance of which
had been underestimated previously, a series of measures were taken in many
countries as regards this disease.
1. It added the following diseases to those mentioned in the 1925 list: silicosis, poisoning by
phosphorus, arsenic, benzene or its homologues, the halogen derivatives of hydrocarbons of
the aliphatic series, pathological manifestations due to radioactive substances and the primary
epitheliomatous cancer of the skin.

396. The questions evolved, however, since 1934, and the Conference there-
fore adopted, thirty years later, a Convention (No. 121) concerning employ-
ment injury benefit. This Convention, which has been ratified by 17 States, also
includes a list of occupational diseases, which was more detailed than that of
1934. However, in view of the diversity of the existing national systems of
compensation of occupational diseases, the Convention gives ratifying States
an option between three possibilities; either the establishment of a list of
occupational diseases comprising at least those enumerated in the Convention,
or the adoption of a general definition of occupational diseases which would be
broad enough to cover at least those enumerated in the Convention, or a
combination of the two formulae.

397. At the same time, the Conference adopted, in 1964, a Recommenda-

tion (No. 121) which advocated that where national legislation contained a list
establishing a presumption of occupational origin in respect of certain diseases,
proof should be permitted of the occupational origin of diseases not so listed
and of diseases listed when they manifest themselves under conditions different
from those establishing a presumption of thier occupational origin.

398. Among the various systems which are now recognized in the different
countries, the system of the double list, on which the 1925 and 1934 Conven-
tions were based, certainly is the one which offers the greater guarantees to
workers, because of the presumption which it involves. However, it results may
sometimes be unjust, as it could exclude the compensation of diseases which in
fact might be of an occupational origin. On the other hand, the opposite system,
described as being of global coverage, ensures, in principle, the compensation

156
Conditions of Work 399-400

of any occupational disease, but it requires that the worker concerned brings
the evidence, or at least that there exists in each concrete case a sufficient
degree of presumption, that the disease really is of an occupational origin.
Finally, the system will depend to a great extent on the value of the medical
diagnosis. For these reasons, the mixed system, which has been introduced by
certain countries, appears to be able to remedy both the exceedingly absolute
and restrictive character of the lists and the uncertainties of the global cover-
age.

VI. Future Prospects

399. However long it may appear to be, the above enumeration of the
existing instruments relating to industrial safety and hygiene should not give
the impression that the standard-setting activities of the ILO in this field,
important as they may be, can be considered as achieved. Certain of the
existing standards should be reviewed in the light of technological change.
Others are not contained in Conventions, i.e. in instruments which can, as a
result of their ratification, give rise to legal obligations. Moreover, among
existing Conventions, while some deal with specific aspects of safety in industry
and while the influence exercised by the Model Code of Safety in industrial
establishments should not be underestimated, there is no Convention dealing
in a general way with safety and hygiene in industry. Finally, while certain
hazards which were important in the past have been covered by various
standards and have more generally been successfully dealt with (as in the case
of anthrax infection, lead poisoning and, to a certain extent, silicosis), other
hazards remain serious, new occupational diseases appear and the prevention
of industrial accidents still constitutes a matter of major concern. Technical
progress reduces certain hazards but also gives rise to new ones. Thus further
instruments are being contemplated about new harmful substances in the
working environment such as asbestos, pesticides and herbicides in agriculture,
as well as the adoption of an over-all standard on measures aiming at reducing
industrial accidents and occupational diseases. It has been decided that the
question of 'safety and health and the working environment' will be placed on
the agenda of the 1980 Session of the International Labour Conference.

VII. Other International Standards

400. At the universal level, the International Covenant on Economic, Social

and Cultural Rights provides in general terms that the just and favourable
conditions of work which everyone should enjoy should ensure in particular
'safe and healthy working conditions' (Art. 7, para. b). At the European level,
the European Social Charter contains a provision (Art. 3) relating to safe and
healthy working conditions. Following a suggestion of the workers at the 1958
Tripartite Conference, this provision specifies that Contracting Parties under-
take

157
401-404 Conditions of Work

'1. to issue safety and health regulations;

2. to provide for the enforcement of such regulations by measures of supervi-
sion;
3. to consult, as appropriate, employers' and workers' organizations on meas-
ures intended to improve industrial safety and health.'

§5. WELFARE FACILITIES, HOUSING AND SPARE TIME

I. Welfare Facilities for Workers

401. Adopted in 1956, a Recommendation (No. 102) on Welfare Facilities,

which applies to manual and non-manual workers employed in public or
private undertakings (excluding workers in agriculture and sea transport) has
set the principles and defined the standards concerning welfare facilities relat-
ing to feeding (canteens, buffets and trolleys, messrooms and other suitable
rooms, mobile canteens, other facilities etc.), to rest in the undertakings (seats
and rest rooms), to recreation, to management and financing of feeding and
recreation facilities, and finally to transport facilities to and from work.

402. Considering the problem from a more general point of view, the Euro-
pean Social Charter included a provision (Art. 14) on 'the right to benefit from
social welfare services', in which it is specified that States undertake 'to pro-
mote or provide services which, by using methods of social work, would
contribute to the welfare and development of both individuals and groups in
the community, and to their adjustment to the social environment' and 'to
encourage the participation of individuals and volunteers or other organiza-
tions in the establishment and maintenance of such services'.

D. Housing

403. Already in 1921, the question of housing for workers had been dealt
with in a Recommendation (No. 16) drafted in general terms and relating to
living-in conditions of agricultural workers. The provision of adequate housing
appeared in the programme assigned to the ILO by the 1944 Declaration of
Philadelphia. The Universal Declaration of Human Rights, which was adopted
by the United Nations four years later, referred to housing among the elements
which should constitute a satisfactory standard of living (Art. 25, para. 1) On
the basis of the common interest which the two organizations thus had in the
matter, it was recognized by them in 1949 that the United Nations have a
general responsibility in the field of housing and of urban and rural develop-
ment and the ILO have a special interest as regards housing of workers.

404. In these circumstances, a Recommendation (No. 115) on workers'

housing was adopted in 1961. 1 This Recommendation first defines the objec-
tives of national housing policy and the responsibility of public authorities.

158
Conditions of Work 405-407

Then it deals with housing provided by employers, the question of financing,

housing standards, measures to promote efficiency in the building industry,
house building and employment stabilization and finally town, country and
regional planning. The Recommendation also contains detailed suggestions
concerning methods of application of the principles which it has set, as well as
some connected questions, such as rent policy.
1. Before the adoption of this over-all Recommendation, other instruments referred to
housing for special categories of workers. Apart from the 1921 Recommendation on agricul-
tural workers, Conventions were adopted more recently on accommodation of crews for
seamen and fishermen (see No. 510 below) and provisions about housing are also contained in
the 1958 Plantations Recommendation (No. 110).

405. Among the other international standards in the field of housing, refer-
ence can be made, following the terms of the Universal Declaration of Human
Rights, which has already been mentioned above, to a provision of the Interna-
tional Covenant on Economic, Social and Cultural Rights (Art. 11, para. 1) in
which reference is made to 'adequate housing' among the elements which
constitute to an 'adequate standard of living'.

406. More recently, in the framework of the right of migrant workers and
their families to protection and assistance, the European Social Charter (Art.
19, para. 4-c), using to a large extent the same wording as a provision ofthe
ILO Migrant Workers (Revised) Convention, 1949 (No. 97), provided that
migrant workers who are lawfully within the territory of a Contracting Party
are entitled to treatment not less favourable than that of their own nationals in
respect of remuneration and other employment and working conditions, mem-
bership of trade unions and enjoyment of the benefits of collective bargaining
and accommodation.

III. Workers' Spare Time

407. A few years after it adopted, in 1919, the Convention on the eight-hour
day, the International Labour Conference considered the problem of the
utilization by the workers of the spare time which would thus become available.
A detailed Recommendation (No. 21) was adopted in 1924 on that question.
This instrument advocates in the first instance the preservation of spare time by
the conclusion of collective agreements which would ensure a normal standard
of living to workers in exchange for their legal hours of work and which would
determine the measures to prevent workers from having recourse to additional
paid work. It also recommended that the working day be so arranged as to
make the periods of spare time as continuous as possible. It also dealt with
questions of social hygiene, of housing policy and of institutions for the utiliza-
tion of spare time. It stressed, in particular the need to take into account the
desires, the tastes and the special requirements of the workers concerned, while
recommending to take certain types of initiatives, which it described. It also
underlined the principle of free use of institutions and it emphasized the

159
408-410 Social Policy

necessity of safeguarding the individual freedom of the workers against any

system or scheme which has any tendency towards compelling the workers
directly or indirectly to use any particular institution. It was also reminded in
the preamble of the Recommendation that, etymologically 'leisure' means to
do as one pleases. Such insistence was particularly appropriate at a period at
which organized spare time was going to be greatly developed in countries with
authoritarian regimes. Finally, without envisaging any systematic organization
of spare time, the Conference recommended measures of co-ordination and of
propaganda in that field.
408. More recently, leisure was mentioned in general terms in the Universal
Declaration (Art. 24) and in the International Covenant on Economic, Social
and Cultural Rights (Art. 7, para. d).

Chapter VII. Social Policy

§ 1. GENERAL PRINCIPLES OF SOCIAL POLICY

409. While, generally, each International-Labour Convention and Recom-

mendation deals with a well defined subject, it seemed useful to adopt certain
instruments relating to social policy as a whole, in order to encourage govern-
ments to pursue a systematic and co-ordinated action in this field. This was first
the case in 194 7, when the ILO Conference adopted the. Social Policy (Non-
Metropolitan Territories) Convention (No. 82). The Convention was ratified
by four States responsible for such territories and remains applicable to
twenty-four territories with or without modifications. Later, the Convention
was revised when many countries to which it was applicable became indepen-
dent. A new Convention (No. 117) was adopted in 1962, mainly to allow
independent States to continue to apply it or to ratify it. The revised instrument
contains the main provisions of the 194 7 Convention but omits those which
related to the situation of non-metropolitan territories. In this wider concep-
tion, the title of the Convention in its revised form is 'Convention concerning
basic aims and standards of social policy'.
410. The general principle laid down in the Convention is that all policies
shall be directed to the well-being and development of the population and to
the promotion of its desire for social progress. It also adds that all policies of
more general application shall be formulated with due regard to their effect
upon the well-being of the population. Then, the Convention sets certain
standards of which governments should take account to reach these objectives.
Thus, the improvement of standards of living should be regarded as the
principal objective in the planning of economic development. A series of
measures are advocated in order to harmonize economic development with a
healthy evolution of the communities concerned,! to promote the productive
capacity and improve the standards of living of agricultural producers,2 and to
secure for independent producers and wage earners conditions which will give
them scope to improve living standards by their own efforts.

160
Social Policy 411-414

1. Study of the causes and effects of migratory movements and appropriate action where
necessary, promotion of town and village planning, prevention and elimination of congestion
in urban areas, improvement of living conditions in rural areas and establishment of suitable
industries.
2. Elimination of the causes of chronic indebtedness, control of the alienation of agricultural
land to non-agriculturalists, control of the ownership and use of land and resources to ensure
that they are used in the best interests of the inhabitants of the country, supervision of tenancy
arrangements and of working conditions with a view to securing for tenants and labourers the
highest practicable standards of living, reduction of production and distribution costs, in
particular by forming, encouraging and assisting producers' and consumers' cooperatives. On
the latter point a recommendation adopted in 1966 (No. 127) dealt with the role of co-
operatives in the economic and social development of developing countries.

411. The Convention also includes special provisions concerning migrant

workers, remuneration of workers and related questions of protection of
wages. It provides that it shall be an aim of policy to abolish all discrimination
among workers on grounds of race, colour, sex, belief, tribal association or
trade union affiliation in respect of the various fields of employment and
conditions of work. It finally provides for the progressive development of
broad systems of education, vocational training and apprenticeship and
requires that the school-leaving age and the minimum age for and conditions of
employment be prescribed by national laws or regulations.

412. Convention No. 117 has been ratified by 27 countries, mainly devel-
oping ones. A number of governments felt unable to proceed with its ratifica-
tion, for very different reasons. 1 Some developed countries referred to the
origin of the Convention and considered that it is mainly directed to developing
countries or to countries which became independent at a recent date. In other
cases, on the contrary, difficulties were encountered by developing countries
which, while giving their support to the principles on which the Convention was
based, considered that existing economic and social conditions prevented them
from giving full effect to the provisions of the Convention. However the
flexibility of the terms of the Convention has often been underlined and its
ratification made good progress over the years.
1. See the general survey made by the Committee of Experts in 1969.

§2. SOCIAL REPERCUSSIONS OF TECHNICAL PROGRESS

413. Some particular aspects of social policy have also been examined at
more recent dates. This was the case in 1972 and in 1973, when the Interna-
tional Labour Conference dealt with two questions arising out of technical
progress. One of them related to the social repercussions of the new methods of
cargo handling in docks, about which the Conference adopted, in 1973, a
Convention (No. 137) ratified by 11 States until now, and supplemented by a
Recommendation (No. 145).

414. As regards the labour and social implications of automation and other
technological developments, the Conference adopted, in 1972, a Resolution

161
415-417 Social Security

stating the principles and programmes which should guide governments, em-
ployers and workers and their organizations, in particular as regards labour-
management relations, full employment (by pointing out that in situations of
widespread unemployment, the employment effects of using advanced tech-
nology must be considered together with its role in economic development),
preventing or minimizing job loss, assistance to workers who lose their em-
ployment, preparation for new occupational requirements, health and safety
and some other conditions of work (in particular from the point of view of
reduction of hours of work). The Resolution invited the ILO to carry out a
number of studies on specific social problems of technological development
and requested that the question of the social effects of technological change be
put on the agenda of future sessions of the International Labour Conference,
with a view to the adoption of international instruments.

§3. MULTINATIONAL ENTERPRISES AND SOCIAL POUCY

415. The problem of multinational enterprises and social policy has been
examined by the ILO for a number of years and a number of studies1 and
meetings were devoted to it. In this connection, among the questions which
were considered was that of the usefulness and feasibility of international
principles and guidelines on social policy for multinational enterprises.2 In
November 1977, the ILO Governing Body approved an 'ILO Tripartite Decla-
ration of Principles concerning Multinational Enterprises and Social Policy'
which had been prepared by a Tripartite Advisory Meeting. This Declaration
deals with general policies, employment (employment promotion, equality of
opportunity and treatment, security of employment), training, conditions of
work and life (wages, benefits and conditions of work, safety and health) and
industrial relations (freedom of association and the right to organize, collective
bargaining, consultation, examination of grievances, settlement of industrial
disputes).
1. Multinational Enterprises and Social Policy, ILO, Geneva 1973.
2. See International principles and guidelines on social policy for multinational enterprises:
their usefulness and feasibility, Geneva, ILO, 1976.

Chapter VIII. Social Security

416. As social security is not covered by the present Encyclopedia, we shall
not deal here in any detail with the various ILO and other international
instruments which have been adopted in this field. For the sake of complete-
ness, we shall only give a very brief outline of the general trend of the various
international standards which relate to social security .1
1. For a more detailed account of the international standards on social security see our book
on Droit international du travail, Paris, 1970 (pages 386-426) and the more recent edition in
Spanish 'Derecho internacional del trabajo', Madrid, 1977 (pages 356-385).

417. The Preamble of the ILO Constitution requested the Organization

162
Social Security 418-420

already when it was established, in 1919, to improve conditions of work, in

particular by 'the prevention of unemployment, . . . the protection of the
worker against sickness, disease and injury arising out of his employment, ...
provision for old-age and injury'.

418. During an initial period, from 1919 to 1936, a series of distinct instru-
ments mainly based on the notion of social insurance, were adopted to protect
given categories of workers against a certain number of risks. The first of these
standards dealt with the subject of unemployment (Convention No.2) in 1919
and workmen's compensation (accidents and occupational diseases) (Conven-
tions Nos. 17, 18 and 19) in 1925. Then, in 1927, the ILO launched the
systematic adoption of separate Conventions providing for the establishment
of social insurance schemes relating each to a specific contingency and a major
economic sector, i.e. sickness, old-age, invalidity and survivors on the one hand
in industry and on the other in agriculture. In 1934, the 1925 Convention on
occupational diseases was revised, as indicated above, 1 and a Convention and a
Recommendation (No. 44) were adopted to grant benefits or allowances to
unemployed persons. The following year another Convention (No. 48) was
adopted in an attempt to deal with the difficult question of the maintenance of
Migrants' Pension Rights. During the same period, and more particularly in
1936, Conventions were adopted to provide for compensation in case of
sickness or accidents occurring to seafarers.
1. See above No. 396.

419. During a second period, which started in 1944, the standards were
based on the wider notion of social security, the aim of which was to provide a
basic income for all those who need such protection, as well as full medical care.
The new approach was based on the principles of universality and of unity of
the function entrusted to social security. In 1944, it received an impetus, at the
international level, from the Declaration of Philadelphia, which advocated 'the
extension of social security measures to provide a basic income to all in need of
such protection and comprehensive medical care' and from two Recommenda-
tions', the one of which (No. 67) related to income security and the other (No.
69) dealt with medical care.

420. In 1952, the ILO adopted the basic post-war Convention in the field of
social security, i.e. Convention (No. 102) concerning social security (minimum
standards), now ratified by 29 States. This instrument is based on the principle
of a general standard of social security which could be reached by each State,
without regard to its own situation and the stage of its economic and social
development. The Convention provides for a general scheme of social security
covering all the risks and benefits and being gradually extended to all the
population. The Convention deals with the nine main branches of social
security (medical care, sickness benefit, unemployment benefit, old-age
benefit, employment injury benefit, family benefit, maternity benefit, invalid-
ity benefit, survivors' benefit). A State should accept three at least of these
branches to ratify this instrument. The Convention also authorizes certain

163
421-422 Industrial Relations

exceptions for States 'whose economy and medical facilities are insufficiently
developed'. The minimum standard provided by the Convention is defined in
the first instance as regards the scope of the protection, which should cover
either 50 per cent of all employees, or prescribed classes of economically active
population, constituting not less than 20 per cent of all residents, or all resi-
dents whose means during the contingency do not exceed given limits. The
Convention also establishes a minimum standard as regards the benefits, which
must comprise benefits in kind (medical care, etc.), as well as benefits in cash
consisting of periodic payments, for which it determines their minimum level
by reference to the general level of wages in each country.

421. Following the adoption of Convention No. 102, the ILO undertook the
establishment of a series of new instruments with a view to supplementing or
revising the previous ones and sometimes to providing for a higher degree of
protection than Convention No. 102. Thus, in 1962, the Conference adopted
the Equality of Treatment (Social Security) Convention (No. 118), in 1964 the
Employment Injury Benefits Convention (No. 121), in 1967 the Invalidity,
Old-Age and Survivors' Benefits Convention (No. 128) and Recommendation
(No. 131) and in 1969 the Medical Care and Sickness Benefits Convention
(No. 130) and Recommendation (No. 134). The programme for the revision of
existing social security standards includes those relating to unemployment
benefits. Consideration is also being given to the possibility of a new instrument
on family benefits and to the revision of the Maintenance of Migrants' Pension
Rights, 1935 (No. 48). Apart from the establishment and revision of social
security standards of general application, the ILO has pursued the adoption
and revision of conventions containing social security standards relating to
special categories of workers, such as seafarers, in particular. 1
1. See below No. 512.

Chapter IX. Industrial Relations

§ 1. GENERAL OUTLINE

422. The question of industrial relations is closely linked to that of freedom

of association, 1 which constitutes a basic condition for healthy industrial rela-
tions, in the same way as industrial relations constitute the normal develop-
ment of freedom of association. It is a matter of fact that, in many respects,
industrial relations in the world are not yet fully satisfactory. This is clearly
shown by the number and sometimes the gravity of industrial disputes which
take place even in highly industrialized countries. In spite of this, great progress
has been accomplished during the last decades and this is due to a large extent
to the action of the IL0. 2 The tripartite structure of the ILO has, since the
Organization was created stimulated the establishment of national systems of
industrial relations based on the recognition by States of workers' represen-
tative organizations, on consultation and on social dialogue. At the level of ILO
Constitutional principles, the 1944 Declaration of Philadelphia listed, among

164
Industrial Relations 423-424
the main objectives of the Organization, 'the effective recognition of the right
of collective bargaining, the co-operation of management and labour in the
continuous improvement of productive efficiency, and the collaboration of
workers and employers in the preparation and application of social and
economic measures'.
1. See above No. 164 ss.
2. See G. Spyropoulos 'An Outline of Developments and Trends in Labour Relations' ,I.L.R.,
March 1969.

423. As regards international standards in the technical meaning, the gen-

eral principle of the right to collective bargaining was set in the Right to
Organize and Collective Bargaining Convention, 1949 (No. 98), to which
reference was made above, 1 in the framework of freedom of association.
Following the adoption of that Convention, various aspects of industrial rela-
tions were dealt with in a number of Recommendations. These Recommenda-
tions related to collective agreements, voluntary conciliation and arbitration,
co-operation at the level of the undertaking, consultation at the industrial and
national levels, termination of employment, communications within the under-
taking and the examination of grievances. Moreover it has been explained
above 2 that a Convention and a Recommendation were adopted in 1971 in
regard to the protection and the facilities to be afforded to workers' represen-
tatives in the undertaking. Reference was also made to the question of labour
relations in the public service which was considered by the International
Labour Conference in 1978.3 Finally, standards relating to industrial relations
were adopted in certain special fields, e.g. as regards Seamen's Articles of
Agreement and the contracts of employment of indigenous workers. 4
1. Nos. 189 ss.
2. Nos. 196 and f.
3. See above Nos. 202 and 535.
4. See below Nos. 506-507 and 525-526.

§2. COLLECTIVE AGREEMENTS

424. The question of collective agreements was dealt with in a Recommen-

dation (No. 91) adopted in 1971. In this field, as for the other aspects of
industrial relations, the form of a Recommendation was considered to be more
appropriate than that of a Convention, in view of the variety of national
situations. The Recommendation first refers to the machinery of collective
agreements and leaves it to the parties concerned or to national legislation to
establish 'machinery appropriate to the conditions existing in each country'. It
defines collective agreements as meaning 'all agreements in writing regarding
working conditions and terms of employment concluded between an employer,
a group of employers or one or more employers' organizations, on the one
hand, and one or more representative workers' organizations or, in the absence
of such organizations, the representatives of the workers duly elected and
authorized by them in accordance with national laws and regulations'.

165
425-428 Industrial Relations

425. The Recommendation then deals with the effects of collective agree-
ments. It sets the principle that they should bind the signatories and those on
whose behalf the agreement is concluded and that if contracts of employment
concluded between employers and workers who are bound by a collective
agreement contain stipulations contrary to the agreement, such stipulations
should be regarded as null and void, unless they are more favourable to the
workers. The Recommendation also considers the possibility of extension of
collective agreements to all the employers and workers included within the
industrial and territorial scope of the agreement. It specifies certain conditions
subject to which such extension could take place.

426. The last provisions of the Recommendation relate to the interpretation

of collective agreements, to the supervision of their application and to various
measures of publicity, such as the requirement for employers to bring to the
notice of the workers concerned the texts of collective agreements applicable to
their undertakings and the registration or deposit of collective agreements and
subsequent changes. Finally, it is specified that national laws may make provi-
sion for a minimum period during which, in the absence of any stipulation to the
contrary in the agreement, collective agreements shall be deemed to be binding
unless revised or rescinded at an earlier date by the parties.

§3. VOLUNTARY CONCILIATION AND ARBITRATION

427. In 1951 also, the International Labour Conference adopted the

Recommendation (No. 92) concerning Voluntary Conciliation and Arbitra-
tion. As regards voluntary conciliation, the Recommendation provides that a
machinery should be made available to assist in the prevention and settlement
of industrial disputes between employers and workers. Where voluntary con-
ciliation machinery is constituted on a joint basis, it should include equal
representation of employers and workers. The procedure should be free of
charge and expeditious, and time limits should be fixed in advance and kept to a
minimum. It should be possible to set the procedure in motion either on the
initiative of any of the parties to the dispute or ex officio by the voluntary
conciliation authority. If a dispute has been submitted to conciliation pro-
cedure with the consent of all the parties concerned, the latter should be
encouraged to abstain from strikes and lockouts while conciliation is in pro-
gress. All agreements which the parties may reach should be drawn up in
writing and be regarded as equivalent to agreements concluded in the usual
way.

428. As regards voluntary arbitration, the Recommendation provides that,

if a dispute has been submitted for final settlement to arbitration 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. Finally, it is specified that no provision in the Recommenda-
tion may be interpreted as limiting the right to strike. The provision was

166
Industrial Relations 429-430

adopted 'to emphasize the purely optional character of the procedures referred
to' 1 in the Recommendation.
1. Intern. Lab. Code, page 709, note 36 under art. 876M.

§4. CO-OPERATION AT THE LEVEL OF THE UNDERTAKING

429. Standard-setting in the field of industrial relations was pursued in 1952

with the adoption of a Recommendation (No. 94) concerning Co-operation at
the Level of the Undertaking. 1 The Recommendation is drafted in general
terms and it provides, in the first place, that steps should be taken to promote
consultation and co-operation between employers and workers at the level of
the undertaking on matters of mutual concern not within the scope of collective
bargaining machinery, or not normally dealt with by other machinery con-
cerned with the determination of terms and conditions of employment. In
accordance with national custom or practice, such consultation and co-
operation should be facilitated by the encouragement of voluntary agreements
between the parties or promoted by laws or regulations which would establish
bodies for consultation and co-operation and determine their scope, functions,
structure and methods of operation as may be appropriate in the various
undertakings. Such consultation and co-operation might also be facilitated or
promoted by a combination of these two methods.
1. See, more generally, de Givry, 'Developments in Labour-Management Relations in the
Undertaking', I.L.R., January 1969.

§5. CONSULTATION AT THE INDUSTRIAL AND NATIONAL LEVELS

430. A few years later, in 1960, a further Recommendation was adopted in

order to supplement the previous one by providing for the consultation and
co-operation which should be instituted between public authorities and emp-
loyers' and workers' organizations- or between the latter- at the industrial and
nationallevels. 1 The Recommendation provides that measures appropriate to
national conditions should be taken to promote such effective consultation and
co-operation. Consultation and co-operation of this kind should aim, in par-
ticular:
a. at joint consideration by employers' and workers' organizations of matters of
mutual conern with a view to arriving, to the fullest possible extent, at agreed
solutions;
b. at ensuring that the competent public authorities seek the views, advice and
assistance of employers' and workers' organizations in respect of such mat-
ters as:
(i) the preparation and implementation of laws and regulations affecting
their interests;
(ii) the establishment and functioning of national bodies, such as those
responsible for organization of employment, vocational training and

167
431-433 Industrial Relations

retraining, labour protection, industrial health and safety, productivity,

social security and welfare; and
(iii) the elaboration and implementation of plans of economic and social
development.
More generally, such consultation and co-operation should have the objective
of promoting mutual understanding and good relations between public
authorities and employers' and workers' organizations, as well as between
these organizations, with a view to developing the economy as a whole or
individual branches of it, improving conditions of work and raising standards of
living.
1. See in this connection the general survey prepared in 1976 by the Committee of Experts on
the Application of Conventions and Recommendations.

431. The Recommendation specifies that measures to promote such consul-

tation and co-operation should be applied without discrimination of any kind
against these organizations or amongst them on grounds such as race, sex,
religion, political opinion or national extraction of its members. The consulta-
tion and co-operation should not derogate from freedom of association or from
the rights of employers' and workers' organizations, including their right of
collective bargaining.

432. The Recommendation refers to various methods to provide for or

facilitate consultation and co-operation, in accordance with national custom or
practice, such as voluntary action on the part of the employers' and workers'
organizations, promotional action on the part of the public authorities, laws or
regulations, or a combination of any of these methods.

§6. TERMINATION OF EMPLOYMENT AT THE INITIATIVE OF THE EMPLOYER

433. In 1963, the adoption of the Recommendation concerning Termination

of Employment at the Initiative of the Employer (No. 119) contributed an
important development from the point of view both of industrial relations and
of security of employment. It has been one of the ILO instruments which, in a
few years, had the greatest impact. 1 While leaving a large measure of freedom
as regards its methods of application (national laws or regulations, collective
agreements, work rules, arbitration awards, court decisions, etc.), the Recom-
mendation, which has a wide scope,2 establishes the general standard that
termination of employment should not take place unless there is a valid reason
connected with the capacity or conduct of the worker or based on the opera-
tional requirements of the undertaking, establishment or service. While leaving
the definition or interpretation of such valid reason to the methods of
implementation of each country, the Recommendation provides that the
following should not constitute valid reasons for termination of employ-
ment:
a. union membership or participation in union activities outside working hours
or, with the consent of the employer, within working hours;

168
Industrial Relations 434-436

b. seeking office as, or acting or having acted in the capacity of, a workers'
representative;
c. the filling in good faith of a complaint or the participation in a proceeding
against an employer involving alleged violation of laws or regulations; or
d. race, colour, sex, marital status, religion, political opinion, national extrac-
tion or social origin.
1. See in this connection the general survey established in 197 4 by the Committee of Experts
on the Application of Conventions and Recommendations. See also Yemin, 'Job Security:
Influence of ILO Standards and Recent Trends', /.L.R., January-February 1976. This
Recommendation has, in a few years, influenced the legislation of some 20 countries.
2. The Recommendation applies to all branches of economic activity and all categories of
workers but allows for certain exceptions, such as workers engaged for a specified period of
time, etc.

434. As a general rule, a worker who feels that his employment has been
unjustifiably terminated should be entitled to appeal against that termination
to a body established under a collective agreement or to a neutral body such as
a court or an arbitrator. That body should be empowered to examine the
reasons given for the termination of employment- but this does not imply that
it should be empowered to intervene in the determination of the size of the
work force of the undertaking- and to order that the worker concerned, unless
reinstated with payment of any unpaid wages, should be paid adequate com-
pensation.

435. A worker whose employment is to be terminated should be entitled to a

reasonable period of notice or compensation. During the period of notice, he
should be entitled to a reasonable amount of time off without loss in pay in
order to seek other employment. The worker whose employment has been
terminated should be entitled to receive a certificate from the employer
specifying the dates of his engagement and termination and the type of work on
which he was employed. Nothing unfavourable to the worker should be
inserted in such certificate. The Recommendation also provides for some form
of income protection for the workers concerned (such as unemployment insur-
ance, severance allowance, etc.). In case of dismissal for serious misconduct, a
period of notice or compensation need not be required and the severance
allowance may be withheld. Dismissal for serious misconduct should take place
only in cases where the employer cannot in good faith be expected to take any
other course, and the worker should be given the opportunity to state his case
promptly, with the assistance where appropriate of a person representing him,
before a decision to dismiss him for serious misconduct becomes finally effec-
tive.

436. The Recommendation also includes supplementary provisions con-

cerning reduction of the work force. These provisions relate, in particular, to
the adoption of measures to avert or minimize as far as possible reactions of the
work force without prejudice to the efficient operation of the undertaking, to
consultation with workers' representatives when a reduction of the work force
is contemplated and to notification to the public authorities if a proposed

169
437-439 Industrial Relations

reduction of the work force is on such a scale as to have a significant bearing on

the manpower situation of a given area or branch of economic activity. The
Recommendation also refers to the criteria according to which the selection of
the workers to be affected by a reduction of the work force should be made. It
lists certain of these criteria, such as the need for the efficient operation of the
undertaking, the ability, experience, skill and occupational qualifications of
individual workers, length of service, age and family situation. It is also pro-
vided that workers whose employment has been terminated owing to a reduc-
tion of the work force should be given priority of re-engagement, to the extent
possible by the employer, and the rate of their wages should not then be
adversely affected as a result of the interruption of their employment.

43 7. In the field of termination of employment, the European Social Charter

contains a provision (Art. 4, para. 4) which was included following a suggestion
made by the Tripartite Conference and which relates to the 'right of all workers
to a reasonable period of notice for termination of employment'. The Appen-
dix to the Charter adds, as it had also been agreed by the Tripartite Conference,
that this provision does not prohibit 'immediate dismissal for any serious
offence'.

§7. COMMUNICATIONS AND EXAMINATION OF GRIEVANCES IN THE UNDERTAKING

438. The question of co-operation at the level of the undertaking, which was
initiated in 1952 by Recommendation No. 94, was pursued in 1967 by two
Recommendations relating to particular aspects of this matter. The first of
these instruments (Recommendation No. 129) deals with communications
between management and workers within the undertaking. It recommends that
employers and their organizations as well as workers and their organizations
should, in their common interest, recognize the importance of a climate of
mutual understanding and confidence within undertakings that is favourable
both to the efficiency of the undertaking and to the aspirations of the workers.
It advocates various measures to promote this climate, in particular the adop-
tion 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 between the parties 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 having specified
that the communication methods should in no way derogate from freedom of
association, the Recommendation describes the various elements for a com-
munications policy.

439. The second Recommendation (No. 130) relates to the examination of

grievances within the undertaking with a view to their settlement. It provides
that any worker who, acting individually or jointly with other workers, consid-
ers that he has grounds for a grievance should have the right to submit such
grievance without suffering any prejudice as a result and to have such grievance

170
Work of Women 440

examined pursuant to an appropriate procedure. The Recommendation, which

does not deal with collective claims aimed at the modification of terms and
conditions of employment, specifies the grounds for the grievances to which it
relates. It advocates the association of workers' organizations or of the repre-
sentatives or workers in the undertaking, with equal rights and responsibilities,
with the employers or their organizations, in the establishment and the
implementation of grievance procedures within the undertaking. With a view
to minimizing the number of grievances, it calls attention to the establishment
and proper functioning of a sound personnel policy, which should take into
account and respect the rights and interests of the workers. The grievance
procedures should not result in limiting the right of workers to apply directly to
the competent labour authority or to a labour court or other judicial authority.
The Recommendation also contains a number of suggestions about the
grievance procedures within the undertaking and the procedures which might
be followed for the adjustment of unsettled grievances.

Chapter X. Work of Women

440. In the field of work of women, international action has been guided by
two main considerations. The first has been the desire to protect women against
excessively arduous conditions of work, in particular in the case of maternity.
This concern for protection against abuse, which was manifested in the XIXth
century was at the origin of one of the two Bern Conventions of 1906. In 1919 it
found its expression in the Preamble of the Constitution of the ILO. A parallel
concern aimed at ensuring equality of rights and of treatment between women
and men. The question has already been mentioned in connection with dis-
crimination in employment. 1 The most well-known aspect of discrimination on
the basis of sex is the question of equal remuneration which was already, in
1919, among the general principles of the ILO and which was dealt with, in
1951, in a Convention which had a big impact. In some cases, these two
different considerations appeared to be in conflict and certain advocates of the
principle of equality opposed protective measures which appeared to them to
be such as to jeopardize the realization of this principle and to lead to or imply a
certain degree of discrimination. In resolutions adopted in 1975, the Interna-
tional Labour Conference requested that the ILO study the need for new
instruments concerning equal opportunity and equal treatment for women and
men in occupation and employment with a view to supplementing the existing
Conventions (Nos. 100 and 111) and that there should be a review and a
revision, if necessary, of ILO standards relating to the employment of women,
in order to determine whether their provisions are still adequate. The present
chapter will deal in particular with international standards relating to maternity
protection, night work of women, employment of women in unhealthy or
dangerous occupations, equal remuneration and employment of women with
family responsibilities.
1. See above No. 234 ff.

171
441-443 Work of Women

§ 1. MATERNITY PROTECTION

441. Maternity protection was first dealt with in a Convention (No. 3)

adopted by the ILO Conference at its first session, in 1919 and ratified by 28
States. This instrument was revised by Convention No. 103, adopted in 1952
and ratified by 17 States. While the former Convention applied to industry and
commerce, the latter covers industry, non-industrial occupations, including
domestic work and agricultural occupations. The two Conventions apply to
workers of public or private undertakings, irrespective of age, nationality, race
or creed, whether married or unmarried. Convention No. 103, the scope of
which is wider, authorizes exceptions for family undertakings. It also allows for
exceptions for certain categories of non-industrial occupations, for agricultural
undertakings, other than plantations, for domestic work for wages in private
households, for women wage earners working at home, and for transport by
sea. The categories in respect of which a State has recourse to this possibility of
exception have to be specified in a declaration accompanying the ratification,
and the State concerned shall indicate in its annual reports on the application of
the Convention the position of its law and practice in respect of the occupations
or undertakings concerned and the extent to which effect has been given or is
proposed to be given to the Convention in respect of such occupations or
undertakings.

442. The Conventions provide that the period of maternity leave shall be at
least twelve weeks. While Convention No. 3 required that six weeks should be
taken before and six weeks after confinement, Convention No. 103 is more
flexible and only provides that the 12 weeks shall include a period of compul-
sory leave after confinement, which shall in no case be less than six weeks. The
leave before the presumed date of confinement shall be extended by any period
between that presumed date and the actual date of confinement and the period
of leave after confinement shall not be reduced on that account. The leave shall
also be extended in case of illness arising out of pregnancy or confinement.

443. During her leave, the woman shall be entitled to receive cash and
medical benefits. The rates of cash benefit should be sufficient for the full and
healthy maintenance of herself and her child in accordance with a suitable
standard of living. Medical benefits should include pre-natal, confinement and
post-natal care as well as hospitalization care where necessary, freedom of
choice of doctor and of hospital should be respected. The benefits should be
provided either by means of compulsory social insurance or by means of public
funds. Both Conventions - the latter more explicitly - exclude that the emp-
loyer be individually liable for the cost of the benefits, in order to prevent the
practice of discriminatory measures as regards employment of women and also
to avoid any difficulties of obtaining payment. Convention No. 103 added that
whe~ cash benefits provided under compulsory social insurance are based on
previous earnings, they should be at a rate of not less than two-thirds of the
woman's previous earnings taken into account.

172
Work of Women 444-448

444. If the woman is nursing her child she should be entitled to interrupt her
work for this purpose, and the interruptions for that purpose should be counted
as working hours and remunerated accordingly. Convention No. 3 provided
that the woman should be allowed half an hour twice a day for this purpose, but
Convention No. 103 is drafted in more general terms and also permits that the
matter be determined by collective agreements.

445. Finally, the Conventions prohibit that notice of dismissal be given to a

woman during her absence from work on maternity leave or at such a time that
the notice would expire during such absence.

446. At the same time as it adopted Convention No. 103, in 1952, the
International Labour Conference adopted a Recommendation (No. 95) which
advocated some more precise measures and set some higher standards, such as
the extension of the leave to 14 weeks, in certain cases, and the fixing of cash
benefits at a higher rate, equalling, when practicable, 100 per cent of the
woman's previous earnings. The Recommendation also dealt with the medical
benefits, with facilities for nursing mothers and infants, with protection of
employment (in particular by suggesting that the period during which the
woman is protected from dismissal should be extended to begin as from the
date when the employer has been notified of her pregnancy and to continue
until one month at least after the end of maternity leave) and with protection of
the health of employed women during the maternity period.

447. The Conventions on maternity protection set standards which were

well above the level of most national legislations. Their influence in various
countries has been considerable. In spite of this, the rate of their ratification has
been slow and the present figures still do not correspond to the importance of
the matter. At the present time 36 States are bound by one or other of the two
Conventions, or by both. As regards Convention No. 103, the main obstacles1
relate to the wide scope of the Convention, to the required level of cash benefits
and even to the duration of the leave which, in some countries, has not yet
reached 12 weeks. Difficulties are also met, in a number of countries, in
connection with some other provisions, such as the need to extend the leave in
case of mistake in estimating the date of confinement or of illness arising out of
pregnancy or confinement, the prohibition of making the employer liable for
the cost of the benefits and the prohibition of dismissing the woman during her
leave.
1. Rep. Com. Exp., 1969, pp. 248-250.

§2. NIGHT WORK

448. Night work of women was one of the first matters on which interna-
tional standards were adopted. It was one of the two subjects of the 1906 Bern
Convention. In 1914 the Bern Convention on Night Work of Women was in
force for 13 countries. At the first session of the International Labour Confer-

173
449-451 Work of Women

ence, in 1919, the text of this Convention was reviewed and amplified by the
ILO Night Work (Women) Convention (No. 4). At that stage there was a
parallel trend in international standards relating to night work of woman and to
night work of young persons. However, these two questions have developed in
different directions. While the standards relating to night work of young
persons were subsequently revised with a view to raising their level, the
standards on night work of women faced some serious difficulties and had to be
revised twice to be made more flexible.

449. The initial ILO Convention of 1919 provided that women without
distinction of age shall not be employed during the night in any public or private
industrial undertaking, and it defined the term 'night' as signifying a period of
at least eleven consecutive hours, including the interval between ten o'clock in
the evening and five o'clock in the morning. Exceptions were allowed for the
undertakings in which only members of the same family are employed, for
cases of force majeure and those where the work has to do with raw materials
or materials in course of treatment which are subject to rapid deterioration. A
certain flexibility was also permitted in undertakings which are influenced by
the seasons and in all cases where exceptional circumstances demand it, as well
as in countries where the climate renders work by day particularly trying to
health. The Convention was ratified by close to 60 States, but the strict
character of the prohibition of night work constituted an obstacle to a wider
ratification and created difficulties in its application. As mentioned above, 1 the
question was raised, in particular, as to whether the Convention applied to
women who hold positions of supervision or management and are not ordinar-
ily engaged in manual work. The advisory opinion given by the Permanent
Court of International Justice in 1932 was in the affirmative.
1. No. 59.

450. Following this opinion and in the light of the difficulties which had been
encountered, a revised Convention (No. 41) adopted in 1934. While maintain-
ing the prohibition of work during the same period of night as well as the other
provisions of the 1919 Convention, the revised instrument authorized a greater
flexibility in the way of calculating the interval which should be included in that
period. It also excluded from its scope- and this was the most important change
-'women holding responsible positions of management who are not ordinarily
engaged in manual work'.

451. The new Convention was ratified by 37 States but the revision proved
to be insufficient and the Convention had to be revised once more, in 1948, by
Convention No. 89 which leaves greater freedom in the determination of the
interval which should be included in the night period. According to the new
Convention, the period of 11 consecutive hours should include an interval of at
least seven consecutive hours falling between ten o'clock in the evening and
seven o'clock in the morning, and different intervals may be prescribed for
different areas, industries, undertakings, etc. but the competent authority
should consult employers' and workers' organizations before prescribing an

174
Work of Women 452-453

interval beginning after eleven o'clock in the evening. Moreover, the condition
excludes from its scope women holding responsible positions of a managerial or
technical character, as well as women employed in health and welfare services
who are not ordinarily engaged in manual work. This Convention was ratified
by 56 States.

452. The above Conventions on night work of women were widely ratified-
75 States being parties to at least one of them- and they still are considered in
many countries as corresponding to a real need. However, doubts are ex-
pressed in an increasing number of quarters as to the suitability, in the light of
the principle of equality, of maintaining the prohibition of night work of
women, while similar rules do not apply to men. It was agreed that this
prohibition might have adverse repercussions on the access of women to
employment and on equal remuneration. As a result, seven countries, up to
now, denounced one of these Conventions without ratifying a revised one .1 The
matter was also raised when the European Social Charter was being drafted, as
will be seen below .2 In 1971, the Swiss Government asked the ILO to initiate,
once again, the procedure of revision of the Convention, which it considered as
outdated. The International Labour Office prepared a report on the applica-
tion of the Convention and consulted the governments about the desirability of
the revision. The question was then discussed by the Governing Body of the
ILO. It appeared that there are important differences of views between coun-
tries and between occupational organizations. The question is still being con-
sidered.
1. For the reasons given by one of these countries (the Netherlands) see O.B., vol. LV, 1972,
No. 1.
2. See below No. 466.

§3. THE EMPLOYMENT OF WOMEN IN UNHEALTHY OR DANGEROUS OCCUPATIONS

453. Various instruments aimed at protecting women against the risks which
are inherent in employment in unhealthy or dangerous occupations. Thus the
arduous character of underground work and the abuse in the employment of
women in mines led to the adoption, in 1935, of a Convention (No. 45)
prohibiting the employment of women on underground work in any mine,
subject to certain exceptions. The Convention was ratified by 84 States, but, in
this case also, there has been in certain countries, a move towards the employ-
ment of women in mines. For example, Sweden denounced the Convention in
1967, but made it clear1 that its decision should in no way be interpreted as a
negative evaluation of the importance of the Convention as an international
instrument and that 'in countries where work in mines was carried out under
other conditions, less satisfactory from the point of view of industrial hygiene
than those prevailing in Swedish mines, the Convention was ... of unquestion-
able importance in preventing the employment of women under unsatisfactory
conditions and in work for which they were not physically equipped'.
1. See O.B., vol. L, No.3, July 1967, pp. 322-324.

175
454-457 Work of Women

454. Various other instruments, either relating more particularly to women,

or of more general scope, contain provisions concerning the risks which certain
occupations would involve for women. This is the case, in particular, as regards
lead poisoning (Recommendation No.4 of 1919), use of white lead (Conven-
tion No. 13 of 1921), ionizing radiations (Recommendation No. 114 of 1960)
and maximum weight (Convention No. 127 of 1967).

§4. EQUAL REMUNERATION

455. 'The principle that men and women should receive equal remuneration
for work of equal value' was mentioned, as from 1919, in the General Prin-
ciples contained in the initial text of the ILO Constitution. When the Constitu-
tion was amended, in 1946, the principle was introduced in the Preamble of the
new text of the Constitution. Various instruments adopted by the International
Labour Conference or by the Regional Conferences referred expressly to equal
remuneration. However, it was in 1951 that a: Convention and a Recommenda-
tion dealing specifically with this question were adopted by the Conference. 1
1. Two general surveys on these instruments were prepared by the Committee of Experts on
the Application of Conventions and Recommendations in 1956 and 1975.

456. The Equal Remuneration Convention, 1951 (No. 100) lays down the
general principle that each State which ratifies it shall promote and, in so far as
consistent with the methods in operation in its country for determining rates of
remuneration, 1 ensure the application to all workers of the principle of equal
remuneration for men and women workers for work of equal value.
1. The term 'remuneration' includes the ordinary basic or minimum wage or salary and any
additional emoluments whatsoever payable directly or indirectly, in cash or in kind, by the
employer to the worker and arising out of the worker's employment.

457. The notion of'workofequal value' which is used by the Convention has
a wider meaning than that of 'equal work'. It aims, in particular, at avoiding
indirect limitations in the implementation of the principle. However, its appli-
cation may raise difficult questions of comparison of different types of work.
For that reason the Convention and the Recommendation advocate systems of
objective appraisal of the work to be performed. The main criterion is that the
sex of the worker who is doing or might do a certain work is not taken into
consideration in the determination of rates of remuneration. The term 'work of
equal value' figured already, as said above, among the general principles
enunciated in Part XIII of the Treaty of Versailles. Following ILO Convention
No. 100, it was also used by the European Social Charter and by the 1966
International Covenant relating to economic, social and cultural rights, while
the 1948 Universal Declaration on Human Rights referred to 'equal work'.
The Rome Treaty which established the European Economic Community also
referred, in its Article 119, to the more limited notion of 'equal work'. How-
ever the interpretation given to that notion by the organs of the EEC results in a
situation very similar to that which is contemplated by Convention No. 100.

176
Work of Women 458-461

458. Convention No. 100 also provides that the principle of Equal Remun-
eration for Work of Equal Value may be applied by means of national laws or
regulations, legally established or recognized machinery for wage determina-
tion, collective agreements or a combination of these means. It requests States
to co-operate as appropriate with the employers' and workers' organizations
concerned for the purpose of giving effect to its provisions.

459. Convention No. 100 is supplemented by a Recommendation (No. 90)

of 1951, which gives more detailed guidance on the means of application of the
principle of equal remuneration. It points out in greater detail the measures
which could be taken in the fields in which the government exercises direct or
indirect control and the manner by which the practical application of the
principle of equal remuneration might be promoted (job analysis, vocational
guidance, employment counselling, placement, welfare and social services,
promoting public understanding, investigations, etc.).

460. The Equal Remuneration Convention, 1951 (No.100) has been one of
the ILO instruments which aroused most interest, even if its ratification and
application have encountered serious obstacles. 1 The difficulty, to which refer-
ence is made the most frequently, is the fact that in certain States, the govern-
ment does not interfere directly in the determination of wages in the private
sector. But the Convention did take this fact into account and it imposes on
governments the obligation to ensure equal remuneration only when this is
compatible with the wage-fixing methods in the country. In some cases, the
difficulty is in determining whether certain types of work are of equal value, in
particular when the work is not performed by both men and women and when it
is exclusively women who are employed in certain occupations. These difficul-
ties are increased where there does not exist a system of objective appraisal of
the work to be performed. More generally, reasons of an economic nature have
been put forward both by certain industrialized countries where there is a high
proportion of female workers and by developing countries. Problems arise
also, in certain countries, in connection with the supervision of the application
of the principle and in particular the question of guarantees and of sanctions. In
some cases the difficulties are due to the federal structure of the country. In
spite of these difficulties, the Convention has been ratified by 96 States and its
implementation is making steady progress. ·
1. See Rep. Com. Exp. (Report III, Part 4B), paras. 163 and f., pp. 67 and f.

461. Reference has already 1 been made to the fact that equality of treatment
in conditions of work, without distinction on the basis of sex, is one of the
requirements of Convention No. 111 of 1958 which relates to discrimination in
employment and occupation. Provisions on equal remuneration and on the
decrease of differentials between rates of remuneration resulting from dis-
crimination based, in particular, on sex are also contained in the two Social
Policy Conventions (Art. 18 of Convention No. 82 of 1947 and Art. 14 of
Convention No. 117 of 1962).
1. See above Nos. 242 and 244.

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462-463 Work of Women

§5. EMPLOYMENT OF WOMEN WITH FAMILY RESPONSIBILITIES

462. In increasing numbers, women with family responsibilities work out-

side their homes and they face the difficult problem of reconciling their dual
responsibilities at home and at work. The importance of the problem led to the
adoption, in 1965, of a special Recommendation (No. 123) on this matter .1 The
general principle laid down in this Convention is that the competent authorities
in each country should pursue a policy with a view to enabling women with
family responsibilities who work outside their homes to exercise their right to
do so without being subject to discrimination. Services should be developed to
enable women to fulfil their various responsibilities harmoniously. Appro-
priate measures of public information and education should be taken, and
child-care services and facilities should be provided. The Recommendation
also advocates various measures to enable women to become integrated in the
labour force (general education, vocational guidance, role of the employment
service), as well as to re-enter the labour for{;e (by the extension of maternity
leave and by taking into consideration for re-employment those whose em-
ployment has been terminated following maternity). Finally various other steps
are mentioned, such as the organization of public transport, the harmonization
of working hours and hours of schools, child-care services or facilities, and
provision at tow cost of the facilities required to simplify and lighten household
tasks. In a Resolution adopted by the International Labour Conference in 1975
it has been suggested that the question of a new instrument on workers with
family responsibilities be submitted to the Conference. It has been decided that
the question of 'equal opportunity and equal treatment for men and women
workers: workers with family responsibilities' will be placed on the agenda of
the 1980 Session of the Conference.
1. A general survey on this Recommendation was established in 1978 by the Committee of
Experts on the Application of Conventions and Recommendations (Report III, Part 4B to the
64th Session of the ILC).

§6. STANDARDS RELATING TO PARTICULAR ASPECTS OF THE WORK OF WOMEN

463. Apart from the instrument described in the previous sections, which
deal with the main questions of the protection of the work of women, certain
more particular aspects of that work have been covered either in separate
recommendations or in special provisions included in instruments of a more
general scope. Some of these provisions aimed at protecting women against too
arduous conditions of work. The objective of other provisions was to promote
equality of treatment between women and men. As regards conditions of work,
it has been recommended (Recommendation No. 116 of 1962) that in carrying
out measures for reducing hours of work priority should be given to industries
and occupations where the workers concerned consist mainly of women (as
well as of young persons). As regards minimum wage, special regard might be
had to trades or parts of trades in which women are ordinarily employed

178
Work of Women 464-465

(Recommendation No. 30 of 1928). In the field of employment, recourse to

forced or compulsory labour was prohibited for women (Convention No. 29 of
1930). In connection with migration for employment, the protection of emig-
rant women and girls on board ship was the subject of a special Recommenda-
tion (No. 26 of 1926), while the general Convention on migrant workers
(Convention No. 97 of 1949) included women's work among the matters in
respect of which migrant workers should not be treated less favourably than
national workers. Finally the Labour Inspection Convention, 1947 (No. 81)
provides that women as well as men should be eligible for appointment to the
inspection staff, and that, where necessary, special duties may be assigned to
them.

§ 7. OTHER INTERNATIONAL STANDARDS

464. The 1948 Universal Declaration of Human Rights stated, on the one
hand, that 'Everyone without any discrimination, has the right to equal pay for
equal work' (Art. 23, para. 2) and, on the other hand, that 'Motherhood and
childhood are entitled to special care and assistance' (Art. 25, para. 2). The
1966 International Covenant on Economic, Social and Cultural Rights provided
for 'fair wages and equal remuneration for work of equal value without distinc-
tion of any kind, in particular women being guaranteed conditions of work not
inferior to those enjoyed by men, with equal pay for equal work' (Art. 7,
sub-para. a (1)). The Covenant also provides that 'special protection should be
accorded to mothers during a reasonable period before and after childbirth.
During such period working mothers should be accorded paid leave or leave
with adequate social security benefits' (Art. 10, para. 2). The following year, in
November 1967, the General Assembly of the United Nations adopted a
Declaration on the Elimination of Discrimination against Women, Art. 10 of
which deals with equal rights in the field of economic and social life and in
particular in labour matters.

465. The European Social Charter. At the European level, the European
Social Charter contains a special provision (Art. 8) about the right of employed
women to protection. The first paragraphs of this article relate to the protection
of motherhood and provide, as ILO Conventions do, that women should be
entitled to take leave before and after childbirth up to a total of at least 12
weeks. However the Charter differs from ILO standards when it lays down that
such leave should be provided either by paid leave, by adequate social security
benefits or by benefits from public funds, while ILO Conventions authorize
only the latter two methods of financing and prohibit that the employer be
made liable for the cost of these benefits, for the reasons given above. 1 The
Consultative Assembly voted by a great majority in favour of an amendment
adopting this provision to international labour standards by deleting the pos-
sibility of paid leave, but the Social Committee of the Council of Europe
preferred to keep it in. The Social Charter also states, as the ILO Conventions
do, that it should be unlawful for an employer to give a woman notice of

179
466-467 Work of Young Persons

dismissal during her absence on maternity leave or at such a date that the notice
would expire during such absence. It also provides, as the ILO Conventions,
that women workers should have sufficient time to nurse their infants.
1. See above No. 443.

466. As regards more generally employment of women, the Social Charter

provides for regulation of the employment of women workers on night work in
industrial employment and prohibits the employment of women workers in
underground mining and, as appropriate, on all other work which is unsuitable
for them by reason of its dangerous, unhealthy or arduous nature. This version
follows a proposal by the Tripartite Conference based on a suggestion by the
Workers' representative. It is in some way a compromise between two oppos-
ing views. It does not go so far as the corresponding international labour
Conventions, which prohibit night work of women generally, with the excep-
tion of certain particular occupations, while the Social Charter provides merely
for regulation of night work of women in industry. On the other hand, the
Social Charter prohibits underground work as an ILO Convention does, and it
also provides for the prohibition, as appropriate, of dangerous, unhealthy or
arduous work. When the Charter was being prepared, certain Scandinavian
delegations expressed their opposition to the principle of protection of women
workers in general, except for expectant or nursing mothers, but a proposal
which would have attenuated the terms prohibiting employment of women in
mining and dangerous, unhealthy or arduous work was rejected by the Consul-
tative Assembly. A proposal by the Consultative Assembly itself, to generalize
regulation of employment of women to cover all night work was not followed
by the Social Committee, which kept the original text relating only to industrial
occupations.

Chapter XI. Work of Children and Young Persons

467. As it happened at the national level, the work of children has been, at
the international level, one of the first fields in which regulations were adopted.
Based on the notion of protection of the weakest, these regulations aimed at
eliminating the very serious abuses to which child work had given rise at the
beginning of the industrial era. This concern for the protection of children
against conditions of work which had shocked public opinion had even, more
widely, been at the origin of the whole concept of labour law, international as
well as national. The fact that children of five or six years of age were employed
in spinning mills had been one of the main reasons which prompted the first
campaigns in favour of international action in the field of labour. This action
developed considerably in the course of years. The need to protect children
against entry into employment at too early an age and against excessively
arduous conditions of work remained the basic concern, but the trend has also
been to supplement and to extend progressively this protection, e.g. by raising
the minimum age of admission to employment and by requiring a medical
examination. At the same time a certain number of measures in the field of

180
Work of Young Persons 468-470

employment aimed at providing facilities for the training, the development and
the employment of young persons.

468. At the national level, the first labour laws related to protection of
children, as those adopted in England at the beginning of the XIXth century
and the French law of 1841 which fixed at 8 years of age the minimum age of
admission to industrial work (the age having been raised to 12 in 187 4 and 13 in
1892). At the international level, the protection of children and young persons
was considered, when the ILO was established, as one of its main tasks. As
from 1919 it appeared both in the Preamble of its Constitution and in the
general principles enunciated in it. The Conventions which were adopted since
by the ILO aim, more particularly, at the protection of children and young
persons from three points of view: minimum age for admission to employment,
night work and medical examination. In addition, standards relating to unem-
ployment of young persons, vocational guidance, apprenticeship and voca-
tional training were laid down in recommendations} Moreover, special provi-
sions in favour of young persons were included in many Conventions of a more
general scope. The question of the protection of children and young workers
has also been dealt with in resolutions of the International Labour Conference.
1. See above Nos. 277 and 293.

§ 1. THE MINIMUM AGE FOR ADMISSION TO EMPLOYMENT

469. Since 1919, there have been ten consecutive Conventions dealing with
minimum age for admission to employment, first in industry, then in other
occupations. These Conventions laid down the general standard of 14 years of
age, then raised it to 15, while providing for a higher age for particularly
arduous types of work. The principle offixing a minimum age was also included
among the main elements of a social policy. In 1973, the existing standards
were consolidated and a general convention was adopted in the field of
minimum age.

I. The General Standard of 14 Years and its Variations

470. A Convention (No. 5) adopted by the International Labour Confer-

ence at its first session, in 1919, introduced the first international regulation of
minimum age for admission to employment. This Convention, which has been
ratified by more than 60 countries, prohibits that children under the age of 14
years be employed or work in any public or private industrial undertaking. The
only exceptions which it authorizes are undertakings in which only members of
the same family are employed and work done in technical schools, if it is
approved and supervised by public authority. The Convention also laid down
lower standards, as in the case of some other ILO instruments adopted at that
time, for certain specified countries (in that case India and Japan). In order to
facilitate the enforcement of the Convention, it was provided that employers in

181
471-473 Work of Young Persons

industrial undertakings should keep a register of all persons under the age of 16
years employed by them, and the dates of their birth.

471. In the course of the following two years, three other conventions were
adopted in the field of minimum age. In 1920 a Convention (No. 7), ratified
since by 48 States, laid down the age of 14 for admission to maritime work. This
Convention contains provisions similar to those of the Convention relating to
industry, from the point of view both of the exceptions which it authorized and
of the mentions which should be made on a register of persons employed on
board or in the articles of agreement. In 1921, again in the field of maritime
work, a Convention (No. 15), ratified since by 63 States, provided for the age
of 18 for the admission to work on board ships as trimmers or stokers.

472. In 1921 also, a Convention (No. 10) dealing with minimum age for
admission to employment in agriculture was adopted and has been ratified by
47 States. The standard laid down in that instrument was much more flexible
than the Conventions relating to industrial employment. It does not contain an
absolute prohibition of the employment of children below a certain age. It only
provides that children below the age of 14 .may not be employed or work in
public or private agricultural undertakings, save outside the hours fixed for
school attendance and that the employment, if they are employed outside these
hours, shall not be such as to prejudice their attendance at school. Moreover,
for purposes of practical vocational instruction, the periods and hours of school
attendance may be so arranged as to permit the employment of children on
light agricultural work, in particular connected with the harvest, provided that
such employment shall not reduce the total annual period of school attendance
to less than 8 months. Finally the Convention authorizes an exception for work
done in technical schools, if such work is approved and supervised by public
authority.

473. Some ten years later the standard of 14 years and even of a higher age
for children who are still required to attend primary school, was also laid down
as regards non-industrial employment by Convention No. 33, which has been
ratified by 25 States. That Convention allows for certain exceptions, in particu-
lar for children over 12 years of age who may, outside the hours fixed for school
attendance, be employed on light work under certain conditions. On the other
hand, a higher age should be fixed by national legislation for admission of
young persons to any employment which is dangerous to life, health or morals,
as well as to employment for purposes of itinerant trading in the streets and
similar occupations. Finally, the Convention provided for various measures of
inspection, supervision and sanctions. It was supplemented, the same year, by a
Recommendation (No. 41) which deals with light work, employment in public
entertainment, dangerous employment, prohibition of employment of children
by certain persons and enforcement of the Convention.

182
Work of Young Persons 474-476

II. The General Standard of 15 Years

474. A few years after the adoption of this first series of instruments, three
conventions raised the general standard to 15 years for maritime employment,
industry and non-industrial work. This was not only due to the concern for a
greater protection of young persons, but also, during that period which just
followed the great economic crisis of the thirties, to the desire to contribute in
that way to a reduction of the number of unemployed persons. In this connec-
tion, even before the adoption of conventions based on the standard of 15
years, a 1935 Recommendation concerning unemployment among young per-
sons advocated a number of measures against unemployment, and in particular
the fixing of a minimum age of less than 15 years of age for leaving school and
being admitted to employment.

475. The first convention which raised to 15 years the minimum age for
admission to employment related to maritime work, as the 1920 Convention
(No.7) was revised in 1936 by Convention No. 58, now ratified by 48 States.
This new instrument authorizes, however, the employment of children under
14 years on the basis of certificates showing that a school or other authority
satisfied itself that this employment is in the interest of the child. For industrial
work, the 1919 Convention (No.5) was revised in 1937 by Convention No. 59,
which also raised the minimum age to 15 years and has been ratified by 34
States. In its revised form, the Convention authorizes exceptions which gener-
ally are analogous to those of the earlier instrument, but in addition it provides
that a higher age should be fixed for the occupations which are dangerous for
the life, health or morals of the persons employed. Moreover, the obligation
laid on the employer to keep a register of the young persons whom he employs
was raised to persons under 18 years of age. Finally, for non-industrial work,
the 1932 Convention (No. 33) was revised in 1937 by Convention No. 60,
which also raised the minimum age to 15 years and has been ratified by 11
States only. Like the 1932 Convention, the revised instrument of 1937 author-
ized exceptions under certain conditions (light work- for which the minimum
age was also raised from 12 to 13 or 14 years, according to the case - public
entertainment, etc.), it requested that a higher age be fixed in certain cases
(dangerous occupations, itinerant trading, etc.) and it provided for measures
for inspection, supervision and sanctions. The age of 15 was also fixed later by a
1959 Convention (No. 112) which related to the admission to work offisher-
men, and was ratified by 31 States.

III. Minimum Age for Certain Arduous Occupations

476. It was already stated that, for certain arduous occupations, interna-
tional standards provide for an age of admission which is higher than the
general standard. Thus, this age has been fixed at 18 years for trimmers and
stokers on board sea-going vessels (Convention No. 15 of 1921) or fishing

183
477-478 Work of Young Persons

vessels (Convention No. 112 of 1959). Other conventions, as indicated above,

provide that, as regards occupations dangerous for life, health or morals and for
itinerant trading, national legislation should fix a minimum age which would be
higher than the general age of 14 or 15. This was the case for Convention No.
33 of 1932, and Conventions Nos. 59 and 60 of 1937. More specifically as
regards underground work in mines, there was first a Recommendation (No.
96) of 1953 and later a Convention (No. 123) of 1965- now ratified by 38
States, which dealt with minimum age. Any State which ratifies this Conven-
tion is under an obligation to specify the minimum age of occupation to such
work, and this age can never be lower than 16 years.

IV. The Principle of the Fixing of a Minimum Age as an Element of Social Policy

477. Apart from the conventions which lay down a specific minimum age for
admission to employment, other instruments merely establish the principle of
such a rule while leaving to national legislation the responsibility of actually
determining the age in question. This was the case, in the first instance, of the
Social Policy (Non-Metropolitan Territories) Convention, 1949 (No. 82) (Art.
18), then of the Social Policy (Basic Aims and Standards) Convention, 1962
(No. 117) (Art. 15). These instruments provide that national laws or regula-
tions shall prescribe the school-leaving age and the minimum age for and
conditions of employment. They also provide that the employment of persons
below the school-leaving age during the hours when the schools are in session
shall be prohibited in areas where educational facilities are provided on a scale
adequate for the majority of the children of school age.

V. The Consolidated General Standard of 1973

478. While, over the years, ten conventions in succession were adopted in
the field of minimum age for admission to employment, with a view to covering
the various branches of activity and to providing a standard first of 14 and later
of 15 years, it appeared that the time had arrived, in 1973, to consolidate these
various instruments in a single convention. The new Convention (No. 138),
which has been supplemented by a recommendation, has a general scope and it
provides that States which ratify it undertake to pursue a national policy
designed to ensure the effective abolition of child labour and to raise progres-
sively the minimum age for admission to employment or work at a level
consistent with the fullest physical and mental development of young persons.
Ratifying States should specify a minimum age for admission to employment or
work, which should not be less than the age of completion of compulsory
schooling and, in any case, should not be less than 15 years- or 14 as an initial
step for developing countries. A higher age ( 18 years) is laid down for any type
of employment or work which might jeopardize the health, safety or morals of
young persons. Certain limited categories of employment or work may be
excluded from the application of the Convention. These categories may be

184
Work of Young Persons 479-480

wider for developing countries, but the Convention specifies the industries to
which it should in any way be applicable. The Convention revises the earlier
instruments dealing with minimum age. It has been ratified by 14 States up to
now. The recommendation which supplements the Convention gives niore
detailed guidance as regards the national policy to be followed in this field, and
more particularly as regards the minimum age itself (which States should have
as an aim to raise progressively to 16 years, while steps should be taken
urgently, where the minimum age is still below 15 years, to bring it to that
level), dangerous employment or work, conditions of employment and meas-
ures of application.

VI. Problems of Ratification and of Application of Minimum Age Conventions

479. There is no doubt that the minimum age conventions have greatly
contributed to reducing the abuses which existed in this field. At the present
time 87 States are bound by one of the three main Conventions (Nos. 5, 59 and
138) which set at 14 or 15 the age of admission to industry. However, there still
remain serious obstacles to their ratification and application in the world,
particularly as regards the 15-year standard, and there are many countries the
legislation of which does not reach the level of the international standard. The
minimum age for admission to employment, which depends to a great extent on
the state of economic development, greatly varies from one country to another.
It is now fixed at 16 years in many countries and at 15 by a great number of
national legislations, but the standard of 14 remains the most frequent and is
laid down in the legislation of some 50 countries. Moreover, the practice often
does not correspond to the legal minimum age, and the standard of living of
families as well as the deficiencies of national supervision account for wide-
spread abuses. The legal minimum age is even still at 12 or 13 years in some
countries, where this is already a progress in relation with a not too distant
past. 1 In a general way, in spite of the great progress which has taken place,
child labour still is widely prevalent in many regions of the world, in particular
in small undertakings and in agriculture. It often happens that national legisla-
tions on minimum age do not deal with all occupations but relate mainly to
industry or provide different ages or authorize more or less important excep-
tions according to whether they concern industrial or non-industrial work.
1. It is in the field of minimum age that, in 1924, Albert Thomas approached the Persian
Government - although Persia had not ratified the Convention concerned - about the
employment of very young children in the carpet factories of Kerman. About this step, which
was described as a humanitarian intervention, see Scelle pp. 111-112.

480. The minimum age for admission to employment is closely linked to the
age for compulsory school attendance, as it is naturally desirable to avoid any
gap between the end of the studies and the admission to work. Thus, difficulties
such as the shortage of school masters or schools add to those relating to
admission to employment itself. Conversely, international labour standards
served as a stimulus to encourage States to extend compulsory school atten-

185
481-483 Work of Young Persons

dance and to develop technical education. In spite of certain delays, there is a

steady trend in raising the two ages. ILO standards have contributed substan-
tially to this trend, particularly as regards the 14-year standard. 1 In the case of
the 15-year standard, progress is slower, but continuing. In the course of the
last twenty years, a sizeable number of States were able to ratify the 1937
Convention which laid down that standard and to change their legislation to
that effect.
1. See Rep. Com. Exp., 1960, p. 120, para. 130.

§2. NIGHT WoRK OF YOUNG PERSONS

481. Night work of young persons was dealt with in a Convention adopted in
1919 and revised in 1948. The Night Work of Young Persons (Industry)
Convention, 1919 (No. 6), which has been ratified by 56 States, provided that
young persons under eighteen years shall not be employed during the night in
public or private industrial undertakings. It authorizes an exception for young
persons over the age of sixteen in certain specified industries on work which has
to be carried on continuously day and night. The term 'night' to which such
prohibition applies signifies a period of at least eleven consecutive hours,
including the interval between ten o'clock in the evening and five o'clock in the
morning. Special provisions relate to mines, the baking industry and tropical
countries. Exceptions are also authorized for persons between the ages of
sixteen and eighteen in case of emergencies and when in case of serious
emergency the public interest demands it.

482. The revision of this Convention took place in 1948, and the revised
Convention (No. 90) has been ratified by some 40 States. In the new instrument
the night period was extended from 11 to 12 hours and a greater flexibility was
introduced as regards the interval which should be included in that period (i.e.
for young persons under 16 years, the interval should be between 10 in the
evening and 6 in the morning and for those between 16 and 18 years, it should
be of at least seven consecutive hours falling between 10 in the evening and 7 in
the morning). The revised Convention also authorized exceptions for purposes
of apprenticeship or vocational training of young persons between 16 and 18
years. Finally, it provided that measures should be taken to ensure that national
laws or regulations in this field are known to the persons concerned, that
adequate penalties for any violation be prescribed, that a system of adequate
inspection to ensure effective enforcement be maintained and that employers
should be required to keep registers or official records showing all persons
under 18 years employed by them.

483. While the two above-mentioned conventions relate to industry, the

only standards applying to agriculture are contained in a Recommendation
(No. 14) dating back to 1921. In this instrument it was provided that the
employment of children under the age of 14 years in agricultural undertakings
during the night should be regulated in such a way as to ensure them a period of

186
Work of Young Persons 484-488

rest of not less than ten consecutive hours, while, for young persons between
the ages of 14 and 16, the period of rest at night should be of not less than nine
consecutive hours.

484. As regards non-industrial occupations, a 1946 Convention (No. 79),

ratified by 16 States, provides that children under 14 years of age admissible for
full-time employment and children over fourteen years who are still subject to
full-time compulsory school attendance shall not work at night during a period
of at least 14 consecutive hours, including the interval between 8 in the evening
and 8 in the morning. This period is fixed at 12 hours for children over 14 years
who are no longer subject to full-time compulsory school attendance and young
persons under 18 years.

485. These standards were supplemented by a Recommendation (No. 80)

adopted the same year which contains more detailed provisions on matters
such as the scope of regulations, employment in public entertainment and
methods of supervision.

486. On the whole, the conventions dealing with night work of young per-
sons exercised a considerable influence over national legislations. 1 Seventy-
three States are now bound by one or other of the two conventions relating to
Industry (Nos. 6 and 90). However, there are still obstacles to their ratification,
as the legislation of many countries has not yet reached the level prescribed as
regards the total duration of night rest, in particular as regards the 12 hours
provided by the 1948 revised convention. Nevertheless, the more flexible
terms of the latter convention in relation with the interval which should be
included in the night rest have to a certain extent facilitated its ratification and
application.
1. See Rep. Com. Exp., 1960, page 120, para. 130.

§3. MEDICAL EXAMINATION

487. While, in the maritime field, a Convention (No. 16) was adopted as
early as in 1921 -and has been ratified since by more than 60 States- to
provide that the employment of children and young persons under 18 years of
age on any vessel shall be conditional to medical examination and that this
examination shall be repeated at intervals of not more than one year, Conven-
tions dealing more generally with medical examinations were adopted only 25
years later, i.e. in 1946: the one (No. 77) related to industry and the other (No.
78) related to non-industrial occupations and they have been ratified by 32 and
30 States respectively.

488. Convention No. 77 provides that children and young persons under 18
years 1 shall not be admitted to employment by an industrial undertaking unless
they have been found fit for the work on which they are to be employed by a
thorough medical examination. The fitness of a child or young person for the

187
489-491 Work of Young Persons

employment in which he is engaged shall be subject to medical supervision until

he has attained the age of 18 years and the continued employment of a child or
young person shall be subject to medical examination at intervals of not more
than one year. In occupations which involve high risks medical examination
and re-examinations for fitness for employment shall be required until at least
the age of 21 years. 2 Medical examination should not involve the child or young
person, or his parents, in any expense. The Convention also provides for
measures for vocational guidance and physical and vocational rehabilitation of
children and young persons found by medical examination to be unsuited to
certain types of work or to have physical handicaps or limitations.
1. States which had no legislation on the matter at the date of ratification may substitute an age
lower than 18, but not lower than 16.
2. In the cases provided in the footnote above the age of21 maybe replaced by the age of 19.

489. Convention No. 78 contains analogous provisions but applies to occu-

pations other than industrial, agricultural and maritime. A Recommendation
(No. 79) adopted the same year supplemented these two Conventions and
clarified the scope of the regulations, the provisions concerning medical
examination, the measures for persons found to be unfit or only partially fit for
employment, the methods of enforcement, etc. More recently, a 1959 Conven-
tion (No. 113) concerning medical examination of fishermen- ratified by 20
States- and a 1965 Convention (No. 124) concerning medical examination of
young persons for fitness for employment- ratified by 30 States- provided that
medical examination and periodic re-examinations of persons under 21 years
shall be required for the employment in these occupations.

490. On the whole, medical examination for fitness for employment of children
and young persons is a subject which has given rise to great difficulties.
At the present time, there is no general trend towards the acceptance of the
international standards which were laid down in this field, although some
twenty countries have ratified the two main conventions and a certain evolu-
tion is taking place among the countries which did not yet proceed to their
ratification. The most important difficulties relate to the fact that these two
conventions provide for medical examination for industrial or non-industrial
occupations in general and not only for certain specific occupations. An addi-
tional difficulty is that they require that the medical examinations be repeated
every year. These requirements come up against more limited provisions of
national legislation, deficiencies in administrative procedures, shortage of
medical staff and services, and finally the insufficient character of the measures
taken for vocational guidance and physical and vocational rehabilitation of
young persons.

491. It is also significant that the standard introduced more recently in the
European Social Charter provides for medical examination only as regards
certain occupations and does not require that such examination be repeated at
fixed one-year intervals.

188
Work of Young Persons 492-493

§4. SPECIAL PROVISIONS CONTAINED IN CONVENTIONS OF GENERAL APPUCATION

492. Apart from the conventions which deal specifically with the work of
children and young persons, many other instruments of more general scope
contain special provisions relating to young persons. In the field of general
conditions of work, the conventions and recommendations relating to holidays
with pay provide for a longer holiday for persons under 16 or 18 years as the
case may be. As regards reduction of the hours of work, Recommendation No.
116 of 1962 advocates that priority be given to cases where the workers
concerned consist mainly of young persons. Special provisions with a view to
the protection of young persons are also contained in various conventions
dealing with matters of safety and hygiene. 1 In the field of employment,
reference was made 2 to the recommendations relating to vocational guidance,
apprenticeship, and vocational training, which are of great importance for the
development and the future of young persons. The Employment Service Con-
vention, 1948 (No. 88) provides for special arrangements for juveniles within
the framework of the employment and vocational guidance services. Several
recommendations also dealt with the question of unemployment of young
persons. 3 In the more special fields of forced labour (Convention No. 29 of
1930), of recruiting of indigenous workers (Convention No. 50 of 1936), of
contracts of employment of indigenous workers (Convention No. 64 of 1939)
and of penal sanctions for breaches of such contracts (Convention No. 65 of
1939), the relevant instruments contain provisions concerning the special
protection of non-adult persons. Finally, as regards migrants, work of young
persons is among the matters in respect of which the 1949 Convention (No.
97)4 provided that the treatment of migrants should not be less favourable than
that of nationals.
1. This is the case for lead poisoning (Recommendation No. 4 of 1919) of safety provisions in
the building industry (Convention No. 62 of 193 7), of use of white lead (Convention No. 13 of
1921), of protection against radiations (Convention No. 115 of 1960) and of maximum weight
(Convention No. 127 of 1967).
2. See above No. 468.
3. See above No. 277.
4. See below No. 340.

§5. OrnER INTERNATIONAL STANDARDS

493. The International Covenant on Economic, Social and Cultural Rights

provides (Art. 10, para. 3) that 'special measures of protection and assistance
should be taken on behalf of all children and young persons without any
discrimination for reasons of parentage or other conditions. Children and
young persons should be protected from economic and social exploitation.
Their employment in work harmful to their morals or health or dangerous to
life or likely to hamper their normal development should be punishable by law.
States should also set age limits below which the paid employment of child
labour should be prohibited and punishable by law'.
189
494-495 Work of Young Persons

494. The United Nations also adopted in 1959 a Declaration ofthe Rights of
the Child, the terms of which are very similar to the 1919 Constitutional
provisions of the ILO. This Declaration affirms in particular that a child shall
not be admitted to employment before an appropriate minimum age and that it
'shall in no case be caused or permitted to engage in any occupation or
employment which would prejudice his health or education, or interfere with
his physical, mental or moral development'.

495. The European Social Charter also contains provisions (Art. 7) relating
to the right of children and young persons to protection. These provisions were
based on the standards laid down in ILO conventions. Thus they set at 15 years
the minimum age of admission to employment, subject to exceptions for
children employed in prescribed light work without harm to their health,
morals or education. A higher minimum age should be fixed with regard to
prescribed occupations regarded as dangerous or unhealthy. In this connec-
tion, the workers representatives at the Tripartite Conference proposed that in
such cases the minimum age should be specified, namely at 18 years, but the
proposal was not generally accepted. Although the Consultative Assembly
supported it, the more general text mentioned above was finally upheld. The
Social Charter also provides that young persons who are still subject to compul-
sory education shall not be employed in such work as would deprive them of the
full benefit of their education. As regards hours of work of persons under 16
years, they should be limited in accordance with the needs of their develop-
ment, and particularly with their need for vocational training. Young workers
and apprentices should also have the right to a fair wage or appropriate
allowances. The time spent by young persons in vocational training during the
normal working hours with the consent of the employer shall be treated as
forming part of the working day. As regards holidays with pay, it has been
already stated above 1 that according to the Social Charter employed persons of
under 18 years of age shall be entitled not less than three weeks' annual holiday
with pay. Furthermore, the Social Charter prohibits night work of persons
under 18 years with the exception of certain occupations provided for by
national laws or regulations. In the Appendix to the Charter it is specified that
this provision will be considered as fulfilled if a State provides by law that the
great majority of persons under 18 years shall not be employed in night work.
As regards medical examination, the Social Charter does not go as far as the
ILO conventions which deal with this matter. It provides merely for regular
medical control of persons under 18 years 'employed in occupations prescribed
by national laws or regulations'. At the Tripartite Conference proposals were
made by the Belgian Government on the one hand, and on the other by the
Workers, supported by the Government members for the Federal Republic
of Germany, Austria and France, calling for this control to be extended to
cover all workers aged under 18 years in order to ensure that their health is
not endangered by their work. The proposal raised objections from certain
governments which felt that medical examination was not necessary for all
employment and pointed out that some countries had a free health service.
Employers also expressed objections, and while the Consultative Assembly

190
Categories of Workers 49~98

supported the Workers' proposal, the original text was not amended. Finally,
the Social Charter contains a provision proposed by the Consultative Assembly
and providing for 'special protection against physical and moral dangers to
which children and young persons are exposed, and particularly against those
resulting directly or indirectly from their work'. The Committee of Ministers of
the Council of Europe has adopted, in February 1972, a Resolution (72)4 on
the protection of young persons at work.
1. See above No. 372.

Chapter XII. Older Workers

496. In June 1979, the International Labour Conference will have on its
agenda the question of older workers (work and retirement).

Chapter XIII. Special Categories of Workers

497. A certain number of Conventions or Recommendations deal with
certain categories of workers on account of the special conditions of their work
or of the protection of which they are in need. This applies in· particular
to seafarers and fishermen, workers in agriculture, indigenous workers and
workers of non-metropolitan categories, civil servants, nursing personnel,
etc.

§ 1. SEAFARERS AND FISHERMEN

I. Seafarers

498. By reason of its nature and its history, maritime navigation is among the
most international activities, while the work of seafarers has such a specific
character that it had to be dealt with in a special way. From a formal point of
view, the adoption of international standards in the field of maritime work
follows special rules - and this raises the question of the applicability to
seafarers of the international labour conventions of general scope. The entry
into force of maritime conventions is also subject, in general, to special rules.
As regards substance, more than fifty conventions and recommendations deal
with the various aspects of maritime work 1 and most of them have entered into
force.
1. For the first period of this international regulation of maritime work ( 192(}-1936), see C.
Wilfred Jenks, 'Contribution de !'Organisation internationale des Travail a !'elaboration d'un
droit uniforme du travail maritime', in Introduction a !'etude du droit compare (Recueil
d'etudes en /'honneur d'Edouard Lambert, vol. II, Paris, 1938, pp. 87(}-883).

191
499-500 Categories of Workers

A. Special Procedure for the Framing of Standards Concerning

Employment at Sea

499. The Commission on International Labour Legislation appointed by the

1919 Peace Conference, which prepared the original Constitution of the ILO,
had adopted a resolution according to which 'the very special questions con-
cerning the minimum conditions to be accorded to seamen might be dealt with
at a special meeting of the International Labour Conference devoted exclu-
sively to the affairs of seamen'. Since, the practice has been that the standards
concerning maritime work are considered at special maritime sessions of the
International Labour Conference after an advice has been given by the Joint
Maritime Commission, which is composed of representatives of shipowners'
and of seafarers' organizations and following a discussion of the matter by a
tripartite Preparatory Technical Maritime Conference. There have been nine
maritime sessions of the International Labour Conference until now, in 1920,
1926, 1929, 1936 (two sessions), 1946, 1958, 1970 and 1976.

B. The Question of the Applicability to Seafarers of International Labour

Conventions of a General Scope

5 00. As standards concerning maritime work are adopted by special sessions

of the International Labour Conference, the question sometimes arose of the
extent to which the conventions of general scope which are adopted by the
ordinary sessions of the Conference are also applicable to seafarers. General
directives on the subject can be found in a resolution adopted by the Interna-
tional Labour Conference on 10 November 1921, according to which 'no
Conventions or Recommendations shall apply to those employed in the Mer-
cantile Marine unless they have been passed as a special maritime question on
the agenda. All questions on maritime affairs put forward for consideration by
Conferences should be previously considered by the Joint Maritime Commis-
sion of the International Labour Office.' There appears therefore to be a
presumption that a convention or recommendation does not apply to em-
ployment at sea unless it has been adopted at a maritime session of the
Conference or the question has been considered by the Joint Maritime Com-
mission.1 However this presumption is not an absolute one. In the course of the
discussion of the above-mentioned resolution, it had been pointed out that a
given session of the Conference has no power to bind future Conferences in this
matter. 2 A Convention or Recommendation adopted by a general session of
the Conference might by applicable to seafarers if it appears that this was the
intention of the Conference when it adopted the instrument. Such an intention
can have been clearly expressed by the Conference in the instrument itself, as in
a number of general Conventions and Recommendations where it is expressly
provided that they apply to maritime work. 3 This can also be implied from the
general character of the terms used in the Convention and from the objective
aimed at by the standard. 4 It should also be kept in mind that the reason for

192
Categories of Workers 501

which Conventions applying to seafarers are adopted through a special pro-

cedure lies in the substantial differences which exist in many respects between
conditions of work at sea and in other occupations. In the matters in which such
a difference would not exist, there would be no justification for a Convention of
general application not to cover seafarers. This view was recently confirmed by
the fact that the Merchant Shipping (Minimum Standards) Convention, 1976
(No. 147) provides for the application in merchant ships of eleven Conven-
tions, some of which - in particular the Freedom of Association Conventions
(Nos. 87 and 98) - are of general character. 5
1. See Intern. Lab. Code, p. 756.
2. Rec. Proc. Conf., 1921, p. 262.
3. E.g. the Maternity Protection Convention (Revised), 1952 (No. 103). On the other hand, a
number of instruments exclude maritime work from their scope.
4. Thus, the Freedom of Association Convention, 1948 (No. 87) refers to 'workers and
employers, without distinction whatsoever'. Similarly, Conventions on matter such as forced
labour and discrimination were clearly meant to be of general application.
5. See below No. 514.

C. Conditions for the Entry into Force of Maritime Conventions

501. The entry into force of maritime conventions was made subject to
conditions which became progressively much stricter than for other interna-
tional labour conventions. These conditions relate both to the number of States
which have ratified the conventions concerned and the tonnage of their mer-
chant marine. As will be said below,! international labour conventions gener-
ally enter into force, in accordance with their final clauses, when they have been
ratified by two Member States of the ILO. A similar provision was also
included in the first maritime conventions2 and this formula is still used some-
times even in recent maritime conventions3 when the matters dealt with do not
raise the considerations of international competition which were taken into
account in the other maritime instruments. However, since 1936, the condi-
tions for the entry into force of maritime conventions became progressively
more difficult. The explanation given was that, in an international field like
maritime navigation 'governments needed to have some certainty that the
convention would be ratified by other countries so that international competi-
tion might not be accentuated' .4 In the first instance, the entry into force was
made subject to the ratification of the convention by five States each of which
has a mercantile marine tonnage of not less than one million tons. 5 Then, after
repeated discussions, the formula became more complex and the conditions
were the ratification by five, 6 seven 7 or nine 8 States from a list of 23 specified
States and also that three, 9 four 10 or five 11 of the ratifying States have at least
one million gross register tons of shipping each. Sometimes it was also
required 12 that the aggregate tonnage of shipping by the ratifying countries is
not less than 15 million tons. With the increase of the world tonnage, the
formula changed a number of times and became still stricter. In 1970 13 the
requirement was the ratification by 12 States having more than one million tons
of shipping each, including at least four having each at least two million tons.

193
502 Categories of Workers

The most recent requirement, used in 1976,14 is that the convention has been
ratified 'by at least ten Members with a total share in world shipping gross
tonnage of 25 per cent'. While some of the conventions containing this sort of
clause state that such a 'provision is included for the purpose of facilitating and
encouraging early ratification of the convention', these special conditions have
clearly delayed and sometimes prevented the early entry into force of certain of
these conventions. However, if one takes account of the fact that some of these
instruments have been revised later, finally only two maritime conventions non
revised since their adoption failed to enter into force as a result of the particu-
larly strict conditions to which the entry into force was made subject: the Social
Security (Seafarers) Convention, 1946 (No. 70), the revised Convention on
Wages, Hours of Work and Manning (No. 109 of 1958), and the more recent
convention on accommodation of crews (revised), 1970 (No. 133). 15
1. See No. 583.
2. Conventions Nos. 7, 8 and 9 of 1920, Conventions Nos. 22 and 23 of 1926, three of the five
conventions adopted at the 21st session (1936) and Convention No. 58 adopted at the 22nd
session (1936).
3. E. g. Conventions No. 74 of 1946, No. 108 of 1958, No. 134 of 1970 and Nos. 145 and 146
of 1976.
4. Rec. Proc. Conf., 21st and 22nd sessions, 1936, p. 228.
5. Conventions Nos. 54 and 57 of 1936.
6. Convention No. 71 of 1946.
7. Conventions Nos. 70, 73, 75 of 1946.
8. Conventions Nos. 68, 69, 72, 76 of 1946 and No. 109 of 1958.
9. Convention No. 71 of 1946.
10. Conventions Nos. 70, 73, 75 of 1946.
11. Conventions Nos. 68, 69, 72, 76 of 1946 and No. 109 of 1958.
12. Convention No. 76 of 1946 and No. 109 of 1958.
13. See Convention No. 133 of 1970.
14. Convention No. 147.
15. Convention No. 70 was ratified by seven States, Convention No. 109 by eight and
Convention No. 133 by eleven. As for the last instrument in which this sort of clause was used,
i.e. the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147), it is still too
early to gauge what the effect ofthis clause may be, as the second ratification ofthe convention
was received only in June 1978.

D. General Outline of the Standards Relating to Employment at Sea

502. Over 30 conventions and some 25 recommendations were adopted in

the field of maritime work. They will be briefly reviewed below. A general
question which has arisen in connection with these instruments is that of the
criterion to follow to determine their scope as far as ships are concerned. In
1936 it was decided to adopt the criterion of the country in which the ship
is registered, as the criteria of the nationality or of the flag could not appear
to be satisfactory. The conventions and recommendations adopted over the
years in the maritime field aimed at constituting progressively an International
Seafarers' Code .1 They dealt either with questions of a general character which
had to be considered from the point of view of the special nature of employment
at sea or with questions which are specific to such employment, e.g. unemploy-
ment in case of shipwreck or repatriation of seamen.

194
Categories of Workers 503-505
1. See Intern. Lab. Code, p. 755. In this connection theN ational Seamen's Codes Recommen-
dation, 1920 (No. 9) advocated a clear and systematic codification of the national law in each
country, in order that seamen of the world may have a better comprehension of their rights and
obligations and that the task of establishing an International Sea-Men's Code may be
advanced and facilitated.

503. In the first instance, many conventions related to the conditions for
admission to employment at sea. This was in particular the case for minimum
age, which was fixed at 14 years by Convention No.7 of 1920, ratified by 48
States, then at 15 years by the revised Convention (No. 58 of 1936), ratified by
48 States, while Convention No. 15 of 1921, ratified by 63 States, had laid
down the minimum age of 18 years for trimmers and stokers. This was also the
case for medical examination, a first Convention (No. 16 of 1921), ratified by
over 60 States, having provided for the medical examination of young persons,
while at a later date a more ambitious- but less successful- Convention (No.
73 of 1946, ratified by 27 States) laid down the standard of medical examina-
tion of every person engaged for employment in a sea-going vessel, subject to
certain exceptions. The more general question of the protection of young
seafarers was dealt with in a recent Recommendation (No. 153 of 1976) which
included provisions relating, inter alia, to objectives to be aimed at, hours of
permitted duty and rest periods, repatriation, safety in work and health educa-
tion, and opportunities for vocational guidance, education and vocational
training.

504. Other conventions provide that, in order to perform certain duties on

board ship, the persons concerned should hold a certificate ofcompetency or of
qualification to that effect, issued or approved by the public authority of the
country where the vessel is registered. The conventions specify the conditions
subject to which such certificates might be granted. They deal more particularly
with the Officers' Competency Certificates (Convention No. 53 of 1936,
ratified by 26 States), the certification of able seamen (Convention No. 74 of
1946, ratified by 20 States) and the certification of ships' cooks (Convention
No. 69 of 1946, ratified by 24 States).

5 05. In the field of vocational training of seafarers, a first Recommendation

(No. 77) of 1946 was more recently superseded by the detailed provisions of
Recommendation No. 13 7 of 1976. As regards more generally the problems of
employment, the placing of seamen was dealt with as early as 1920 by a
Convention (No. 9, ratified by 33 States) which prohibits that the business of
finding employment for seamen should be carried on as a commercial enter-
prise for pecuniary gain and that fees should be charged for finding employ-
ment for seamen. The Convention also provided for the establishment of an
efficient system of public employment offices for finding employment for
seamen without charge, and specified that such system might be organized
either by representative associations of shipowners and seamen jointly under
the control of a central authority, or by the State itself. In 1970, the maritime
session of the Conference adopted a Recommendation (No. 139) concerning
employment problems arising from technical developments on board ship; the

195
506-508 Categories of Workers

question was considered from the point of view of manpower planning, of

recruitment and placing, of training and retraining, of the regularity of em-
ployment and income and of international cooperation.

506. As regards Seamen's Articles of Agreement, there was an opposition

between divergent views and while the compromise reached did not settle all the
problems, the 1926 Convention (No. 22), which has been ratified by 48 States,
was able to specify in detail the manner in which the articles of agreement
should be concluded, to define the various types of agreements, to enumerate
the particulars which they should contain and to indicate the conditions under
which an agreement may be terminated. In this connection, the Convention
provides that an agreement for an indefinite period may be terminated by
either party in any port where the vessel loads or unloads, provided that the
notice specified in the agreement shall have been given, which shall not be less
than 24 hours. The Convention also defines the circumstances in which the
seaman may claim his discharge. It also deals with the certificate which the
seaman has the right to obtain.

507. More recently, in 1976, the maritime session of the Conference

adopted a Convention (No. 145) and a Recommendation (No. 154) concern-
ing continuity of employment of seafarers, which are based on the principle
that it should be national policy in the various States to encourage all concerned
to provide continuous or regular employment for qualified seafarers in so far as
this is practicable and, in so doing, to provide shipowners with a stable and
competent workforce.

508. Many other instruments related to the conditions of work of seamen.

The question of wages, hours of work and manning has, as it has already been
said, been dealt with in four conventions in succession, which were adopted in
1936, 1946, 1949 and 1958, after a first draft convention on hours of work
failed by a very close vote to be adopted in 1920, at the Genoa Conference. In
spite of these revisions and of the possibility given by the last of these instru-
ments (Convention No. 109 of 1958) to exclude from its ratification Part II,
relating to wages, which had raised the greatest difficulties as it fixed a
minimum amount for the wages in dollars or pounds, the Convention has been
ratified by eight States only and these ratifications do not yet meet the condi-
tions set for its entry into force. As regards minimum wages, Convention No.
109 of 1958 was supplemented, in that same year, by a Recommendation (No.
109) which laid down amounts higher than those fixed in the Convention. In
order to take account of the fact that the value of money generally has
decreased since, the 1970 maritime session of the Conference adopted a
resolution on 'the Minimum Basic Wage for Able Seamen' in which it con-
sidered that the figures of 42 British pounds and 100 dollars USA could be
regarded as equivalent of those contained in the Recommendation. It envis-
aged that these figures be reviewed in future by the Joint Maritime Commis-
sion. In effect, in October 1976, the Joint Maritime Commission urged that the
parties concerned should apply the figures of 78 pounds or 187 US dollars and

196
Categories of Workers 509-511

more precisely, as provided in the Recommendation, whichever of these

amounts may from time to time be the greater. As regards hours of work on
board ship, Convention No. 109laid down standards which were different for
officers and ratings employed on the deck, engine-room and radio depart-
ments, and for persons employed in the catering department, according to
whether the ship concerned is engaged in near trade or in distant trade,
according to whether it is at sea or in port and according to whether the day
concerned is the weekly day of rest or another day. Finally, as regards manning,
the Convention provides that every vessel shall be sufficiently and efficiently
manned for the purposes of ensuring the safety of life at sea, giving effect to the
provisions on hours of work, preventing excessive strain upon the crew and
minimizing the working of overtime.

509. Holidays with pay have been dealt with by a succession of conventions
adopted respectively in 1936 (Convention No. 54), in 1946 (Convention No.
72), in 1949 (Convention No. 91, ratified by 21 States), when the standard had
been 18 working days for masters and officers and 12 working days for other
members of the crew, and finally in 1976 (Convention No. 146, which provides
that the leave shall not be less than 30 calendar days for one year of service).

510. Numerous instruments were also adopted in the field of safety and
hygiene, and, more generally, of the conditions oflife of seamen, both on board
and in the ports. Thus Convention No. 75 of 1946, revised by Convention No.
92 of 1949- which was ratified by 28 States- contains detailed provisions
about crew accommodation on board ship and supplementary provisions on
this subject were included in Convention No. 133 of 1970 (ratified by 12 States
but not yet in force). Other instruments adopted in 1970 were Recommenda-
tion (No. 141) concerning control of harmful noise in crew accommodation and
working spaces on board ship and a Convention (No. 134) on prevention of
occupational accidents to seafarers- which was ratified by 14 States- and was
supplemented by a Recommendation (No. 142). Reference has already been
made above 1 to the conventions concerning Marking of Weight (Packages
Transported by Vessels) of 1929 and concerning Protection against Accidents
(Dockers) (revised in 1932). In the field of hygiene, the Conference adopted in
1958, a Recommendation (No. 105) concerning Ships' Medicine Chests and a
Recommendation (No. 106) concerning Medical Advice at Sea. The question
of Food and Catering for Ships' Crews was also covered by a Convention (No.
68) of 1946, which was ratified by 19 States. Finally, recommendations on
various aspects of the conditions of life of seamen were adopted over the years,
such as the Recommendation on Seamen's Welfare in Ports, 1936 (No. 48),
Recommendation on Social Conditions and Safety (Seafarers), 1958 (No.
108), Recommendation on Bedding, Mess Utensils, etc. (Ships Crews), 1946
(No. 78) and Recommendation on Seafarers' Welfare, 1970 (No. 138).
1. See above No. 388.

511. To facilitate freedom of movement for seamen, the Conference

adopted, in 1958, a Convention (No. 108) on Seafarer's Identity Documents,

197
512-514 Categories of Workers

which was ratified by 37 States. This instrument provides that each ratifying
State shall issue to seafarers an identity document on the basis of which they
shall be readmitted to the country where the document was issued and they
shall be permitted the entry into a country for which the convention is in force
for temporary short leave while the ship is in port, for the purpose of joining his
ship or of passing in transit to joint his ship.

512. Quite a number of instruments were adopted in the field of social

security. As early as 1920 a Recommendation (No. 10) advocated the estab-
lishment of a certificate of insurance against unemployment of seamen and a
Convention (No. 8), ratified by 44 States, introduced a completely new rule
providing for the payment of an indemnity of at least two months' wages to
seamen in case of loss or foundering of the vessel. New standards, in certain
respects, were also introduced in 1926 by Convention (No. 23) on repatriation
of seamen - ratified by more than 30 States and by a Recommendation (No.
27) on repatriation of ship masters and apprentices. The Convention estab-
lishes the right of seamen who are landed during the term or on the expiration
of their engagement to be taken back to their own country or to the port at
which they were engaged, or to the port at which the voyage commenced. It
specifies the cases in which the expenses of repatriation shall not be a charge on
the seaman. In 1936 progress was made by the adoption of two conventions
relating the one (No. 55) to the liability of the shipowner in case of sickness,
injury or death of seamen and the other (No. 56) to sickness insurance for
seamen; they were ratified by 14 and 12 States respectively. Finally in 1946
further progress in this field was achieved when the Seattle maritime session of
the Conference adopted Convention (No. 70) concerning social security of
seafarers (ratified by 7 States, but not yet in force) and Convention (No. 71)
concerning seafarers' pensions, ratified by 10 States. At the same time recom-
mendations were adopted on seafarers' social security agreements (No. 75)
and medical care for seafarers' dependents (No. 76).

513. To ensure the observance of the legislation in the field of employment

at sea, a Recommendation (No. 28) of 1926 dealt with the general principles
for the inspection of the conditions of work of seamen.

514. An important development took place in 1976 in relation to the more

general problem of minimum standards in merchant ships. Following discus-
sions concerning substandard vessels, particularly those registered under flags
of convenience, the maritime session of the Conference adopted a Convention
(No. 147) concerning minimum standards in merchant ships and a Recom-
mendation (No. 155) concerning the improvement of standards in merchant
ships. The Convention provides, in particular, that States should have laws or
regulations whose provisions should be substantially equivalent to eleven
specified ILO conventions (some of them relating to maritime work and others
of a more general character, such as those on freedom of association). The
Convention authorizes States which have ratified it to examine complaints that
a ship which has called in a port of its territory does not conform to the

198
Categories of Workers 515-516

standards of the Convention. In such a case the State concerned may address a
report to the government of the country in which the ship is registered, with a
copy to the ILO, and it may take measures necessary to rectify any conditions
on board which are dearly hazardous to safety or health. However, it should
not unreasonably detain or delay the ship.

II. Fishermen

515. Conventions concerning seamen generally do not apply to fishermen.

The 1921 Resolution quoted above 1 contained a provision to that effect and
moreover various conventions, either relating to employment at sea,2 or of a
more general character,3 exclude fishing vessels expressly or implicitly. This is
not an absolute rule. Certain maritime conventions expressly apply to fisher-
men4 and it may be considered that the conventions of general scope are
applicable to fishermen in the same conditions as they do to seamen.5 In these
circumstances a number of instruments were adopted to take account of the
special conditions of work of fishermen. One Recommendation (No. 7) dates
back to 1920 and it deals with the limitation of hours of work in the fishing
industry on the basis of the eight hours day and the forty-eight hours week but
'with such special provisions as may be necessary to meet the conditions
peculiar to the fishing industry in each country.' Apart from this Recommenda-
tion the instruments relating to fishermen are of relatively recent date and they
have been based, to a certain extent, to those concerning seamen.
1. No. 499.
2. See Conventions Nos. 22 and 23 of 1926 articles of agreement and on repatriation.
3. See Conventions Nos. 33 and 60 on minimum age (industry) of 1932 and 1937.
4. See Conventions Nos. 55, 56, 70 and 71 dealing with matters of social security of seamen.
5. See above No. 499.

516. Thus, in 1959, in the field of admission to employment, a Convention

(No. 112), which has been ratified by more than 30 States, fixed at 15 years the
minimum age for admission to employment for fishermen, while another
Convention (No. 113) which has been ratified by 20 States, provided for the
medical examination of fishermen of less than 21 years. The vocational training
of fishermen was dealt with in a detailed Recommendation (No. 126) of 1966,
and an equally detailed Convention (~o. 125), which was adopted the same
year but has been ratified by less than 10 countries, required the establishment
by States of standards of qualification for certificates of competency entitling a
person to perform the duties of skipper, mate or engineer on board a fishing
vessel. As regards conditions of work, a Convention (No.114) of 1959, which
has been ratified by 19 States, dealt with Fishermen's Articles of Agreement on
lines similar to those set out in the 1926 standard concerning seamen. Finally
Convention No. 126 of 1966, which has been ratified by 13 States established
precise requirements as regards accommodation on board fishing vessels, as
this had been done by a 1949 convention in connection with sea-going vessels.

199
517-518 Categories of Workers

§2. WORKERS IN AGRICULTURE

517. The adoption of a number of standards concerning work in agriculture

is mainly due to two different factors. In the first instance the national regula-
tion of work in agriculture has been generally behind the legislation relating to
industrial workers. Secondly, the economic and social conditions of agricul-
tural work have special characteristics and sometimes do not allow the mere
extension to agricultural workers of the labour legislation applying to industry.
Thus the question of hours of work in agriculture was withdrawn, in 1921, from
the agenda of the International Labour Conference and the extent to which
recourse is had to family work in agriculture resulted, the same year, in the
adoption of a Convention on minimum age in agriculture which was more
flexible than the corresponding one concerning industry. In these circum-
stances, international standards adopted on agricultural work had two different
objectives in view: in some cases, they only aimed at extending to agricultural
work the rules applying to industry; in other cases, the aim was to frame rules
which, while based on the standards laid down for industrial work, took into
account the special features of work in agriculture. Apart from the Conven-
tions which, in one way or another, have thus specifically dealt with work in
agriculture certain Conventions of general scope also apply in this sector.

518. In the first group of cases, there are a certain number of Conventions
which provide merely for the extension to agriculture of the benefit of laws and
regulations which were initially applicable only to industrial workers. This was
the purpose of two instruments adopted in 1921 and dealing with the rights of
association and combination (Convention No. 11 which has been ratified by
100 States) and with workmen's compensation (Convention No. 12, which
has been ratified by some 60 States). In other cases, instead of providing
only for equality of treatment between workers in agriculture and those in
industry, the Conventions relating to agriculture laid down some substantive
rules, generally analogous to those established for industrial workers, but
sometimes more flexible. Thus, two series of parallel instruments applying, on
the one hand, to industry, and on the other hand to agriculture, were adopted in
192 7 and 1933 in the fields of insurance against sickness, old-age, invalidity
and for survivors. Similarly, in the field of minimum wage-fixing machinery, a
Convention of 1951 (No. 99) and a supplementary Recommendation (No. 89)
relating both to agriculture followed, with some variations, the pattern of the
1928 Convention (No. 26) and Recommendation (No. 30) which apply to
industry and commerce. 1 In the field of holidays with pay, the differences
between the Convention (No.101) and the Recommendation (No. 93) of 1952
which relate to agriculture and the Convention (No. 52) and the Recommenda-
tion (No.4 7) of 1935, which apply to industry and commerce, are greater, the
main difference being that the Convention concerning agriculture did not lay
down what the minimum duration of the holiday should be. 2 However, the
general spirit is similar. It has also been noted3 that, in the field of minimum
age, the protection provided by Convention No. 10 of 1921 is clearly more

200
Categories of Workers 519-522

limited than that which was laid down by the Conventions relating to industry.
On the other hand, in connection with freedom of association, while the
general instruments adopted in this field- such as Conventions Nos. 87 and 98
- apply to agricultural workers as to other categories of workers, it was felt
necessary to supplement these general provisions by standards concerning
more particularly the organizations of rural workers and aiming at facilitating
their establishment and growth. 4
1. See above Nos. 305-307.
2. See above No. 363.
3. See above No. 472.
4. See above Nos. 200-201.

519. A certain number of Recommendations also aimed either at extending

to agricultural workers the benefit of legislation applicable to industrial work-
ers. Most of these instruments date back to 1921, but a special mention can be
made of a Recommendation of 1956 (No. 101) which deals in detail with
vocational training in agriculture.

520. Standard-setting naturally raises the question of the measures which

are necessary for the effective implementation of these standards. In this
connection, the organization of a system of labour inspection in agriculture was
provided for in a Convention of 1969 (No. 129), which has been ratified by
some 20 States and was supplemented by a Recommendation (No. 133). These
instruments 1 filled a gap which existed since the adoption, in 1947, of the
general Convention concerning labour inspection, which applied only to indus-
try and commerce.
1. See below Nos. 560 ss.

521. Standards have also been framed for two special categories of agricul-
tural workers. As regards, first, plantation workers, the method followed has
been to draft a Convention (No. 110 of 1958) composed of 12 parts dealing
with different subjects of social policy. Each of these parts reproduces the
provisions of other Conventions which have dealt with these subjects and
States which ratify the Convention may, in accordance with a formula used
already in Convention No. 102, 1 accept only 5 of these 12 parts. However, this
Convention has been ratified by a limited number of States (10 altogether), the
main reason being the extent of its scope. Standards were also adopted as
regards tenants, share-croppers and similar categories of agricultural workers:
a Recommendation of 1968 (No. 132) enunciated a great variety of measures
aimed at the improvement of the conditions of life and work of these categories
of workers.
1. See above No. 420.

§3. INDIGENOUS WORKERS AND WORKERS OF NON-METROPOLITAN TERRITORIES

522. Indigenous workers and workers of non-metropolitan territories were

201
523-524 Categories of Workers

in particular need of protection because of the level of their development and

of their political and social status. While differing in certain respects, these two
categories are analogous to a great extent and they even sometimes coincide.
The main difference is that indigenous workers can be found both in the
metropolitan and in the non-metropolitan parts of a country. They are defined
as belonging to the indigenous population of a dependent territory or to the
dependent indigenous population of the home territory of a State Member of
the ILO. Workers ofnon-metropolitan territories are simply those who reside in
such territories. Separate Conventions have been framed for these two groups
of workers. Special standards have also been adopted in favour of the indigen-
ous and tribal populations.

I. Indigenous Workers

523. The main purpose of the Conventions and Recommendations which

related to indigenous workers has been to protect them against exploitation
and coercion. These instruments supplemented the measures taken in 1930
with the adoption of the first Convention concerning forced labour. They were
adopted as from 1936 and they dealt with recruiting, contracts of employment,
penal sanctions for breaches of contracts of employment and labour inspection.

A. Recruiting

524. As recruiting operations can give rise to abuses, the Recruiting of

Indigenous Workers Convention, 1936 (No. 50), which has been ratified by
some 30 States and declared applicable to some 20 non-metropolitan ter-
ritories, required ratifying States to regulate the recruiting of indigenous work-
ers and it laid down various standards aimed at avoiding the use of coercion, at
protecti.ng the communities against the repercussions of the withdrawal of too
many adult males, at protecting non-adult persons against recruiting, at limit-
ing the right of recruiting of public officers and at prohibiting its exercise by
chiefs and other indigenous authorities. According to the Convention, no
person or association shall engage in recruiting unless it has been licensed by
the authorities. The Convention specifies the conditions under which licences
should be issued and it specifies the obligations of the licencees. It provides that
the authorities should exercise a certain supervision on recruiting operations
and it lays down various guarantees as regards the medical examination of
recru!ted workers, their transport, their repatriation, the advances of wages,
etc. The Convention has been supplemented by a Recommendation of 1936
(No. 46), which advocates a number of measures aimed at hastening the
progressive elimination of recruiting.

202
Categories of Workers 525-527

B. The Contracts of Employment

525. Two Conventions were adopted with a view to avoiding abuses in the
conclusion of contracts of employment of indigenous workers. First, in 1939, a
detailed Convention (No. 64) which has been ratified by 28 States and declared
applicable to 20 non-metropolitan territories, provides that these contracts
should be made in writing when they are made for a period of 6 months or more
or when they stipulate conditions of employment which differ materially from
those customary in the district. The Convention specifies the particulars which
every contract should contain and it requires that it should be presented for
attestation to an accredited public officer, who shall ascertain that certain
conditions have been met. Every worker who enters into a contract should be
medically examined. Non-adult persons should not enter into a contract. The
Convention contains also provisions about the maximum period of service that
may be stipulated in a contract and about the termination of the contract and
the repatriation of the worker. A Recommendation (No. 58) adopted in 1939 at
the same time as the Convention deals with the maximum length of written
contracts of employment of indigenous workers.

526. A few years later, in 1947, a second Convention (No. 86) on the matter
of contracts of employment of indigenous workers laid down standards about
the maximum period of service which may be stipulated or implied in these
contracts, whether written or oral. Such period shall not exceed 12 months, or-
if the workers are accompanied by their families- two years, when the contract
does not involve a long and expensive journey. Otherwise, the contract shall
not exceed 2 or 3 years, according to the case. This Convention has been
ratified by some 20 States and declared applicable to some 20 non-
metropolitan territories.

C. Penal Sanctions for Breaches of Contracts of Employment

52 7. The penal sanctions for breaches of contracts of employment have been

the subject of lively discussions between the two World Wars as they were
considered by some to be a survival of bondage. Two Conventions were
adopted in this field. Convention No. 65 of 1939, which has been ratified by
some 30 States and declared applicable to more than 22 territories, provided
that all such penal sanctions should be abolished progressively and as soon as
possible and that their abolition should be immediate in the case of non-adult
persons. In 1955, Convention No. 104, which has been ratified by 25 States and
declared applicable to three territories, required the immediate abolition of
this type of sanctions or their progressive abolition not later than one year from
the date of ratification of the Convention. Moreover, with a view to abolishing
discrimination between indigenous and non-indigenous workers, penal sanc-
tions for breaches of contracts of employment not covered by the Convention
which do not apply to non-indigenous workers shall be abolished for indigen-
ous workers.

203
528-529 Categories of Workers

II. Workers in Non-Metropolitan Territories

528. The conditions of workers of non-metropolitan territories were already

covered in several respects by the Conventions concerning indigenous workers.
Moreover, certain standards of more general application and in particular
those laid down in the 1930 Convention on Forced Labour 1 had been framed
specially in the light of conditions prevailing in non-metropolitan territories
and in fact exercised a considerable influence in these territories. 2 Finally, the
implementation of Article 35 of the Constitution of the IL0 3 resulted in the
progressive extension of the application of general Conventions to non-
metropolitan territories. Nevertheless, it has also been felt necessary to frame
certain standards relating particularly to the situation in non-metropolitan
territories. Such a trend was initiated during the Second World War, and it led
to the adoption, first, in 1944 and 1945, of Recommendations concerning
social policy in dependent territories, and then, in 194 7, of a series of Conven-
tions concerning non-metropolitan territories, which played an important role,
in particular in the development of social conditions in Africa. 4 The purpose of
these instruments has been either to extend to the workers of non-metropolitan
territories a number of standards of more general character, or to adopt special
standards in respect of these workers; these were similar to or even ahead of the
general standards. They dealt with social policy, right of association, labour
inspection and labour standards.
1. See above Nos. 215 and f.
2. On this influence, see 'Aspects of Social Evolution in Present and Former Non-
Metropolitan Territories', Rep. Com. Exp. 1961, p. 255.
3. See below No. 587.
4. See, in this connection, the message of President Senghor of Senegal to the International
Labour Conference, Rec. Proc. Conf., 53rd Session, 1969, p. 129.

A. Social Policy

529. Already in 1944 the ILO adopted a Recommendation (No. 70) con-
cerning social policy in dependent territories which was based on the principle
according to which States should take steps to promote the well-being and
development of the peoples of such territories through the effective application
of the general principles and the minimum standards set forth in the Recom-
mendation and relating to various aspects of social policy. In 1945 another
Recommendation (No. 74) included supplementary provisions on a series of
other questions. Finally, in 194 7 the question of social policy in non-
metropolitan territories was dealt with in a Convention (No. 82) which, as
indicated above, 1 has been revised in 1962 with a view to making its continued
application and ratification possible for independent States.
1. See above No. 409.

204
Categories of Workers 530-532

B. Right of Association

530. As stated above/ the Right of Association {Non-Metropolitan Ter-

ritories) Convention, 1947 {No. 84) has been the first instrument which
included substantive provisions in this field. It was adopted a year before the
general Convention on Freedom of Association (No. 87).
1. See above No. 169.

C. Labour Inspection

531. In 1947 also, at the same time as it adopted a general Convention (No.
81) on Labour Inspection, the International Labour Conference framed a
special Convention (No. 85) on labour inspection in non-metropolitan ter-
ritories, which reproduced certain provisions of the general Convention. 1 This
Convention also had a great impact.
1. See above No. 563.

D. Labour Standards

532. Another instrument adopted in 1947 has been the Labour Standards
(Non-Metropolitan Territories) Convention {No. 83). This Convention did not
itself introduce any new standards. Its aim was to allow States to make, as
regards a number of Conventions which were appended to this text, declara-
tions of application to non-metropolitan territories analogous to those pro-
vided for by Article 35 of the Constitution of the ILO, 1 even if the State
concerned had not ratified the Convention in question for its home territory. It
took a long time for this Convention to enter into force. While two ratifications
only were required for its entry into force and the first ratification, from the
United Kingdom, was received in 1950, it was not until 1973 that the second
ratification {by Australia) was communicated and the Convention therefore
entered into force the following year in accordance with the usual final clauses.2
However this delay does not mean that the Convention had no effect during a
quarter of a century. In fact, when the United Kingdom ratified the Conven-
tion, it made a great number of declarations of application of the Conventions
listed in this instrument to the various territories for which it was responsible.
These declarations did not become effective until Convention No. 83 came into
force. However, when many of these territories reached their independence,
the new States declared themselves bound, in most of these cases, by the
declarations made on their behalf. The declarations were therefore trans-
formed into ratifications in the name of the new member States and Conven-
tion No. 83 could thus attain, to a certain extent, the objective at which it was
aimed. More recently, the entry into force of the Convention resulted in more
than 100 declarations of application of the Conventions concerned being still
registered in the name of various territories.
205
533-534 Categories of Workers

1. See below No. 587.

2. See below No. 583.

III. Indigenous and Tribal Populations

533. In 1957, the International Labour Conference adopted a Convention

(No. 107}- which has been ratified by 27 States- and a Recommendation
covering a wide range of subjects in respect of indigenous and other tribal and
semi-tribal populations. These instruments went much beyond the questions of
labour as such. They were framed with the co-operation of the United Nations
and the Specialized Agencies concerned - which are also called upon to
co-operate in promoting their application- and they deal with all aspects of the
conditions of life of these populations. In order to promote concerted and
simultaneous action in respect of all the factors which have maintained these
populations on the fringe of their respective national communities and have
prevented them from sharing in the progress of these communities, these
instruments include a variety of provisions which aim at assuring 'the progress
of the populations concerned, their progressive integration into their respec-
tive national communities and the improvement of their living and working
conditions'. 1 Thus, the Convention and Recommendation in question deal not
only with recruiting and conditions of employment, vocational training, handi-
crafts and rural industries, and social security, but also with wider questions,
such as citizenship rights, cultural and religious values, customs and institu-
tions, ownership over the lands, health, social control and criminal penalties,
education and means of communication, etc. In recent years, the question of
the revision of the Convention in order to take account of new conceptions, and
in particular to avoid policies of systematic integration, has been raised in
certain quarters.
1. Preamble of Convention No. 107.

§4. PuBLIC EMPLOYEES

534. While some doubts were expressed, when the ILO was established, as
to whether the Organization was expected to deal with the conditions of work
of civil servants, or more generally of public employees it soon appeared that
the competence of the ILO in this area could not be denied, even if the
conditions of work of civil servants were regulated by public law and if the
application of a given international standard was to be ensured by different sets
of national rules for different categories of workers. In fact some of the
Conventions adopted by the ILO are applicable to civil servants as well as to
other workers, in particular in the field of freedom of association, equal
remuneration and discrimination in employment and occupation while it is
specified in many other Conventions that they apply to the workers of both
public and private establishments. On the other hand, in a Convention like the
Right to Organize and Collective Bargaining Convention, 1949 (No. 98}, it has

206
Foreign Workers 535-537
been specified that 'the Convention does not deal with the position of public
servants engaged in the administration of the State'.

535. In 1978, the Conference adopted a Convention (No. 151) and a

Recommendation (No. 159) relating to Labour Relations in the Public Service.
The Convention, as indicated above, 1 relates to protection against acts of
anti-union discrimination and against acts of interference by a public authority,
to the facilities to be afforded to the representatives of public employees'
organizations, to procedures for determining terms and conditions of employ-
ment, to settlement of disputes and to civil and political rights.
1. For more details, see No. 202 above.

§5. NURSING PERSONNEL

536. As, in recent years, serious problems were met as regards the employ-
ment of nursing personnel, standards relating to the employment and condi-
tions of work and life of this personnel have been framed by the ILO in
co-operation with the World Health Organization. As a result, the Interna-
tional Labour Conference adopted, in 1977, a Nursing Personnel Convention
(No. 149) which was supplemented by a Recommendation (No. 157). The
Convention contains a number of basic provisions relating, in particular, to the
adoption and application of national policies concerning nursing services and
personnel, to the basic requirements regarding nursing education and training,
to the determination of conditions of employment and work and to equality of
treatment with" conditions of work of other workers in the country. The
Recommendation is much more detailed and its various parts relate, in particu-
lar, to national policies concerning nursing services and nursing personnel,
education and training, practice of nursing profession, participation, career
development, remuneration, working time and rest periods, occupational
health protection, social security, special employment arrangements, nursing
services and international co-operation. An Annex to the Recommendation
contains suggestions concerning practical application.

Chapter XIV. Foreign and Migrant Workers

537. The protection of foreign workers has been, as already indicated,
considered from the outset as one of the main functions of the ILO. The
Preamble of its Constitution states that one of the tasks of the ILO shall be the
'protection of the interests of workers when employed in countries other than
their own'. In fact, foreign and in particular migrant workers are often isolated
in countries with whose laws and customs they are not familiar, they are more
likely to be exploited and are often unable to defend their interests effectively.
It is therefore natural that the ILO should devote special attention to their
protection. To this effect, a number of Conventions have been adopted dealing
specifically with matters relating to foreign workers. In addition, some Conven-

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538-540 Foreign Workers

tions of a more general scope contain special provisions applying to this

category of workers. Finally, it will be seen that international labour Conven-
tions which do not contain any express provision on the subject are generally
also applicable to foreign workers.

§ 1. CONVENTIONS DEALING SPECIFICALLY WITH THE SITIJATION OF

FOREIGN AND MIGRANT WORKERS

538. A first group of Conventions dealing specifically with the situation of

foreign and migrant workers relate to social security. 1 Three Conventions were
adopted in this field: the Equality of Treatment (Accident Compensation)
Convention, 1925 (No. 19), the Maintenance of Migrants' Pension Rights
Convention, 1935 (No. 48) and the Equality of Treatment (Social Security)
Convention, 1962 (No. 118). These Conventions are based on the principle of
reciprocity, 2 i.e. each State which has ratified one of them is bound to apply it
only to the nationals of States which have also ratified it.
1. See above Nos. 416-421.
2. See Jean Morellet, 'La notion de reciprocite dans les traites de travail et les conventions
internationales du travail', Revue de droit international prive, 1931, pp. 642 and ff.; Jacques
Secretan, 'International Labour Conventions as a Means of Assuring Identity of Treatment
for National and Foreign Workers on a Basis of Reciprocity', l.L.R., June 1933.

539. Contrary to this first group of instruments, a more general Convention

-the Migration for Employment Convention (Revised), 1949 (No. 97) -which
has been ratified by 33 States, is applicable generally to migrant workers
'without discrimination in respect of nationality, race, religion or sex', and
ratifying States are bound to apply it even to nationals of States which have not
ratified it. The Convention includes, in the first instance, a series of provisions
relating to migrations, in particular as regards the maintenance of free service
to assist migrants for employment and to provide them with accurate informa-
tion. States should also, as far as possible, take steps against misleading propa-
ganda relating to emigration and immigration. Measures should be taken as
appropriate to facilitate the departure, journey and reception of migrants.
The Convention also provides for the maintenance of appropriate medical
services responsible for migrants for employment and the members of their
families.

540. A second series of provisions relates to equality of treatment. States

which have ratified the Convention should apply- without any discrimination,
as stated above- to immigrants lawfully within their territory treatment no less
favourable than that which it applies to its own nationals in respect of a number
of matters, such as:
a. in so far as such matters are regulated by laws or regulations or are subject to
the control of administrative authorities, remuneration, hours of work,
overtime arrangements, holidays with pay, restrictions on home work,
minimum age for employment, apprenticeship and training, women's work
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Foreign Workers 541

and the work of young persons, membership of trade unions and enjoyment
of the benefits of collective bargaining, accommodation;
b. social security, with two limitations;
c. employment taxes, dues or contributions payable in respect of the person
employed and
d. legal proceedings relating to the above matters.
The Convention also contains provisions concerning co-operation between the
employment services and other services connected with migration. It specifies
that the services rendered by the public employment service to migrants for
employment should be rendered free. It prohibits that a migrant who has been
admitted on a permanent basis and the members of his family who have been
authorized to accompany him be returned to their territory of origin because
the migrant is unable to follow his occupation by reason of illness contracted or
injury sustained subsequent to entry. The States bound by the Convention
should permit, taking into account the limits allowed by national laws and
regulations concerning export and import of currency, the transfer of such part
of the earnings and savings of the migrant as the migrant may desire. The
Convention is accompanied by three Annexes and ratifying States may exclude
from their ratification any or all these Annexes. The two first Annexes relate to
recruitment, placing and conditions of labour of migrants for employment
recruited under (or otherwise than under) government-sponsored arrange-
ments for group transfer. The third one relates to the importation of personal
effects, tools and equipment of migrants for employment. Finally, the Conven-
tion has been supplemented by a Recommendation (No. 86) which contains
more detailed provisions on the general policy of States to develop and utilize
all possibilities of employment, on the free service to be provided to assist
migrants, on intermediaries who undertake the recruitment, on the selection of
migrants for employment, on the reunification of families, on the removal of
restrictions to employment of the migrant and his wife and children after a
regular residence of 5 years, on refraining from removing a migrant from the
territory on account of his lack of means or the state of the employment market,
on the benefits to be granted to nationals when they return to their State of
origin. The Recommendation has as an Annex a Model Agreement on tem-
porary and permanent migration for employment, including migration of
refugees and displaced persons.

541. In the course of more recent years, increased attention was paid to
migrant workers. Following the adoption of detailed resolutions in 1971 and
1972, the International Labour Conference framed, in 1975, a Convention
(No. 143) concerning migrations in abusive conditions and the promotion of
equality of opportunity and treatment of migrant workers, and a supplemen-
tary Recommendation (No. 143) on this subject. The Convention includes a
first part relating to migrations in abusive conditions, which aims at suppressing
such migrations as well as the illegal employment of migrant workers and
provides for various measures in this connection. Part II deals with equality of
opportunity and treatment for migrant workers and their families. It also
provides for the reunification of families. As regards free choice of employ-

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542-544 Foreign Workers

ment, it authorizes States to make it subject to the condition that the migrant
worker has resided lawfully in the territory for the purpose of employment for a
period not exceeding two years (or less, when the first work contract has to be
of less than two years). The Convention also authorizes States to restrict access
to limited categories or functions where this is necessary in the interests of the
State. When ratifying the Convention, States can exclude either of the two
Parties. Only six States have ratified the Convention until now. The Recom-
mendation contains more detailed provisions on equality of opportunity and
treatment, social policy (in particular, reunification of families, protection of
the health of migrant workers, social services) and employment and residence.

542. In connection with migrants, reference should also be made to a 1926

Convention (No. 21) concerning the simplification of the inspection of emi-
grants on board ship which has been ratified by 31 countries. In this respect, the
question of the competence of the ILO to deal with such matters had been
raised but, in 1926, the International Labour Conference pronounced itself in
the affirmative. The Convention was supplemented by a Recommendation
(No. 26) concerning the protection of emigrant women and girls on board ship,
also adopted in 1926.

543. Moreover, in 1955, a Recommendation (No. 100) aimed at the protec-

tion of migrant workers in underdeveloped countries and territories.

§2. GENERAL CONVENTIONS CONTAINING A SPECIAL PROVISION

ON FOREIGN WORKERS

544. Apart from the Conventions which deal specifically with the situation
of foreign workers, special provisions applying to this category of workers are
to be found in some twenty Conventions of a more general scope. In certain
cases such provisions merely aim at making it clear that the benefits for which
they provide more generally should be granted to foreign workers also. This is
done, in particular, by an express provision that the standard in question should
be applied 'irrespective of nationality' or 'without distinction as to nationality'
or more generally to 'all persons employed' or 'every person employed'. 1 Such
Conventions should then apply to all foreign workers, even if they are nationals
of countries which have not ratified them. This is the case, in particular, of
several social insurance or social security Conventions. 2 It is exceptional that
such Conventions apply only to nationals of countries which have ratified the
Convention concerned3 and still more that a State bound by the Convention
would be authorized to exclude any foreign worker. 4 However many Conven-
tions,5 while applying to all foreign workers, allow for a certain difference of
treatment - but not the complete exclusion - depending on whether the
problem concerns a foreigner who is resident in the country or who is a national
of a State having ratified the Convention and depending on the origin of the
funds (public funds or contributory insurance).

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Foreign Workers 545

1. E.g. Conventions (Nos. 3 and 103) on maternity protection 1919 and 1952, Convention on
Shipowners' Liability (Sick and Injured Seamen) 1936 (No. 55), Convention on Seafarers'
Social Security, 1946 (No. 70), Convention concerning Plantations, 1958 (No. 110).
2. See previous footnote and also Conventions (No. 121) concerning Employment Injury
Benefits, of 1964, and (No. 130) concerning Medical Care and Sickness Benefits, of 1969.
3. Convention (No. 2) concerning Unemployment, 1921. See also Convention (No.9) con-
cerning Placing of Seamen, 1920, which provides that the facilities for employment of seamen
shall be available for the seamen of all countries which ratify the Convention and where the
industrial conditions are generally the same. It was however also noted that certain special
Conventions are based on the principle of reciprocity.
4. The only Convention authorizing such an exception is Convention (No. 71) concerning
Seafarers' Pensions, of 1946.
5. Conventions Nos. 35 to 40, No. 44 and No. 102.

§ 3. CONVENTIONS WHICH Do NOT CONTAIN ANY PROVISION ON FOREIGN WORKERS

545. Most international labour Conventions do not contain any provision

concerning their application to foreign workers. However, the general terms in
which a great number of these Conventions are drafted, the preparatory work
which sometimes is clear in this connection, and the actual aim of this type of
Conventions lead to the conclusion that they should also be applicable to
foreign workers. As regards the terms used in Conventions, they sometimes
include expressions such as 'workers ... without distinction whatsoever' 1 and
their general character, as well as preparatory work, clearly show that, when
adopting the Convention concerned, the International Labour Conference
intended to exclude expressly any distinction as to nationality. 2 In other Con-
ventions,3 the expression used is that they are applicable to 'all persons em-
ployed' and the supervisory bodies of the ILO considered that such an expres-
sion 'does not allow for any exception on the grounds of nationality' .4 More
generally, the application of international labour Conventions to foreign work-
ers follows from the nature of· the objectives of this type of Conventions.
Contrary to the bilateral or multilateral labour treaties, which are based on the
notion of reciprocity, it has been underlined5 that the aim of international
labour Conventions is, in most cases, to establish, in countries which ratify
them, legal schemes of general application. Moreover, if one excepts social
security, these Conventions deal with questions which are of such a general
scope (such as hours of work, weekly rest, safety and hygiene, etc.) that one can
hardly imagine how distinctions based on nationality could be made in practice,
as the measures provided in the Conventions should naturally be applied to all
the workers of an undertaking. In conclusion, and with the exception of some
Conventions whose terms indicate the intention to exclude foreign workers,6
the great majority of international labour Conventions are of general applica-
tion and do not allow limitations based on the nationality of protected persons. 7
The equality between foreigners and nationals which they imply is generally
absolute and they are only exceptionally based on equality subject to reciproc-
ity.
1. Convention No. 87.

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546-547 Foreign Workers

2. See Intern. Lab. Code, note 3 under art. 857 (p. 681); Jenks, The International Protection of
Trade Union Freedom, London, 1957, pp. 25 and 243-244; see also above No. 174.
3. E.g. Convention No. 8.
4. Rep. Com. Exp. 1956, p. 31.
5. Jean Morellet, op. cit., p. 644. See also Secretan, op. cit.
6. In this connection, it was explained (above No. 245) that, in the case of the Discrimination
(Employment and Occupation) Convention, 1958 (No. 111), the expression 'distinction ...
made on the basis of national extraction' does not refer to foreigners, but to nationals of a
foreign origin.
7. See also 'Comparative analysis of the International Covenants on Human Rights and
International Labour Conventions and Recommendation', O.B., Vol. LII, 1969, No. 2,
para. 18.

§4. 0TIIER INTERNATIONAL STANDARDS

546. The International Covenant on Economic, Social and Cultural Rights is

far from being clear about its application to foreigners. In the first instance, it
provides (Art. 2, para. 2), according to a formula which had also been used by
the Universal Declaration of Human Rights, that the rights enunciated in the
Covenant will be exercised without discrimination of any kind inter alia as to
'national origin', a term which differs from that of nationality, as it normally
concerns nationals who are of foreign origin. The Covenant also refers to 'other
status' but if this expression were to cover nationality, inter alia, one might
wonder why the term 'nationality' has not been expressly used. However, the
following provision (Art. 2, para. 3) provides that 'developing countries, with
due regard to human rights and their national economy, may determine to what
extent they would guarantee the economic rights recognized in the ... Coven-
ant to non-nationals'. A contrario, one might be led to think that as regards
social rights, on the one hand, and developed countries, on the other,
the Covenant would apply to foreigners. However, this is not conclusive. 1
Apart from the question of legal interpretation itself, a difficulty of sub-
stance lies in the very wide range of the matters dealt with in the Covenant, and
about which the automatic and general application to foreigners would appear
to be as difficult in some cases (e.g. right to work) as their exclusion
would be unthinkable in others (e.g. hours of work, industrial safety and
hygiene).
1. Thus, Egon Schwelb, in 'Some Aspects of the International Covenants on Human Rights of
December 1966' ,International Protection ofHuman Rights, Nobel Symposium 7, edited by A.
Eide and A. Schou, Stockholm, 1968, p. 10, considers that the Covenant does not prohibit
discrimination based on nationality.

547. Regional, and in particular European instruments, are generally based

on the notion of reciprocity. Thus, the Appendix to the European Social
Charter provides that 'without prejudice to Art. 12 para. 4 and Art. 13 para. 4, 1
persons covered by Articles 1 to 17 include foreigners only insofar as they are
nationals of other Contracting Parties lawfully residing or working regularly
within the territory of the Contracting Party concerned, subject to the under-
standing that these articles are to be interpreted in the light of the provisions of

212
Foreign Workers 548-549

Articles 18 and 19. This interpretation would not prejudice the extension of
similar facilities to other persons by any of the Contracting Parties'.
1. Art. 12 para. 4 relates to bilateral or multilateral agreements providing for equality of
treatment in the field of social security- on the basis of reciprocity- and Art. 13 para. 4 relates
to equality of treatment- also on the basis of reciprocity- under the European Convention on
Social and Medical Assistance of 1953.

548. Articles 18 and 19 have been understood by the supervisory bodies

under the European Social Charter as applying only to nationals of Contracting
Parties. Article 18 relates to the right to engage in a gainful occupation in the
territory of other contracting parties. It provides for the undertaking of con-
tracting parties to apply existing regulations in a spirit of liberality, to simplify
existing formalities and to reduce or abolish chancery dues and other charges
payable by foreign workers or their employers and to liberalize regulations
governing the employment of foreign workers. It also refers to the recognition
by States of the right of their nationals to leave the country to engage in a
gainful occupation in the territories of the other Contracting Parties.

549. Article 19 of the Social Charter relates to the right of migrant workers
and their families to protection and assistance. It reproduces to a large extent
the gist of ILO Convention No. 97, 1 in particular as regards the obligation to
maintain services to assist migrant workers, the adoption of measures to
facilitate the departure, journey and reception of such workers, the co-
operation between social services in emigration and immigration countries, the
equal treatment of migrant workers lawfully within the territory and nationals
in respect of different matters (remuneration, working conditions, membership
of trade unions and enjoyment of benefits of collective bargaining, accommo-
dation, employment taxes, dues or contributions payable in respect of em-
ployed persons, legal proceedings relating to such matters) and the transfer,
within limits, of the earnings and savings of these workers. The Charter does
not refer, as Convention No. 97 does, to equal treatment in respect of social
security. In other respects it goes beyond Convention No. 97. Thus, it provides
that States should facilitate as far as possible the reunification of the family of a
foreign worker permitted to establish himself in the territory (and the family is
defined in the Appendix to the Charter as meaning at least the wife and
dependent children under the age of 21 years). A similar provision was con-
tained in the ILO Recommendation No. 86 of 1949 and has since been
included in Convention No. 143 of 1975, but in the latter case with a wider
definition of the family (spouse, dependent children- without limitation of age
-father and mother). The Charter also provides that foreign workers lawfully
residing in a country should not be expelled unless they endanger national
security or offend against public interest or morality. ILO Recommendation
No. 151 also contains provisions designed to limit the cases of expulsion of
foreign workers. Finally, the Charter specifies that the protection and assis-
tance provided for in that article should be extended to self-employed migrant
workers insofar as such measures apply.
1. See above No. 539.

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550-552 Labour Administration

550. As regards the European Code of Social Security which has been
framed on the basis of ILO Convention No. 102 and entered into force in 1968,
it does not include a provision analogous to that which, in Convention No. 102
deals with equal treatment of non-national residents.

551. Finally, more recently, in November 1977, States Members of the

Council of Europe signed a European Convention on the Legal Status of
Migrant Workers. The Convention would apply to workers who are nationals of
Council of Europe member States and it deals with a great variety of matters
(forms of recruitment, medical examination and vocational test, right of exit,
right to admission, administrative formalities, formalities and procedure relat-
ing to work contract, information, travel, work permit, residence permit,
reception, recovery of sums due in respect of maintenance, family reunion,
housing, pre-training, schooling, linguistic training, vocational training and
retraining, teaching of the migrant worker's mother tongue, conditions of
work, transfer of savings, social security, social and medical assistance, indus-
trial accidents and occupational diseases, industrial hygiene, inspection of
working conditions, death, taxation of earnings, expiry of contract and dis-
charge, re-employment, right of access to the courts and administrative
authorities in the receiving State, use of employment services, exercise of the
right to organize, participation in the affairs of the undertaking, return home,
conservation of acquired rights). The Convention specifies that it shall not
prejudice the provisions of laws or treaties, conventions, etc. under which more
favourable treatment has been or would be accorded to the persons protected
by the Convention. As regards the application of the Convention, the latter
provides for the establishment of a consultative committee which would be
constituted by a representative of each contracting party and which would
report to the Committee of Ministers of the Council of Europe. The Conven-
tion would enter into force when it is ratified, accepted or approved by five
member States of the Council of Europe.

Chapter XV. Labour Administration

552. The adoption in a country of labour laws and regulations might be
ineffective if that country does not have also at its disposal a competent and
efficient labour administration, entrusted with the task of following the
development of the social situation, of supervising the implementation of the
legislation and of ensuring the operation of the existing machinery. Interna-
tional standards have been adopted as regards various aspects of labour ad-
ministration. Reference has already been made to the organization of a public
employment seiYice. 1 The present chapter will deal with the standards relating
to labour inspection, labour administration as such, labour statistics and tripar-
tite consultation relating to standards.
1. See above No. 289.

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Labour Administration 553-555

§ 1. LABOUR INSPECTION

I. General Outline

553. The need for inspection services entrusted with the task of supervising
the implementation of labour legislation has been felt quite soon and the
establishment of such services has generally followed, but sometimes with a
certain delay, the adoption of the first labour laws. 1 At the international level,
the question of labour inspection was raised in various conferences and con-
gresses2 and, when the ILO was set up, it figured among the general principles
listed in Article 427 of the Treaty of Versailles. It was stated there that 'Each
State should make provision for a system of inspection in which women should
take part, in order to ensure the enforcement of the laws and regulations for the
protection of the employed.'
1. The first of these services was established in the United Kingdom in 1833.
2. The Berlin Conference of 1890, in particular, made a recommendation in this connection.

554. The first instrument to be adopted in this field has been, in 1919, a
Recommendation on Labour Inspection (Health Services) (No. 5). It was
followed, a few years later, by a more general and more detailed instrument,
i.e. the Labour Inspection Recommendation, 1923 (No. 20) which already
foreshadowed the Convention which was going to be adopted a quarter of a
century later. In the course of the following years, Recommendations were
adopted as regards labour inspection in specific occupations- such as seafarers
(Recommendation No. 28 of 1926) and building (Recommendation No. 54 of
1937)- and provisions relating to labour inspection were included in instru-
ments dealing with specialized fields (such as minimum wage-fixing machinery
(Recommendation No. 30 of 1928) and prevention of industrial accidents
(Recommendation No. 31 of 1929)). However, the need for a general Conven-
tion on this matter became increasingly evident, in order to give a greater
efficiency to the standard-setting activities of the ILO in this field.

555. The question of the organization of labour inspection was placed on the
agenda of the session of the Conference which was to take place in 1940, but
which could not be held because of the outbreak of the war. However a useful
preparatory work had been made and the question was taken up again in 1947,
when the Labour Inspection Convention (No. 81) was adopted. This Conven-
tion became the fundamental instrument in this field. The Conference adopted
at the same time two Recommendations, the first of which (No. 81) was
supplementary to the general Convention, and the second (No. 82) dealt with
labour inspection in mining and transport undertakings. It also adopted a
Convention (No. 85) concerning Labour Inspectorates in Non-Metropolitan
Territories. As Convention No. 81 related to industry and commerce only, a
separate Convention, supplemented by a Recommendation, had to be adopted
in 1969 to provide for a labour inspection in agriculture. Apart from these
various instruments, numerous Conventions1 dealing with substantive matters

215
556 Labour Administration

contain provisions which call for the establishment of an appropriate system of

inspection in order to ensure their effective enforcement. Finally, many resolu-
tions on labour inspection have been adopted by ILO conferences or commit-
tees.
1. See, e.g., Conventions No. 101 of 1952, Nos. 106 and 107 of 1957, No. 119 of 1963, No.
120 of 1964, Nos. 123 and 124 of 1965 and No. 125 of 1966.

II. Labour Inspection in Industry and Commerce

A. Convention No. 81 of 1947

556. Convention No. 81 of 1947 is now the basic international standard in

the field of labour inspection in industry and commerce.

Scope. In Part I, the Convention applies mainly to industrial workplaces in

respect of which legal provisions relating to conditions of work and the protec-
tion of workers while engaged in their work are enforceable by labour inspec-
tors. Mining and transport undertakings may be exempted, but this possibility
of exemptions was not utilized by ratifying States. As regards commercial
undertakings, Part II provides that States shall maintain a system of labour
inspection in accordance with the provisions on labour inspection in industry,
in so far as they are applicable. However, any State which ratifies the Conven-
tion may exclude Part II from its acceptance of the Convention.

Functions ofinspection. Each ratifying State should maintain a system of labour

inspection in industrial workplaces, which shall have as its functions to secure
the enforcement of the legal provisions relating to conditions of work and the
protection of workers, to supply technical information and advice to employers
and workers and to bring to the notice of the competent authority defects or
abuses not specifically covered by existing legal provisions. The Convention
adds that any further duties which may be entrusted to labour inspectors should
not be such as to interfere with the effective discharge of their primary duties or
to prejudice in any way the authority and impartiality which are necessary to
inspectors in their relations with employers and workers.

Organization, functioning and composition ofinspection services. The Conven-

tion lays down the principle that labour inspection shall be placed under the
supervision of a central authority. The authorities should promote effective
co-operation between the inspection services and other governmental services
and public or private institutions, as well as collaboration with employers and
workers or their organizations. The inspection staff should be composed of
public officials whose status and conditions of service are such that they are
assured of stability of employment and aJ,"e independent of changes of govern-
ment and of improper external influences. Labour inspectors should be
recruited with sole regard to their qualifications. They should be adequately
trained. Both men and women should be eligible for appointment. Qualified

216
Labour Administration 556

technical experts and specialists should be associated in the work of inspection.

The number of labour inspectors should be sufficient to secure the effective
discharge of the duties of the inspectorate and they should have at their
disposal the necessary material means. The competent authority should furnish
them with local offices and the necessary transport facilities, and reimburse
them any travelling and incidental expenses.

Powers of inspectors. The Convention specifies the powers which should be

granted to inspectors: to enter freely at any hour of the day or night any
workplace liable to inspection; to enter by day any premises which they may
have reasonable cause to believe to be liable to inspection; to carry out any
necessary examination, test or enquiry, to interrogate, alone or in presence of
witnesses, the employer or the staff of the undertaking; to require the produc-
tion of any books, registers and documents the keeping of which is prescribed
by law; to enforce the posting of notices required by legal provisions and to take
samples of materials and substances used. Inspectors should be empowered to
take steps with a view to remedying defects observed which constitute a threat
to the health or safety of the workers. They should be empowered to make
orders requiring necessary alterations to the installation or plant to be carried
out within a specified time limit or measures with immediate executory force in
the event of imminent danger. Where this procedure is not compatible with
national practice, inspectors should have the right to apply to the competent
authority for the issue of orders or for the initiation of measures with immedi-
ate executory force.

Industrial accidents and occupation diseases. Labour inspection should be

notified of industrial accidents and occupational diseases.

Obligations of inspectors. Labour inspectors should be bound by a number of

obligations: they should not have any interest in the undertakings under their
supervision; they should not reveal any manufacturing or commercial secrets
or working processes which may come to their knowledge in the course of their
duties and they should treat as absolutely confidential the source of any
complaint.

Frequency of inspections. Workplaces should be inspected as often and as

thoroughly as is necessary.

Discretionary power of inspectors. The Convention leaves to the discretion of

labour inspectors to give warning and advice instead of instituting or recom-
mending proceedings.

Sanctions. Adequate penalties for violations of legal provisions and for ob-
structing labour inspectors should be provided for by national legislation and
effectively enforced.

Inspection reports. Labour inspectors should submit periodical reports to the

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557-558 Labour Administration

central inspection authority and that authority should publish an annual gen-
eral report on the subjects and with the statistics specified by the Convention.

B. The 1947 Recommendations

557. Recommendation No. 81, which supplements the 1947 Convention

contains a number of suggestions on the preventive duties of labour inspecto-
rates, the collaboration of employers and workers in regard to health and
safety, labour disputes and annual reports on inspection. Finally, Recommen-
dation No. 82 on labour inspection in mining and transport undertakings, also
adopted in 1947, advocates that States should apply to these undertakings
appropriate systems of labour inspection.

C. Problems of Ratification and of Application of Convention No. 81

558. Convention No. 81 has been ratified by 94 States; 17 of these States

have excluded Part II relating to commerce. Various types of difficulties have
prevented or delayed further ratifications or raised problems of application:
the lack of qualified staff or of sufficient material means and the insufficient
structure of administration have been the main obstacles, mainly in developing
countries. In the developed world, the functions of technical information, the
general organization of inspection and specialization are among the most
frequent problems. Sometimes, the difficulties encountered are of a legal
character. They relate, in certain cases, to the limited competence of labour
inspection, to the lack of stability for the employment of inspectors or to the
federal structure of the country. A problem peculiar to socialist countries of
Eastern Europe lies in the fact that inspection duties are exercised, to a great
extent, by members of trade unions, while the Convention provides that the
inspection staff should be composed of public officials. It was however pointed
out in this connection that the purpose of the Convention was to ensure to
inspectors stability and independence in employment. If the status of public
officials appeared more appropriate to this end, other formulae which would
ensure the same guarantees may also be considered satisfactory. 1 Other dif-
ficulties relate to the functions of conciliator or: arbitrator in labour disputes
which are entrusted to inspectors. This is not recommended by Recommenda-
tion No. 81, but these functions would be incompatible with the Convention
only to the extent to which they would prevent inspectors to fulfil their main
duties. Finally, in a number of countries, the powers recognized to inspectors
are more limited than those provided in the Convention. In spite of these
difficulties, the modification of national laws and practice to adapt them to the
international standard made good progress in many countries and the ratifica-
tion of the Convention has reached an impressive figure. The principle of the
institution of labour inspection services has become now an almost universal
reality, but the degree of development of these services varies considerably
from one country to another. In this evolution, the role of the ILO standards

218
Labour Administration 559-560

has been strengthened by the increasing technical co-operation which the ILO
supplies to many countries in all continents.
l.Rep. Com. Exp. 1964, p. 222, paras. 99-100; ibid. 1969, p. 214. para. 127.

ill. Labour Inspection for Seamen

559. Three years after the adoption of Recommendation (No. 20) on

Labour Inspection, the Conference adopted, in 1926, a Recommendation (No.
28) on Labour Inspection of the conditions of work of seamen. This instrument
followed in many respects the principles of Recommendation No. 20, while
taking into account the special features of maritime navigation, in particular as
regards the right of inspectors to visit vessels, the right to prohibit a vessel from
leaving port in serious cases and the right to grant exemption in special cases.

IV. Labour Inspection in Agriculture

560. In the field of plantations, the main provisions of Convention No. 81 of

1947 had already been introduced in Convention No. 110 and Recommenda-
tion No. 110 of 1958. However, as regards labour inspection in agriculture
more generally, a Convention (No. 129) and a Recommendation (No. 133)
dealing with the matter as a whole were adopted only in 1969. These instru-
ments were based to a large extent on the standards established in 1947 for
industry and commerce, but they take account of the experience acquired and
they also introduce certain innovations. After having laid do~n the basic
obligation for States which would ratify it to maintain a system of labour
inspection in agriculture, the Convention provides for the optional extension of
the system to various categories of workers or persons who are not wage-
earners such as tenants who do not engage outside help, sharecroppers and
similar categories, persons participating in a collective economic enterprise,
such as members of a co-operative, and members of the family of the operator
of the undertaking. The Convention specifies that labour inspectors may be
granted advisory or enforcement functions regarding legal provisions relating
to conditions of life - and not only conditions of work - of workers and their
families. As regards the composition of the labour inspection staff, while
maintaining the rule according to which it should be composed of public
officials, the Convention permits the inclusion of officials or representatives of
occupational organizations, whose activities would supplement those of public
inspection staff; these persons should be assured of stability of tenure and be
independent of improper external influences. Another new provision was that,
on the occasion of an inspection, the inspector should in principle notify not
only the employer but also the workers or their representatives, of his presence,
unless such a notification might be prejudicial to the performance of his duties.
The defects noted should be immediately made known to the employer and the
representatives of the workers. As regards the powers of inspectors, the Con-
vention specifies that inspectors shall not enter the private home of the

219
561-562 Labour Administration

operator of the undertaking except with his consent or with a special authoriza-
tion issued by the competent authority. The various duties of the labour
inspection services should include their association in the preventive control of
new plant, new materials or substances and new methods which appear likely to
constitute a threat to health or safety. As far as possible, inspectors should be
associated with any inquiry on the spot into the causes of the most serious
occupational accidents or diseases. In other respects, the Convention is
analogous to Convention No. 81. It has been ratified by some 20 States.

561. Recommendation No. 133 advocates that, when national conditions

permit, the functions of labour inspectorate should include collaboration with
the competent technical services with a view to helping the agricultural pro-
ducer to improve his holding and the conditions of life and work of the persons
working on it, and also that labour inspectorates should be associated in the
enforcement of legal provisions on training of workers, social services, co-
operatives and compulsory school attendance. Moreover, while maintaining
the principle that the functions of labour inspectors in agriculture should not
include that of acting as conciliator or arbitrator in proceedings concerning
labour disputes, the Convention provides that, where no special bodies for this
purpose exist in agriculture, labour inspectors may be called upon as a tem-
porary measure to act as conciliators. The Recommendation also specifies the
qualifications required for labour inspectors in agriculture and the training they
should receive, and contains provisions on the working of inspectorates. It
finally advocates education campaigns and lists the measures which such action
could include.

V. Labour Inspection in Non-Metropolitan Territories

562. In 1939 a Recommendation (No. 59) on labour inspectorates (indigen-

ous workers) had advocated that States concerned should establish labour
inspection services in any territories where such services did not already exist.
In 1947, at the same time as the general Convention (No. 81) on labour
inspection, a special Convention (No. 85) was adopted for non-metropolitan
territories. Somewhat less detailed than the general Convention, the special
text reproduces its fundamental provisions as regards suitable training of
inspectors, facilities for workers and their representatives for communicating
freely with the inspectors, frequency of inspections, functions, powers and
obligations of inspectors. Convention No. 85 has been ratified by the five main
States responsible for non-metropolitan territories and has been declared
applicable to 57 territories. Subsequently, most of these territories became
independent and they have either ratified the general Convention (No. 81) or
declared that, until they are in a position to do so, they remain bound by
Convention No. 85. The latter Convention is still applicable without modifica-
tion in 15 territories, while Convention No. 81 is applicable to 18 territories.
The application of the standards on labour inspection in non-metropolitan
territories was faced with a number of difficulties: sometimes the problems

220
Labour Administration 563-565
were of technical nature, as in the case of the powers of inspectors or of the
establishment and publication of an annual inspection report. However the
main problems were those of the number of inspectors, their training and the
available financial resources.

VI. Other International Standards

563. The only other international provision on labour inspection appears in

the European Social Charter. It consists of a paragraph providing merely that
'Each Contracting Party shall maintain a system of labour inspection appro-
priate to national conditions' (Art. 20, para. 5). As this article is contained in
Part III, relating to undertakings - and not in Part II which contains the
substantive provisions - it is compulsory for any State which has ratified the
Charter. However, it does not specify the rules governing labour inspection.

§2. LABOUR ADMINISTRATION

564. In 1978, the Conference adopted a Convention (No. 150) and a

Recommendation (No. 158) on Labour Administration. The Convention pro-
vides that States should, in a manner appropriate to national conditions, ensure
the organization and effective operation in its territory of a system of labour
administration, the functions and responsibilities of which are properly co-
ordinated. Arrangements should be made to secure, within such a system,
consultation, co-operation and negotiation between the public authorities and
the most representative organizations of employers and workers. The Conven-
tion defines the main responsibilities which should be assumed by the compe-
tent bodies within the system of labour administration, and it specifies that the
staff of that system shall be composed of persons who are suitably qualified for
the activities to which they are assigned, who have access to training necessary
for such activities and who are independent of improper external influences.
Such staff should have the status, the material means and the financial
resources necessary for the effective performance of their duties. The Recom-
mendation which supplements the Convention contains more detailed infor-
mation on the role, the functions (as regards labour standards, labour relations,
employment and research) and the organization (co-ordination, resources and
staff, internal organization and field services) of the national system of labour
administration.

§3. LABOUR STATISTICS

565. One of the functions of the International Labour Office is, under the
Constitution of the Organization (Art. 10), the collection and distribution of
information on conditions of industrial life and labour, and this relates in
particular to labour statistics. Moreover, without such statistics it is hardly

221
566 Labour Administration

possible to have a clear view of the labour situation in a country. However, in

order to be of real use and to be comparable, statistics have to be compiled on
the basis of sound and uniform methods and to relate to the same type of data.
It therefore appeared necessary to establish international standards on labour
statistics. In the framing of such standards, the international Conferences of
labour statisticians, which have been organized by the ILO, played an impor-
tant role. Since the first one, which was held in 1923, there have been twelve
such conferences. The fifth conference prepared a draft which constituted the
basis of Convention on Statistics of Wages and Hours of Work, 1938 (No. 63).
Convention No. 63 provides for the compilation and the publication, at quar-
terly, six-monthly and yearly intervals, of statistics of wages and hours of work
and the communication of such statistics to the ILO, which publishes a Year-
book and a quarterly Bulletin of Labour Statistics. Apart from a general part,
the Convention comprises three parts indicating with what the statistics should
precisely deal, i.e. average earnings and hours actually worked in mining and
manufacturing industries (Part II), time rates of wages and of normal hours of
work in mining and manufacturing industries (Part III) and wages and hours of
work in agriculture. States can exclude from their ratification one or two of
these parts (but not both Parts II and III). The Convention has been ratified by
33 States and its revision has been suggested by the International Labour
Conference in 1973.

§4. TRIPARTITE CONSULTATION RELATING TO STANDARDS

566. The effect to be given to international labour standards depends to a

great extent from the interest with which they are received at the national level.
The Constitution of the ILO already contains rules, such as those on submis-
sion to competent authorities 1 which aim at bringing them to the attention of
State authorities at the highest level. In 1976, a Convention (No. 144) and a
Recommendation (No. 152) were adopted to provide for the establishment of
tripartite consultations aimed at promoting the implementation of interna-
tional labour standards. Thus, the Convention requires ratifying States to
operate procedures which ensure effective consultations between represen-
tatives of the government, of employers and of workers with respect to various
matters concerning the activities of the ILO (replies to questionnaires concern-
ing items on the agenda of the Conference and government comments on
proposed texts, proposals to be made to the competent authority in connection
with ILO standards, re-examination at appropriate intervals of unratified
Conventions and of Recommendations to which effect has not yet been given,
questions arising out of reports to be made to the ILO on the application of
ratified Conventions, possible denunciations). Such consultations should be
undertaken at least once a year. When appropriate, an annual report should be
issued on the working of these procedures. Until now, this recent Convention
has been ratified by 6 States.
1. See below Nos. 569 ff.

222
Review of Existing Standards 567

Chapter XVI. The Review of Existing Standards

567. As existing ILO Conventions and Recommendations have been
adopted over a period of sixty years, it has been decided in 1976 to review them
with a view to determining the extent to which they still responded to present
needs and thinking. To this effect, the Governing Body established a Working
Party which went through the whole body of existing standards and took into
account a general consultation of ILO States Members as well as of interna-
tional and national employers' and workers' organizations. The Working Party
proceeded to classify existing Conventions and Recommendations and those
which are being envisaged in four categories:
1. existing instruments, ratification and application of which should be pro-
moted on a priority basis;
2. existing instruments, revision of which would be appropriate;
3. other existing instruments;
4. subjects concerning which the formulation of new instruments should be
considered.
While this exercise has not yet been completed, it may already be said that the
reports already submitted by the Working Party suggest that several Conven-
tions and Recommendations should be revised and that the formulation of new
instruments should be considered for a considerable number of subjects.

223
Part II. The Implementation of
International Labour Standards

Chapter I. Obligations in Respect of Standards

5 68. In a general way, international labour standards are binding only on
those States which have ratified ILO Conventions. In addition, the Constitu-
tion of the ILO, which is binding on all States Members, creates certain
obligations for them, irrespective of whether or not they have ratified a particu-
lar Convention. These are the obligation to submit the Conventions and
Recommendations before the national 'competent authority', the obligation to
respect certain fundamental principles and the obligation to supply reports on
unratified Conventions and on Recommendations.

§ 1.
THE OBLIGATION TO SUBMIT CONVENTIONS AND
RECOMMENDATIONS TO COMPETENT AUTHORITIES

569. When the system of international labour standards was set up, in 1919,
a general desire to make ILO Conventions particularly effective and to give
them a greater impact than traditional diplomatic treaties led to the introduc-
tion, in the Constitution of the ILO (now Article 19, paras. 5 to 7), of a rule
which was new to international law. This rule represented a compromise
between the position of those delegations which wanted Conventions to have a
mandatory character as soon as they were adopted and those which argued in
favour of national sovereignty and the competence of parliaments. Under the
rule, 1 the member States of the ILO are under the obligation to bring Conven-
tions and Recommendations, within one year or exceptionally 18 months from
their adoption by the Conference, before the national 'authorities within whose
competence the matter lies, for the enactment of legislation or other action'.
In the case of Conventions, the States which obtain the consent of the com-
petent authority have to communicate the formal ratification of the Convention
to the ILO and to 'take such action as may be necessary to make· effec-
tive' its provisions. In the case of Recommendations, States have to inform
the ILO of the measures taken. The rule was strengthened in some respects,
when the ILO Constitution was amended in 1946, by the introduction of
an obligation on States Members to inform the Director-General of the
ILO of the measures taken to bring competent authorities, giving particulars
of these authorities and of the action taken by them, a provision which has
since enabled the ILO to exercise close supervision over the fulfilment of
this obligation. The significance of the rule has been highlighted by the

225
570-572 Obligations in Respect of Standards

preparatory work as well as the findings of the bodies responsible for supervising
its application.
1. See Valticos, Droit international du travail, pp. 521-532, and idem, The International
Labour Organization and National Parliaments, Inter-Parliamentary Bulletin, 1969 no. I, pp.
16-31.

570. As regards the 'competent authority', the term clearly refers to the
legislative authority of the country- in other words, the authority competent to
bring the legislation into conformity with the Convention or Recommendation
concerned, i.e. normally the Parliament. 1 Special or borderline cases may arise,
for instance where legislative power is vested in the government, where a more
limited body than the full assembly exercises certain legislative functions, or
where the matters dealt with in a Convention or Recommendation do not call
for parliamentary action, but can be given effect by the executive authorities. In
this latter case it would be possible to comply with the provisions of the ILO
Constitution in the strict sense simply by bringing the instrument before the
executive authority competent to take the necessary action. The supervisory
bodies have, however, expressed the view on several occasions that in order to
give full effect to ILO Constitution Article 19, which is also designed to
enlighten public opinion, it would be desirable that all Conventions and
Recommendations should also be brought before the legislative authority, thus
affording to a parliamentary assembly an opportunity of considering these
instruments.
1. See in this connection the memorandum on 'The Nature of the Competent Authority
Contemplated by Article 19 of the Constitution of the International Labour Organisation'
(O.B. 1944, pp. 205-221 ). The supervisory bodies oft he ILO have also frequently expressed a
similar view. See recently Rep. Com. Exp. 1978, pp. 32-44.

571. The implications of this obligation have occasionally been misunder-

stood. While governments are indeed required to bring all Conventions and
Recommendations before the competent authorities, they are free to make
such proposals concerning them as they may deem appropriate, that is to say
negative as well as positive proposals. What is important is that the instrument
should be submitted to the legislative authority in every case, and not merely
when it appears possible to ratify a Convention or to give effect to a Recom-
mendation. The purpose of the rule is to ensure that Conventions and Recom-
mendations are not 'buried or set aside without due consideration' 1 by national
administrations, but that Parliaments are given an opportunity of debating the
question and of deciding on whatever action they consider should be taken on
ILO instruments. Accordingly, when the instrument is brought before Parlia-
ment, it would be accompanied by a message or by proposals by the govern-
ment concerning any action which can be taken on it.
1. R. Ago, 'La codification du droit international et les problemes de sa realisation', Recueil
d'etudes de droit international, Hommage a Paul Guggenheim, Geneva, 1968, p. 118.

572. The ILO Constitution also includes special provisions on this matter for
Federal States (Art. 19 para. 7). They lay down that in respect of Conventions
and Recommendations which the federal government regards as appropriate

226
Obligations in Respect of Standards 573-574
under its constitutional system for federal action, the obligations of the federal
State are the same as those of non-federal States. In respect of instruments
which, in whole or in part, call for action by the constituent states, provinces or
cantons, the federal government must make effective arrangements for the
reference of such Conventions and Recommendations not later than 18
months from their adoption by the Conference to the appropriate federal,
state, provincial or cantonal authorities for the enactment of legislation or
other action. The federal government should also arrange for periodical con-
sultations between the federal and the state, provincial or cantonal authorities
with a view to promoting within the federal State co-ordinated action to give
effect to the provisions of such Conventions and Recommendations. Finally,
the federal government must inform the ILO of the measures taken to bring
such Conventions and Recommendations before the appropriate authorities
with particulars of the authorities regarded as appropriate and the action taken
by them. This provision, and more generally the more or less direct effect of
international labour standards, raises the question whether labour matters are
or are not within the exclusive competence of the federal authority under the
constitutional system of each federal State. There are only a limited number of
federal States - including, however, some of the largest - in which labour
matters do not fall within the exclusive competence of the federal authority. 1
Among these States some, such as Australia and Canada, have introduced a
system of periodical consultations between federal authorities and the
authorities of the constituent units, as a result of which they have been able to
ratify some ILO Conventions which were not within the exclusive competence
of the federal authority.
1. See a study of the matter in Rep. Com. Exp. 1966, pp. 181-192. On the general problem of
Federal States in relation to ILO Conventions, see Int. Lab. Code, pp. LXXIX-LXXXI and
Art. 278 n. 315. See also Taylor, Federal States and Labor Treaties (New York 1935) and
Landy, The Effectiveness of International Supervision. Thirty Years of fLO Experience,
London and New York, 1966, pp. 108-114. Concerning certain ratifications of Conventions
by Canada the legislation for the implementation of which has been declared by the Judicial
Committee of the Privy Council to be ultra vires the constitutional authority of the Dominion
Parliament (Attorney-General for Canada v. Attorney-General for Ontario, 1937, A.C. 326),
see Jenks, The Present Status ofthe Bennett Ratifications ofInternational Labour Conventions,
15 Can. Bar Rev. pp. 464-477 (1937). More generally, see Sorensen, 'Federal States and the
International Protection of Human Rights', A.J.l.L, pp. 195-218.

573. Generally speaking, the application of the rule concerning the submis-
sion of Conventions and Recommendations to the competent authorities has
run up against difficulties and even resistance, and still does so; it is, however,
now widely applied, especially in countries with democratic parliamentary
regimes. It has undoubtedly been an important factor in securing the thousands
of ratifications of ILO Conventions which now exist.

§2. THE OBLIGATION TO RESPECT CERTAIN FuNDAMENTAL PRINCIPLES

574. While States Members of the ILO are formally bound only by the
Conventions they have ratified, it has been held that by reason of the fact that

227
575-576 Ratification of Conventions

they have accepted the ILO Constitution they are bound to observe certain
fundamental principles laid down in the Constitution and in particular that of
freedom of association. 1 Similarly, the International Labour Conference has
held that the South African Government's policy of apartheid is incompatible
with the Declaration of Philadelphia which the Government of that country
undertook to observe in accepting the ILO Constitution, and in June 1964 the
Conference condemned that policy and submitted a detailed plan for its elimi-
nation in labour matters. 2
1. See above Nos. 164 ss and below No. 631.
2. See Apartheid in Labour Matters, ILO, Geneva, 1966, and the special reports on apartheid
submitted by the Director-General to the Conference annually since 1965.

§3. THE OBLIGATION TO SUPPLY REPORTS ON UNRATIFIED CONVENTIONS AND ON

RECOMMENDATIONS

575. Although they have no substantive obligations in respect of Conven-

tions they have not ratified, any more than in respect of Recommendations,
which are not open for ratification, member States are under the obligation to
report on them in virtue of ILO Constitution Art. 19 para. 5-7. This provision
requires them to make such reports on Conventions they have not ratified and
on Recommendations as may be requested by the Governing Body of the ILO.
In these reports they should:
a. indicate the position of their law and practice in regard to the matters dealt
with in these instruments;
b. show the extent to which effect has been given or is proposed to be given to
any of the provisions of the said instruments and
c. state the difficulties which prevent or delay the ratification of the Convention
or the application of the Recommendation.
Governments also have to communicate copies of these reports to the repre-
sentative organizations of employers and workers in their countries. On the
basis of this obligation, the Governing Body requests reports on one or more
Conventions and Recommendations every year, and these reports are
examined by the supervisory bodies. 1
1. See below No. 607 ss.

Chapter II. Ratification of Conventions and Ensuing Obligations

and Effect
§ 1. RATIFICATION OF CONVENTIONS

I. The Ratification: Concept and Procedure

576. It is by ratifying a Convention that a State assumes the international

obligation to give effect to it. In the case of ILO Conventions, ratification is the
formal act whereby a State Member of the ILO communicates to the

228
Ratification of Conventions 577-581
Director-General of the International Labour Office its undertaking to give
effect to a particular Convention (Art. 19 para. 5(d) ofthe Constitution of the
ILO). At the outset, and as a result of the special character of ILO Conven-
tions, the nature of their ratification gave rise to some discussion, in the light of
Scelle's views on this point, 1 but that stage is now long past. The special nature
of these ratifications, which do not require either previous signatures or the
exchange of instruments of ratification, appeared unusual also to the French
Government which, however, finally accepted this new procedure in 1924.2
1. See above No. 74.
2. See Scelle, op. cit., pp. 179-181; Troclet, Legislation sociale internationale, Brussels, 1952,
pp. 539 and s.; Valticos, Droit international du travail, no. 601, p. 534.

577. The ratification of an ILO Convention cannot be accompanied by

reservations. This is because of the tripartite composition of the Conference by
which the Conventions are adopted, so that not only the States which are the
formal parties have a vested interest in them; more generally, reservations
would be incompatible with the whole object of Conventions. 1
1. See Jenks, 'Les instruments internationaux acaractere collectif, Rec. Cours, 1939-III, pp.
472-473 and the ILO Memorandum of 12 January 1951 to the International Court of Justice,
l.C.J. Pleadings 'Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide' 216-282; see also Report of the International Law Commission to the
General Assembly Covering the Work of its Third Session (May-July 1951): United Nations
General Assembly, Official Documents, Vlth Session, Suppl. No.9. Doc. A/1858, para. 20;
Intern. Lab. Code, p. XCIX-CIV; 0. B. 1951, pp. 274-288.

578. There have, however, been some ten cases of conditional ratifications,
especially during the early years of the Organization's existence, making the
entry into force of the Convention for the State concerned contingent on its
ratification by certain other States. This practice has not been followed for a
long time now.

579. Under the terms of some Conventions, ratification must be accom-

panied by a declaration stating the choice made by the member State where an
option is offered between obligations of varying strictness, or the precise level
of the standard it undertakes to observe, or again whether it wishes to avail
itself of certain possible exceptions.

580. Ratifications are registered by the Director-General of the Interna-

tional Labour Office, who notifies member States and informs the Secretary-
General of the United Nations for the purpose of their registration in accor-
dance with the United Nations Charter Art. 102.

II. Present State of Ratifications

581. International labour Conventions have been the subject of more than
4,600 ratifications. In addition, over 1,200 declarations of application have
been registered in respect of 40 non-metropolitan territories. There is consid-

229
582-583 Ratification of Conventions

erable variation in the number of ratifications from country to country and

from one Convention to another. Of the 136 member States of the Organiza-
tion, 15 have ratified more than 60 Conventions each, 26 from 40 to 60, 56
from 20 to 39, 27 from 10 to 19, 8 less than 10 and the remaining four none yet.
The average number of ratification per member State is 56 in the case of
Western European countries, 47 for Eastern European countries, 39 for
American countries, 25 for African countries, 18 for Asian countries, and 32
for Oceania (Australia, Fiji, New Zealand and Papua New Guinea). The
number of ratifications also varies widely from one Convention to another; 19
Conventions have received more 60 ratifications, 21 from 40 to 60, 45 from 20
to 39, 29 from 10 to 19, and 37 less than 10. The six Conventions dealing
directly with fundamental rights (freedom of association, forced labour and
discrimination) have each received an average of 100 ratifications.

III. State Succession

582. Newly independent States which have become members of the ILO
have almost unanimously followed the practice of confirming that they con-
tinue to be bound by the obligations previously assumed on their behalf by the
States which were responsible for their international relations. This practice 1
has resulted in the registration of some 953 ratifications representing the
confirmation by 57 States of obligations previously assumed on behalf of the
territories they constituted before attaining their independence or the country
of which they formed part before becoming separate States. It was vigorously
encouraged by the ILO, and in particular by its first African Regional Confer-
ence, held in 1960.
1. On this practice see Jenks, 'State Succession in Respect of Law-making Treaties',
B. Y.B.I.L. 1952, pp. 105-144; Wolf, 'Les conventions internationales du travail et Ia succes-
sion d'Etat',Ann. 1961, pp. 742-751; O'Connell, State Succession in Municipal Law and in
International Law, vol. II, Cambridge (England), 1967, pp. 202-204.

§2. ENTRY INTO FORCE OF CONVENTIONS

583. Every ILO Convention includes in its final articles provisions concern-
ing its entry into force. The coming into force of the Convention is conditional
on the receipt of a minimum number of ratifications, usually two. In the case of
some Conventions, particularly maritime Conventions, a larger number of
ratifications is required. 1 In the other cases, the model clause current since
1928 provides that the Convention shall come into force 12 months after the
registration of the second ratification. For States ratifying after a Convention
has initially come into force, the usual period is 12 months after registration of
the ratification.
1. See above No. 501.

230
Ratification of Conventions 584-585

§3. DENUNCIATION OF CONVENTIONS

584. The final articles of Conventions also specify the conditions for their
denunciation. The wording used since 1932 is that a Convention may qe
denounced during the year following the expiration of each ten-year period
after it first came into force. As of July 1978, there have been 199 denuncia-
tions in all since the system of ILO Conventions was introduced in 1919. These
denunciations are of two types. Most of them (171) apply to Conventions
which the State concerned has ratified in an amended form. As already stated, 1
ratification of a Convention which revises an earlier one automatically entails
denunciation of the earlier one in the cases of all Conventions adopted since
1929. The Conventions adopted before 1929 do not include a final article to
this effect and their denunciation requires a special act. The second type of
denunciation has no connection with any revision of a Convention. There have
been only 28 such outright denunciations as against more than 4,500 ratifica-
tions.
1. See above No. 110.

§4. THE OBLIGATION TO IMPLEMENT RATIFIED CONVENTIONS

I. Nature of the Necessary Implementing Measures

585. A State which ratifies a Convention binds itself to take such action as
may be necessary to make effective the provisions of such Convention (Article
19 para. 5 (d) of the Constitution). As already explained, this does not mean
that legislative measures will necessarily be required to give effect to a Conven-
tion, but what is essential is that the provisions of a Convention should be fully
applied; in regard to the manner of application both the Constitution of the
Organization and the terms of the individual Conventions deliberately leave a
wide measure of discretion to each country. 1 The extent to which legislative
measures may be necessary therefore depends on the subject of the particular
Convention, on any explicit provisions it may contain with regard to the
measures of application required, and lastly, on the legal system of each
country, as labour matters are dealt with generally by legislation in many
countries while in others they are traditionally governed by custom or collec-
tive agreements. 2
1. See the opinion given by the International Labour Office to the Irish and United States
Governments, Intern. Lab. Code, art. 342 n. 464, pp. 277-278, and art. 1082 n. 352, pp.
863-864. See also Valticos, 'Conventions internationales du travail et droit interne', Rev. crit .,
1966, pp. 277 and s.
2. See however Kahn- Freund, 'The Shifting Frontiers of the Law. Law and Custom in Labour
Relations', in Current Legal Problems, London, 1969. More generally on this subject, see
Valticos, Droit international du travail, pp. 544-546.

231
586--588 Ratification of Conventions

II. International Labour Standards as Minimum Standards

586. The obligation to implement ratified Conventions must be interpreted

in the light of the fact that international labour standards, which are designed to
improve the conditions of the workers, are minimum standards. To prevent any
misunderstanding on this point, the ILO Constitution (Art. 19 para. 8) pro-
vides that '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'. The implications of this provision have been
examined on several occasions. It has been pointed out, for instance, that it
'does not impose any obligation to maintain standards higher than those
prescribed by the Convention' .1 It has also been considered that it is 'applicable
to provisions which go beyond the requirements of a Convention without
contradicting them'. 2
1. See O.B. 1938, p. 33. See also O.B. 1932, p. 51.
2. On this point, see Report of the Committee to Consider the Representation submitted by
the General Confederation of Italian Agriculture Concerning the Application of the Em-
ployment Service Convention, 1948 (No. 88) by Italy: O.B. 1972, p. 147, para. 83.

III. Obligations in Respect of Non-Metropolitan Territories

587. Under Art. 35 of the Constitution of the ILO, countries which are
responsible for the international relations of non-metropolitan territories have
three main obligations: first, the basic obligation to apply the Conventions they
ratify to all their territories except where the subject-matter of the Convention
is within the self-governing powers of the territory or is inapplicable owing to
the local conditions or subject to such modifications as may be necessary to
adapt the Convention to local conditions; secondly, the obligation to make, as
soon as possible after ratification, a declaration indicating the extent to which
they undertake that the provisions of the Convention shall be applied; and
lastly, the obligation to report annually on the position in all their territories,
including those to which the ratified Conventions have not been declared
applicable. Over 1,100 declarations of application without modification, as
well as over 100 declarations with certain modifications, have been registered
to date in respect of 40 territories which still exist. It has been indicated (No.
582) that by virtue of State succession the new States have in some 890 cases
confirmed the obligations assumed on their behalf, under such declarations, by
the States formerly responsible for their international relations.

588. An amendment to the Constitution adopted in 1964, but not yet in

force, provides for the replacement of Art. 35 by a more general provision
aiming at 'promoting the universal application of Conventions to all peoples,
including those who have not yet attained a full measure of self-government'.

232
Ratification of Conventions 589-591

IV. The Effect of War, Force Majeure and Emergency

589. Some Conventions include a clause providing that the application of

their provisions may be suspended by the government concerned in the case of
war or events constituting a danger to national security, or force majeure, or in
the public interest because of particularly serious circumstances. In the rare
cases in which recourse has been had to this provision, the supervisory bodies
have placed a strict interpretation upon it and have asked for particulars of the
exceptions made thereunder. They have drawn a clear distinction between
times of war and times of peace, and in times of peace have on several occasions
refused to accept certain difficulties put forward by governments as constitut-
ing a case of force majeure under the terms of the Convention concerned. 1
However, most of the Conventions contain no special clause of this kind, and
the supervisory bodies have expressed the view that a state of emergency
cannot justify suspension of the obligations arising out of ratification, and that
in any case a plea of emergency has to be appraised by an impartial authority at
the international level and the State concerned is not the sole judge of the
issue. 2
1. See Rep. Com. Exp. 1955, p. 69 and Rep. Conf Com. 1961, p. 563.
2. See Report of the Commission appointed under Art. 26 of the Constitution of the ILO to
examine the Complaints concerning the Observance by Greece ofthe Freedom of Association
Conventions: O.B. 1971, pp. 24-26, para. 102-112.

590. As for the effect of war, the position both of the ILO and of national
legal authorities is that because of the nature of International Labour Conven-
tions war cannot have the effect of cancelling the obligations they entail but
such obligations may simply be suspended for the duration of the war between
belligerents on opposite sides. 1
1. See Valticos, Droit international du travail, No. 621, pp. 551-552 and references cited.

V. The Obligation to Supply Reports

591. Every State is required to make an annual report to the ILO on the
measures which it has taken to give effect to the provisions of Conventions
which it has ratified (ILO Constitution, Art. 22). Since 1959, detailed reports
under this article have been due normally only every two years, unless owing to
the seriousness and persistence of the divergences noted the supervisory bodies
ask for a detailed annual report. In view of the continuing increase of the
number of reports, the Governing Body of the ILO decided in November 1976
to introduce a greater degree of flexibility and a further spacing-out in report-
ing arrangements. As from 1977, reports are normally requested at four-yearly
intervals, with a number of safeguards to ensure an effective system of supervi-
sion. The two-year periodicity has been maintained for some important Con-
ventions, in particular those relating to fundamental human rights. The two
reports following the first report after ratification should also normally be

233
592-593 Ratification of Conventions

requested at two-yearly intervals. A general report has to be submitted each

year on Conventions for which detailed reports are not due. In cases in which
there are serious problems of application reports can be requested earlier than
the year in which they would normally be due. The same may be done when
observations on the application of a ratified Convention are made by a national
or international organization of employers or workers, etc. 1
1. See ILO Governing Body document G.B.201114/32, November 1976.

592. As regards their contents, ILO Constitution (Art. 22) provides that the
reports of governments shall be made in such a form and shall contain such
particulars as the Governing Body may request. The Governing Body of the
ILO accordingly adopts for each Convention a form of report contain-
ing questions on a certain number of points. States are also required to com-
municate copies of their reports to the representative organizations of
employers and workers of their country (ILO Constitution, Art. 23 para.
2).

§5. THE INCORPORATION OF INTERNATIONAL CONVENTIONS INTO

NATIONAL LAW AS A RESULT OF RATIFICATION AND THE CONFLICT BETWEEN
INTERNATIONAL AND NATIONAL RULES

I. Incorporation of International Conventions into National Law

593. Apart from its effects at the international level, the ratification of a
Convention can produce immediate effects at the national level, in a number of
countries which follow the so-called monistic system. In these countries, by the
very fact of ratification of a treaty (and this applies to international labour
Conventions also), the publication or promulgation of a ratified treaty makes it
part of national law and directly enforceable at the national level. This is
provided for by the constitutional provisions of certain countries (for instance
France, the Netherlands, Switzerland, several countries in Africa, the United
States, Mexico and other Latin-American countries) or has been decided by
case-law (for instance Belgium, Luxemburg). In other countries it results from
the practice frequently adopted of including in the act authorizing ratification
of a treaty a clause specifying that the treaty shall be enforceable in national law
(for instance, the Federal Republic of Germany, Italy). Under some of these
systems the treaty thus incorporated in national legislation is assimilated in
every respect to ordinary law, whereas in others it is accorded overriding
authority by the Constitution or by the decisions of the courts, a point which
will be dealt with later. The question of such incorporation and of the conflict it
may involve on the national plane between international standards and ordi-
nary legislation is one aspect of the broader question of the relationship
between treaties and law, which has been the subject of a large number of
works in the field of international law .1 It is a question which has often arisen in
connection with labour law because of the large number of instruments in that
particular field. 2 In the groups of countries mentioned above where the ratifica-

234
Ratification of Conventions 594

tion of a treaty entails its incorporation in national law, international standards

may be regarded as a direct source of law .3
1. It is not possible to give even a selected bibliography on this broader question here. By way
of example, see O'Connell, International Law I, 2nd ed, London, 1970, pp. 38-79; Wael-
broeck, Traites internationaux et droit interne dans les pays du Marche Commun, Brussels and
Paris, 1969; Rousseau, Droit international public, vol. I, Paris, 1970, pp. 172-174; de
Visscher, 'Cours general de droit international public', Rec. Cours, 1972-11, pp. 24--43.
2. See Berenstein, La ratification des conventions internationales du travail et Ia legislation
interne, Friedens-Warte, 1955, pp. 136-165; Valticos, 'Conventions internationales du travail
et droit interne', Rev. Crit., 1955, No.2, pp. 251-288; idem, 'Les conventions internationales
du travail devant le jugefram;ais',Rev. crit., 1964, No.1, pp. 41-72;idem, 'Droit international
du travail et droit interne fran<;ais', Travaux du Comite franr;ais de droit international prive,
1973-1975, Paris, 1977, pp. 11-37.
3. On the situation in the six original States Members of the European Economic Community
in particular, see Boldt, Durand a.o., Les sources du droit du travail, Communaute europeenne
du Charbon et de I' Acier, Droit du travail, Vol. I, Luxemburg 1962, and Waelbroeck, op. cit.

II. The Question of Self-Executing Standards

594. To be effectively applied in countries of the type described above, or

relied upon before the courts, or, in the event of conflict, regarded as amending
contrary legislation, a treaty must not be drafted in terms creating merely an
international obligation of the ratifying State. Its provisions must be self-
executing - that is to say, they must be so drafted as to allow of their direct
application in national law. Many of the provisions of international labour
Conventions are not self-executing and require supplementary laws or regula-
tions for their application. This applies in particular to instruments laying down
'programmatic' standards which cannot give rise directly to individual rights,
the implementation of which can be claimed by the beneficiaries, but consist of
a general description of objectives and represent programmes for action by
governments which may be carried out by different methods and over a period
of time. These are the so-called promotional Conventions. 1 The position is
similar in the case of Conventions requiring the setting up and maintenance by
the State of certain services or institutions (social security, employment ser-
vices, labour inspection, statistics), or the establishment of machinery for
consultation with employers' and workers' organizations, or the taking of
certain measures, in respect of industrial health and safety for instance, of
which the Convention gives a general description, or again the introduction of a
system of supervision and penalties. Another type of provisions which fall
within the non self-executing group are those which establish a rule oflaw, but
do so in such general terms that closer definition by the State is needed before it
can be effectively implemented by national law. The question whether a
standard is self-executing or not does not, moreover, depend solely on its
subject-matter; the answer may also vary from one country to another accord-
ing to the ease with which a given provision lends itself to incorporation in the
particular legal system.
1. The Conventions concerned are primarily those on employment policy, social policy, and
discrimination in employment.

235
595-596 Ratification of Conventions

595. From the point of view of the discharge of international obligations by

States ratifying such instruments, it has been pointed out that the mere incor-
poration into national law of ratified Conventions whose provisions are not
self-executing does not discharge the international obligations of the ratifying
State. 1
1. See Rep. Com. Exp. 1963, pp. 8-12; ibidem, !970, p. 8.

596. In other cases, however, a number of provisions of international labour

Conventions have been regarded as directly applicable in national law by virtue
of the fact that they are self-contained and guarantee a right to individuals or
organizations in sufficiently clear and precise terms (provisions fixing a
minimum age, providing for freedom of association, equal rights for certain
categories of workers in relation to others), or lay down a prohibition (for
instance, in respect of night work or forced labour). The courts of law or
authorities of a number of countries have taken this view on various occasions,
particularly in BraziJ,l France,2 the Federal Republic of Germany, 3 Italy, 4
Japan, 5 Madagascar,6 Spain/ Switzerland8 and the United States. 9 Similar
decisions have been given in several other African and Latin American coun-
tries.10
1. See, as regards the Holidays with Pay Convention, 1936 (No. 52), Decree No. 546 of 7
October 1976, D.O. 18 October 1976, p. 13801.
2. See in particular Cass. Req. 27 February 1934, D.H. 1934, p. 203, S. 1935. 1.1. and note
Niboyet; Cass. Civ., 28 March 1962, D. 1963. J. 578, and Rev. Crit. d.i.p. 1964, pp. 41 ss;
Conseil d'Etat, 25 July 1975, Rev. Crit. d.i.p. 1976, pp. 60-63 with note Valticos.
3. See BSG, 14 February 1964, AP § 37 AVAVG No. 2.
4. There have been a number of decisions of Italian courts relating to Conventions ratified by
Italy (e.g. Pretura Biella, 14 January 1963, Riv. dir. lav. 1963, p. 220, /.L.R., vol, 91 pp.
210-231, p. 219, 1965 and App. Turin 29 May 1964,Riv. giur.lav. previd. soc. 1964, pp. 339),
but the question was clearly settled, in particular, by opinion No. 228/73 of 20 February 1973
of the Council of State (quoted in the decree and the circular referred to below), which held
that the Night Work (Women) Convention (Revised), 1948, (No. 89) had been incorporated
in internal law by Act No. 1305 of 2 August 1952 which not only authorized ratification of the
Convention but expressly put it into full execution. The Council of State concluded that this
had entailed the abrogation of a contrary provision of an earlier law. A Ministerial Decree of 5
July 1973 (G. U. 26 July 1973, No. 192, p. 5298) and a Ministry of Labour Circular No. 208 of
19 September 1973 (Notiziario della Conferazione dell' Industria Italiana, 1973, p. 1562),
drew the appropriate conclusions.
5. Supreme Court, 2 April 1969, Rodo Horei Tsushin 1969 II, No. 2.
6. See Supreme Court, 19 April 1969, Penant 1971, p. 224.
7. See Gonzalez Velasco, 'A proposito de un convenio de Ia OIT applicado por el Tribunal
Central de Trabajo', Rev. Pol. Soc. 108, 1975, pp. 129-135.
8. See Rec. Proc. Conf 1973, p. 548; Berenstein, op. cit., and Valticos, 'Les effets des
conventions internationales du travail en Suisse', Melanges Societe suisse de juristes, Geneva,
1976, pp. 327-345.
9. Warren v. United States, 340 US, 523, 1951.
10. See Gonidec, Cours de droit du travail africain et malgache, Paris, 1966, p. 31; for Mexico,
Rec. Proc. Conf 1952, p. 492 and 1953, pp. 372-373, and for Guatemala Rec. Proc. Conf
1961, pp. 591 and 609.

236
Ratification of Conventions 597-600

III. The Conflict between the Incorporated International

Standards and Ordinary Laws

597. When the terms of an international labour Convention are incorpo-

rated in national legislation and are self-executing, there may be conflict
between that standard and the provisions of an ordinary law. The courts do
indeed usually try first to reconcile the terms of the international Convention
with those of the national law. This is relatively easy in the case of bilateral
agreements, but not in the case of Conventions designed to introduce generally
applicable labour conditions.

598. In the event of conflict, one relevant consideration is the fact that
international labour standards represent minimum standards. 1 If, however, the
ratified Convention provides for a higher level of protection than that estab-
lished by national legislation the solution of the conflict depends upon the fact
whether the conflicting law is earlier or later than the ratification of the
Convention and its incorporation into national law.
1. See above No. 586.

A. Conflict with Earlier Law

599. The first case presents no major difficulties. As the courts of several
countries have ruled on various occasions, a Convention which by virtue of its
ratification and publication has acquired the force of national law repeals or
amends any earlier enactment which may be contrary to its provisions. This is
simply a consequence of the rule lex posterior derogat priori, and it is not
necessary to bring in the notion of the primacy of treaties, referred to later
(unless complications were to arise as a result of the earlier law being regarded
as more specific).

600. While this type of conflict does not as a rule involve any special legal
problems, it does raise some practical questions. The ILO Committee of
Experts has stressed on various occasions that 'even when the automatic
incorporation of a ratified Convention in internal law involves the implicit
repeal or amendment of earlier legislation, it is generally desirable, in order to
make all persons concerned aware of amendments thus introduced and to
avoid any uncertainty as regards the position in law, that appropriate publicity
be given; the surest solution still consists in bringing the legislation formally
into harmony with the Convention.' 1 In this connection the new French Labour
Code of 1973 is of interest; it provides that the text of the provisions of
international labour Conventions which are applicable in French internal law
shall be appended to the Code. 2
1. See Rep. Com. Exp. 1963, p. 23 and 1974, p. 8.
2. Act No. 73-4 of 2 January 1973, Art. 5.

237
601-603 Ratification of Conventions

B. Conflict with Later Law

601. The internal legal problems are more complicated in cases where a
ratified Convention which has been incorporated into national law conflicts
with a law promulgated after the ratification. A distinction must then be drawn
between two groups of countries.

602. In the first group of countries, treaties, when ratified and published,
have primacy over ordinary laws, whether such primacy is laid down in the
national Constitution (France, various French-speaking African countries, the
Netherlands) or is established by case law (Belgium, since a decision of the
Court of Cassation of 2 7 May 1971 ,I Luxembourg, Switzerland, according to
prevailing trends). In principle, the Convention should then prevail even over
the later law. Particularly in France, there was some doubt on this point.
Opinion was divided as to the true effect of the constitutional provision
recognizing that treaties have 'an authority above that of (national) law'. 2 In
particular it was doubtful whether, without a judicial power to examine the
constitutionality of laws, a judge may refuse to apply a law which is contrary to
an earlier ratified treaty, as this might be considered tantamount to a ruling that
such a law infringes upon the constitutional principle of primacy of treaties.
The courts had often based their decisions on the constitutional provisions
concerning the primacy of treaties, but the case law had not been really
conclusive3 until a decision of the Court de cassation of 24 May 197 54 which
confirmed the power of the judiciary to recognize to ratified treaties prece-
dence over later laws.
1. Pas. 1971. I, p. 886, J.T. 1971, p. 470.
2. Art. 55 of the French Constitution of 1958.
3. For France see above footnote under No. 596 and Valticos, 'Les conventions inter-
nationales du travail devant le juge fran<;ais', op. cit., pp. 64-67.
4. D. 1975, p. 497, Clunet 1975, p. 801, Rev. crit., 1976, p. 347.

603. In the second group of countries, of which the United States is the most
representative example, treaties are incorporated in municipal law by virtue
either of the Constitution or of an Executive Order included in the ratifying law
and are put on the same footing as ordinary laws. 1 Consequently, and as a result
of the operation of general rules of interpretation governing conflict of statut-
ory provisions, the later law will prevail over the treaty in internal law (but this
will involve the international responsibility of the State concerned).
1. On the effect of the constitutional system of this group of countries on the ratification of
international labour Conventions, see Report of the Commission appointed under Article 26
of the Constitution of the ILO to examine the complaint filed by the Government of Portugal
concerning the Observance by the Government of Liberia of the Forced Labour Convention,
1930 (No. 29): O.B. 1963, No.2, Suppl. II, par. 401-406, pp. 158-161.

238
Examination of Periodical Reports 604-606

C. European Communities

604. The principles outlined above are applicable to Conventions and

agreements of the traditional type involving no element of supra-nationality.
The question of conflict between international and national rules, however,
arises in different terms in cases involving the regulatory powers of the Euro-
pean Communities. In the latter cases the possibility of conflict is reduced, if
not entirely eliminated, by the fact that the regulations, regarded as quasi-
legislative measures, are directly applicable in the national law of the member
States. 1 Moreover, under the Treaty of Rome (Art. 177) the courts of these
States may, and in certain cases must, refer a case in which the compatibility of
a national provision with a Communities regulation is doubtful to the Court of
Justice of the Communities for decision.
1. See Pescatore, 'Droit communautaire et droit national selon Ia jurisprudence de Ia Cour de
Justice des Communautes europeennes', D. 1969, Chr. p. 179 ss.; Ganshof van der Meersch,
'Le droit communautaire et ses rapports avec les droits des Etats Membres', Idem. and
Waelbroeck, Droit des Communautes europeennes, Brussels, 1969, pp. 41-79; Constantinides
and Megret, Le droit de Ia CEE et l'ordre juridique des Etats Membres, Paris, 1967.

D. European Social Charter

605. In contrast to the preceding cases, the authors of the European Social
Charter seem to have wished to avoid any interpenetration between the provi-
sions of the international instrument and the internal law of States that ratify it.
The Appendix to the Charter includes a provision specifying, in connection
with Part III, that 'it is understood that the Charter contains legal obligations of
an international character, the application of which is submitted solely to the
supervision provided for in Part IV thereof, that is, solely to the international
supervision provided for by the Charter. The purpose of this provision appears
to have been to withdraw the supervision of the application of the Charter from
national jurisdictions, and the intentions of the parties on this point cannot be
disregarded. 1 Problems may nevertheless arise for the courts in countries
where, by virtue of the national Constitution, a treaty which has been r~tified
and published is incorporated in national law and should be able to be invoked
before the courts. However, the problem is not of great practical importance,
since most of the provisions of the Charter do not appear to be self-executing.
1. See Wengler, 'Reflexions sur !'application du droit international public par les tribunaux
internes', Rev. gen. dr. int. 1968, p. 950. More generally see de Visscher, op. cit., pp. 27-28,
32.

Chapter III. The General Supervisory Machinery of the ILO:

(I) the Examination of Periodical Reports
606. The ILO has established a diversified system of supervision which has
been developed over the years. 1 The procedures fall into two main groups: ex

239
607-608 Examination of Periodical Reports

officio supervision based on the examination of the periodical reports of

governments, and supervision based on the submission of complaints. The
present chapter will deal with the former method, which constitutes the regular
supervisory machinery.
1. See Valticos, 'Un systeme de controle international: Ia mise en oeuvre des conventions
internationales du travail', Recueil Cours, 1968-1, pp. 315-407; Droit international du travail,
pp. 561-599 and Mise a jour, pp. 93-98 and Derecho Intemacional del Trabajo prec., pp.
500-544; Wolf, 'Aspects judiciaires de Ia protection internationale des droits de l'homme',
Human Rights Journall97l, pp. 773-838.

607. The reports furnished by governments on the application of Conven-

tions ratified by them, 1 on the effect given to unratified Conventions and/or
Recommendations2 and on the submission of these instruments to the compe-
tent authorities3 are examined by the supervisory bodies set up for the purpose
by the ILO. These are two in a number.
1. See above Nos. 591-592.
2. See above No. 575.
3. See above No. 569.

§1.THE COMMITIEE OF EXPERTS ON THE APPLICATION OF

CONVENTIONSANDRECOMMENDATIONS

608. The main supervisory body, from the legal point of view, is the Commit-
tee of Experts on the Application of Conventions and Recommendations, set
up in 1927, which is composed of experts of recognized competence who are
completely independent of governments and appointed in their personal capa-
city. This independence is underlined by the fact that its members are
appointed by the Governing Body on the proposal of the Director-General of
the International Labour Office, and not of the governments of their home
countries. They are selected from among persons with the highest qualifica-
tions in the legal and social fields, as a rule from the judiciary (several of them
are or have been chief justices), from the field of education (professors of
international law, labour law, etc.) or among former statesmen. The Commit-
tee's fundamental principles, as it has itself stressed on a number of occasions
and in particular in 1969 and 1977 1 'call for impartiality and objectivity in
pointing out the extent to which it appears that the position in each State is in
conformity with the terms of the Conventions and obligations which that State
has undertaken by virtue of the Constitution of the ILO'. These principles also
stress that the members of the Committee 'must accomplish their task in
complete independence as regards all member States'. The Committee also
stressed that 'its function is to determine whether the requirements of a given
Convention are being met, whatever the economic and social conditions exist-
ing in a given country. Subject only to any derogations which are expressly
permitted by the Convention itself, these requirements remain constant and
uniform for all countries. In carrying out this work the Committee is guided by
the standards laid down in the Convention alone, mindful, however, of the fact
that the modes of implementation may be different in different States. These

240
Examination of Periodical Reports 609-612

are international standards, and the manner in which their implementation is

evaluated must be uniform and must not be affected by concepts derived from
any particular social and economic system.' 2
1. See in particular Rep. Com. Exp. 1969, p. 19; 1971, p. 6 and 1977, p. 13.
2. See Rep. Com. Exp. 1977, p. 11.

609. The Committee of Experts now comprises 18 members who come from
the various regions of the world. The scope of its appraisal depends on the
terms of the individual Conventions. It is necessarily somewhat wide, as indi-
cated above, 1 in the case of Conventions which lay down standards in general
terms (for instance, in respect of forced labour or of freedom of association),
since in such cases the Committee cannot determine the conformity of national
legislation without forming a conclusion as to the precise meaning to be
attached to the international standards. The body of opinions which has
evolved in the course of time has acquired considerable weight. The Commit-
tee also has wide discretion in the case of Conventions providing for the
progressive application of a principle with due regard to the methods customar-
ily applied in the country concerned (for instance, in respect of equal remuner-
ation, discrimination in employment and employment policy); in such cases the
function of the Committee is to consider, year after year, whether the measures
adopted are genuinely consistent with the dynamic nature of the Convention
and with national conditions.
1. See above Nos. 92, 94-96.

610. The Committee's procedure is based on documentary evidence. It

appraises the position in the light of the reports of governments, laws and
regulations, and any other relevant material (for instance, observations by
employers' and workers' organizations), and also of the governments' replies
to any comments made by the Committee.

611. The Committee's comments may be individual or may take the form of
a comprehensive study. Individual comments are submitted when the Commit-
tee is considering the fulfilment by each State of its international obligations
towards the ILO, that is to say in respect of the implementation of ratified
Conventions and of the discharge of the obligation to bring Conventions and
Recommendations before the competent authorities. These comments may be
in two different forms: in the most important cases they take the form of
observations on a discrepancy that has been noted (the text of such observa-
tions is included in the Committee's printed report), the other form being that
of requests which are communicated directly to the government concerned in
order that it may reply to them in its next report. In 1977, as it appears from its
report for that year, the Committee of Experts made some 400 observations
and 800 direct requests in respect of the application of ratified Conventions.

612. In addition to these two types of individual comments, the Committee

of Experts makes a general study every year of one particular subject, on the
basis of reports requested from all States on the Conventions and Recommen-

241
613-615 Examination of Periodical Reports

dations relevant to that subject, whether or not they have ratified the Conven-
tions concerned. The object of such studies is to elucidate the position in
respect of the selected subject in each State, to appraise the difficulties which
may be encountered in the application of the relevant instruments, and, where
appropriate, to suggest means of overcoming them. Studies of this kind
covered, in 1973, the Conventions dealing with Freedom of Association (No.
87 of 1948 and No. 98 of 1949), in 1974 the Recommendation concerning
Termination of Employment (No. 119 of 1963), in 1975 the instruments
relating to Equal Remuneration (Convention No. 100 and Recommendation
No. 90 of 1951 ), and in 1979 the Conventions (Nos. 29 and 105) relating to
Forced Labour.

§2.THE CONFERENCE COMMITIEE ON THE APPLICATION OF

CONVENTIONS AND RECOMMENDATIONS

613. The second body composing the supervisory machinery is the Commit-
tee on the Application of Conventions and Recommendations set up by the
International Labour Conference at each of its annual sessions and consisting
of representatives of governments and of national organizations of employers
and workers. This Committee takes as the basis of its work the report of
the Committee of Experts, selecting the cases dealt with in the report which
it regards as the most important. It invites the governments concerned to
furnish explanations in respect of the discrepancies noted and the measures
taken or contemplated by them to remove such discrepancies. The replies,
written or oral, of governments sometimes give rise to detailed discussion.
The discussion and conclusions of the Committee are summarized in a report
which is transmitted to the Conference and is then discussed in plenary
sitting.

614. Among the matters with which it deals in this way, ~he Committee
draws attention, in its general report, by means of a list established in the light
of certain criteria, to cases 'where governments apparently encountered seri-
ous difficulties in discharging their obligations under the ILO Constitution or
under Conventions they had ratified'. In this connection the Committee has
emphasized at times that its functions were different from those of a tribunal
and that the inclusion of a country in the list was not to be construed as
amounting to a sort of sanction; nevertheless sometimes it gives rise to sharp
discussions. More recently, since 1976, the Conference Committee also
devotes special paragraphs in its general report to discussions which it had
about some important cases.

§ 3. DIRECT CONTRACTS WITH GOVERNMENTS

615. The fact that the Committee of Experts proceeds on the basis of
documentary material and the nature and limited duration ofthe discussions in

242
Examination of Periodical Reports 616

the Conference Committee have sometimes been the cause of prolonged

controversies with governments; in some cases the procedure has not allowed
of a full appreciation of the questions raised. Accordingly, a new procedure
consisting of 'direct contacts' with governments was introduced in 1968. This
procedure, which follows certain guidelines laid down by the supervisory
bodies in their reports 1 is resorted to at the request or with the agreement of the
government concerned in cases where special difficulties of sufficient mag-
nitude have been encountered in giving effect to ratified Conventions. Its
object is to establish a broader and more fruitful dialogue with governments. It
involves full discussion in the country concerned between a representative of
the Director-General of the International Labour Office, who may be either an
independent person or an appropriate ILO official, and the government
authorities; contact is also made at the same time with the national organiza-
tions of employers and workers. While this procedure is in progress, considera-
tion of the case by the supervisory bodies is suspended for a reasonable period
(normally not more than a year) so that account can be taken of its results, but
the functions and responsibilities of the Committee of Experts and the Confer-
ence Committee are in no way limited by the procedure of direct contacts, the
primary purpose of which is to promote a better implementation of Conven-
tions. From 1969 to 1978 this procedure was resorted to by more than 25
countries, chiefly in Latin America, but also in Africa, Asia and Europe, to deal
with some 350 cases. The results on the whole have been definitely positive and
recourse to it is made on an increasing scale.
1. See in particular Rep. Com. Exp. 1973, pp. 16-17.

§4. THE MAIN DIFFICULTIES ENCOUNTERED

616. The first type of difficulty encountered by the Committee of Experts is

connected with the accurate appraisal of national situations. This occasionally
raises juridical problems, such as that of the incorporation of a ratified Conven-
tion into national law and the eventual necessity of supplementary measures to
ensure its application, 1 or the application of Conventions by means of collective
agreements. In the case of a supervisory procedure based on documentary
material, however, the major difficulty is to appraise the application of Con-
ventions not only at the legislative level but also in practice. There are certain
indirect means which can at least give some indications in this respect: govern-
ments are required by the forms of report to furnish information on the
practical application of the instrument (legal decisions, particulars of the
authorities responsible for the enforcement of the relevant national legislation,
information on methods of inspection and supervision, extracts from inspec-
tors' reports, various kinds of statistics, etc.), and for their part, national
organizations of employers and workers may submit observations on the
application of Conventions in their respective countries. Until recently, the
last-mentioned possibility was little used, but latterly greater advantage has
been taken of it by workers' organizations.
1. See above Nos. 594-595.

243
617-619 Examination of Periodical Reports

617. A second series of difficulties is connected with the bringing of national

legislation into conformity with the international standard. The difficulties
encountered in this sphere are many and varied: they may be connected with
the economic and social conditions of the country, with administrative prob-
lems, with more or less serious political obstacles, with constitutional problems
(as in the case of federal States), and so forth.

§5. THE RESULTS OBTAINED

618. As regards the reports due by governments, the proportion received in

the last ten years averages 80 per cent at the time of the Committee of Experts'
session and 87 per cent at the time of the meeting of the Conference Commit-
tee. The practical results obtained by the supervisory machinery have been the
subject of systematic studies 1 which show an appreciable degree of effective-
ness. The Committee of Experts itself reported in 1978 that during the past 15
years there had been progress in some 1,200 cases concerning more than 150
countries. In all these instances the governments had taken action on the
observations made by the Committee and had adopted measures to bring their
legislation into conformity with ratified Conventions. These cases of progress
are distributed over all regions of the world, including many of the developing
countries. Moreover, a number of cases of 'invisible' or less obvious progress
have been noted which can be attributed directly to the operation of the
machinery for promoting the implementation of international labour stan-
dards. The very existence of a vigilant system of supervision has played a
preventive part in encouraging States to take the necessary measures of appli-
cation in good time or discouraging them from adopting measures which would
have conflicted with ratified Conventions. In a more general way, the fact that
supervision in the broader sense extends to non-ratified Conventions and to
Recommendations, and particularly the details given in the general studies of
the Committee of Experts and the discussions in the Conference Committee,
have often stimulated the interest of governments, clarified doubtful points and
led States to review the possibility of taking action on the instruments con-
cerned.
1. See Landy, The Effectiveness of International Supervision, op. cit.; idem, 'The Influence of
International Labour Standards - Possibilities and Performance', l.L.R. June 1970, pp.
555-604.

619. The effect of international labour standards is not, of course, limited to

cases in which the supervisory machinery operates to ensure their implementa-
tion. Quite apart from the influence of these quasi-judicial bodies, the stan-
dards have more generally served as a kind of international common law
permanently available to governments as a source of guidance, and to a greater
or lesser extent they have affected the situation in the great majority of
countries, whatever the prevailing conditions or stage of development. 1 For
instance, it has been pointed out that the labour codes of virtually all the
African States have the Conventions and Recommendations of the ILO as

244
Examination of Complaints 62~22

their common denominator. 2 Regional instruments such as the European

Social Charter of 1961 and the Arab Labour Standards Convention of 19673
are also largely based on ILO standards.
1. For a general study of the influence of standards, see The Impact of International Labour
Conventions and Recommendations, ILO, Geneva, 1976. As regards individual countries, see
ini.L.R. articles on the influence of Conventions in Belgium (by Troclet and Vogel-Polsky) in
Nov. 1968; Cameroon (by Ayissi Mvodo and Le Faou) in Aug.-Sept. 1973: Colombia (by
Plata Castilla) in Febr. 1969; France (by J. Morellet) in April 1970; Federal Republic of
Germany (by Schnorr) in Dec. 1974; Greece (by Valticos) in June 1955; India (by Menon) in
June 1956; Ireland (by Cashell) in July 1972; Italy (by Riva-Sanseverino) in June 1961;
Nigeria, in July 1960; Norway (by Dahl) in Sept. 1964; Poland (by Rosner) in Nov. 1965;
Switzerland (by Berenstein) in June 1958; in Tunisia (by Abdeljaouad) in March 1965; in the
United Kingdom (by Johnston) in May 1968; in Yugoslavia (by Pesic) in Nov. 1967.
2. See statment of a high official of the Organization of African Unity, quoted in Landy,
Influence, op. cit., p. 566.
3. See above Nos. 134 and 141.

Chapter IV. The General Supervisory Machinery of the ILO:

(II) the Examination of Complaints
620. The Constitution of the ILO makes provision for two kinds of com-
plaints which may set in motion contentious proceedings concerning the appli-
cation of a ratified Convention: complaints properly so-called, and repres-
entations.

§ 1. CoMPLAINTS

621. The complaints procedure proper, provided for under Articles 26-34
of the Constitution of the ILO is the most formal type of supervisory procedure
in the ILO. A complaint may be filed by any member State 'if it is not satisfied
that any other Member is securing the effective observance of any Convention
which both have ratified'. It is not required that the State filing the complaint,
or any of its nationals, should have suffered any direct prejudice. The com-
plaints procedure may also be initiated by the Governing Body of the ILO
either of its own motion or on receipt of a complaint from a delegate to the
International Labour Conference.

622. When a complaint has been filed, the Governing Body of the ILO may
appoint a Commission of Inquiry to make a thorough examination of the
matter. Each member State is required to place at the disposal of the Commis-
sion any information in its possession on the question at issue. When the
Commission of Inquiry has fully considered the matter, it prepares a report
embodying its findings on all questions of fact relevant to determining the issue,
together with its recommendations as to the steps to be taken to meet the
complaint. The governments concerned are required to state within a period of
three months whether or not they accept the Commission's recommendations,
and if not, whether they propose to refer the complaint to the International

245
623-625 Examination of Complaints

Court of Justice, whose decision shall be final. If a member State fails to carry
out the recommendations of the Commission of Inquiry or of the International
Court of Justice within the specified time-limit, the Governing Body may
recommend to the Conference such action as it may consider expedient to
secure compliance with the recommendations.
623. The complaints procedure was set in motion for the first time on the
initiative of a member State in 1961, when the government of Ghana filed a
complaint concerning the application by Portugal of the Abolition of Forced
Labour Convention, 1957 (No. 105) in its African territories. A few months
later a second complaint was filed, by Portugal concerning the application by
Liberia of the Forced Labour Convention, 1930 (No. 29). The procedure
followed was similar in both cases. 1 The Governing Body set up Commissions
of Inquiry, each composed of three members who were appointed on the
proposal of the Director-General of the International Labour Office. These
members were personalities of the highest standing appointed in their personal
capacity. Both the Governing Body and the Commissions themselves stressed
their independent character and the judicial nature of their functions. The
members were required to make a solemn declaration in the same terms as that
of judges of the International Court of Justice, undertaking to perform their
duties 'honourable, faithfully, impartially and conscientiously'.
1. See the reports of the two Commissions: 0. B. 1962, No.2, Suppl. II and 0. B. 1963, No.2,
Suppl. II.

624. The Commissions of Inquiry asked both parties for detailed informa-
tion and also gave other governments, employers' and workers' international
organizations, and certain non-governmental organizations an opportunity of
providing relevant information. They heard witnesses, some called by the
parties and some by the Commission itself. In connection with the first com-
plaint, the Commission visited Angola and Mozambique and collected first-
hand information from the authorities, heads of undertakings and a large
number of workers (interviewed without the presence of the authorities or of
representatives of undertakings). The reports of the Commissions included a
number of recommendations to the governments concerned. These were
accepted by the parties in each case, and the governments concerned subse-
quently took various steps to give effect to them.
625. In 1968 a complaint was filed by a number of workers' delegates to the
Conference concerning the application by Greece of the Freedom of Associa-
tion Conventions, and a similar procedure was followed. 1 At a certain stage of
the proceedings, the government withdrew its co-operation with the Commis-
sion because of objections as regards the hearing of a witness. Therefore, the
Commission did not pursue the question of a possible visit to the country
concerned, and it prepared its report on the basis of the information received
and the evidence adduced. In its report, the Commission drew attention to the
relation between trade union rights and civil liberties and it recalled the 1970
Conference Resolution.
1. See the report of the Commission, G.B. 1971, No. 2, Special Supplement.

246
Examination of Complaints 626-629

626. In June 1974, following the adoption of a Resolution on the matter by

the International Labour Conference, a Commission of Inquiry was appointed
to consider the application by Chile of the Hours of Work (Industry) Conven-
tion, 1919 (No. 1) and the Discrimination (Employment and Occupation)
Convention, 1958 (No. 111). The Commission proceeded on the same lines as
the earlier ones. It also acted in the capacity of Fact-Finding and Conciliation
Commission in the field of freedom of association. 1
1. See below No. 638.

62 7. In these various cases the Committee of Experts on the Application of

Conventions and Recommendations was entrusted with the task of regularly
following up the action taken by the governments concerned to comply with the
recommendations of the Commission of Inquiry. The chief characteristics of
these procedures are the independent nature ofthe body appointed to consider
the complaints, the steps taken to ensure impartiality, the thoroughness of the
inquiries undertaken, the principle that the investigation of such complaints
involves the public interest and that the Commissions must themselves take
steps to obtain full and impartial information, and the provision made for
regular follow-up procedure after the complaint as such has been disposed of.
As concerns results, it has been noted that in the various cases in which a
Commission of Inquiry has made recommendations, the governments con-
cerned have generally taken legislative or other action along the lines suggested
(at least to a certain extent). The parties have accepted the Commission's
recommendations in every case and have never appealed against them to the
International Court of Justice. With respect to its nature, the complaints
procedure is quasi-judicial, its primary purpose being to ascertain whether the
situation in a given country is in conformity with international obligations
assumed, but Commissions of Inquiry are also required to make recommenda-
tions for remedying any deficiencies observed.
628. In some recent cases, the submission of Article 26 complaints was not
followed by the constitution of a Commission of Inquiry. This happened in the
case of a complaint submitted in October 1976 by the Government of France
against the Government of Panama on the grounds that the latter did not
ensure the defrayal of expense for medical care to a foreign seaman as provided
by the Shipowners' Liability (Sick and Injured Seamen) Convention, 1936
(No. 55). One month later, before even a Commission of Inquiry was estab-
lished, the Government of Panama stated that the necessary steps for such a
payment had already been taken. Two further complaints by France against
Panama about the observance of maritime Conventions were filed in June
1978.
629. In other recent cases, complaints were submitted, in 1975, 1976 and
1977, by workers' delegates at the Conference in connection with the applica-
tion of the Freedom of Association Conventions by Uruguay, Bolivia and
Argentina, but these complaints have been considered in the first instance in
the framework of the special procedure on freedom of association. 1
1. See below Nos. 632 ss.

247
630-631 Special Machinery

§2. REPRESENTATIONS

630. The second type of contentious procedure provided for by the ILO
Constitution (Art. 24-25) is that of representations. A representation may be
made by an employers' or workers' organization on the ground that a State has
failed to secure in any respect the effective observance of a Convention to
which it is a party (Art. 24). This type of complaint is governed by precise rules
providing, in brief, for the representation to be considered in the first place by a
committee of three members from the ILO Governing Body and subsequently
by the Governing Body as a whole. 1 Not more than 13 such representations in
all have been made to the ILO, and only six within the past 25 years, five by
workers' organizations and one by an employers' organization. This is probably
due to the fact that other procedures are available to enable employers' and
workers' organizations to put foward their views (reports on the application of
Conventions, special machinery for complaints in respect of freedom of
association). However, in recent years there has been an increase in the
number of representations received and in the importance of the questions at
issue, which related in particular to discrimination in employment.
1. It was in connection with such a representation that in 1938 the Governing Body estab-
lished a principle which has since been confirmed in respect of various other procedures,
namely that withdrawal of the representation by the complainant organization does not
automatically entail the termination of the case. See Intern. Lab. Code, art. 1492 No. 562 and
O.B. 1938, pp. 60--61. This rule was based on the fear that pressure might be brought to bear
on the complainant organization and also on the fact that the public interest is involved in the
procedure.

Chapter V. The Special Machinery in the Field of Freedom of

Association 1
631 . Special machinery in the field of freedom of association for trade union
purposes was set up by the ILO in 1950 following an agreement with the
Economic and Social Council of the United Nations. 2 It is based on the
submission of complaints by governments or by employers' or workers' organ-
izations, the latter case being the most frequent. Complaints under this pro-
cedure may be made even against States which have not ratified the 1948 and
1949 Freedom of Association Conventions (Nos. 87 and 98). This is because
the ILO Constitution, which the States Members of the Organization have
accepted, lays down the principle of freedom of association; it has therefore
been held that this principle should be observed by all States Members by
virtue of their membership of the Organization alone. 3 The general view was
that, even though the more detailed standards of the ILO Conventions in the
field of freedom of association cannot be imposed on States which have not
ratified the relevant Conventions, the Organization is entitled to promote the
implementation of this constitutional principle by means such as investigation
and conciliation. The machinery set up in this field comprises two different
bodies.

248
Special Machinery 632-633

1. See Jenks, The International Protection of Trade Union Freedom, London, 1957; idem.,
'The International Protection of Trade Union Rights' in The International Protection of
Human Rights, ed. by Evan Luard, London, 1967, pp. 210-247; von Potobsky, 'Normas
internacionales, libertad sindical y derecho colectivo del trabajo' in Deveali, Tratado de
derecho del trabajo, vol. V, Buenos Aires, 1966, pp. 597-609; idem, 'Protection of Trade
Union Rights- Twenty years' work by the Committee on Freedom of Association', I.L.R.,
April1972, pp. 69-83; Cassese, 'II controllo internazionale sui rispetto della liberta sindacale
nel quadro delle attuali tendenze in materia di protezione internazionale dei diritti dell'uomo',
Communicazioni e Studi, Vol. XII, Milan, 1966, pp. 293-418; Valticos, 'La protection
internationale de Ia liberte syndicale vingt-cinq ans apres' ,Human Rights Journal, Vol. VII~ 1,
1974, pp. 5-39; idem, 'Les methodes de Ia protection internationale de Ia liberte syndicale',
Rec. Cours, 1975-1, pp. 77-138.
2. Resolution 277(X) of 17 February 1950 of the Council.
3. This was stated, in particular, by the Second European Regional Conference ofthe ILO in a
Resolution adopted on 23 January 1974 (O.B. vol. LVII, 1974, p. 152).

§1. THE CoMMITIEE oN FREEDOM oF AssociATION

632. The first of these bodies is the Committee on Freedom of Association. 1

This Committee is appointed by the Governing Body of the ILO from among
its own members and comprises nine members- three representatives each of
governments, employers and workers. Since it was first set up in 1951 the
Committee has had only two chairmen, the present one being Professor
Roberto Ago, who has served since 1961. The Committee usually proceeds on
documentary evidence supplied both by the complainant and the government
against which the complaint is directed. In a number of cases an independent
personality or an ILO official has, at the request or with the consent of the
government concerned, visited the country to have discussions with the
authorities and the occupational organizations, establish the facts, sometimes
meet detained trade unionists and report back to the Committee. Thus increas-
ing resort is had, in this field also, to the procedure of 'direct contacts' men-
tioned above. 2 This has been done, at the request or with the agreement of the
governments concerned, in a number of countries (Jordan in 1974, Uruguay in
1975, Bolivia in 1976, Chile in 1978). The reports ofthe Committee, which as a
rule are unanimous, are made to the Governing Body of the ILO. They contain
the findings of the Committee on the cases submitted to it and, where appro-
priate, recommendations to the governments concerned. The Governing Body
has generally endorsed such recommendations without discussion. Cases of
considerable importance have sometimes given rise to discussion before the
approval of the Committee's recommendations.
1. See in particular von Potobsky, op. cit., in I.L.R., April 1972.
2. See above No. 615.

633. Since it was first set up, the Committee has dealt with over 900 cases
affecting a wide range of aspects of freedom of association: legislation contrary
to the principles of freedom of association, action taken by governments such
as dissolution of trade unions, arrest of trade union leaders, intervention in
trade union activities, etc. The Committee has based its examination of cases
referred to it on the general principles of freedom of association and has been

249
63~36 Special Machinery

guided by the provisions of the Conventions adopted in this field. In disposing

of hundreds of cases it has, as already indicated, 1 gradually built up an impres-
sive body of opinion.
1. See above Nos. 121-123.

634. The results of the work of the Freedom of Association Committee has
been very uneven. In a number of cases the States concerned have taken
account of the Committee's recommendations by amending their legislation,
releasing trade union leaders from prison, granting pardons, etc. In other cases
the recommendations have had no effect, or at least no immediate effect.
Arrangements are made for following up the action taken by governments on
the Committee's recommendations. Apart from the results obtained in specific
cases dealt with by the Committee, the procedure has had the effect of placing
on governments a general obligation to account for their actions in the field of
freedom of association. It has also exercised a preventive influence on the
action of the public authorities.

§2. THE FACT-FINDING AND CONCILIATION COMMISSION

635. The most formal part of the machinery for the protection of freedom of
association is the Fact-Finding and Conciliation Commission. 1 This Commis-
sion is composed of independent personalities appointed by the Governing
Body of the ILO on the proposal of the Director-General of the International
Labour Office. In principle, a case may not be referred to the Commission
without the consent of the government concerned. In the first years which
followed the establishment of the procedure, some governments2 which had
been requested by the Governing Body to give their consent to the referral to
the Commission of cases relating to their countries, refused to do so. Measures
of publicity were then taken in connection with these cases.
1. See Valticos, 'La Commission d'investigation et de conciliation en matiere de liberte
syndicate et le mecanisme de protection internationale de Ia liberte syndicate', Ann. 1967, pp.
445-468.
2. Czechoslovakia, Hungary and the USSR.

636. The first case referred to the Commission, with the agreement of the
government concerned, was, in 1964, a complaint by the General Council of
Trade Unions of Japan concerning trade union rights in the public sector in
Japan. The procedure was similar to that followed in the case of formal
complaints. 1 Three independent members were appointed to examine the case,
and after requesting information from the parties and from the international
and national organizations of employers and workers, the Commission heard a
number of witnesses, some of whom had been called by itself, then went to
Japan, where it held discussions in private with representatives of the com-
plainant organization and of the government. It submitted to the parties certain
proposals which were accepted, and as a result the Government of Japan
ratified the Freedom of Association and Protection of the Right to Organize

250
Special Machinery 637-638

Convention, 1947 (No. 87) and exchanges of views began between the
authorities and the trade unions. The Commission made a full report including
its conclusions and recommendations, 2 and this was accepted by the complain-
ant organization and the government as a basis for the progressive settlement
of the pending issues. Other cases have since been referred to the Commission,
such as one concerning Greece in 1965 and another concerning Lesotho, which
is a Member of the United Nations and not of the ILO, but the government of
which gave its consent to the procedure. In that case the Chairman of the
Commission appointed to examine the complaint visited the country, with a
member of the secretariat, and he had discussions with the authorities and
trade union leaders, one of whom was in prison. The report of the Commission
was transmitted by the Governing Body to the United Nations in 1975.
1. See above Nos. 622-624.
2. See O.B., 1966, No.1, Special Supplement.

637. An important development has been the Governing Body's decision of

June 1974 to refer to the Commission, with the consent of the government
concerned, various complaints concerning the trade union situation in Chile;
three independent members were appointed to the Commission to deal with
the case, the president being a former President of the International Court of
Justice. In October 1974, the Commission met in Geneva to hear witnesses
called by the principal complainants (the three big international workers'
organizations) and by the government. In November-December 1974 it visited
Chile, after arrangements had been made to ensure the facilities and safeguards
necessary for the carrying out of its mandate, as in the case of earlier similar
visits. 1 In Chile, the Commission travelled to different regions, visited a
number of undertakings, and had discussions with the authorities, prominent
persons, representatives of numerous trade unions, a number of trade union
leaders (including some in detention), workers who had been dismissed, pro-
fessors, lawyers, churchmen, etc. The report of the Commission dealt both with
trade union matters and with questions of human rights and civil liberties which
are closely linked with the excercise of trade union rights. 2 When the report was
discussed, in May 1975, the representative of the Chilean government
accepted its recommendations, while making some observations. The Govern-
ing Body appealed to the government to give effect to the recommendations
and asked it, at various intervals, to supply detailed reports on the steps. The
reports are examined by the Freedom of Association Committee and by the
Governing Body and the question is regularly followed and discussed by the
organs of the ILO.
1. See below No. 694.
2. See The Trade Union Situation in Chile. Report of the Fact-Finding and Conciliation
Commission, Geneva, 1975; Valticos, 'Un double type d'enquete au Chili', Ann. 1975, pp.
483-502.

638. In 1978, following a complaint against the USA about trade union
matters in Puerto-Rico- and as the US is no longer a Member of the IL0 1 - the
Economic and Social Council of the United Nations decided, under the estab-

251
639-640 Special Studies and Inquiries

lished procedure and with the consent of the US Government, to refer the case
to the ILO Fact-finding and Conciliation Commission.
1. See above No. 30.

Chapter VI. Special Studies and Inquiries, Promotional Measures

and Technical Co-operation
§ 1. SPECIAL STUDIES AND INQUIRIES

I. Freedom of Association

639. Apart from the supervisory procedures proper, studies and inquiries of
varying scope have been undertaken by the ILO from time to time. 1 Most of
them have been concerned with freedom of association. In some cases they
were carried out by missions of ILO officials who visited countries at the
request of the governments concerned to collect full and impartial information
on situations which had been the subject of criticism on the international level
(in Hungary in 1920, in Venezuela in 1949). Sometimes the study has covered
the country's labour problems as a whole, though triggered off by complaints
concerning the trade union situation (e.g. in Greece in 1947). Sometimes it has
extended to all member States or to a certain number of them. Thus, in 1955, a
committee of independent persons under the chairmanship of Lord McNair,
former President of the International Court of Justice, was appointed to
examine the extent of the freedom of employers' and workers' organizations
from government domination or control.2 Later, from 1958 to 1963, the
Governing Body set up machinery to determine the real facts about the trade
union situation in member States. Teams of ILO officials went on mission to
various countries (United States, USSR, United Kingdom, Sweden, Malaysia,
Burma) on the invitation of the governments concerned, and drew up detailed
reports which attempted to give a full picture of the situation in the respective
countries without expressing any judgment upon it. 3
1. See Valticos, 'L'inspection internationale dans le droit international du travail' in L'inspec-
tion internationale (ed. by Fischer and Vignes), Brussels, 1976, pp. 379-437.
2. See Report of the Committee on Freedom of Employers' and Workers' Organizations:
O.B. XXXIX, 1956, No.9, pp. 475-599.
3. See reports published by the International Labour Office on the trade union situation in the
United States (1960), the USSR (1960), the United Kingdom (1961), Sweden (1961), Burma
(1962) and Malaya (1962).

640. In 1967, in pursuance of a request by the government of Spain, which

had not ratified the Freedom of Association Conventions, the Governing Body
of the ILO appointed a Study Group to examine the labour and trade union
situation in Spain, 1 composed of three independent persons appointed by the
Governing Body on the proposal of the Director-General. In this case the
procedure was not of a contentious type, although complaints concerning the
trade union situation in Spain had been examined earlier by the Freedom of
Association Committee. The Governing Body specified that the study should

252
Special Studies and Inquiries 641

be carried out 'in the light of the principles laid down in the Constitution of the
ILO' and the Study Group stated that it had been guided, in particular, by the
principle- which is part of the ILO Constitution- that 'freedom of expression
and of association are essential to sustained progress'. The members of the
Group also indicated that 'while they have no judicial powers, their responsibil-
ity has to be discharged in a judicial manner and they have to be guided
throughout by the duty to record their findings without fear or favour' .2 The
procedure was based, mutatis mutandis, on that of the Commissions of Inquiry
and the Fact-Finding and Conciliation Commission. A preliminary agreement
in precise terms was concluded between the Director-General and the Spanish
government providing all necessary safeguards to enable the Study Group to
discharge its task with full freedom and impartiality. It provided, inter alia, that
the group would enjoy complete freedom of movement and would be entitled
to undertake private talks and interviews at which no witness would be present,
and that no person who had been in contact with the group might for that
reason be subjected to coercion, sanctions or punishment at any time.
1. See the Committee's Report: The Labour and Trade Union Situation in Spain, ILO,
Geneva, 1969, and Valticos, 'Une nouvelle experience de protection des droits de l'homme: le
groupe d'etude de I'OIT charge d'examiner Ia situation en matiere de travail et en matiere
syndicale en Espagne', Ann., 1970, pp. 567-570.
2. Committee's Report quoted above, p. 8, para. 26.

641. The Group met in Geneva to hear representatives of the government

and of the three big international workers' organizations, and in March 1969
visited Spain, where it divided its time between official visits and interviews (in
particular interviews with ministers, officials, the highest judicial authorities,
and employers' and workers' representatives of the Trade Union Organization
and visits to various undertakings chosen by the Group) and private visits and
interviews with more than 100 persons, ranging from the highest ecclesiastical
authorities and public figures politically opposed to the government, university
professors in labour law and lawyers specializing in the defence of trade
unionists, to members of works councils, trade unionists in detention, and
ordinary workers. The final report of the Study Group contains detailed
description of the situation in Spain as well as some considerations directed
towards the future. The Group drew particular attention to the fact that in the
course of its consultations a consensus of opinion had emerged as to the
conditions which the trade union law should fulfil and it listed those conditions.
In conclusion, it also pointed out that there are unequivocal world standards in
labour and trade union matters and in respect of the civil liberties which are
revelant to trade union rights, and that 'no State is bound contractually by any
of these standards unless it has ratified the appropriate instrument, but no State
can escape comparison with them'. 1 The Governing Body decided to adopt, as
suggested in the report, every measure to ensure its most widespread diffusion,
and in fact the report was widely distributed both in Spain and outside Spain. A
few years later, following the political change which took place in Spain, a
completely new legislation, based on the ILO standards on freedom of associa-
tion was enacted in Spain, in April1977 and, the same month, the Conventions

253
642-645 Special Studies and Inquiries

on Freedom of Association (Nos. 87 and 98) were ratified by the Spanish

Government.
1. Idem, p. 297, para. 1264.

II. Forced Labour

642. In the field of forced labour, special procedures for investigation and
study were in use from 1921 in collaboration with the League of Nations. After
the Second World War, the work of an ad hoc Committee on Forced Labour set
up jointly in 1951 by the ILO and the United Nations and continued by an ILO
Committee on Forced Labour up to 1959led to the adoption in 1957 of the
Abolition of Forced Labour Convention (No.105).

III. Discrimination

643. In the field of discrimination, the Governing Body of the ILO approved
in 1973 a formula for special surveys on situations connected with the elimina-
tion of discrimination in employment with a view to promoting the implemen-
tation of the Discrimination (Employment and Occupation) Convention, 1958
(No. 111).

644. Moreover, on an ad hoc basis, a mission of ILO officials visited Israel

and the occupied territories in April 1978 to consider the various aspects of
equality of opportunity and treatment of the Arab workers of these territories
as regards employment, conditions of work and social benefits as well as trade
union activities related to their employment both in Israel and in the occupied
territories. The mission was guided in its work by the principles and objectives
laid down in the Constitution of the ILO (Declaration of Philadelphia) and in
the Discrimination (Employment and Occupation) Convention and Recom-
mendation (No. 111), as in other instruments concerning the fundamental
rights of workers such as the Freedom of Association and Protection of the
Right to Organize Convention, 1948 (No. 87). The findings and suggestions of
the mission were contained in its report, 1 which was submitted to the 64th
Session of the International Labour Conference.
1. See this report in Action Taken on the Resolutions Adopted by the International Labour
Conference at its 59th to 63rd Sessions, Supplement to the Report of the Director-General,
International Labour Conference, 64th Session, 1978, pp. 24-32.

§2. PROMOTIONAL MEASURES: INFORMATION, EDUCATION AND TRAINING

645. Implementation of ILO standards is also sought by means of various

educational and training measures. Regional seminars for labour officials are
held every year with a view to promoting a better understanding and function-
ing of ILO procedures relating to international labour standards. Seminars for

254
Special Studies and Inquiries 646

trade union representatives are also held from time to time on a regional or
universal basis to inform them of the part they are entitled to play in the
supervisory procedures, publications are made in the framework of the Work-
ers' Education Programme. 1 In 1978, a documentary film on international
labour standards was produced by the ILO in English and French. The film
describes the ILO's standard-setting and supervisory procedures, and includes
interviews inter alia with government, employer and worker representatives on
various aspects of these procedures. In more specific matters, regional semi-
nars in the field of freedom of association have been held for labour adminis-
trators, judges and specialized professors. 2 Regional tripartite seminars are
also organized systematically to consider the problems which arise in the field
of equality of opportunity and treatment in the region concerned.3 They are
part of a wider programme of practical action designed to combat discrimina-
tion in employment. Many publications have been made under this pro-
gramme.4
1. See in particular International Labour Standards, A Workers' Education Manual, ILO,
Geneva, 1978.
2. Mexico, 6-14 October 1976. See Principios y normas de Ia OIT sobre libertad sindical,
Geneva, 1976, and Report on the First Symposium on Freedom of Association in Latin
America (COULS/AL-D.1) (201st Session of the Governing Body of the ILO, November
1976).
3. See Equality of Opportunity in Employment in Asia: Problems and Policies, Report and
Documents of a Regional Seminar (Manila, 2-11 December 1969), ILO, Geneva, 1970;
Equality of Opportunity in Employment in the American Region: Problems and Policies,
Report and Documents of a Regional Symposium (Panama, 1-12 October 1973, ILO,
Geneva, 1974; Equality of Opportunity and Treatment in Employment in the European
Region: Problems and Policies, Report and Documents of a Regional Symposium (Geneva,
21-29 April1975), ILO, Geneva, 1975; Equality of Opportunity and Treatment in Employ-
ment in Africa: Problems and Policies, Report of a Regional Symposium (Dakar, 19-29
September 1977), ILO, Geneva, 1977.
4. See, e.g., Fighting Discriminaiion in Employment and Occupation. A Workers' Education
Manual, ILO, Geneva, 1968; fLO's Action against Discrimination in Employment, ILO,
Geneva, 1968; Equality in Respect of Employment under Legislation and other National
Standards, ILO, Geneva, 1967; Special National Procedures concerning Non-Discrimination
in Employment- A Practical Guide, ILO, Geneva, 1975; Labour and Discrimination in
Namibia, ILO, Geneva, 1977; Labour Conditions and Discrimination in Southern Rhodesia
(Zimbabwe), ILO, Geneva, 1978; The fLO and Apartheid, Geneva, 1977.

§3. TECHNICAL Co-OPERATION AND WORLD EMPLOYMENT PROGRAMME

646. The ILO Constitution (Art. 10 para. 2b) provides that the International
Labour Office 'shall accord to governments, at their request, all appropriate
assistance within its power in connection with the framing of laws and regula-
tions on the basis of the decisions of the Conference'. Since 1950 the scope of
the technical co-operation offered to countries by the ILO jointly with the
United Nations has expanded very considerably. 1 It may serve as a means of
helping governments to reach the level of international standards and thus to
ratify Conventions or to remove discrepancies observed in the application of
ratified Conventions. In this respect international labour standards provide

255
647-649 Main Characteristics

guidance for the experts and for the staff of the ILO in their technical co-
operation work, and there are arrangements to ensure that these experts are
fully briefed on standards aspects relevant to their work and that their recom-
mendations take full account of these aspects.
1. The total expenditure of the ILO on technical co-operation during the period 1950-1977
amounted to some US $487 million. In 1977 it exceeded US $48 million.

647. In the specific field of employment, the ILO launched in 1969 a

programme based on the standards contained in the Employment Policy Con-
vention and Recommendation, 1964 (No. 122), with a view to helping coun-
tries to attain the highest possible level of productive employment. As part of
this programme, missions organized by the ILO have visited a number of
countries in Africa, America and Asia at the request of the governments
concerned and have submitted recommendations to the governments. In June
1976, a Tripartite World Conference on Employment, Income Distribution
and Social Progress and the International Division of Labour was convened by
the ILO. The Conference adopted a detailed Declaration of Principles and
Programme of Action on these matters. It sets as the objective of national
action and international co-operation the promotion of employment and the
satisfaction of the basic needs of each country's population, defined in terms
both of minimum family requirements and the provision of essential public
services. These activities in the field of employment involved a combination of
the ILO's various means of action (standard-setting, research, meetings and
operational activities).

Chapter VII. Main Characteristics of the Supervisory System

648. The supervisory system of the ILO is based primarily on provisions of
the ILO Constitution, but these have served as the starting point for progres-
sive developments. The initial aim of supervision was to ensure the discharge
by States of obligations arising out of the ratification of Conventions, but this
was subsequently extended to promoting the implementation of ILO standards
even where no formal obligations existed. The search for effectiveness has led
to the introduction of a wide variety of procedures, ranging from the examina-
tion of documentary material to visits or inspections in different forms. The
relative importance of procedures based on documentary examination and on
on-the-spot visits evidently depends on the nature of the questions at issue (for
example, whether they concern legislation or factual situations). Wl;lile
designed to meet particular situations and needs, these various procedures are
nevertheless complementary to each other.

649. Generally speaking, the system comprises several elements: a special-

ized secretariat to assist the supervisory bodies by providing detailed objective
analyses of the available documentary material; a body composed of indepen-
dent personalities charged with the task of appraising the extent to which
national situations conform to international standards; 1 the policy-making

256
Main Characteristics 650-651

bodies of the ILO (Governing Body and International Labour Conference) on

which the various interests involved, both governmental and non-
governmental, are represented, and which seek in co-operation with the gov-
ernments concerned to find solutions to the problems raised; and lastly, dis-
creet action by the Director-General or senior officials of the International
Labour Office aimed at persuasion or clarification of problems for the benefit
of the governments or parties concerned and various types of 'direct contacts'
to clarify the problems and seek solutions to existing difficulties.
1. The genuine independence of the members of the supervisory bodies is a fundamental
principle oft he ILO system (see Jenks, The International Protection ofTrade Union Rights, op.
cit., pp. 239-240).

650. The operation of all the supervisory machinery is guided by certain

common principles: a striving for exactitude in establishing the facts, impartial-
ity in appraising situations, firmness on the principles and obligations at issue,
boldness combined with a sense of proportion and realism, and the will to
achieve positive results through constructive mutual discussion. 1
1. On this point see Jenks, 'Human Rights, Social Justice and Peace- The Broader Signifi-
cance oft he ILO Experience', in International Protection ofHuman Rights, Proceedings oft he
Seventh Nobel Symposium, Oslo, September 1967, ed. by Eide and Schou, Stockholm, 1968,
pp. 227-260; Valticos, 'Un systeme de controle international: Ia mise en oeuvre des conven-
tions internationales du travail', op. cit., pp. 386-388; idem, 'L'inspection internationale dans
le droit international du travail', op. cit., pp. 428-437.

651. The supervisory procedures of the ILO are foremost among interna-
tional systems of supervision and it has often been suggested that they might be
taken as models by other international organizations, either in respect of the
system as a whole 1 or in respect of particular rules, such as those relating to
submission to the competent authorities or reporting on non-ratified Conven-
tions,2 or again, the machinery for the protection of freedom of association. 3
For various reasons, the whole complex of these characteristics cannot be
found or introduced in other international organizations, but there is no doubt
that ILO procedures have influenced, to a greater or lesser extent the systems
organized by other organizations belonging to the United Nations family and
the Council of Europe. 4
1. Scelle, Precis de droit des gens, vol II, Paris, 1934, p. 521; Lord McNair, The Expansion of
International Law, Jerusalem, 1962; Earl Warren, 'It's Time to Implement the Declaration of
Human Rights', 59 American Bar Association Journal, pp. 1257-1260, 1973. See also House
Comm. on Foreign Affairs, 93rd Cong., 2nd Sess., Human Rights in the World Community -A
Call for U.S. Leadership, 1974.
2. R. Ago, 'La codification du droit international et les problemes de sa realisation', op. cit.,
pp. 117 ss.
3. Cassese, op. cit.; Vellas, 'L'evolution de Ia competence de l'OIT et I' affaire de Ia liberte
syndicale au Japon', Droit social, 1967, p. 362; see also Carey a.o., Report ofthe Committee
on Publications of the Department of State and the United Nations,A.J.I.L, 1970, No.4, pp.
293-314, 309.
4. Jenks, Socia/Justice in the Law ofNations. The ILO Impact after Fifty Years, London, 1970,
pp. 33 ss; Valticos, 'Les systemes de controle non judiciaire des instruments internationaux
relatifs aux droits de l'homme', Melanges Modinos, Paris, 1968, pp. 331-356; idem, Droit
international du travail, pp. 600-607.

257
652-653 Supervisory Machinery

Chapter VIII. Supervisory Machinery Established by Other

International Organizations
652. In respect of instruments adopted by international organizations other
than the ILO, and in particular the United Nations, the Council of Europe and
the European Communities, 1 more or less elaborate supervisory procedures
have been introduced. In the first two of these cases, provisions for implemen-
tation are not included in the constituent Charter of the Organization, but only
in each of the separate instruments. The result is a variety of formulas, each
instrument prescribing a different kind of implementation system. A second
consequence is that there are no obligations (such as an obligation to report) on
States which have not ratified the instruments concerned.
1. A joint ILO-UNESCO procedure has also been set up in connection with the Recommen-
dation concerning the Status of Teachers (see above No. 126) to follow up its implementation
on the basis of reports from governments. Such reports were examined by a Committee of 12
independent experts in 1970 and in 1976. The Committee's reports were issued by the ILO
and UNESCO.

§ 1. UNITED NATIONS INSTRUMENTS

653. As regards the International Covenants on Human Rights, 1 the Coven-

ant on Economic, Social and Cultural Rights provides (Art. 16-20) that States
which are parties to it shall submit reports on its implementation; such reports
shall be presented in stages2 and may be transmitted by the Economic and
social Council to the Human Rights Commission.3 The Commission and the
Council itself may make recommendations 'of a general nature' (Art. 19 and
21). Copies of the reports must be sent to the specialized agencies, such as the
ILO, in so far as they relate to questions within their competence. Where
relevant information has previously been furnished to the United Nations or to
a specialized agency, States Parties can merely provide a reference to that
information. Under arrangements with the Economic and Social Council, the
specialized agencies may report on the progress made in achieving the obser-
vance of those provisions of the Covenant which fall within the scope of their
activities, including particulars of the decisions and recommendations on such
implementation adopted by their competent organs. The specialized agencies
may also submit observations on any general recommendations of the Human
Rights Commission. In the ILO, the Committee of Experts on the Application
of Conventions and Recommendations4 has been entrusted with the task of
examining reports under this Covenant and reporting to the Economic and
Social Council. The Committee first undertook this work at its session in March
1978, when it examined reports from nine States on measures taken to imple-
ment Articles 6 to 9 of the Covenant and prepared a report which was
transmitted to the Economic and Social Council at its session in April-May
1978.5 In the case of the Covenant on Civil and Political Rights, provision is
made (Art. 28-45) not only for the submission of reports, but also for the

258
Supervisory Machinery 65~55

setting up of a special body, the Human Rights Committee, to examine them. 6

This body has been established and started its work in 1977.
1. See above No. 129.
2. By Resolution 1988(LX) of 11 May 1976 (UN document EIRES/1988(LX) of 14 May
1976), the Economic and Social Council provided for a programme of reporting in three
stages, at two-yearly intervals, and also made arrangements for the implementation of the
system of reporting under the Covenant.
3. By the above-mentioned resolution 1988(LX), the Economic and Social Council decided
that a sessional working group of the Council should be established whenever reports are due
for consideration by the Council, to assist it in the consideration or' such reports.
4. See Nos. 608 ss. The decision to entrust this task to the Committee of Experts was taken by
the Governing Body of the ILO at its 201st Session (November 1976) in response to a request
addressed to the specialized agencies by the Economic and Social Council in its resolution
1988(LX) to submit reports to it, as provided for in the Covenant.
5. Document E/1978/27.
6. On the supervisory arrangements provided for in the Covenant, see Jenks, 'The United
Nations Covenants on Human Rights Come to Life', Recueil Paul Guggenheim, Geneva,
1968, pp. 765-773; Capotorti, 'The International Measures of Implementation included in
the Covenants on Human Rights', in International Protection of Human Rights, ed. by Eide
and Schou, Stockholm, 1968, pp. 131-148; Schwelb, 'Civil and Political Rights- The Interna-
tional Measures of Implementation', 62 A.J.I.L., 1968, pp. 827-868; idem, 'Some Aspects of
the Measures of Implementation of the International Covenant on Economic, Social and
Cultural Rights', Revue des droits de l'homme/Human Rights Journal, 1968, pp. 363-377; and
idem, 'Entry into force of the International Covenants on Human Rights', 70 A.J.I.L., 1976,
pp. 511-519.

65 4. Similar arrangements for supervision have been made in the case of the
Convention for the Elimination of All Forms of Racial Discrimination: 1 they
began to function in 1969.
1. See above No. 131.

§2. COUNCIL OF EUROPE INSTRUMENTS

I. European Social Charter

655. As regards Council of Europe instruments,! the arrangements for

supervision of the European Social Charter (Art. 21-29) are largely based on
the ILO system, though differing in certain respects. 2 Governments are
required to submit two-yearly reports on the application of those provisions of
the Charter which they have accepted (and States which have ratified the
Charter may also be asked to submit reports on provisions which they have not
accepted, but no use has yet been made of this provision). The reports are
examined by a Committee of seven members appointed by the Committee of
Ministers from a list of independent experts nominated by the contracting
parties. A representative of the ILO participates in a consultative capacity in
the deliberations of this Committee of Independent Experts. The reports from
the governments and the conclusions of the Committee of Independent
Experts are examined by a Governmental Committee, which invites not more
than two international organizations of employers and two international trade
union organizations to be represented by observers in a consultative capacity at

259
656-658 Supervisory Machinery

its meetings. The Consultative Assembly is also called upon to communicate its
views on the conclusions of the Committee of Independent Experts. Finally,
the Committee of Ministers may, by a majority of two-thirds, make recom-
mendations to each contracting party.
1. See above Nos. 134 ss.
2. See Kahn- Freund, 'The European Social Charter', European Law and the Individual, ed. by
Jacobs, Amsterdam, 1976, pp. 181-211; Wiebringhaus, 'Premiere mise en oeuvre du systeme
de contr6le instaure parla Charte sociale europeenne' ,Ann., 1968, pp. 784-789; idem, 'L'etat
d'application de Ia Charte sociale europeenne', Ann. 1973, pp. 928-940; Valticos, Droit
international du travail, p. 604, No.4, and see 'The European Social Charter and International
Labour Standards', l.L.R., December 1961, pp. 464-469; Valticos, 'Mise en parallele des
actions et des mecanismes de contr6le au niveau du Conseil de !'Europe ct de !'Organisation
internationale du Travail', in La Charte sociale europeenne, Brussels, 197X.

656. These supervisory arrangements began to operate after the Charter

came into force in 1965. By 1978, five sets of very detailed conclusions had
been adopted by the Committee of Independent Experts. Certain difficulties
have been experienced, due primarily to the reluctance of the Governmental
Committee and of the Committee of Ministers to endorse some of the initial
conclusions and proposals of the Committee of Independent Experts. Contrary
to these proposals, no recommendations have yet been made to States. There
were also delays in the procedure subsequent to the submission of the reports
of the Committee of Independent Experts. Steps have, however, been taken by
several countries to give effect to some of the Committee's conclusions.

II. European Social Security Code

657. The system established by the European Social Security Code provides
for the reports by the contracting parties to be examined in the first place by the
competent ILO body (i.e. the Committee of Experts on the Application of
Conventions and Recommendations). The latter's conclusions are to be sub-
mitted to the Council of Europe, whose Committee of Ministers will then
determine, by a two-thirds majority, whether each contracting party has dis-
charged the obligations arising out of the Code (Art. 74). This system has been
functioning regularly since 1969, when the Code came into force.

§3. THE INSTRUMENTS OF THE EUROPEAN COMMUNITIES

658. As regards the various instruments concerning labour introduced by

the European Communities (the Treaties setting up the Communities them-
selves and various special instruments) suffice it to recall here that they have
such effects as the general legal system of the Communities assigns to each of
them. In some cases, therefore, it is the 'supranational' procedure that applies,
its principal instrument being the regulation, which is directly enforceable in
the internal legal system of the member States and is used in the matters of free
movement, social security of migtant workers, and the European Social Fund-

260
Supervisory Machinery 659-661

that is, in the field of employment generally-; it is occasionally supplemented

by directives, which are mandatory as regards their objectives but not as regards
the formal means for attaining them. In other cases, the procedure is that of
non-mandatory co-operation, of which the principal instrument is the recom-
mendation, often used to promote social harmonization in various fields, such
as conditions of employment, social security, equal remuneration, etc. In the
case of mandatory provisions, disputes may normally be referred by the Com-
mission to the Court of Justice of the Communities. In addition, the courts of
the member States, under the Treaty of Rome (Art. 1 77), may refer to the
Court of Justice of the Communities questions concerning the interpretation of
the Treaty or the validity or interpretation of measures taken by the institutions
of the Communities, and the Court has in fact handed down a large number of
decisions concerning social security. With regard to recommendations and
other texts which are not binding, States are invited to take action along the
lines suggested and to report periodically, for instance every two years, on the
action they have taken.

Concluding Remarks: the Outlook for the Future

659. While the present body of international labour standards already com-
prises over 300 instruments and covers a large part of the field of labour law, it
can be expected that international standard-setting will be pursued for the
years to come. First, needs and conceptions change with the years and some of
the oldest instruments will have to be reworked to be adatped to contemporary
needs. Secondly, new questions arise which will call for the adoption of interna-
tional standards, to meet the need for greater material security and welfare, but
also the need for freedom, equality and participation. As said above (No. 567),
the Working Party of the ILO Governing Body which is examining interna-
tional labour standards has identified a number of instruments which are in
need of revision and of subjects oil which the preparation of new standards
should be considered. A great area thus remains to be covered by international
labour law. In framing new instruments, it can be expected that recourse to
flexibility devices will be pursued and even intensified, e.g. in the form of
Conventions laying down general principles which are supplemented by
Recommendations providing guidance on methods of implementation, and of
Conventions containing provisions for their progressive application, such as
those which can be ratified by parts.

660. Among the growing number of instruments which will thus constitute
the body of international labour law, it is likely that attention will be primarily
concentrated on a limited number of them, whose ratification and application
will be promoted on a priority basis.

661. Finally, as regards the implementation of international labour stan-

dards, it will no doubt be guided by the trends which became apparent during
recent years, i.e. the development of the role of non-governmental (employers'

261
661 Supervisory Machinery

and workers') organizations, a search for increased efficiency coupled with a

simplification of procedures, a continued use of discreet methods of discussion
between the governments concerned and representatives of the Director-
General, but also, in serious cases, resort to the formal procedures of complaint
and. representation. As in the past, its efficiency will depend both on the
methods used and on the spirit in which these methods will be put into
operation, with a view to permit an objective examination of cases.

262
Index

The numbers given are paragraph numbers.

Administration: see under Labour ad- Bibliography: 162

ministration Bilateral treaties: 143-150,213,297,325
Africa: 88, 142 Bolivia: 629, 632
Age: see Minimum age Brazil: 596
Agricultural work: 56, 363, 472, 483, Building: 385
517-521,560-561 (see also rural work- Burma: 639
ers)
Albania: 30 Cancer (occupational-): 374
American Convention on Human Rights: Case-law: 121, 123
140, 232 Certificate of competency or qualification
American Declaration of the Rights and (seafarers): 504
Duties of Man: 140 Charter: see European Social Charter
American instruments: 140 Child labour: 467-495
Anthrax: 377 Chile: 626, 632, 637
Apartheid: 259-261, 574 Civic obligation: 215
Application of standards: 98 (see also Civil liberties: 183
Implementation, Supervisory machin- Civil servants: see Public employees
ery) Coal: see under Mines
Apprenticeship: 293 Code: see under International Labour
Arab Convention on Labour Standards: Code
141, 619 Collective agreements: 424-426, 585
Arab States: 141 Collective bargaining: 189-195
Arbitration: see Conciliation Commerce and offices: 302, 337, 350,
Arduous occupations: 476 358, 387, 441
Argentina: 36, 629 Committee of Experts: 608-612, 653
Armed forces: 174, 195 Committee on Freedom of Association:
Articles of agreement (seamen): 506 632-634
Austria: 27, 239 Communication in the undertaking:
Automation: 414 438-439
Compatibility clauses: 154
Bakeries: 386 Competence of ILO: 55-63
Belgium: 125, 324, 602 Competent authorities: see under Submis-
Benzene: 378 sion
Berlin Conference: 2 Competition (international-): 10-15
Bern Conferences: 2 Complaints: 621-629

263
Index

Conciliation and arbitration: 427-428 Declaration of the Rights of the Child:

Conditions of life (seamen): 510 494
Conditions of life (tenants and share- Denunciation of Conventions: 584
croppers): 521 Development: 21,218,222,410,420
Confederations: see federations Direct contacts: 615
Conference (International labour -): Director-General of ILO: 50, 77,
44---47, 77-85 119-120
Conference Committee on Application: Discipline: see Labour discipline
613-614 Discrimination: 131,228,234-265,411,
Conferences (regional-): 54 643-644, 654 (see also Equal remuner-
Conflict between international sources: ation)
153-161 Diseases: see under Occupational
Conflict between international standards Dismissal: 445 (see also Termination of
and laws: 597-605 employment)
Constitution of ILO: 68 Dissolution of trade unions: 184
Consultation at the industrial and national Dockwork: 388
level: 430-432
Consultation: see under Tripartite Eastern Europe: 139
Contracts of employment (indigenous Economic development: see Develop-
workers): 525-527 (see also Articles ofment
Agreement) Education: 411, 645
Conventions: see under American Con- Educational leave: 369
vention on Human Rights, Arab Con- Emergency: 589
vention on Labour Standards, Euro- Employers: 40-42, 58
pean Convention on Human Rights, Employment: 266-297, 505, 507, 647
International Labour Conventions Employment agencies: 280-288
Co-operation (technical-): 25, 646-647 Employment policy: 271-275
Co-operation at the level of the undertak-
Employment service: 289-292
ing: 429 Employment of young persons: 492
Council for Mutual Economic Assistance:Entry into force (Conventions): 583
139 Environment (working-): 383
Council of Europe: 134-136, 655-657 Equal remuneration: 455-461
Court of International Justice (Permanent
Equality of opportunity and treatment:
-): 34 242 ss.
Covenants on Human Rights (Interna- Europe (see below and also under Council
tional-): 129, 205, 206, 229, 262, 323,of Europe, and under Transport)
346,353,371,400,405,408,457 ,464, European Communities: 137, 604, 658
493, 546, 653 European Code of Social Security: 136,
Custom: 585 657
European Convention on Human Rights:
Dangerous occupations: see Unhealthy 135, 207, 231, 265
Declaration: see under American, European Social Charter: 134, 208-
Philadelphia, Universal 212, 233, 265, 295, 324, 347, 354,
Declaration on the Elimination of All 372, 400, 402, 406, 437, 457, 465-
Forms of Racial Discrimination: 263 466,495,547-549,563,605,619 ,655-
Declaration on the Elimination of Dis- 656
crimination against Women: 464 Experts: see Committee of Experts

264
 Index

Fact-finding and Conciliation Commis- Industrial work: 302, 334, 349, 358, 384,
sion: 635-637 418,441,449,470,475,481-482,488
Family responsibilities: 462 Inquiries: 639-644
Federation of trade unions: 185 Inspection: see labour inspection
Fishermen: 475, 515-516 International Court of Justice: 117
Flexibility: 90-101 International Labour Code: 76
Force majeure: 589 International Labour Conventions: 29,
Forced labour: 214-233, 463, 492, 642 69-120
Foreign workers: 537-551 International Labour Office: see under
France: 125, 145, 329, 355, 396, 600, Office
602 International organizations: 64-65
Freedom of association: 164-213, 574, Interpretation: 117-120
631-638, 639-641 Italy: 37, 145, 329, 596
Israel: 644
Germany: 27, 329
Germany (Fed. Rep. of-): 125, 596 Japan: 470, 596, 636
Glass-bottle works: 343 Jordan: 632
Governing Body of ILO: 48-49, 77-78 Justice (social-): 18-20
Greece: 625, 636, 639 Justice: see Court of International Justice
Grievances: see under Communications in (Permanent) and International Court of
the undertaking Justice

Health: see Workers' health and hygiene Labour administration: 564

Health services (occupational-): 393 Labour clauses in public contracts:
Holiday: see Leave 319-322
Hours of work: 326-347, 463, 492, 508 Labour discipline: 225
Housing: 403-406 Labour inspection: 463, 513, 531,
Human rights: 129, 135, 204-206 553-563
Hungary: 39, 639 Labour standards: 532
Hygiene and safety (industrial -): Leave (paid-): 355-372, 492, 509 (see
373-400, 492, 510 also under Maternity protection)
Leisure: see Spare time
Identity documents (seamen): 511 Lesotho: 30, 636
ILO: see under Constitution, Interna- Liberia: 623
tional Labour Conventions, Member- Luxembourg: 602
ship, Office, Sources
Implementation of ratified Conventions: Machinery (guarding of-): 381
585-592 Madagascar: 596
Incorporation of Conventions into Malaysia: 639
national law: 593-605 Manning (ships): 508
Independent workers: 60 Maritime Conventions: 499-501 (see also
India: 470 Seafarers)
Indigenous and tribal populations: 533 Maritime work 471,475 (see also Seafar-
Indigenous workers: 522-527 ers)
Industrial accidents (prevention): 391 Maternity protection: 441-44 7
Industrial establishments: 384 Medical examination: 487-490, 503
Industrial relations: 422-437 Membership of ILO: 27-28

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Index

Migrant workers: 537-551 Pollution (see Environment)

Migration: 146, 463 Portugal: 37, 623
Military service: 215, 219 Prison labour: 215, 216
Mines: 340, 453 Promotional measures: 645
Minimum age: 411, 469-480, 503 Protection of wages: 315-318
Minimum standards (international stan- Public contracts: 319-322
dards as-): 586 Public employees: 60, 174, 202, 534-535
Minimum standards in merchant ships: Public works: 278, 320, 343
514
Minimum wage-fixing: 300-314,463,508 Racial discrimination: 242-243, 263 (see
Movement of workers and goods (interna- also under Apartheid)
tional-): 22 Radiation protection: 380
Multinational enterprises: 415 Ratification of Conventions: 576-582
Recommendations of ILO: 69-120, 575
National service: 219 Recruiting: 524
Netherlands: 34, 125, 602 Refugees: 132
Night work of women: 448-452 Regional standards: 88, 134-142, 152
Night work of young persons: 481-486 Remuneration: see under Equal remuner-
Noise: see Environment ation, Wages
Non-industrial employment: 441, 473, Reporting on Conventions and Recom-
475,484,489 mendations: 575, 591-592
Non-manual workers: 60 Representations: 630
Non-metropolitan territories: 528-532, Representatives: see under Workers'
562, 587 representatives
Nursing personnel: 536 Reservations: 577
Resolutions: 114-116
Obligations in respect of ILO standards: Rest: see under Weekly rest
568-592 Review of standards: 567
Occupational diseases: 394-398 Revision of Conventions and Recom-
Occupational health services: see Health mendations: 85, 108-113
Office (International Labour-): 50-52, Rhine boatmen: 125
77, 79, 81 Rural workers' organizations: 200-201
Offices: see under Commerce
Older workers: 496 Safety: see under Hygiene
Organizations: see under International Seafarers: 498-519, 559
Self-executing standards: 594-596
Paid leave: see under Leave Share-croppers: see under Tenants
Panama: 628 Sheet-glass works: 343
Peace (universal-): 16-17 Slavery: 128, 229
Penal sanctions: 527 Social policy: 409-415, 477, 529
Philadelphia (Declaration of-): 5, 61, 168 Social security: 136, 140, 142, 148,
Phosphorus (white): 375 416-421
Placement: 279-292 Sources of international law: 66-161
Plantation workers: 521 South Africa: 30 (see also under Apar-
Police: 174, 195 theid)
Political activities of trade unions: 182 Spain: 37, 596, 640-641
Political coercion: 224 Spare time: 407

266
 Index

Standards: 88-161 (see also under Con- UNESCO: 126, 264

ventions and Recommendations, Unhealthy or dangerous occupations
Obligations, Review, Tripartite consul- (women): 453-454
tation) Union security arrangements: 190
State succession: 582 United Kingdom: 125, 329, 639
Stateless persons: 132 United Nations: 6, 28,128-132,170,263,
Statistics (labour-): 565 631,636,642,653-654
Strike: 188, 211, 216, 226, 512 United States: 27, 30, 125, 596,602,638,
Submission to competent authorities: ~9 .
569-573 Universal Declaration on Human Rights:
Supervisory machinery (ILO): 606-651 129,204,229,262,294,323,346,353,
Supervisory machinery (other organiza- 371,405,408,457,464
tions): 652-658 Universal standards: 88
Suspension of trade unions: 184 Unratified Conventions: 575
Sweden: 453, 659 Uruguay: 629, 632
Switzerland: 125, 596, 602 USSR: 27,38,40-41,639

Teachers: 126 Venezuela: 36, 639

Technical co-operation: see under Co- Versailles Treaty: 3
operation Vibrations: see Environment
Technical progress (social repercussions): Vienna Convention on law oftreaties: 161
413-414 Vocational guidance: 293
Temporary work agencies: 288
Tenants and share-croppers: 521 Wages: 298-325, 508 (see also under
Termination of employment: 433-437 Equal remuneration)
Territories: see under Non-metropolitan War (effect of-): 589
Trade unions: 34-39 (see also under Free- Weekly rest: 348-354
dom of association) Weight (maximum -): 382
Training: 293, 505 Welfare facilities: 401-402
Transport: 127, 341 White lead: 376
Treaties: see under Bilateral, Conven- Withdrawal from ILO: 29
tions, Versailles Women: 59, 440-466
Tripartism: 31-42 Workers' health (protection): 392
Workers' representatives: 180, 196-199
Undertaking: see under Communications, World Employment Programme: 647
Co-operation, Workers' represen-
tatives Young persons: 277, 503 (see also under
Underground work (women): 453 Child labour)
Unemployment: 276-292, 294 Youth services: 219-223

267