Volume 3 - Documents 90-147

Document No. 90
Compendium of rules applicable to the Governing Body
of the International Labour Office, Annex II, Special
procedures for the examination in the International
Labour Organization of complaints alleging violations
of freedom of association

 Compendium of rules
applicable to the Governing
Body of the International
Labour Office
International Labour Office, Geneva, 2021

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 Annex II
Special procedures for the examination in the
International Labour Organization of complaints
alleging violations of freedom of association
The outline given below of the current procedure for the examination of
complaints alleging infringements of trade union rights is based on the
provisions adopted by common consent by the Governing Body of the
International Labour Office and the Economic and Social Council of the
United Nations in January and February 1950, and also on the decisions taken
by the Governing Body at its 117th Session (November 1951), 123rd Session
(November 1953), 132nd Session (June 1956), 140th Session
(November 1958), 144th Session (March 1960), 175th Session (May 1969),
184th Session (November 1971), 202nd Session (March 1977), 209th Session
(May–June 1979) and 283rd Session (March 2002) with respect to the internal
procedure for the preliminary examination of complaints, and lastly on
certain decisions adopted by the Committee on Freedom of Association
itself. 1
* * *
Background
1. In January 1950 the Governing Body, following negotiations with the
Economic and Social Council of the United Nations, set up a Fact-Finding and
Conciliation Commission on Freedom of Association, composed of
1 Most of the procedural rules referred to in this annex are contained under the heading
“procedural questions” in the following documents: First Committee Report, paras 6–32, in Sixth
Report of the International Labour Organisation to the United Nations (Geneva: ILO, 1952),
Appendix V; the Sixth Report in Seventh Report of the International Labour Organisation to the
United Nations (Geneva: ILO, 1953), Appendix V, paras 14–21; the Ninth Report in Eighth Report of
the International Labour Organisation to the United Nations (Geneva: ILO, 1954), Appendix II,
paras 2–40; the 29th and 43rd Reports in Official Bulletin, Vol. XLIII, 1960, No. 3; the 111th Report,
in Official Bulletin, Vol. LII, 1969 No. 4, paras 7–20; the 127th Report, in Official Bulletin, Vol. LV,
1972, Supplement, paras 9–28; the 164th Report, in Official Bulletin, Vol. LX, 1977, No. 2, paras
19–28; the 193rd Report, in Official Bulletin, Vol. LXII, 1979, No. 1; and the 327th Report, in Official
Bulletin, Vol. LXXXV, 2002, paras 17–26.
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independent persons, and defined the terms of reference of the Commission
and the general lines of its procedure. It also decided to communicate to the
Economic and Social Council a certain number of suggestions with a view to
formulating a procedure for making the services of the Commission available
to the United Nations.
2. The Economic and Social Council, at its Tenth Session, on
17 February 1950, noted the decision of the Governing Body and adopted a
resolution in which it formally approved this decision, considering that it
corresponded to the intent of the Council’s resolution of 2 August 1949 and
that it was likely to prove a most effective way of safeguarding trade union
rights. It decided to accept, on behalf of the United Nations, the services of
the ILO and the Fact-Finding and Conciliation Commission and laid down a
procedure, which was supplemented in 1953.
Complaints received by the United Nations
3. All allegations regarding infringements of trade union rights
received by the United Nations from governments or trade union or
employers’ organizations against ILO Member States will be forwarded by
the Economic and Social Council to the Governing Body of the International
Labour Office, which will consider the question of their referral to the Fact-
Finding and Conciliation Commission.
4. Similar allegations received by the United Nations regarding any
Member of the United Nations which is not a Member of the ILO will be
transmitted to the Commission through the Governing Body of the ILO when
the Secretary-General of the United Nations, acting on behalf of the
Economic and Social Council, has received the consent of the government
concerned, and if the Economic and Social Council considers these
allegations suitable for transmission. If the government’s consent is not
forthcoming, the Economic and Social Council will give consideration to the
position created by such refusal, with a view to taking any appropriate
alternative action calculated to safeguard the rights relating to freedom of
association involved in the case. If the Governing Body has before it
allegations regarding infringements of trade union rights that are brought
against a Member of the United Nations which is not a Member of the ILO, it
will refer such allegations in the first instance to the Economic and Social
Council.
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Bodies competent to examine complaints
5. In accordance with a decision originally taken by the Governing
Body, complaints against Member States of the ILO were submitted in the
first instance to the Officers of the Governing Body for preliminary
examination. Following discussions at its 116th and 117th Sessions, the
Governing Body decided to set up a Committee on Freedom of Association
to carry out this preliminary examination.
6. At the present time, therefore, there are three bodies which are
competent to hear complaints alleging infringements of trade union rights
that are lodged with the ILO, viz. the Committee on Freedom of Association
set up by the Governing Body, the Governing Body itself, and the Fact-Finding
and Conciliation Commission on Freedom of Association.
Composition and functioning of the Committee on Freedom of
Association
7. This body is a Governing Body organ reflecting the ILO’s own
tripartite character. Since its creation in 1951, it has been composed of nine
regular members representing in equal proportion the Government,
Employer and Worker groups of the Governing Body; each member
participates in a personal capacity. Nine substitute members, also appointed
by the Governing Body, were originally called upon to participate in the
meetings only if, for one reason or another, regular members were not
present, so as to maintain the initial composition.
8. The present practice adopted by the Committee in February 1958
and specified in March 2002 gives substitute members the right to
participate in the work of the Committee, whether or not all the regular
members are present. They have therefore acquired the status of deputy
members and must respect the same rules as regular members.
9. At its most recent examination of the procedure in March 2002, the
Committee expressed the hope that, in view of the rule that all the members
are appointed in their individual capacity, the nominations of Government
members would be made in a personal capacity so as to ensure a relative
permanence of government representation.
10. No representative or national of the State against which a
complaint has been made, or person occupying an official position in the
national organization of employers or workers which has made the
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complaint, may participate in the Committee’s deliberations or even be
present during the hearing of the complaint in question. Similarly, the
documents concerning the case are not supplied to them.
11. The Committee always endeavours to reach unanimous decisions.
Mandate and responsibility of the Committee
12. By virtue of its Constitution, the ILO was established in particular
to improve working conditions and to promote freedom of association in the
various countries. Consequently, the matters dealt with by the Organization
in this connection no longer fall within the exclusive sphere of States and the
action taken by the Organization for the purpose cannot be considered to be
interference in internal affairs, since it falls within the terms of reference that
the ILO has received from its Members with a view to attaining the aims
assigned to it. 2
13. The function of the International Labour Organization in regard to
freedom of association and the protection of the individual is to contribute
to the effectiveness of the general principles of freedom of association, as
one of the primary safeguards of peace and social justice. 3 Its function is to
secure and promote the right of association of workers and employers. It
does not level charges at, or condemn, governments. In fulfilling its task the
Committee takes the utmost care, through the procedures it has developed
over many years, to avoid dealing with matters which do not fall within its
specific competence.
14. The mandate of the Committee consists in determining whether
any given legislation or practice complies with the principles of freedom of
association and collective bargaining laid down in the relevant Conventions. 4
15. It is within the mandate of the Committee to examine whether, and
to what extent, satisfactory evidence is presented to support allegations; this
appreciation goes to the merits of the case and cannot support a finding of
irreceivability. 5
2 Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee
of the Governing Body of the ILO, fifth (revised) edition, 2006, para. 2.
3 Digest of decisions, 2006, para. 1.
4 Digest of decisions, 2006, para. 6.
5 Digest of decisions, 2006, para. 9.
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16. With a view to avoiding the possibility of misunderstanding or
misinterpretation, the Committee considers it necessary to make it clear that
its task is limited to examining the allegations submitted to it. Its function is
not to formulate general conclusions concerning the trade union situation in
particular countries on the basis of vague general statements, but simply to
evaluate specific allegations.
17. The usual practice of the Committee has been not to make any
distinction between allegations levelled against governments and those
levelled against persons accused of infringing freedom of association, but to
consider whether or not, in each particular case, a government has ensured
within its territory the free exercise of trade union rights.
18. The Committee (after a preliminary examination, and taking
account of any observations made by the governments concerned, if
received within a reasonable period of time) reports to the Governing Body
that a case does not call for further examination if it finds, for example, that
the alleged facts, if proved, would not constitute an infringement of the
exercise of trade union rights, or that the allegations made are so purely
political in character that it is undesirable to pursue the matter further, or
that the allegations made are too vague to permit a consideration of the case
on its merits, or that the complainant has not offered sufficient evidence to
justify reference of the matter to the Fact-Finding and Conciliation
Commission.
19. The Committee may recommend that the Governing Body draw
the attention of the governments concerned to the anomalies which it has
observed and invite them to take appropriate measures to remedy the
situation.
The Committee’s competence to examine complaints
20. The Committee has considered that it is not within its competence
to reach a decision on violations of ILO Conventions on working conditions
since such allegations do not concern freedom of association.
21. The Committee has recalled that questions concerning social
security legislation fall outside its competence.
22. The questions raised related to landownership and tenure
governed by specific national legislation have nothing to do with the
problems of the exercise of trade union rights.
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23. It is not within the Committee’s terms of reference to give an
opinion on the type or characteristics – including the degree of legislative
regulation – of the industrial relations system in any particular country. 6
24. The Committee always takes account of national circumstances,
such as the history of labour relations and the social and economic context,
but the freedom of association principles apply uniformly and consistently
among countries. 7
25. Where the government concerned considers that the questions
raised are purely political in character, the Committee has decided that, even
though allegations may be political in origin or present certain political
aspects, they should be examined in substance if they raise questions directly
concerning the exercise of trade union rights.
26. The question of whether issues raised in a complaint concern penal
law or the exercise of trade union rights cannot be decided unilaterally by
the government against which a complaint is made. It is for the Committee
to rule on the matter after examining all the available information. 8
27. When it has had to deal with precise and detailed allegations
regarding draft legislation, the Committee it has taken the view that the fact
that such allegations relate to a text that does not have the force of law
should not in itself prevent it from expressing its opinion on the merits of the
allegations made. It has considered it desirable that, in such cases, the
government and the complainant should be made aware of the Committee’s
point of view with regard to the proposed bill before it is enacted, since it is
open to the government, on whose initiative such a matter depends, to make
any amendments thereto.
28 Where national legislation provides for appeal procedures before
the courts or independent tribunals, and these procedures have not been
used for the matters on which the complaint is based, the Committee takes
this into account when examining the complaint.
29. When a case is being examined by an independent national
jurisdiction whose procedures offer appropriate guarantees, and the
Committee considers that the decision to be taken could provide additional
6 287th Report, Case No. 1627, para. 32.
7 Digest of decisions, 2006, para. 10.
8 268th Report, Case No. 1500, para. 693.
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information, it will suspend its examination of the case for a reasonable time
to await this decision, provided that the delay thus encountered does not risk
prejudicing the party whose rights have allegedly been infringed.
30. Although the use of internal legal procedures, whatever the
outcome, is undoubtedly a factor to be taken into consideration, the
Committee has always considered that, in view of its responsibilities, its
competence to examine allegations is not subject to the exhaustion of
national procedures.
Receivability of complaints
31. Complaints lodged with the ILO, either directly or through the
United Nations, must come either from organizations of workers or
employers or from governments. Allegations are receivable only if they are
submitted by a national organization directly interested in the matter, by
international organizations of employers or workers having consultative
status with the ILO, or other international organizations of employers or
workers where the allegations relate to matters directly affecting their
affiliated organizations. Such complaints may be presented whether or not
the country concerned has ratified the freedom of association Conventions.
32. The Committee has full freedom to decide whether an organization
may be deemed to be an employers’ or workers’ organization within the
meaning of the ILO Constitution, and it does not consider itself bound by any
national definition of the term.
33. The Committee has not regarded any complaint as being
irreceivable simply because the government in question had dissolved, or
proposed to dissolve, the organization on behalf of which the complaint was
made, or because the person or persons making the complaint had taken
refuge abroad.
34. The fact that a trade union has not deposited its by-laws, as may
be required by national laws, is not sufficient to make its complaint
irreceivable since the principles of freedom of association provide precisely
that the workers shall be able, without previous authorization, to establish
organizations of their own choosing.
35. The fact that an organization has not been officially recognized
does not justify the rejection of allegations when it is clear from the
complaints that this organization has at least a de facto existence.
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36. In cases in which the Committee is called upon to examine
complaints presented by an organization concerning which no precise
information is available, the Director-General is authorized to request the
organization to furnish information on the size of its membership, its
statutes, its national or international affiliations and, in general, any other
information calculated, in any examination of the receivability of the
complaint, to lead to a better appreciation of the precise nature of the
complainant organization.
37. The Committee will only take cognizance of complaints presented
by persons who, through fear of reprisals, request that their names or the
origin of the complaints should not be disclosed, if the Director-General, after
examining the complaint in question, informs the Committee that it contains
allegations of some degree of gravity which have not previously been
examined by the Committee. The Committee can then decide what action, if
any, should be taken with regard to such complaints.
Repetitive nature of complaints
38. In any case in which a complaint concerns exactly the same
infringements as those on which the Committee has already given a decision,
the Director-General may, in the first instance, refer the complaint to the
Committee, which will decide whether it is appropriate to take action on it.
39. The Committee has taken the view that it could only reopen a case
which it had already examined in substance and in which it had submitted
final recommendations to the Governing Body if new evidence is adduced
and brought to its notice. Similarly, the Committee does not re-examine
allegations on which it has already given an opinion: for example, when a
complaint refers to a law that it has already examined and, as such, does not
contain new elements. 9
Form of the complaint
40. Complaints must be presented in writing, duly signed by a
representative of a body entitled to present them, and they must be as fully
supported as possible by evidence of specific infringements of trade union
rights.
9 297th Report, para. 13.
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41. When the Committee receives, either directly or through the
United Nations, mere copies of communications sent by organizations to
third parties, such communications do not constitute formal complaints and
do not call for action on its part.
42. Complaints originating from assemblies or gatherings which are
not bodies having a permanent existence or even bodies organized as
definite entities and with which it is impossible to correspond, either because
they have only a temporary existence or because the complaints do not
contain any addresses of the complainants, are not receivable.
Rules concerning relations with complainants
43. Complaints which do not relate to specific infringements of trade
union rights are referred by the Director-General to the Committee on
Freedom of Association for opinion, and the Committee decides whether or
not any action should be taken on them. In cases of this kind, the
Director-General is not bound to wait until the Committee meets, but may
contact the complainant organization directly to inform it that the
Committee’s mandate only permits it to deal with questions concerning
freedom of association and to ask it to specify, in this connection, the
particular points that it wishes to have examined by the Committee.
44. The Director-General, on receiving a new complaint concerning
specific cases of infringement of freedom of association, either directly from
the complainant organization or through the United Nations, informs the
complainant that any information he may wish to furnish in substantiation of
the complaint should be communicated to him within a period of one month.
In the event that supporting information is sent to the ILO after the expiry of
the one month period provided for in the procedures it will be for the
Committee to determine whether this information constitutes new evidence
which the complainant would not have been in a position to adduce within
the appointed period; in the event that the Committee considers that this is
not the case, the information in question is regarded as irreceivable. On the
other hand, if the complainant does not furnish the necessary information in
substantiation of a complaint (where it does not appear to be sufficiently
substantiated) within a period of one month from the date of the
Director-General’s acknowledgement of receipt of the complaint, it is for the
Committee to decide whether any further action in the matter is appropriate.
45. In cases in which a considerable number of copies of an identical
complaint are received from separate organizations, the Director-General is
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not required to request each separate complainant to furnish further
information; it is normally sufficient for the Director-General to address the
request to the central organization in the country to which the bodies
presenting the copies of the identical complaint belong or, where the
circumstances make this impracticable, to the authors of the first copy
received, it being understood that this does not preclude the
Director-General from communicating with more than one of the said bodies
if this appears to be warranted by any special circumstances of the particular
case. The Director-General will transmit to the government concerned the
first copy received, but will also inform the government of the names of the
other complainants presenting the copies of the identical complaints.
46. When a complaint has been communicated to the government
concerned and the latter has presented its observations thereon, and when
the statements contained in the complaint and the government’s
observations merely cancel one another out but do not contain any valid
evidence, thereby making it impossible for the Committee to reach an
informed opinion, the Committee is authorized to seek further information
in writing from the complainant in regard to questions concerning the terms
of the complaint requiring further elucidation. In such cases, it has been
understood that, on the one hand, the government concerned, as defendant,
would have an opportunity to reply in its turn to any additional comments
the complainants may make, and, on the other hand, that this method would
not be followed automatically in all cases but only in cases where it appears
that such a request to the complainants would be helpful in establishing the
facts.
47. Subject to the two conditions mentioned in the preceding
paragraph, the Committee may, moreover, inform the complainants, in
appropriate cases, of the substance of the government’s observations and
invite them to submit their comments thereon within a given period of time.
In addition, the Director-General may ascertain whether, in the light of the
observations sent by the government concerned, further information or
comments from the complainants are necessary on matters relating to the
complaint and, if so, may write directly to the complainants, in the name of
the Committee and without waiting for its next session, requesting the
desired information or the comments on the government’s observations by
a given date, the government’s right to reply being respected as is pointed
out in the preceding paragraph.
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48. In order to keep the complainant regularly informed of the
principal stages in the procedure, the complainant is notified, after each
session of the Committee, that the complaint has been put before the
Committee and, if the Committee has not reached a conclusion appearing in
its report, that – as appropriate – examination of the case has been
adjourned in the absence of a reply from the government or the Committee
has asked the government for certain additional information.
Prescription
49. While no formal rules fixing any particular period of prescription
are embodied in the procedure for the examination of complaints, it may be
difficult – if not impossible – for a government to reply in detail to allegations
regarding matters which occurred a long time ago.
Withdrawal of complaints
50. When the Committee has been confronted with a request
submitted to it for the withdrawal of a complaint, it has always considered
that the desire expressed by an organization which has submitted a
complaint to withdraw this complaint constitutes an element of which full
account should be taken, but it is not sufficient in itself for the Committee to
automatically cease to proceed further with the case. In such cases, the
Committee has decided that it alone is competent to evaluate in full freedom
the reasons put forward to explain the withdrawal of a complaint and to
endeavour to establish whether these appear to be sufficiently plausible so
that it may be concluded that the withdrawal is being made in full
independence. In this connection, the Committee has noted that there might
be cases in which the withdrawal of a complaint by the organization
presenting it was the result not of the fact that the complaint had become
without purpose, but of pressure exercised by the government against the
complainants, the latter being threatened with an aggravation of the
situation if they did not consent to this withdrawal.
Rules for relations with the governments concerned
51. By membership of the International Labour Organization, each
Member State is bound to respect a certain number of principles, including
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the principles of freedom of association which have become customary rules
above the Conventions. 10
52. If the original complaint or any further information received in
response to the acknowledgement of the complaint is sufficiently
substantiated, the complaint and any such further information are
communicated by the Director-General to the government concerned as
quickly as possible; at the same time the government is requested to forward
to the Director-General, before a given date, fixed in advance with due regard
to the date of the next meeting of the Committee, any observations which it
may care to make. When communicating allegations to governments, the
Director-General draws their attention to the importance which the
Governing Body attaches to receiving the governments’ replies within the
specified period, in order that the Committee may be in a position to examine
cases as soon as possible after the occurrence of the events to which the
allegations relate. If the Director-General has any difficulty in deciding
whether a particular complaint can be regarded as sufficiently substantiated
to justify him in communicating it to the government concerned for its
observations, it is open to him to consult the Committee before taking a
decision on the matter.
53. In cases in which the allegations concern specific enterprises, or in
appropriate cases, the letter by which the allegations are transmitted to the
government requests it to obtain the views of all the organizations and
institutions concerned so that it can provide a reply to the Committee that is
as complete as possible. However, the application of this rule of procedure
should not result in practice in delay in having recourse to urgent appeals
made to governments, nor in the examination of cases.
54. A distinction is drawn between urgent cases, which are addressed
on a priority basis, and less urgent cases. Matters involving human life or
personal freedom, or new or changing conditions affecting the freedom of
action of a trade union movement as a whole, cases arising out of a
continuing state of emergency and cases involving the dissolution of an
organization, are treated as cases of urgency. Priority of treatment is also
given to cases on which a report has already been submitted to the
Governing Body.
10 Report of the Fact-Finding and Conciliation Commission on Freedom of Association concerning
the situation in Chile, 1975, para. 466.
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55. In all cases, if the first reply from the government in question is of
too general a character, the Committee requests the Director-General to
obtain all necessary additional information from the government, on as
many occasions as it judges appropriate.
56. The Director-General is further empowered to ascertain without,
however, making any appreciation of the substance of a case, whether the
observations of governments on the subject matter of a complaint or
governments’ replies to requests for further information are sufficient to
permit the Committee to examine the complaint and, if not, to write directly
to the government concerned, in the name of the Committee, and without
waiting for its next session, to inform it that it would be desirable if it were to
furnish more precise information on the points raised by the Committee or
the complainant.
57. The purpose of the whole procedure set up in the ILO for the
examination of allegations of violations of freedom of association is to
promote respect for trade union rights in law and in fact. If the procedure
protects governments against unreasonable accusations, governments on
their side should recognize the importance for their own reputation of
formulating, so as to allow objective examination, detailed replies to the
allegations brought against them. The Committee wishes to stress that, in all
the cases presented to it since it was first set up, it has always considered
that the replies from governments against whom complaints are made
should not be limited to general observations.
58. In cases where governments delay in forwarding their
observations on the complaints communicated to them, or the further
information requested of them, the Committee mentions these governments
in a special introductory paragraph to its reports after the lapse of a
reasonable time, which varies according to the degree of urgency of the case
and of the questions involved. This paragraph contains an urgent appeal to
the governments concerned and, as soon as possible afterwards, special
communications are sent to these governments by the Director-General on
behalf of the Committee.
59. These governments are warned that at its following session the
Committee may submit a report on the substance of the matter, even if the
information awaited from the governments in question has still not been
received.
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60. Cases in respect of which governments continue to fail to
cooperate with the Committee, or in which certain difficulties persist, are
mentioned in a special paragraph of the introduction to the Committee’s
report. The governments concerned are then immediately informed that the
chairman of the Committee will, on behalf of the Committee, make contact
with their representatives attending the session of the Governing Body or
the International Labour Conference. The chairman will draw their attention
to the particular cases involved and, where appropriate, to the gravity of the
difficulties in question, discuss with them the reasons for the delay in
transmitting the observations requested by the Committee and examine
with them various means of remedying the situation. The chairman then
reports to the Committee on the results of such contacts.
61. In appropriate cases, where replies are not forthcoming, ILO
external offices may approach governments in order to elicit the information
requested of them, either during the examination of the case or in
connection with the action to be taken on the Committee’s
recommendations, approved by the Governing Body. With this end in view
the ILO external offices are sent detailed information with regard to
complaints concerning their particular area and are requested to approach
governments which delay in transmitting their replies, in order to draw their
attention to the importance of supplying the observations or information
requested of them.
62. In cases where the governments implicated are obviously unwilling
to cooperate, the Committee may recommend, as an exceptional measure,
that wider publicity be given to the allegations, to the recommendations of
the Governing Body and to the negative attitude of the governments
concerned.
63. The procedure for the examination of complaints of alleged
infringements of the exercise of trade union rights provides for the
examination of complaints presented against Member States of the ILO.
Evidently, it is possible for the consequences of events which gave rise to the
presentation of the initial complaint to continue after the setting up of a new
State which has become a Member of the ILO, but if such a case should arise,
the complainants would be able to have recourse, in respect of the new State,
to the procedure established for the examination of complaints relating to
infringements of the exercise of trade union rights.
64. There exists a link of continuity between successive governments
of the same State and, while a government cannot be held responsible for
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events which took place under a former government, it is clearly responsible
for any continuing consequences which these events may have had since its
accession to power.
65. Where a change of regime has taken place in a country, the new
government should take all necessary steps to remedy any continuing effects
which the events on which the complaint is based may have had since its
accession to power, even though those events took place under its
predecessor.
Requests for the postponement of the examination of cases
66. With regard to requests for the postponement of the examination
of cases by the complainant organization or the government concerned, the
practice followed by the Committee consists of deciding the question in full
freedom when the reasons given for the request have been evaluated and
taking into account the circumstances of the case. 11
On-the-spot missions
67. At various stages in the procedure, an ILO representative may be
sent to the country concerned, for example in the context of direct contacts,
with a view to seeking a solution to the difficulties encountered, either during
the examination of the case or at the stage of the action to be taken on the
recommendations of the Governing Body. Such contacts, however, can only
be established at the invitation of the governments concerned or at least with
their consent. In addition, upon the receipt of a complaint containing
allegations of a particularly serious nature, and after having received the
prior approval of the chairman of the Committee, the Director-General may
appoint a representative whose mandate would be to carry out preliminary
contacts for the following purposes, viz. to transmit to the competent
authorities in the country the concern to which the events described in the
complaint have given rise; to explain to these authorities the principles of
freedom of association involved; to obtain from the authorities their initial
reaction, as well as any comments and information with regard to the
matters raised in the complaint; to explain to the authorities the special
procedure in cases of alleged infringements of trade union rights and, in
particular, the direct contact method which may subsequently be requested
11 274th Report, Cases Nos 1455, 1456, 1696 and 1515, para. 10.
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by the government in order to facilitate a full appraisal of the situation by the
Committee and the Governing Body; to request and encourage the
authorities to communicate as soon as possible a detailed reply containing
the observations of the government on the complaint. The report of the
representative of the Director-General is submitted to the Committee at its
next meeting for consideration together with all the other information made
available. The ILO representative can be an ILO official or an independent
person appointed by the Director-General. It goes without saying, however,
that the mission of the ILO representative is above all to ascertain the facts
and to seek possible solutions on the spot. The Committee and the Governing
Body remain fully competent to appraise the situation at the outcome of
these direct contacts.
68. The representative of the Director-General charged with an on-thespot
mission will not be able to perform his task properly and therefore be
fully and objectively informed on all aspects of the case if he is not able to
meet freely with all the parties involved. 12
Hearing of the parties
69. The Committee will decide, in the appropriate instances and taking
into account all the circumstances of the case, whether it should hear the
parties, or one of them, during its sessions so as to obtain more complete
information on the matter. It may do this especially: (a) in appropriate cases
where the complainants and the governments have submitted contradictory
statements on the substance of the matters at issue, and where the
Committee might consider it useful for the representatives of the parties to
furnish orally more detailed information as requested by the Committee;
(b) in cases in which the Committee might consider it useful to have an
exchange of views with the governments in question, on the one hand, and
with the complainants, on the other, on certain important matters in order
to appreciate more fully the factual situation and the eventual developments
in the situation which might lead to a solution of the problems involved, and
to seek to conciliate on the basis of the principles of freedom of association;
(c) in other cases where particular difficulties have arisen in the examination
of the questions involved or in the implementation of its recommendations,
12 229th Report, Case No. 1097, para. 51.
75
and where the Committee might consider it appropriate to discuss the
matters with the representative of the government concerned.
Effect given to the Committee’s recommendations
70. In all cases where it suggests that the Governing Body should
make recommendations to a government, the Committee adds to its
conclusions on such cases a paragraph proposing that the government
concerned be invited to state, after a reasonable period has elapsed and
taking account of the circumstances of the case, what action it has been able
to take on the recommendations made to it.
71. A distinction is made between countries which have ratified one or
more Conventions on freedom of association and those which have not.
72. In the first case (ratified Conventions) examination of the action
taken on the recommendations of the Governing Body is normally entrusted
to the Committee of Experts on the Application of Conventions and
Recommendations, whose attention is specifically drawn in the concluding
paragraph of the Committee’s reports to discrepancies between national
laws and practice and the terms of the Conventions, or to the incompatibility
of a given situation with the provisions of these instruments. Clearly, this
possibility is not such as to hinder the Committee from examining, through
the procedure outlined below, the effect given to certain recommendations
made by it; this can be of use taking into account the nature or urgency of
certain questions.
73. In the second case (non-ratified Conventions), if there is no reply,
or if the reply given is partly or entirely unsatisfactory, the matter may be
followed up periodically, the Committee instructing the Director-General at
suitable intervals, according to the nature of each case, to remind the
government concerned of the matter and to request it to supply information
as to the action taken on the recommendations approved by the Governing
Body. The Committee itself, from time to time, reports on the situation.
74. The Committee may recommend the Governing Body to attempt
to secure the consent of the government concerned to the reference of the
case to the Fact-Finding and Conciliation Commission. The Committee
submits to each session of the Governing Body a progress report on all cases
which the Governing Body has determined warrant further examination. In
every case in which the government against which the complaint is made has
refused to consent to referral to the Fact-Finding and Conciliation
76
Commission or has not within four months replied to a request for such
consent, the Committee may include in its report to the Governing Body
recommendations as to the “appropriate alternative action” which, in the
opinion of the Committee, the Governing Body might take. In certain cases,
the Governing Body itself has discussed the measures to be taken where a
government has not consented to a referral to the Fact-Finding and
Conciliation Commission.
Document No. 91
Paris Peace Conference, Commission on
International Labour Legislation, sitting of 27
February 1919, pp. 377–379

THE PEACE
OF VERSAILLES
[Unofficial translation]
PRELIMINARY PEACE CONFERENCE
Commission on
International Labour Legislation
INTERNATIONAL LABOUR LEGISLATION 377
Sir Malcolm DELEVINGNE. “I propose a new article, referring to a
question of procedure, which would read as follows: All questions and all
difficulties arising out of the interpretation of the present Convention and
of subsequent Conventions concluded by the High Contracting Parties in
pursuance of the present Convention shall be submitted for decision to the
above-mentioned Tribunal. The decisions of the International Tribunal in
this matter shall not be subject to appeal.
Mr BARNES. As to where this article should be inserted, we could
leave it to the Drafting Committee. Will it be after article 28 or 33. The
Drafting Committee will see and decide.
The PRESIDENT. Is it really wise to specify that the decisions of the
International Tribunal on these matters will not be subject to appeal?
What if this International Tribunal gives to an obscure provision a
meaning that does not correspond to the one that the authors of the text
had in mind?
Mr BARNES. It will be up to the next session of the Conference to
reconsider the text.
The PRESIDENT. This is not stated in the current text; it should be
expressly stated so as to show that it is not "final" . Generally speaking, I
do not like final decision that cannot be appealed; nothing is without
appeal, nothing is "final", not even death.
Mr BARNES. When we drafted the sentence, we have probably
insufficiently taken into account the differences between various
situations. The solution might be that the Conference whose decision has
not been interpreted as it believes it should have been, need only put the
matter back on the agenda for its next session.
Mr FONTAINE, Secretary General. There can be no doubt about the
Conference's right to reconsider a text: if a text is obscure, it must be
interpreted! If the Conference wanted to say something other than the
interpretation generally given to the text or if it changed its mind -
because it is not necessarily the same persons that are sitting - it has the
right to redraft the text. This is what happens every day in the case of
regulations: a law is drafted, and the Court of Cassation i s asked to
indicate the precise meaning. If the legislator is unhappy, all it has to do
is to draft a new law: if a minister is unhappy with the interpretation given
to a decree, he issues another. There is no difficulty here. What Mr
Gompers is asking for is necessary and there is no need to fear that
anyone will oppose it.
Mr Stanislas PATEK. The addition requested by the President is
absolutely right; but it must be included in the text, so that the Conference
can take up the matter again in another way without being faced with the
res judicata objection.
Mr FONTAINE, Secretary General. We always have the right to draw
up a new Convention.
Mr Stanislas PATEK. No! It is essential that the res judicata objection
cannot be raised.
378 The PEACE of the PEOPLES
The PRESIDENT. It is not easy to say that all we have to do is draw up
another Convention.
Mr FONTAINE, Secretary General. It is not simple, but it is not
conceivable that the Conference, without a new Convention, could rule
against the interpretation of the International Tribunal, or else the Tribunal
should not be tasked with interpretation.
Sir Malcolm DELEVINGNE. In any c a s e , a distinction should be
drawn between the Convention currently under discussion and future
labour Conventions. As regards the present Convention, which is to form
part of the General Covenant of the League of Nations, it does not seem
possible to have it interpreted by any tribunal other than the Independent
International Tribunal of the League of Nations. Is it right to give the right
o f interpretation t o a session of the Conference rather than to an
International Tribunal? The membership of the Conference will be
renewed – it will not be the same delegates - will they be better judges
of the interpretation of a text than the International Tribunal? This is
doubtful.
So I think it is better to keep the text as presented.
Mr JOUHAUX. There are, after all, two points of view in the
explanations that have j u s t been exchanged that are not quite similar:
as far as the current Convention is concerned, it is much more a legal
Convention than a labour Convention, and I understand that it is the
tribunal of the League of Nations which interprets, leaving it to the
Conference itself to reconsider all or part of this Convention, if it is not
interpreted in the sense intended by it.But when it comes to a l a b o u r
Convention, I do not think that the members of the International
Tribunal are more qualified than the delegates of the Labour
Conference to interpret i t .
Mr BARNES. The Conference does not sit permanently; if there is a
difficulty between two sessions, who will judge?
Sir Malcolm DELEVINGNE. Had the Conference remain the same, the
simplest solution would be to leave it to interpret its decisions. But in fact
we have seen that the composition of the Conference will vary according
to the subjects dealt with: one session will discuss an agricultural
question, while another session will deal with a mining question. What is
the reason for saying that from one session to the next, members of the
Conference are the most competent persons to interpret the
Convention on this or that subject? Why allow ourselves to be
frightened by the idea that a court of law can interpret a labour clause?
This is constantly happening in the internal life of nations: mo r e and
more labour matters are being decided by professional judges.
Mr JOUHAUX, That is precisely why the question arises.
Mr FONTAINE, Secretary General. The interpretation by judges of the
judiciary branch is generally favourable to labour issues, while the
Conseil d'Etat does not always rule in the same direction.
Mr JOUHAUX. This is a point I dispute.
INTERNATIONAL LABOUR LEGISLATION 379
The PRESIDENT. I would like to associate myself with Mr Jouhaux’s view.
We know the judges.
We could vote separately on each paragraph and, w i t h regard to
paragraph one, I propose that it be worded as follows:
"The following shall be subject to the assessment of the international
tribunal mentioned in this Convention and not "mentioned above", as we
do not yet know where this additional article (Accession) will be inserted.
(Paragraph 1 was subject to a vote and adopted).
Sir Malcolm DELEVINGNE. The British Delegation withdraws the second
paragraph after the comments that had just been made, so as not to raise
a question that, in its view, did not exist.
(The Commission decided to adjourn and reconvene in the afternoon, 3
p.m.).
The meeting is adjourned at 1pm.

Document No. 92
ILC, 3rd Session, 1921, Report of the Director-General,
paras 164–167

SOCIÉTÉ DES NATIONS
LEAGUE OF NATIONS
CONFÉRENCE INTERNATIONALE
DU TRAVAIL
INTERNATIONAL LABOUR
CONFERENCE
TROISIÈME SESSION THIRD SESSION
GENÈVE - GENEVA
1921 Mil
RAPPORT DU DIRECTEUR
REPORT OF THE DIRECTOR
DEUXIÈME ÉDITION.
SECOND EDITION.
BUREAU INTERNATIONAL DU TRAVAIL
INTERNATIONAL LABOUR OFFICE
GENÈVE — GENEVA
1921
09605
117
traire à la constitution de l'Organisation
internationale du Travail.
En second lieu, de nombreux Etats ont
demandé au Bureau des indications sur ia
portée des diverses dispositions des conventions.
Ils l'ont fait en particulier pour les
huit heures. Ces demandes ont été nombreuses
et nous en avons indiqué plus haut les
principales.
163. Si la Grande-Bretagne avait consulté
le Bureau sur les deux difficultés qu'elle a
soulevées dans sa lettre au sujet des heures
supplémentaires et au sujet de la réglementation
du travail dans les chemins de fer,
peut-être, à la suite de conversations atten--
tives, une solution aurait-elle pu être trouvée.
Le Bureau s'est toujours défendu, au moment
même où il donnait son avis officieux
sur les interprétations proposées, de donner
un avis qui pût être juridiquement invoqué.
Le Bureau, comme tel, n'a pas qualité pour
donner une interprétation authentique des
textes des conventions.
Mais il n'est peut-être pas impossible de
trouver dans l'Organisation telle qu'elle
existe le moyen de résoudre cette difficulté.
1,64. Les articles d'une convention sont rédigés
avec l'intention d'amener les conditions
du travail à un niveau sensiblement
équivalent dans les divers pays, tout en tenant
compte des situations particulières qui
peuvent résulter des différences dans les méthodes
de l'organisation industrielle. Il est
donc indispensable de découvrir quelque
moyen de définir avec un caractère certiin
d'autorité le degré plus ou moins grind
d'élasticité qui peut être laissé à chaque
disposition d'une convention. Il convient
d'observer qu'une telle définition en ce qui
concerne un article donné d'une convention
a une portée telle qu'elle ne peut être fixée
par un seul pays. La convention considérée
dans son ensemble et chacun de ses articles
pris isolément font en effet l'objet de négociations
à la Conférence internationale du
Travail et représentent la somme des efforts
de la Conférence. C'est donc l'Organisation
internationale du Travail tout entière qui se
trouve intéressée dans les interprétations
données à l'acte qu'elle a créé et qui peut
subir la répercussion de ces interprétations.
Les intentions de la Conférence pourraient
être entièrement faussées si chaque pays se
trouvait obligé d'interpréter pour son propre
compte les articles de la convention et pour
la raison simplement qu'il n'existerait aucune
autorité à laquelle il pourrait demander
avis.
165. En l'absence de toute autorité reconnue
pour donner de telles interprétations, on
comprendrait très bien le raisonnement que
peuvent faire des pays importants comme la
Grande-Bretagne. Dès l'instant où ils auront
ratifié la convention, dès l'instant où ils peu
vent être engagés pour dix années à en obtheir
opinion, and such a procedure would
be contrary to the constitution of the International
Labour Organisation.
In the second place, several States have
requested the Office to furnish them with
an expression of its opinion as to the meaning
of various provisions in the Draft Conventions,
especially on the subject of the
8 hour day. Such requests have been frequent
; mention has been made above of the
more important of them.
163. If Great Britain had consulted the
Office with regard to the two difficulties
which it raised in its letter with reference
to overtime and the regulation of work
on the railways, perhaps careful consideration
on both sides might have led to a solution.
The International Labour Office has
always taken care, when it gave its
private opinion with regard to the interpretation
of the Draft Conventions, not to
give an opinion which might be regarded
as authoritative, because the Office, as
such, is not competent authoritatively to
interpret the texts of the Draft Conventions.
But it may not be impossible to find in the
Organisation as at present constituted a
means of overcoming this difficulty.
164. It should be remembered that the
Articles of a Convention are drafted with
the intention, on the one hand, of securing
an equivalent standard and on the other of
allowing for national differences of industrial
organisation and method. It is therefore
necessary that there should be some
means whereby the elasticity which is properly
allowed by any given Article can be
authorititively defined. Any such definition
of the application which is permissible
as regards any given Article cannot, however,
be regarded as a question for one country
only. The Convention as a whole and
each Article of it is negotiated by the International
Labour Conference and is the joint
product of its effort. The whole of the
International Labour Organisation therefore
is interested in and may be affected by the
interpretations which are given to the instrument
which it has created. The intentions
of the Conference might be entirely
falsified if each country were obliged to
interpret the Articles of the Conventions for
itself because there was no authority whose
advice it could seek.
165. In the absence of any authority recognised
for this purpose, it is easy to understand
the reasoning of important countries
like Great Britain. The moment they
ratify the Draft Convention and consequently
undertake to apply its provisions
for a period of 10 years they become, by
118
server les clauses, ils sont, en vertu des articles
412 et suivants du Traité de Paix,
exposés à toutes réclamations qui pourraient
surgir ou d'une organisation ou d'un autre
Etat, et qui pourraient entraîner à leur égard
l'ouverture des procédures prévues au Traité
de Paix.
Force serait donc d'avoir une autorité
compétente pour donner une interprétation
des conventions et pour garantir ainsi les
Etats contractants contre des plaintes arbitraires.
Il serait en effet quelque peu scandaleux
de voir un Etat où l'application des
huit heures serait encore bien incertaine ou
incomplète, déposer, pour une raison quelconque,
une réclamation contre un Etat,
comme la Grande-Bretagne, sous prétexte
que telle ou telle clause de la convention est
mal observée.
166. La question est délicate. Le Traité de
Paix n'a pas prévu explicitement l'institution
d'une autorité compétente pour interpréter.
On peut suggérer cependant que cette autorité
pourrait être le Conseil d'administration
du Bureau international du Travail. C'est,
en effet, le Conseil d'administration qui est à
l'origine de toutes les procédures qui peu
vent être ouvertes au sujet de l'application
des conventions. C'est lui qui, en vertu de
l'article 409, transmet toutes réclamations
aux Gouvernements mis en cause. C'est lui
qui les invile à faire sur la matière les déclarations
qu'il juge convenables. C'est lui
qui, en vertu de l'article 410, a le droit de
rendre publique la réclamation reçue et la
réponse faite. C'est lui qui, s'il le juge à propos,
dans le cas d'une plainte d'un Etat contre
un Etat, saisit une Commission d'enquête.
Et c'est lui encore, en vertu de l'article
420, qui reçoit d'un Gouvernement en
faute avis des mesures qui ont été prises
pour se conformer, soit aux recommandations
d'une Commission d'enquête, soit à une
décision de la Cour permanente de justice
internationale.
C'est donc à lui que semblerait devoir
revenir, en toutes ces matières, le pouvoir
de décider si une convention est ou non appliquée.
C'est à lui que reviendrait dans tous
ces cas, le pouvoir d'interprétation.
Or, ce n'est en aucune manière étendre
ce pouvoir, c'est en demander simplement
l'application logique et constante, que de
saisir le Conseil d'administration des problèmes
d'interprétation des conventions
avant comme après ratification. C'est lui
qui peut, pour ainsi dire, établir à l'avance
la jurisprudence. C'est lui qui peut donner
ainsi garantie aux Etats.
virtue of Article 412 of the Treaty of Peace
and the Articles immediately following, exposed
to any complaints which may be
made by an organisation or another country
and which may necessitate with regard
to them the opening of the procedure laid
down in the Treaty of Peace for such cases
of complaint.
It would therefore be necessary to have
an authority competent to give an interpretation
of the Draft Conventions and thus
to guarantee contracting States against
arbitrary complaints. It would indeed be
somewhat anomalous if a State in which
the 8-hour day was still indefinitely or
incompletely applied made a complaint for
whatever reason against a country like Great
*ßritain, alleging that any given provision
was not being effectively observed.
166. The Treaty of Peace has not dealt
with this delicate question by the explicit
designation of an authority competent to
give interpretations.
It may be suggested that the competent
authority in this respect should be
the Governing Body of the International
Labour Office. It is the Governing
Body which sets in motion the procedure
which may be resorted to with
regard to the application of Draft Conventions.
It is the Governing Body which'' by
virtue of Article 409 communicates any
complaints which may be made to the
Governments concerned, and it is the Governing
Body which invites them to make
any statement which may be considered
desirable with regard to the point at issue.
It is the Governing Body which by virtue
of Article 410 has the right to publish the
complaint received and the reply made
thereto. The Governing Body also, if it considers
such procedure necessary in the case
of a complaint made by one State against
another, may apply for the appointment of
a Commission of Enquiry, and by virtue
of Article 420 it receives from a defaulting
Government a statement of the measures
which have been taken to comply either
with the recommendations of a Commission
of Enquiry or a judgment of the Permanent
Court of International Justice.
It would seem thus that it is the Governing
Body which in all such matters
should have the power to decide whether a
Draft Convention is being applied or not ;
and therefore necessarily it would seem to be
the Governing Body which should have the
power of interpretation.
To bring before the Governing Body
the difficulties of interpretation of the
Draft Conventions before as well as after
ratification would not be in any way extending
this power, but simply carrying it to
its logical conclusion. It is the Governing
Body which can, so to speak, create a
body of jurisprudence in advance, and
which can thus give a guarantee to the
States Members,
11 "J
167. D'ailleurs, il importe de bien définir
et limiter ce que pourrait être une telle intervention
du Conseil et comment elle se eon
cilierait avec les droits de la Conférence.
Il ne s'agit nullement, en effet, d'empiéter
sur les attributions de la Conférence. Cesi
une chose que d'amender une convention,
acte qui est de la compétence exclusive de la
Conférence : c'en est une autre de donner
une interprétation autorisée à laquelle le
pays intéressé pourra se conformer sans risquer
de la voir contester dans la suite. Lorsqu'il
est question, soit d'ajouter certaines
dispositions à une convention, soit de modifier
les dispositions existantes, en vue de
répondre à des difficultés soulevées dans un
pays, la seule méthode prévue par le Traité
est celle d'un appel à la Conférence, et le
Bureau a pris le plus grand soin de sauvegarder
les droits de la Conférence en cette
matière. Il n'a jamais perdu de vue la distinction
à faire entre les questions, d'interprétation
et les questions de modification.
Dans les cas, comme celui de la Grande-
Bretagne où il a considéré que la difficulté
soulevée pourrait être résolue par une interprétation,
il a proposé que la question fût
examinée en premier lieu par le Conseil
d'administration. Mais dans le cas où il a
estimé que l'obstacle ne pouvait être surmonté
sans une modification de la convention
existante, comme celui de la convention
sur le travail de nuit des enfants et celui
de l'adaptaton à l'Inde de la convention sur
l'âge minimum d'admission, il a porté la
question devant la Conférence.
Il convient de noter d'ailleurs que les conventions
elles-mêmes, dans leurs articles relatifs
à la procédure (par exemple l'article
11 de la convention sur l'accouchement) indiquent
la distinction qui doit être faite,
puisqu'elles exigent que la question de leur
revision ou de leur modification soit d'abord
examinée par le Conseil d'administration.
Ces dispositions signifient implicitement,
mais clairement, que c'est au Conseil d'administration
qu'il appartient de décider si la
difficulté qui a amené un Etat à demander
la revision d'une convention est susceptible
d'être résolue par une interprétation de la
convention, ou exige au contraire une intervention
de la Conférence.
168. La Conférence pourra peut-être, au
cours de la présente session, envisager, à la
lumière de l'expérience acquise, la possibilité
de compléter pour l'avenir les dispositions
des conventions relatives à la procédure.
Il se produira de toute nécessité des
cas dans lesquels des modifications de peu
d'importance devront être introduites dans
une convention. Pour les raisons qui ont été
développées dans la lettre au Gouvernement
de l'Inde dont le texte figure plus loin, il
est pratiquement impossible d'incorporer
ces légères modifications dans les conventions
séparées. La Conférence pourrait remédier
à cette difficulté, en ce qui concerne
167. It is important, however, to lay down
precisely what may be the exact scope of
such action on the part of the Governing
Body, and how it could be reconciled with
the powers of the Conference.
The suggestion which is thus made does
not trench in any way on the attributes of
the Conference. There is a clear distinction
between amending a Convention, which is
/an act which only the Conference itself
can perform, and giving an authoritative
interpretation which the State concerned
can follow without any fear of its being
subsequently challenged. Where it is a
question, in order to meet the difficulty
of a particular State, of either adding to a
Convention or altering some of its provisions,
the only machinery provided by the
Treaty is that of an appeal to the Conference,
and the Office has been careful to
safeguard the rights of the Conference in
this respect and has always kept the distinction
between questions of interpretation and
questions of amendment clearly in mind.
For example, where, as in the case of Great
Britain, it has been considered that the difficulty
might be solved by an interpretation,
it proposed that the case should be
dealt with in the first instance by the
Governing Body. But, in the case of the
night work of young persons and in the
case of the minimum age of admission in
India, where the difficulty cannot be got
over without an amendment, the matter has
been brought before the Conference.
The Conventions themselves, in their formal
Articles, (for example, Article 11, in
the Maternity Convention) indeed indicale
the distinction which it seems desirable to
make, since they require that the question
of their revision or amendment shall first
be dealt with by the Governing Body. The
implication clearly is that it is for the Governing
Body to decide whether the difficulty
which has led a State to ask for the
revision of the Convention is such as can
be met by an interpretation of the Convention
or is such as would require the intervention
of the Conference.
168. It may be desirable for the Conference
to consider, during this Session and in
the light of the experience which is now
available, some addition to the formal Articles
of the Conventions. Cases where minor
amendments to a Convention may be required
are bound to arise. For reasoits
which have been set forth in the letter
to the Indian Government (see below) it is
practically impossible to embody these in
separate Conventions. The Conference
might, . however, meet the difficulty there
indicated, as regards future conventions, by
providing in the formal Articles for a method
of amendment, say, by requiring that
Document No. 93
ILO, Note on the possibility of instituting a special
procedure for the interpretation of conventions,
1931

Document No. 94
ILO, Note on the application of article 423 of the Treaty
of Peace (Consultation of the Court), 1931

Document No. 95
Minutes of the 57th Session of the Governing Body, April
1932, Report of the Standing Orders Committee, pp. 151–
153

DELA
57ME SESSION
DU
CONSEIL D'ADMINISTRATION
DU
BUREAU INTERNATIONAL DU TRAVAIL
GENEVE — AVRIL 1982
MINUTES
OF THE
SESSION
OF
009884
THE GOVERNING BODY
OF
THE INTERNATIONAL LABOUR OFFICE
GENEVA — APRIL 1982
151
APPENDIX IV.
FOURTH ITEM ON THE AGENDA.
REPORT OF THE STANDING ORDERS COMMITTEE SUBMITFED BY SIR ATUL CHATTERJEE.
The Standing Orders Committee held its first sitting on i April 1932. The following questions
were on the agenda:
i. Draft amendments to Article 393 of the Treaty of Versailles and Articles 3 and 21
of the Standing Orders of the Conference submitted by the Italian Government.
2. Proéedure to be adopted as Tegards draft resolutions submitted to the Conference.
3. Consultation of Governments with a view to the drawing up of ten-yearly reports
(resolution submitted to the Conference by Mr. Hammarskj old).
4. Procedure to be followed for the application of Article 423 of the Treaty of Peace
(Interpretation of Conventions):
(a) Procedure to be followed for the consultation of the Permanent Court of International
Justice;
(b) Possibility of instituting a special procedure for the interpretation of Conventions.
5. Establishment of a procedure for the amendment of Conventions.
6. (Possible item.) Use of non-official languages at the Conference (proposal of the
Spanish Government representative).
Consultation of Governments with a view to the drawing of ten-yearly reports (resolution submitted
to the Conference by Mr. HammarskjOld).
At its Fifty-fifth Session, the Governing Body referred to the Standing Orders Committee
for consideration the following resolution submitted by Mr. Hammarskj Old, Swedish Government
Delegate, which had been adopted by the Conference at its Fifteenth Session:
"Whereas the report of the Governing Body of the International Labour Office, for which
provision is made in Article of the Standing Orders of the Governing Body, cannot give
all the necessary and desired information unless' the Governments have an opportunity of
expressing their opinion with regard to the revision of the Convention concerned;
"The Conference requests the Governing Body to instruct the International Labour
Office, before preparing the said report, to ask the Governments to inform it, after consultation
with the employers' and workers' organisations concerned, of their opinion concerning.
the revision of the Convention in question.
In the discussion which took place in the Committee, it was pointed out by the author of the
resolution and those members who were in agreement with the proposal, that in order to obtain
the maximum number of ratifications, it was obviously desirable to consult all the Governments
of the States Members so that they could have an opportunity of expressing their opinion as
regards revision and of explaining any difficulties which had prevented them from ratifying the
Conventions. That was the only procedure by which the Governing Body could be put in possession
of the full facts which were obviously required before it took a decision for or against revision.
Other members of the Committee, however, felt that no useful purpose would be served by
consulting all the Governments since they were already requested each year to state what difficulties
they had encountered in ratifying Conventions; it therefore seemed unnecessary specifically
to invite them to express their opinion as regards revision. If it had been proposed to ask Governments
what difficulties had arisen and whether, if those difficulties were removed, they would be
prepared to ratify, the proposal would have effected some tangible result; as it was, however,
there would be no guarantee that the Governments so consulted would proceed to ratify and the
fact of their being consulted would merely give them an opportunity of putting forward various
objections to account for the reason why they had not ratified Conventions which, in fact, they had
never had any intention of ratifying.
It was then suggested that satisfaction might be given to all concerned if it were decided that
-. Ihe reports which the Office was called upon to prepare when the question of the revision - of -
343
152
Conventions had to be considered were communicated for their observations to all Members of
the Organisation. It was also suggested that, if that proposal were adopted, it would be well
to give Governments, especially those of the oversea countries, ample time to consider those reports
- and that the Governing Body should consider those reports after a lapse of three months instead
of two months after the date of their distribution.
The author of the resolution accepted this suggestion and the Committee unanimously decided,
in order to give effect thereto, to recommend the Governing Body to make the following amendments
in its Standing Orders:
Amendments to Article of the Standing Orders of the Governing Body.
i. Add to the first paragraph the following sentence:
"The report of the Office shall be communicated for their observations to all Members
of the Organisation.
2. Substitute for second sentence of paragraph 3 a second sub-paragraph worded as
fOllows:
"This consideration shall not take place until after three months from the date
of the circulation to Governments and to the members of the Governing Body of the
Office report referred to in paragraph i."
Procedure to be followed for the application of Article 423 of the Treaty of Peace
(Interpretation of Conventions).
(a) Procedure to be followed for the consultation of the Permanent Court of International Justice.
For some time past, the Governing Body has had under consideration the question of the
application of Article 423 of the Treaty of Peace and of the procedure to be followed in order to
lay questions or disputes relating to the interpretation of Part XIII of the Treaty or of International
Labour Conventions before the Permanent Court of International Justice. It accordingly
requested its Standing Orders Committee to consider the question.
The Office gave its most careful consideration to the problem, and in a note which it submitted
on the subject reviewed the various suggestions which had been made for obtaining a ruling from
the Court as to the rights which the International Labour Organisation enjoyed in the matter.
The conclusion at which the Office arrived was that any request for a consultation of the Court
must be conveyed to the Court through the medium of the Council or the Assembly of the League
of Nations, but that those bodies were bound to transmit any such request to the Court under
Article 423 of the Treaty of Versailles.
The Office felt that it was for the Governing Body to take the initiative in asking for a consultation
of the Court to decide once and for all this important constitutional problem. Before, however,
advising the Governing Body to do so, the Office thought it well to consult the Secretariat in the
matter, since the question was one in which the procedure of the Council and the Assembly was
involved. It had however been represented on behalf of the Secretariat of the League that certain
special difficulties made it undesirable to raise the question at the present moment.
The Committee considered the Office note and expressed itself in entire agreement with its
conclusions, but in view of the difficulties mentioned by the Secretariat, agreed that it would be
wise to defer the question and therefore, whilst maintaining its point of view on the constitutional
question,. decided to recommend the Governing Body to await a more opportune moment in
which to seek a ruling of the Court.
(b) Possibility of instituting a special procedure for the interpretation of Conventions.
In 1930, the Committee set up by the Conference to examine the reports submitted under
Article 408 of the Treaty of Peace drew attention to a certain number of divergences in the interpretation
of Conventions by the different States. After discussing the question, the Governing
Body decided to request its Standing Orders Committee to consider the question of the possible
institution of a procedure for the interpretation of Conventions.
The Office, in the note which it submitted on the subject, pointed out that in addition to the
constitutional procedure of consultation of the Permanent Court of International Justice provided
for under Article 423 of the Treaty of Peace, an unofficial procedure had developed. This consisted
in the Office being requested by Governments to give its opinion on the interpretation of Conventions.
The Office had always been careful to accompany the opinions which it gave in such cases
by a reservation specifying that it was not competent to give interpretations and that the explanations
which it furnished were of an unofficial nature. Moreover, the letters by which the Office
replied to such requests were always communicated as soon as possible to the Governing Body
and published in the Official Bulletin.
On being instructed to consider the question in all its aspects, the Office had felt that it might
be desirable that, between the unofficial procedure of consulting the Office and the constitutional
procedure of approaching the Permanent Court, provision should be made for an intermediate
procedure which, whilst not possessing the supreme authority of the Court, would, nevertheless,
- give Members of the Organisation - greater guarantees than were provided by the opinions given-
344
'53
by the Office. After reviewing the various organs to which this task might be entrusted, the Office
had come to the conclusion that the most suitable body might be the Committee of Experts for the
examination of the reports submitted under Article 408 of the Treaty.
During the discussion of this proposal which took place in the Committee, it was pointed out
that no further guarantees would really be afforded to States by calling upon the Committee of
Experts to give interpretations, since the only organ provided for by theTreaty of Peace to interpret
Conventions was the Permanent Court of International Justice. Furthermore, the Committee of
Experts was appointed by the Governing Body, which had to approve that Committee's reports,
so that in point of fact any interpretations given by the Committee would have to be approved by
the Governing Body itself. But the latter had already decided that it was not prepared to give
interpretations to Conventions, so that difficulties would arise when the reports of the Committee
of Experts were submitted to the Governing Body for approval.
It was also suggested that it would be undesirable to give judicial powers to a body which had
been set up merely to examine the annual reports, and that the additional duty of giving interpretations
might, therefore, entail the necessity of modifying its constitution which, in view of the
excellence of the work that it performed, would be most undesirable.
In view of the above considerations, the Committee came to the unanimous conclusion that
it was undesirable to make any change in the present procedure as regards the interpretation of
Conventions.
Procedure to be ado75ted as regards draft resolutions submitted to the Conference.
At its Fifty-sixth Session, the Governing Body decided to refer to the Standing Orders Committee
the question of the procedure to be followed for the adoption of resolutions at the Conference
and the possibility of introducing improvements. In the note which the Office prepared for the
Governing Body at its Fifty-sixth Session and which was also submitted to the Standing Orders
Committee, it was suggested that it would be well to provide for the institution of a special Committee,
called the Committee on Resolutions, the function of which would be to make a preliminary
study of resolutions which did not relate to items on the agenda. The Office made suggestions
as to the composition of the Committee and as to the method which it should adopt in considering
resolutions. It also submitted a draft amendment for insertion in the Standing Orders of the
Conference to provide for the setting up of the Committee on Resolutions.
During the discussion which took place on this proposal, some members stated that it was
desirable that, in future, resolutions should be more carefully considered before they were adopted
by the Conference and that a formal vote should be taken on each several resolution rather than
that such resolutions should merely be adopted, as in the past, without any serious discussion.
On the other hand it was argued that the adoption of the proposal to set up a " Resolutions"
Committee might have the effect of giving unnecessary importance to resolutions most of which had
no connection with items on the agenda of the Conference. Delegates had no previous knowledge
of the resolutions which were to be submitted and thus had no opportunity of obtaining instructions
in regard to them from the Governments or organisations which they represented. In this connection,
a suggestion was made to the effect that movers of resolutions might be required to submit
such resolutions considerably longer in advance than the seven days at present provided in the
Standing Orders and that, on the demand of a sufficient proportion of delegates at the Conference,
a resolution submitted at one session of the conference should not be voted upon until the following
session.
It was, however, pointed out that it would be difficult, if not impossible, to extend the timelimit
of seven days previous to the Conference within which resolutions had to be deposited, since
delegates were frequently only appointed immediately before the opening of the Conference,and
even the delay at present provided for sometimes gave rise to difficulties. As regards the suggestion
that resolutions submitted should only be considered at the following session of the Conference,
it was observed that delegates varied from session to session and were frequently appointed by
different professional organisations. It might, therefore, not always be possible for a delegate
who had submitted a resolution to find a suitable substitute who would be both competent and
willing to support a resolution so presented at a previous session.
The Committee came to the conclusion that no useful purpose would be served by continuing
the discussion since the question was one with which the Conference alone was competent to deal.
It therefore decided to recommend the Governing Body to transmit to the Conference the
Office proposal together with an account of the discussion which had taken place in the Committee
and to suggest that the Conference should refer the whole question to its Committee on Standing
Orders for consideration.
Institution of a procedure of amendment of Conventions.
In view of the delicate and complicated nature of this problem, the Committee decided to
adjourn it until its October Session, thereby giving the Office time to prepare a carefully considered
note on the various aspects of the question.
345
Document No. 96
GB.256/SC/2/2, Article 37, paragraph 2, of the
Constitution and the interpretation of
international labour conventions, May 1993

INTERNATIONAL LABOUR OFFICE
BUREAU INTERNATIONAL DU TRAVAIL
OFICINA INTERNACIONAL DEL TRABAJO
GOVERNING BODY
CONSEIL D'ADMINISTRATION
CONSEJO DE ADMINISTRACIÓN
GB.256/SC/2/2
256th Session
Geneva,
May 1993
COMMITTEE ON STANDING ORDERS
AND THE APPLICATION
OF CONVENTIONS AND
RECOMMENDATIONS
COMMISSION DU RÈGLEMENT
ET DE L'APPLICATION
DES CONVENTIONS ET
RECOMMANDATIONS
COMISIÓN DE REGLAMENTO
Y DE APLICACIÓN
DE CONVENIOS Y
RECOMENDACIONES
Second item on the agenda
ARTICLE 37, PARAGRAPH 2, OF THE CONSTITUTION AND
THE INTERPRETATION OF INTERNATIONAL LABOUR CONVENTIONS
Introduction
1. The question has arisen, during discussions in the Committee on the
Application of Standards at recent sessions of the International Labour
Conference on the appropriate role of the Committee of Experts on the
Application of Conventions and Recommendations in matters of interpretation,
of whether it would be useful to give consideration to article 37.2 of the
Constitution of the ILO with a view to its application.
2. In view of the implications of this question for the ILO's
standard-setting activities as a whole, including its supervisory machinery,
it seems necessary, before resuming discussions in the Conference Committee,
to examine it at greater length in the Governing Body's Committee on Standing
Orders and the Application of Conventions and Recommendations, which is not
subject to the same time constraints as the Conference Committee.
3. This paper is therefore intended to provide the main background
material. This study is divided into three parts. The first recalls the
origins and purposes of article 37.2, the second examines how problems of
interpretation have been dealt with so far and the limits that they face,
while the third examines whether and to what extent the appointment of the
tribunal provided for in article 37.2 could offer a useful addition to
existing machinery, and if so, how to go about its institution and operation.
169^G/v.3
- 2 -
I. ORIGINS AND SCOPE OF ARTICLE 37.2 OF THE ILO CONSTITUTION
h. Article 37 of the ILO Constitution reads as follows:
1. Any question or dispute relating to the interpretation of this
Constitution or of any subsequent Convention concluded by the Members in
pursuance of the provisions of this Constitution shall be referred for
decision to the International Court of Justice.
2. Notwithstanding the provisions of paragraph 1 of this article
the Governing Body may make and submit to the Conference for approval
rules providing for the appointment of a tribunal for the expeditious
determination of any dispute or question relating to the interpretation
of a Convention which may be referred thereto by the Governing Body or in
accordance with the terms of the Convention. Any applicable judgement or
advisory opinion of the International Court of Justice shall be binding
upon any tribunal established in virtue of this paragraph. Any award
made by such a tribunal shall be circulated to the Members of the
Organization and any observations which they may make thereon shall be
brought before the Conference.
5. This provision was introduced into the Constitution in 19h6^- on
a proposal by the Committee on Constitutional Questions set up by the Governing
Body on 13 May 1944.2 in view of the transfer to the International Court of
Justice of the jurisdiction conferred by the ILO Constitution on the Permanent
Court of International Justice, the Committee considered in 1945^ that it
would in any case be desirable to grant to the Governing Body the
discretionary power to institute a tribunal for the rapid settlement of all
questions or disputes concerning the interpretation of a Convention. It was
stressed in a significant note that whereas the interpretation of the
Constitution was solely a matter for the International Court of Justice, this
was not the case regarding questions of the interpretation of Conventions, for
the points to be settled were "often so detailed that it was not worth while
placing them before the principal judicial authority", and other
considerations of a practical nature were in a similar vein.
6. This point of view was shared by the Conference Delegation on
Constitutional Questions of 1946. Introducing the question, its Chairman
again drew attention to the fact that the procedure of referral to the new
International Court of Justice had not yet been finalized, and that doing so
could prove a very slow process. Article 37(2), as it was submitted to the
Delegation, provided for a second, more expeditious procedure, and that
"moreover, the United Nations Charter provided that the International Court of
Justice should be the principal judicial organ, but that specialized agencies
might entrust the solution of their differences to other tribunals. This
provided a useful flexibility,1'^
^ International Labour Conference, 29th Session (1946), Record of
Proceedings, p. 378.
^ Governing Body, 93rd Session (May 1944), Minutes, pp. 18-19.
^ Report IV, Part 1, International Labour Conference, 27th Session
(1945), Relationship of the ILQ to other international bodies, p. 105.
* Minutes of the 21st Sitting of the Conference Delegation on
Constitutional Questions, 5 February 1946, Official Bulletin. Vol. XXVII,
No. 3, 15 Dec- 1946, p. 729.
1694G/v.3
- 3 -
7. The minutes of subsequent proceedings in the Conference Delegation
on Constitutional Questions clearly bring out that the need for a system of
disputes settlement independent of recourse to the International Court of
Justice was recognized by the entire delegation. In particular, the
Employers, represented by Mr. Waline, after expressing a certain degree of
reticence, finally supported this view.-*
8. Nearly half a century later, it is remarkable to note that no use
has been made either of the machinery for referral to the International Court
of Justice, thought too complicated, or of the alternative solution of
instituting a tribunal. The time has therefore certainly come to consider
whether this possibility is not in reality superfluous, in view of the other
means available to deal with difficulties of interpretation or whether, on the
contrary, recent reflections on the question tend to confirm its present-day
relevance.
II. EXISTING INTERPRETATION MACHINERY AND ITS LIMITATIONS
1. Within the Organization
9. When the Conference Committee on Constitutional Questions in 1945
thought it useful to update and to supplement the formal procedure for the
interpretation of Conventions, experience of difficulties in this area was
relatively small. In fact, only one question regarding the interpretation of
a Convention had seemed sufficiently serious to merit referral to the
Permanent Court of International Justice in 1932. This concerned whether the
Night Work (Women) Convention, 1919 (No. 4) applied "in the industrial
undertakings covered by the said Convention, to women who hold positions of
supervision or management and are not ordinarily engaged in manual work*'.
10. Since then the number of Conventions has increased more than
fivefold, but such a situation has not recurred.° This is probably due to
the machinery that has developed in parallel to fill the gaps and which to a
certain extent makes it possible to settle day-to-day difficulties without
having to go through the complex procedure of requesting an advisory opinion
of the Court. This machinery brings into play three complementary bodies:
the Office, the Committee of Experts, and the Conference itself, mainly
through its Committee on the Application of Standards. To assess the value of
the system as a whole, we shall now examine the specific nature of the
contribution made by these three bodies, and by Commissions of Inquiry, to the
interpretation process and its limitations.
5 Minutes of the 29th Meeting of the Conference Delegation on
Constitutional Questions, 13 February 1946, Official Bulletin, Vol. XXVII, No.
3, 15 Dec. 1946, p. 770.
° See Stephen M. Schwebel: "Was the capacity to request an advisory
opinion wider in the Permanent Court of International Justice than it is in
the International Court of Justice?", in British Year Book of International
Law, 1991, Vol. LXII, p. 77 and ff.
1694G/v.3
^ 4 -
Interpretations by the International Labour Office
11. This method of interpretation is practically as old as the
Organization itself. This is no surprise, as article 10 of the Constitution
states that the functions of the Office include "the collection and
distribution of Information on all subjects relating to the international
adjustment of conditions of industrial life and labour ...".
12. In 1921, when there were scarcely more than ten Conventions, the
Governing Body considered the specific contribution that the Office could make
in this connection. The paper presented by the Office to introduce the
question stated the following:
It is therefore of interest to note the procedure which has been
followed by other Members of the Organization when difficulties of
interpretation have arisen. They have displayed a solicitude to ensure
that their interpretations should be in accord with the general opinion
of the Organization and they have made a practice of communicating their
difficulties to the International Labour Office and asking for its
opinion. The Office has always pointed out that, although no special
authority is conferred upon it by the Treaty to give interpretations of
the provisions of draft Conventions, nevertheless, it considers that it
is fulfilling the function for which it was intended in endeavouring, by
supplying them with as complete information as possible as to what would
appear to have been the intentions of the Commission or the Conference
which elaborated the Convention, to secure that the decision which they
take should be in accord with the interpretation which would seem to have
been generally given. In this way the Office believes that it is
performing a useful function by securing in as large a measure as
possible that the interpretations given by the Members of the
Organization should be uniform. Where consultations of this kind have
taken place, the point of difficulty raised and reply of the Office have
been published in the Official Bulletin for the information of all
Members of the Organization. The interpretation which would appear to be
indicated by the information which the Office has been able to supply has
in no case been contested by the Member of the Organization concerned,
and no objection has been raised by any Member of the Organization to
whom it has been communicated through the medium of the Official Bulletin.
... the Office has been able to point out that the information
supplied by it and the conclusion to which it appeared to lead had been
accepted by the Member in question and had given rise to no objection
after publication in the Official Bulletin.'
13. The question was taken up again by the Governing Body during the
period 1930-32. In a new document, the Office noted that "What is really
wanted is some procedure intermediary between this purely administrative
consultation of the Office and the solemn procedure of securing an advisory
opinion from the Court".° The question was referred to the Committee on
Standing Orders and the Application of Conventions and Recommendations, which
had before it an Office paper reviewing the various bodies on which such
duties might be conferred, and concluding that the most appropriate would
perhaps be the Committee of Experts on the Application of Conventions and
Recommendations, which, it will be recalled, had begun to operate in 1927.
' Governing Body, 9th Session (October 1921), Minutes. pp. 365-366.
8 Governing Body, 51st Session (January 1931), Minutes. p. 121-
1694G/v.3
- 5 -
However, after discussing this proposal, the Committee on Standing Orders and
the Application of Conventions and Recommendations unanimously concluded that
it was not desirable to make any change in the procedure currently followed
for the interpretation of Conventions.^ In its view, the act of placing
such matters before the Committee of Experts did not in fact confer any
additional authority on Office interpretations, except in so far as the
Governing Body approved them, which it did not feel entitled to do. This
conclusion was unanimously endorsed by the Governing Body.
14. This practice continued unopposed until 1982. At the 220th Session
(May-June 1982) of the Governing Body, the representative of the Government of
Italy (the late Professor Malintoppi) raised a number of new questions
concerning this practice, surrounding in particular the relation between such
interpretations and the functions of the Committee of Experts. The Office
replied to this request by a paper submitted for information (GB.221/19/1).
15. The question resurfaced at the 224th Session (October-November 1983)
of the Governing Body. On that occasion it was asked whether it was
appropriate for the Governing Body to have before it memoranda prepared by the
Office in reply to requests for clarification. Following this discussion, the
practice of submitting memoranda on interpretations to the Governing Body was
discontinued, but the publication of such documents in the Official Bulletin
was however maintained on account of the obvious need to maintain transparency
and to inform all member States that may have encountered similar difficulties.
16- These Office interpretations, which would be better termed
"clarifications", began to be contested long before those of the Committee of
Experts. However, such contestations have had the merit of showing that the
Office's role in this respect is both irreplaceable and relatively limited.
17. It is irreplaceable because governments are not themselves really
equipped to do the necessary research into the preparatory work (or in some
cases into other instruments adopted by the Conference) in order to verify the
exact meaning of a provision, particularly in view of the need to take account
of two different language versions that are equally valid. By contrast, the
Office has technical means, linguistic capacity and some degree of practice in
the techniques of interpretation that enable it to provide all the elements
necessary for considered replies that are fully corroborated and which States
frequently need to draw on when they are considering ratifying a new
Convention. It should be stressed that, while in some cases the
interpretation itself gives rise to a new request for clarification, in most
cases it suffices to settle the difficulties encountered.
18. The limit of such opinions derives however from the fact that
legally they have no more authority than that conferred upon them by the
thoroughness of the research and analyses on which they are based. They do
not bind either those to whom they are addressed or any third parties. In
this respect the Office takes great care to stress in each of its opinions
that the Constitution gives it no particular authority to provide such
interpretations, and that only the International Court of Justice has such
authority. For this reason such interpretations cannot in principle be
invoked against the bodies responsible for supervising the application of
standards, and in particular the Committee of Experts and Commissions of
Inquiry, even though the latter cannot set them aside or ignore them without
accounting for their reasons for doing so.
9 Governing Body, 57th Session (April 1932), Minutes. p. 345.
1694G/v.3
Conference Committee on the Application of
Standards and the Conference
19. The Committee on the Application of Standards is by virtue of its
composition essentially a political body, and it is probably justifiable to
question whether it really has a place in the formal process for the
interpretation of international labour Conventions. Both experience and legal
analysis show however that it in fact does have such a place.
20. By virtue of the mandate conferred on it by article 7,
paragraph 1(a) of the Conference Standing Orders, the Committee on the
Application of Standards is in fact called upon to consider "the measures
taken by Members to give effect to the provisions of Conventions to which they
are parties and the information furnished by Members concerning the results of
inspections".
21. As will be seen in the case of the Committee of Experts on the
Application of Conventions and Recommendations, in practical terms a measure
of interpretation is inherent to the supervisory process.
22. As far as matters of principle are concerned, the intervention of a
body with a political composition is not necessarily incompatible with the
function of interpretation. "Authentic" interpretations, that is,
interpretations given by parties to a treaty or by the body that is the author
of a treaty, are one possible method of interpretation in international law.
It is in fact only logical to consider that the parties to, or the body that
has produced, a treaty are in the best position to determine its meaning. The
minutes of the Commission on International Labour Legislation concerning what
was to become the text of article 37.1 show moreover that this idea was not
unknown to some of the authors of Part XIII of the Treaty of Versailles.
According to Arthur Fontaine, "there can be no doubt concerning the right of
the Conference to recall a text ... where the Conference meant something other
than the interpretation generally given ... it has the right to recast the
text". Further on, Léon Jouhaux strongly contests the idea "that members of
the international tribunal [the future Permanent Court of International
Justice] are more qualified than Conference delegates to interpret it".10
In short, the advantage of an authentic interpretation by the Conference,
through its Committee on the Application of Standards, is in fact that it is
provided in the framework of an open discussion, in which interested parties
have an opportunity to put their case. The persons taking part are precisely
those with whom the standards originated and thus in the best position to
appreciate the implications of any change of context for their contents.
23. However, this idea faces two limitations in practice. First, one
could question whether there is legal continuity between the body adopting the
text and that determining its meaning. In the case of the Conference, there
is a principle that no Conference can bind another, but practice is
different. The tripartite composition of the Conference, the very nature of
its standard-setting activities and the relatively small change in the
membership of delegations guarantee an incontestable and systematically
maintained continuity, which is expressed in particular through the concepts
and expressions used- The second limitation is perhaps more obvious, and is
that this manner of interpretation may in a large number of cases constitute
what one writer has vividly termed a "clandestine modification of
10 La paix de Versailles, Législation internationale du Travail, Paris,
Les Editions internationales, 1932, pp. 377, 378 (French only).
1694G/v.3
- 7 -
meaning".^^ This risk is obviously a serious one in the ILO system, which
has an extremely rigorous procedure for the revision of international labour
Conventions and Recommendations.
24. For this reason, as had already been suggested by Arthur Fontaine
(when he spoke about recasting the text "where the Conference meant something
different than the interpretation generally given"), an interpretation by the
Conference, if it is to be perfectly legitimate, should logically be recast -
that is, through a revision; such a revision can be undertaken either
spontaneously in the case of a difficulty encountered in application, or with
the aim of reversing case-law with which one disagrees. However, it should be
recognized that the existing procedure for revision was designed with a view
to the global adaptation of a Convention to needs or to new realities, and
that it probably does not readily lend itself to the solution of a more or
less specific difficulty of interpretation or to filling gaps in the
text.l^ It is therefore legitimate to consider whether there is not scope
for an intermediate solution that would enable the Conference to settle
difficulties or controversies by means of a simplified procedure, but still in
the form of an item on the agenda, so as to maintain the guarantees of proper
preparation and "adversarial" discussion between the various interested
parties. Naturally, in so far as they are regarded as amendments, decisions
by the Conference could only bind Members that have ratified the Convention if
they ratify the decisions.
Committee of Experts on the Application
of Conventions and Recommendations
25. As stated above, it is the role of the Committee of Experts in
matters of interpretation that has given rise to the debate on article 37.2 in
the Conference Committee on the Application of Standards. In order to shed
some light on this debate, the mandate of the Committee of Experts should be
recalled before we examine the nature and possible limits of contributions
that it can make in matters of interpretation in terms of its mandate.
26. According to the provisions adopted by the Governing Body and the
Conference in 1926, "The functions of the Committee would be entirely
technical and in no sense judicial". ^^ Its role was to be essentially to
analyse the information supplied by governments and to indicate the cases in
which it was not adequate. It is of interest, however, that the note prepared
by the Office concerning the composition and functions of the Committee of
Experts states in this respect that:
11 Michel Virally: Preface to "De l'Interprétation authentique des
Traités", in Le Droit International en Devenir» PUF, 1990, p. 119 and ff.
12 To some extent this is confirmed by the largely inconclusive
experience concerning the Special Youth Schemes Recommendation, 1970
(No. 136), which was intended in part to fill the gaps in existing texts on
forced labour.
13 International Labour Conference, 8th Session, Geneva, 1926, Final
Record. Appendix V, p. 400.
1694G/v.3
- 8 -
(b) Its examination will certainly reveal cases in which different
interpretations of the provisions of Conventions appear to be
adopted in different countries. The Committee should call attention
to such cases.1^
By comparison with this original mandate, it is clear that the Committee has
taken on a more independent role regarding interpretation, as it also has in
other fields, without raising objections of principle. This enlarged role is
in fact a response to the inherent needs of its work and to the conditions in
which it is called upon to examine a constantly increasing number of reports
concerning Conventions that are also growing in number. The Committee has in
fact accounted for its behaviour in this respect in a number of reports over
the years, and particularly in those for 1977, 1980, 1989 and 1990, in which
it makes a number of observations based on common sense. It has noted in
particular that supervision has always entailed some measure of
interpretation, and that, where States do not agree, the Constitution provides
for machinery specifically to put an end to debate. If States or the parties
concerned prefer not to avail themselves of such machinery, that is their
right; but they cannot refuse to take the action that follows from their
contestation without jeopardizing legal certainty. For this reason, in so far
as the views it has expressed on the meaning of the provisions of a Convention
or its legal scope have not been contradicted by the International Court of
Justice, they "are to be considered as valid and generally recognized"••'•^
27. However, as the Committee itself stated in 1991,-^ the Committee
is not a tribunal, and the views it expresses are not judgements. In other
words, this means more specifically that its procedure does not involve
adversarial proceedings and that its conclusions have no legally binding
force. The two most significant differences are as follows.
28. The first concerns its procedure. The Committee of Experts only
makes indirect observations, subject to the very strict limitations on the
time and resources available to it to perform a task of considerable scope.
As it has stressed on several occasions, it brings to this task the guarantees
of full independence, objectivity and impartiality that are inherent to its
composition. In making its observations, it leaves very large scope for
dialogue with governments and with the Conference Committee on the Application
of Standards; but by the nature of things matters are not submitted to it
publicly as an arbiter of the various interpretations that are possible
through adversarial proceedings. It arrives at its own opinions, and may be
called upon to justify them subsequently.
29. The second concerns the compulsory and enforceable nature of its
opinions. While interpretations by the Committee of Experts can in the long
term acquire a truly binding force, in so far as States ultimately accept them
tacitly, it is also clear that, as far as the Constitution is concerned, there
is only one way of forcing recalcitrant States to accept them: a Conference
^ International Labour Conference, 8th Session, Geneva, 1926, Final
Record, Appendix V, p. 401.
15 Report III (Part 4A), International Labour Conference, 77th Session
(1990), Report of the Committee of Experts on the Application of Conventions
and Recommendations, para. 7, p. 8.
16 Report III (Part 4A), International Labour Conference, 78th Session
(1991), Report of the Committee of Experts on the Application of Conventions
and Recommendations, para. 11, p. 8.
1694G/V.3
- 9
delegate, another Member or the Governing Body must be prepared to invoke the
complaints procedure provided for in article 26 and, where possible, to pursue
it to the end, that is, as a last resort, to bring the matter before the
International Court of Justice. This illustrates somewhat the difficulty
raised by Professor A. Manin concerning the refusal by a government to give
effect to the conclusions of a Commission of Inquiry but without deciding to
refer the matter to the International Court of Justice in the different but
more clearly delineated context of the constitutional complaints procedure:
Failure by a State that had the possibility to do so to lay a matter
before the Court cannot have the effect of making the recommendations
obligatory where they were not themselves ab initio of a compulsory
nature.^'
Some degree of legal uncertainty, which is rightly a cause for concern to the
Committee of Experts, seems inevitable in a system in which a party which does
not wish to accept a decision can only be declared legally at fault where
another party (a Conference delegate, a member of the Governing Body or the
Governing Body itself) is prepared openly to invoke the Constitution and,
possibly, resort to legal proceedings. However, in practice it is quite
difficult for a government to claim alone to be right, and this element of
political and psychological pressure places the relative importance of these
uncertainties in their proper context.
Commissions of Inquiry
30. Commissions of Inquiry are only discussed briefly here in order to
stress the intermediate and relatively specific position that they occupy with
regard to interpretation. By contrast with the Committee of Experts, such
commissions are provided for in the Constitution, where considerable
importance is attached to them. However, there is nothing in the provisions
of the Consitution that gives them a mandate to interpret Conventions any more
than the Committee of Experts. Rather, article 28 of the Constitution assigns
responsibility to them to establish "a report embodying its findings on all
questions of fact relevant to determining the issue between the parties and
containing such recommendations as it may think proper as to the steps which
should be taken to meet the complaint ...".
31. Nevertheless, some degree of interpretation is inherent to the work
of inquiry, as in the case of the Committee of Experts. This measure of
interpretation has become particularly obvious in recent cases, and in
particular during examination of the representation submitted against the
Federal Republic of Germany in 1984- It will be recalled in particular that
the discussion between the majority of the Commission of Inquiry and the
17 A. Manin: "La Commission d'enquête de l'OIT instituée pour examiner
l'observation de la Convention No. 111 par la République fédérale
d'Allemagne: De nouveaux enseignements?". Annuaire français de Droit
international, 1988, p. 379. However, it should be noted that, in the case of
a Commission of Inquiry, the Constitution makes it possible to consider that
the recalcitrant government cannot elude the Commission's recommendations by
simply contesting them without going to the Court. As stated by Professor
Manin, the recommendations may be regarded as becoming compulsory as soon as
the Governing Body has tacitly accepted them, regardless of the objections of
the government concerned.
1694G/V.3
10 -
dissenting member turned on such notions as that of jus cogens. which, at
least initially, seems fairly remote from the notion of inquiry.
32. Leaving aside the questions that this can raise in relation to the
terms of the Constitution, such an enlargement of mandate obviously encounters
limitations by virtue of the very nature of a Commission of Inquiry. By
definition, a Commission of Inquiry is an ad hoc body with an ad hoc
composition. By contrast with opinions provided by the Office and with the
observations of the Committee of Experts, based on a debate between the
"parties" concerned, the interpretation that a Commission of Inquiry can give
during an inquiry, if it is well founded, necessarily depends on the
circumstances of the case in question and on the individuals comprising the
Commission: even though it is not necessarily supposed to be valid gjrgâ
omnes. in order to have the required force an interpretation must be capable
of going beyond the circumstances of the case in question and the
idiosyncrasies of those responsible for it.
* *
33. The above analysis shows that the ILO's established internal
procedures include interpretation machinery of a rare degree of diversity and
richness. However, it also shows that, while the different types of machinery
complement one another in that each has some feature that is lacking in the
others, none of them meets all the conditions necessary to enable it to
provide a definitive settlement of controversies concerning the meaning to be
given to the provisions of a Convention. Office interpretations are limited
by the lack of a constitutional basis and the fact that they are not of an
adversarial character, enabling interested parties to put their case; the
Conference Committee, which offers the possibility of open debate, to some
degree of an adversarial nature, is not legally in a position to "decide" on
questions of interpretation; the Committee of Experts, which has the
advantage of its expertise and independence, has no constitutional mandate and
does not offer a procedure of an adversarial nature; Commissions of Inquiry
offer the same guarantees of independence and objectivity as the Committee of
Experts, plus an adversarial procedure, but have neither a mandate nor the
necessary continuity to take decisions of general applicability. This does
not mean that the system is incomplete, as it provides for the settlement of
such questions by the International Court of Justice. Nevertheless, the fact
remains that the Organization has not had recourse to this provision, and we
shall now examine what may be the reason for this.
Outside the ILO
International Court of Justice
3^;. Paragraph 37.1 of the Constitution has given rise to a fairly large
volume of literature. It raises almost as many questions as it does terms,
especially if one considers a number of discrepancies between the two
different language versions. One of the most vexing questions is whether it
involves the jurisdiction of the International Court of Justice to decide
disputes or its advisory jurisdiction. Only States may be parties in cases
before the Court under article 34 of its Statute, and according to article 59
the decision it hands down is only binding on parties to the case in
question. According to article 37, paragraph 1 of the ILO Constitution, at
least in its English version, however, the intention is indeed to grant the
1694G/v.3
11 -
Court competence to take a "decision" (English version), and not to give an
advisory opinion (as might be suggested by the French version, which refers to
"appréciation"). This raises the question of hierarchy as between the Statute
of the Court and the Constitution, that is, of whether the provisions of the
Constitution could prevail over the provisions of the Statute of the Court as
regards the referral of matters to it and the effects erga omnes of the
decision taken under article 37.
35. Whereas in the case of the Permanent Court of International Justice
this question could, for historical reasons, •'•^ be open to some discussion,
this is not the case where article 103 of the Charter is concerned.^
Naturally, despite this one can imagine solutions that would reconcile the
demands of the two texts on the lines that some volunteer might be found among
States to bring a dispute before the Court, but the other party to the dispute
would still have to be identified (perhaps the Organization itself?).
36. It seems clear, nevertheless, that the most natural solution for
bringing a matter of interpretation before the International Court of Justice
is by means of the advisory procedure open to the Organization as a specialized
agency duly authorized by the General Assembly in accordance with article 96
of the Charter and article 65 of the Statute of the Court. The Governing Body
was delegated power to request an advisory opinion by the Conference in 1949.
37. The fact that, by definition, such an opinion is not of a binding
nature and cannot therefore put an end to a dispute is not in this respect
decisive in that an advisory opinion is intended to state the law with the
weight of its authority. According to the very terms of article 37.2 (in
particular in so far as it is specified that the tribunal would itself be
bound by "any applicable judgement or advisory opinion of the International
Court of Justice") the parties would have to agree to be bound by the Court's
opinion. Rather, the real problem is therefore ultimately whether this
procedure can take sufficient account of the specific nature of ILO
Conventions^*-1 and of that of the Organization in general.
1° See G. Fischer, 1946: "Rapports entre l'Organisation internationale
du Travail et la Cour permanente de Justice internationale: Contribution a
l'étude du problème de la séparation des pouvoirs dans le domaine
international", Paris, Editions A. Pedone.
19 ibid., p. 45.
20 The major problem is probably that international labour Conventions
cannot be regarded as simply so many separate treaties. By comparison with
the aims that surrounded their origins, and more particular subsequent
practice, international labour standards have retained or taken on certain
features that in some respects assimilate them even more to a real body of
international legislation. This assimilation derives chiefly from the
continuity of their approach and structure, which, setting aside the formal
discontinuity of the body responsible for adopting international labour
Conventions, pervades the design and content of international labour
standards. A good reflection of this is the "concept" of an International
Labour Code, which has sometimes been used, as, in the words of Mr. Valticos,
"the instruments that comprise it, although formally distinct, are logically
integrated in a coherent whole". (N. Valticos: Droit international du
travail» P- 133 - French only; see also Jenks: "The Corpus Juris of Social
Justice", 2nd éd., pp. 102-103; and J.-J. Oeschlin: "Le Code international
du Travail", in Revue française des Affaires sociales. Apr.-June 1969, p. 55.
1694G/V.3
- 12 -
38. This raises three issues:
(a) the possible degree of specialization in approaching labour problems;
(b) the access of the social partners to the interpretation procedure;
(c) how to take into consideration the intention of the parties in the
framework of the methods and principles of intepretation.
(a) The possibility of adapting the composition of
the Court to take account of the specificity
of international Conventions
39. The Court is composed of persons chosen for their eminence in
international law, but who are not necessarily familiar with the labour
questions dealt with by the ILO. One may naturally consider that this is a
good thing,^ but it is a fact that, from the outset, this "generalized"
composition was a matter of concern to the ILO, and in particular when the
Statute of the Permanent Court of International Justice was being prepared.
The ILO approached the Committee of Jurists to whom this task was assigned in
order to ensure that, in matters concerning labour, the Court would be
composed in such a way as to offer not only guarantees of impartiality, but
also of technical competence (see Official Bulletin. Vol. II, No. 14,
8 December 1920, pp. 1-10).^
40. The Office proposals were not followed, but nevertheless article 26
of the Statute of the Court provided the possibility of forming a special
chamber composed of five judges. It was also provided that the judges would
be assisted by four technical assessors chosen from a special list composed in
equal numbers of individuals nominated by the members of the League of Nations
and by the Governing Body of the ILO.^
^ As E. Lauterpacht has observed, with some irony (Aspects of the
Administration of International Justice, p. 17, University of Cambridge,
1991), "the argument is occasionally advanced that technical cases require
technically qualified judges. By implication, the suggestion is made that the
judges of the ICJ do not possess the necessary level of technical (i.e.
non-legal) qualification. The validity - or at any rate the universal
validity - of this proposition may be questioned. First, one must ask - how
technical can an international issue be? Presumably the determination of a
boundary line, whether on land or at sea, is not too technical because many
such cases have been decided by the ICJ".
22 As a result, the Court was to include not only specialists in
international law, but also specialists in labour legislation and social
issues, and the Office proposed therefore that a special section should be
established within the Court competent for matters concerning labour and the
ILO.
23 However, the scope of these provisions was limited by the fact that,
in the case of the procedure for an advisory opinion, only the Court in
plenary sitting could issue rulings, and the assessors were excluded from the
summary procedure and the advisory procedure (G. Fischer, op. cit., p. 292).
1694G/V.3
- 13 -
41. For the most part, this system is reflected in the Statute of the
International Court of Justice. Article 26 of the Statute provides in its
first paragraph for the possibility of forming "one or more chambers, composed
of three or more judges as the Court may determine, for dealing with
particular categories of cases; for example, labour cases and cases relating
to transit and communications". There is one difference, however: there is
no longer any specific reference to the formation of a special chamber for
labour questions, but this does not necessarily mean a real difference in
practice.2^ Of greater significance is probably the fact that, as in the
case of the Permanent Court of International Justice, the Court issues
advisory opinions only in its plenary composition. In so far as requests for
interpretation would in fact be treated in the framework of the advisory
procedure, as described above, the International Court of Justice would not
therefore offer the possibility of any more specialized form of composition.
As stated above, this limitation is not necessarily a major inconvenience, but
indirectly underscores the importance of the following question.
(b) The access of the social partners to the
interpretation procedure
hi. Here it is a matter of determining whether the social partners can
be accorded some place in the interpretation procedure that would correspond
to their role in the adoption process. In the case of an advisory opinion.
States allowed to appear before the Court receive notice of requests and may
submit written or oral statements. Article 66 of the Statute of the Court
states that such notice may be addressed to any "international organization
considered by the Court, or, should it not be sitting, by the President, as
likely to be able to furnish information on the question ...". This provision
reproduces without change the contents of article 73 of the Revised Rules of
24 As a matter of historical curiosity, it can be noted that article 37
of the Statute of the Court states that "Whenever a treaty or convention in
force provides for reference of a matter to a tribunal to have been instituted
by the League of Nations, or to the Permanant Court of International Justice,
the matter shall, as between the parties to the present Statute, be referred
to the International Court of Justice". It may be asked whether this
provision could have been invoked, in the case of a matter concerning an
international labour Convention, to form the special chamber provided for in
the Statute of the Permanent Court, The report (Report IV, 1, to the 27th
Session (1945) of the International Labour Conference, "Relationship of the
ILO to other international bodies") states (p. 13) that "its more general
provisions [of the new Statute] permitting the appointment of special chambers
and authorizing public international organizations to present information to
the Court will give the ILO a status before the new Court no less favourable
than that which it enjoyed before the Permanent Court of International
Justice". This position is fully in line with the letter that the Acting
Director had addressed to all governments of ILO member States to emphasize
"the importance which the Governing Body of the International Labour Office
attaches to the maintenance of arrangements at least equivalent to the
provisions of the Statute of the Permanent Court as at present in force, which
give the International Labour Office the right of furnishing the Court with
all relevant Information in labour cases and which permit international
organizations, including the international organizations of employers and of
trade unions which play so important a role in the International Labour
Organization, to submit written and oral statements to the Court" (Official
Bulletin. Vol. XXVI, No. 2, 1 Dec. 1944, p. 194).
1694G/V.3
- 14 -
Court of the Permanent Court of International Justice, and it is interesting
to note that, in the case of the Permanent Court, it enabled international
employers' and workers' organizations to be consulted and heard directly. It
is unclear whether, in the current context of the Statute of the International
Court of Justice (an integral part of the United Nations Charter) the term
"international organization" could continue to be given such a wide
interpretation. If not, the practice could nevertheless be invoked, in a case
involving an advisory opinion, whereby the executive head of the organization
in question can communicate with his own statement the statements of the
parties directly concerned by the outcome of the debate, as in the case of
article XII of the Statute of the ILO Administrative Tribunal for the benefit
of unsuccessful complainants.
(c) The importance attached to the intention of parties
in the methods and principles of interpretation
43. One feature of international labour Conventions is naturally that
they are not adopted in the framework of diplomatic conferences, but through
tripartite committees, and that their contents are the fruit of direct and
sometimes laborious negotiations between the social partners, the outcome of
which in most cases does not lend itself to "improvement" by the Drafting
Committee. This then raises the problem, in the principles of interpretation,
of the relative importance of the text and of the intention of the parties
concerned.
44. In this connection it should be recalled that, according to the
Vienna Convention on the Law of Treaties, adopted in Vienna on 23 May 1969 and
which entered into force on 27 January 1980, the starting-point for the
interpretation of a treaty is the text itself considered in its context and in
the light of its aims and purposes. Thus, the intention of the parties is
placed in a subsidiary position, and according to article 31 (to which the
Employer members of the Conference referred in the Conference Committee on the
Application of Standards in 1990),^ one should only revert to the
preparatory work where an analysis of the text alone might produce a result
that is unclear or absurd. Naturally, it is possible to refer to the
preparatory work even where the text is clear in order to confirm the
interpretation, but where the preparatory work detracts from the clear meaning
of the text, the tribunal has no basis on which to pursue the real intention
of the parties.
45. This system of interpretation meets the need for legal certainty as
well as the desire to limit the discretion open to judges. It has given rise
to some measure of criticism to the extent that it deviates from a traditional
principle of international law and leaves little scope for the parties'
intentions^ and it is legitimate to ask whether in the case of the ILO it
is entirely in conformity with the role and intention of the social partners
in the adoption of international Conventions. Without entering into the
complexity of the subject, two observations can be made in this connection.
2-5 International Labour Conference, 77th Session (1990), Record of
Proceedings, para. 24, p. 27/6.
26 See for example the view of another specialist in K. Vandevelde:
"Treaty Interpretation from the Negotiator's Perspective", Vanderbilt, Journal
of Transnational Law, 1988, p. 282 and ff.
1694G/V.3
- 15
46. First, the Vienna Convention on the Law of Treaties, largely at the
instigation of representatives of the ILO, states in article 5 that:
The present Convention applies to any treaty which is the constituent
instrument of an international organization and to any treaty adopted
within an international organization without prejudice to any relevant
rules of the organization.
This provision could therefore, if necessary, be invoked to emphasize the
importance of the preparatory work in the practice of the Organization.
47. Secondly, in the Organization's practice the preparatory work, which
is of very great importance as far as the various phases through which the
text prepared by the Office passes are concerned, is much less so when it
comes to interpreting amendments adopted in meetings at the Conference owing
to the discontinuation of detailed minutes of committees' proceedings and due
to the fact, recalled above, that in many cases the decisive negotiations take
place outside the sittings themselves.
48. In the light of these two brief considerations, there is probably
good reason to consider that it is even more important, in order to ensure
that the specificity of the Organization and of international labour
Conventions is taken adequately into account at the Court, to ensure
appropriate access for the social partners to enable them to assert their
interests and intentions, than to be concerned with the methods and principles
of interpretation that may be applied at the Court. As we have seen, the
Court does not offer this possibility directly. On this subject, the tribunal
provided for in article 37.2 could offer a clear advantage in that the
Governing Body would be entirely free to decide on the conditions of its
functioning, although its formation raises other questions, as we shall see.
III. CONDITIONS FOR THE CREATION MD METHODS OF
FUNCTIONING OF A TRIBUNAL
49. The above analysis probably improves understanding of the
significance and justification for the concerns that surrounded the inclusion
of article 37.2 in the Constitution of the ILO. The creation of a tribunal,
which is permitted by this provision, would have the main advantage of
improving legal certainty by comparison with the internal interpretation
machinery, which is not intended or does not make it possible to provide a
definitive settlement of disagreements in this respect, and it has the
advantage over the International Court of Justice that it is capable of taking
account of the specificity of the Organization and of its structure.
50. The question therefore arises of whether such advantages are
sufficient to justify the formation of this tribunal. To answer this
question, one first has to place on the balance the number of cases in which
serious difficulties have arisen so far. This is no easy task, as the
difficulties have not always left any visible trace and the extent to which
they raise legal issues is a matter of opinion. One is therefore limited to
giving a number of illustrations based on the more recent or clearer cases.
In addition to the GCHQ (General Communications Headquarters), concerning
which the Committee of Experts itself raised the possibility of referral to
the Court (and perhaps Norway's disagreement with observations of the
Committee of Experts, also concerning Convention No. 87) mention can also be
made of -
1694G/V,3
- 16 -
- the applicability of the Fee-Charging Employment Agencies Convention
(Revised), 1949 (No. 96), to temporary work agencies;
- the application of the Abolition of Forced Labour Convention, 1957
(No. 105), to work in prisons;
- the effect of the resolution (No. 8) adopted by the Conference in 1921 on
the application of non-maritime Conventions to seafarers, as mentioned in
the observation by the Committee of Experts concerning Ireland;
- the application of the Discrimination (Employment and Occupation)
Convention, 1958 (No. Ill), to prohibitions on employment (the case of
the Federal Republic of Germany);
- the complaint submitted by Mr. von Holten concerning the possible
extra-territorial implications of respect for freedom of association and
collective bargaining, which by its nature and subject goes beyond the
specific mandate of the Commission of Inquiry as set out in Part II;
- to these "disputes" may possibly be added a number of specific
"questions" raised by member States when they consider ratifying
Conventions, and to which the Office does not always succeed in providing
a categorical reply on the basis of the text or the preparatory work.
51. On the other side of the balance, one must consider the difficulties
inherent in the formation of a tribunal, and as a result the modalities and
the cost involved.
52. In this respect, article 37.2 of the Constitution is limited to
stating that it is for the Governing Body, subject to the approval of the
Conference, to make proposals for the appointment of a tribunal and that the
settlement of the difficulties referred to it must be expeditious. By
contrast, it is silent on the composition of the tribunal, of the right to
bring cases before it and the applicable procedure. Without in any way
wishing to prejudge a matter of principle, the following is an attempt to
sketch out some possible solutions concerning these questions. In the light
of the observations in Part I, the search for such solutions will be guided by
a fundamental concern to supplement, and in no way to weaken, the existing
supervisory machinery, which has proven its value, in particular the Committee
of Experts.
(a) Composition
53. It seems clear that the tribunal envisaged in article 37.2 should be
a permanent tribunal. This seems all the more necessary, in view of the terms
of article 37.2, in that the Constitution requires, as we have just recalled,
"expeditious determination", which presupposes the more or less immediate
availability of the judges. A third consideration emerging from the
considerations in Part II runs on similar lines: unlike the composition of
commissions of inquiry, that of the tribunal should be as constant as possible
to ensure the necessary continuity in methods of interpretation and case-law.
However, at the same time it is difficult to foresee the volume of requests
that the tribunal, once established, would have to cope with, and it would
therefore be unrealistic to appoint permanent judges before this matter was
clear. The wisest solution would therefore be initially to appoint only a
certain number of titular judges, with a list of deputies who could be called
upon where the titular members were unavailable. Consideration might also be
given to whether, in order to ensure the necessary continuity, it would not be
1694G/v.3
- 17 -
desirable for the Governing Body to appoint the president of the tribunal in
advance, or in any case for the president to be appointed by the members of
the tribunal for a fairly lengthy period.
(b) Number of judges
54. In view of these constraints, particularly as regards the time-frame
and of course considerations of economy, the number of judges necessary for
the tribunal to be able to sit should be limited to the smallest odd number
necessary to achieve a majority, that is, three. In order to ensure that
three judges were always rapidly available, it would probably be necessary to
draft a list of at least six members, including a president and vice-president.
(c) Selection of judges
55. Consideration can also perhaps legitimately be given to whether the
tribunal should not have a tripartite composition, as it might be called on to
offer an interpretation in order to fill the gaps, or to compensate for the
difficulties resulting from a tripartite discussion at the Conference.
However, it would seem more in line with the highly technical nature of its
vocation, subject to the need for appropriate consultations to ensure that the
judges enjoy the confidence of all three groups, for proposals for nominations
to be made by the Director-General to the Governing Body and to the Conference
strictly on the basis of the personal qualities and professional competence of
candidates. As in the case of the Committee of Experts and the ILO
Administrative Tribunal, it would be necessary at the same time to ensure an
adequate balance in terms of the representation of different legal systems and
in terms of geographical distribution.
56. Naturally, exercising the duties of a judge could in no way be
compatible with holding office as a member of the Committee of Experts, as the
tribunal would be called upon to rule on questions raised by the latter under
conditions that are discussed below. For similar reasons, and in view of the
subsidiarity foreseen in article 37.2, acting as a judge would also be
incompatible with holding office as a judge of the International Court of
Justice. By contrast, it would be highly desirable to associate the Committee
of Experts in the advance selection of candidates, as its members are
particularly well-placed to assess the qualities required and, if necessary,
to propose names.
(d) Right to briilg cases before the tribunal
57. As has been seen, the Constitution itself provides a reply to the
basic question that can arise in this respect. While it says nothing
concerning the body that is competent to refer cases to the International
Court of Justice - because at the time it was impossible to foresee the
conditions that would govern access to the Court - it in fact states that it
is for the Governing Body alone to refer matters to the tribunal.
58. This implies that the decision to refer a matter to the tribunal
would be taken by the Governing Body like all its other decisions, that is, in
the framework of an item on its agenda or of a report by the Director-General
and, if there is no consensus, by majority vote. However, this obviously does
not exhaust the list of problems to be resolved.
1694G/v.3
- 18 -
59. One question that must be asked is how and by whom the matter may be
placed on the Governing Body's agenda. As stated above, article 37.2
presupposes that there is a contestation, or at least a serious question, that
has arisen concerning the interpretation to be given to a Convention, and the
required intervention of the Governing Body guarantees that this will in fact
be the case. Efforts might then be limited to establishing rules governing
the receivability of requests, which would confine to a Member or a Conference
delegate or a member of the Governing Body itself the possibility of making
such a request, requiring in addition that he should state the purpose of
raising such a question and should prove that he has a genuine interest in
obtaining a reply.
60. With this in mind, it would certainly be desirable to specify in
addition that the Governing Body would automatically refer to the tribunal
questions that the Committee of Experts wished to see settled. This would in
fact offer the advantage of enabling the Committee to obtain a definitive
ruling on a persistent contestation to which its observations might give rise,
or to obtain directly the definitive settlement of a question of
interpretation concerning which it itself had doubts.
(e) Procedure
61. As Part II of this document shows, the chief advantage that might
come from the establishment of a tribunal on matters of interpretation would
be that it would offer the possibility of an open procedure of an adversarial
nature. This idea, however, needs to be spelled out, as it is far from easy
to identify the "parties" to an interpretation procedure. Obviously, for
example, where there is a contestation concerning an observation by the
Committee of Experts, or where the Committee of Experts chooses to refer a
question to the tribunal, it could not strictly speaking be considered a party
to the procedure. Similarly, where a matter is submitted to the Governing
Body by a State or by one of its members and it considers that a question of
interpretation is in fact involved, it could not thereby be regarded as a
party to a dispute. Rather, it would therefore be necessary to enable all
those with a legitimate interest in the question to present their point of
view if they wished. This would have to be the case in particular for duly
authorized representatives of the non-governmental groups who had an interest
of principle in giving their opinion on the meaning of provisions adopted on a
tripartite basis at the Conference, and to whom the tribunal would offer an
opportunity to do so on a relatively equal footing,
62. Moreover, it would probably be normal and also desirable, in view of
the role that the Constitution and practice accord to the Office in the
matter, for the Director-General to be invited, as in the case of requests for
opinions, to supply the tribunal with an analysis of the facts and of the
preparatory work that could shed light on the meaning of the provision in
question. This leaves the tribunal only the task of setting out in its
internal rules the modalities governing access for persons whose legitimate
interests are likely to be affected by the tribunal's reply.
(f) Cost
63. If the tribunal was called upon to function in the conditions
described above, that is with a small composition, its costs could not be very
high, to judge from the example of the Administrative Tribunal. It would be
necessary also to take account of the fact that the existence of the Tribunal
would perhaps make it possible to refer to it, at lesser cost, questions which
hitherto may, for want of any better solution, be presented in the form of a
1694G/v.3
- 19 -
complaint and which, where they are referred to a Commission of Inquiry,
entail a fairly heavy additional burden on the budget.
IV. CONCLUSIONS
6k. For nearly 50 years, the Organization has managed without the
tribunal provided for in article 37-2 of its Constitution, and in view of the
considerations set out above, it would probably be rash to conclude that it
could not continue to do so in the future. From a strictly legal point of
view, in its present form the system in fact does not have any lacunas, as it
already provides for a system for the judicial settlement of difficulties of
interpretation. As has been seen, uncertainties of interpretation result in
reality from the obstacles, or perhaps even the inhibitions, that are inherent
in the conditions governing access to the International Court of Justice. In
so far as these conditions are not going to be modified, further uncertainties
can be expected. ultimately, it is a question of determining what price is
attached to achieving greater legal certainty through possibly facilitating
access to legal procedures. It has certainly been useful for this question to
be raised at a time when several other adjustments to the ILO's
standard-setting activities are under study, and this paper has endeavoured to
provide the necessary background for a detailed examination. Naturally,
however, the answer is a matter ultimately for the Governing Body and the
Conference, and for them alone.
Geneva, 10 May 1993.
1694G/V.3

Document No. 97
ILO, Non-paper on interpretation of international labour
Conventions, 2010

Document No. 98
ILC, 63rd Session, 1977, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, para. 32

International Labour Conference
63rd Session 1977
Report
i (Part 4A)
Report of the
Committee of Experts
on the Application
of Conventions
and Recommendations
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
r c\ ££ / /
GFN"RÍ.L REPOET
determine whether the requirements of a given Convention are being met,
whatever the economic and social conditions existing 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 th<= fact that the modes of their implementation may be
different in different States. These 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
or economic system.
32. The Committee's terms of reference do not require it to
give interpretations 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 °xpress its views on the meaning of certain provisions of
Conventions.
33. The Committee considered that its methods of work, as
adapted and improved from time to time, enable it adequately to
discharge its functions. It has nevertheless agreed upon certain
innovations. In particular, it has decided that, while the preliminary
examination of particular Conventions or subjects will continue to be
entrusted to individual members of the Committee, opportunities should
be provided for optional consultations among the members at the
preliminary stags of examination of reports. Thus, any member of the
Committee may ask to be consulted by the expert responsible for a given
Convention or subject before draft findings are finalised, and the
responsible expert may himself consult other members in cases where he
considers this desirable. However, the final wording of the drafts to
be submitted to the Committee will remain the sole responsibility of
the expert entrusted with the examination of the reports or information
concerned. All members will, of course, remain free to present their
observations on the drafts when these are considered by the Committee
in plenary sitting.
3t. The Committee noted that the new system for spacing out of
reports on ratified Conventions adopted by the Governing Body will
introduce greater flexibility into the periodicity of reporting, with
a series of safeguards to ensure that regular and rapid attention be
given to important matters and serious situations. In such cases, as
a result of these various safeguards, detailed reports will be
requested at two-yearly or even yearly intervals, instead of on a fouryearly
basis. The Committee noted that, as hitherto, each country will
also be required to supply a general report each year on ratified
Conventions for which detailed reports are not due. Where such general
reports indicate substantial changes in legislation or practice
affecting the application of particular Conventions, these will be
examined without awaiting the next detailed report on the Conventions
concerned. Having regard to the fact that more rapid attention is also
to be given to cases in which the application of ratified Conventions
has been the subject of comments by employers' or workers'
organisations, the Committee considers it important that the abovementioned
general report should include particulars of any comments
received from such organisations in respect of the standards concerned.
35. With the greater spacing out of detailed reporting, the
Committee is concerned to examine as closely as possible the manner in
which Conventions are applied in practice. It therefore once again
emphasises the importance of governments supplying full information in
reply to the questions in the report forms concerning this aspect,
11
Document No. 99
ILC, 77th Session, 1990, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, para. 7

International Labour Conference
77th Session 1990
Report III
(Part 4 A)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
REPORT OF THE COMMITTEE OF EXPERTS
also in respect of specific matters concerning the way in which States
fulfil their standard-setting obligations.
7. The Committee has examined the views expressed in the
Conference Committee on the Application of Standards, at its 76th
Session (1989), by the Employer members and certain Government members
as regards the interpretation of Conventions and the role of the
International Court of Justice in this connection. The Committee has
already had occasion1 to point out that its terms of reference do
not require it to give definitive interpretations of Conventions,
competence to do so being vested in the International Court of Justice
by article 37 of the Constitution of the ILO. Nevertheless, in order
to carry out its function of determining whether the requirements of
Conventions are being respected, the Committee has to consider and
express its views on the content and meaning of the provisions of
Conventions and to determine their legal scope, where appropriate. It
therefore appears to the Committee that, in so far as its views are
not contradicted by the International Court of Justice, they are to be
considered as valid and generally recognised. The situation is
identical as regards the conclusions or recommendations of commissions
of inquiry which, by virtue of article 32 of the Constitution, may be
affirmed, varied or reversed by the International Court of Justice,
and the parties can only duly contest the validity of such conclusions
and recommendations by availing themselves of the provisions of
article 29, paragraph 2, of the Constitution. The Committee considers
that the acceptance of the above considerations is indispensable to
maintenance of the principle of legality and, consequently for the
certainty of law required for the proper functioning of the
International Labour Organisation.
8. The Committee has followed with profound interest the
changes in 1989 and the beginning of 1990 in several Central and
Eastern European and Latin American countries which, among other
changes, have resulted in important developments in law and practice
in those States. In this way, certain matters principally related to
the observance of Conventions concerning the fundamental human rights,
which had been the subject of comments by ILO supervisory bodies for
many years, have or are in the process of being resolved, as
illustrated by the observations that have been made this year. The
Committee hopes that these developments will continue and that it will
extend to the application of all the international labour Conventions
that have been ratified, since, as it has emphasised on many
occasions, these Conventions as a whole constitute a framework for
economic and social development based on justice and freedom that is a
guarantee of lasting peace.
9. The Committee notes the decision by the Governing Body to
set up a group of independent experts to follow up and monitor the
implementation of sanctions and other action against apartheid. The
mandate of this group of experts is to follow up and monitor the
1 See Report III (Part 4A), International Labour Conference,
63rd Session, 1977, General Report, para. 32; idem: 73rd Session,
1987, General Report, para. 21.
Document No. 100
ILC, 80th Session, 1993, Report of the Committee on the
Application of Standards, paras 9–25

International Labour Conference 9^>
Provisional Record
Eightieth Session, Geneva, 1993
Third Item on the Agenda : Information and Reports on the Application of Conventions
and Recommendations
Report of the Committee on the Application of Standards
CONTENTS
Pages
PART ONE: General Report 2
PART Two: Observations and Information concerning Particular Countries 19
I. Observations and Information concerning Reports on Ratified Conventions (article 22 of the
Constitution) 19
A. General Observations and Information concerning Certain Countries 19
B. Observations and Information on the Application of Conventions 21
C. Table of Detailed Reports on Ratified Conventions 68
D. Statistical Table of Reports on Ratified Conventions (article 22 of the Constitution) . . . . 69
II. Observations and Information concerning the Application of Conventions in Non-Metropolitan
Territories (articles 22 and 35 of the Constitution) 70
A. General Observations and Information concerning Certain Territories 70
B. Table of Detailed Reports on the Application of Conventions in Non-Metropolitan
Territories 70
III. Submission to the Competent Authorities of the Conventions and Recommendations Adopted by
the International Labour Conference (article 19 of the Constitution) 72
IV. Reports on unratified Conventions and Recommendations (article 19 of the Constitution) . . . . 73
Reports received by 17 June 1993 relating to Convention No. 156 and Recommendation No. 165 73
Index by Countries to Observations and Information Contained in the Report 74
25/1
mittee on dialogue, showing belief in the power of
persuasion as a means of achieving results : it seemed
that the differences of opinion led to a search for
consensus rather than confrontation. The present
Committee, like the Committee of Experts, took
time to reflect on how difficulties in conscientiously
applying international labour standards might be resolved.
Mr. Ruda was impressed too by the amicable
atmosphere in which the Committee's deliberations
took place : unpoliticized discussion in this way facilitated
an objective appreciation of the Committee of
Experts' own observations. Criticisms - which he had
found to be constructive - would be transmitted to
his colleagues. The Committee of Experts was an old
and experienced organ of the ILO, which endeavoured
to improve and adapt to change, while preserving
intact its independence, objectivity and impartiality.
Mr. Ruda recalled that the ILO
supervisory system, of which the Committee of Experts
is part, with its aim of achieving the due and
complete implementation of international labour
standards, remains the most effective in any international
organization. The real conditions in which
legislation is applied are always more complex than
and cannot be fully anticipated by the legal standard
itself. The present Committee and the Committee of
Experts must each accomplish their complementary
missions, in aid of the ILO's ultimate goal: social
justice.
B. General questions relating to international labour
standards
/. Supervisory system
(i) Roles of the supervisory bodies
9. The Committee noted with satisfaction the
Committee of Experts' positive response to the invitation
to be represented during the present Committee's
general discussion. The relationship between
the two bodies continues to strengthen on a wellestablished
basis: the Committee of Experts' highquality
report is prepared on the principles of independence,
objectivity and impartiality and is an essential
starting-point for the work of the present
Committee. The Committee believes that the effectiveness
of the supervisory system depends on constructive
dialogue between the two bodies.
10. The Employers' member of the United States
recalled that the Committee of Experts had originally
been set up to advise the present Committee as
to the facts, since the Conference Committee was
otherwise unable to complete its work in the time
available. The Committee of Experts' role was to
provide assistance to the Conference Committee by
determining whether there was compliance with ratified
Conventions, so that this Committee and the
Conference could ultimately decide on their own attitude
and what action they might take or recommend.
He stressed the importance of cooperation between
the two Committees, which each made
different contributions, in particular, to the interpretation
of Conventions. It was essential to the credibility
of the supervisory system that the Committee
of Experts should take account of the discussions
held in the present Committee and respond to the
questions raised, particularly in cases. The success of
the supervisory system was a remarkable achievement
and attempts to improve it were intended to be
constructive.
11. The Workers' members emphasized the complementarity
of the two bodies, and the indispensable
demarcation of the functions and attributions of
the two Committees. In its composition and working
methods, the Committee of Experts guarantees the
objective and impartial evaluation of the national situation
with regard to standards. The Conference
Committee gives the supervisory system vitality because
of its experience and the evidence brought by
employers' and workers' organizations. The Workers'
members considered that respect for the respective
functions and composition of the Committee of
Experts and the Conference Committee are indispensable
in guaranteeing the overall effectiveness of
the supervisory system. The Workers' members welcomed
the fact that the Committee of Experts in its
choice of cases and subjects takes account of practical
concerns and priorities. In this spirit, the Committee
of Experts gives special attention to the observance
of standards in export zones and cases
which have provoked detailed discussion at the Conference.
However, the Workers' member of the
Netherlands considered there was sometimes a lack
of continuity and responsiveness on the part of the
Committee of Experts in certain cases where it has
failed to formulate observations which the Workers'
group would have wished to discuss in the Committee.
During the Cold War, when the supervisory
machinery had been under attack by the Soviet
Union, the Workers' and Employers' groups in the
Conference Committee had been united in wholeheartedly
supporting the Committee of Experts, and
the Conference Committee's concerted action had
thus averted the threat to the supervisory system.
However, by the end of the 1980s, the Employers in
particular had begun to question the validity of certain
conclusions of the Committee of Experts: this
had led in turn to the Committee of Experts explaining
their position as regards the question of interpretation
in paragraphs 6 and 7 of their 1990 report, and
now the Employers and Workers found themselves
expressing opposite points of view. This jeopardized
the integrity of the supervisory system far more than
the Soviet threat and could lead to a breakdown of
the normal functioning of the Conference Committee:
time was uselessly consumed by the question
of the Committee of Experts' authority in relation
particularly to the question of interpretation of the
right to strike, and there was a real danger that the
Employers' arguments would precipitate further contentions
by governments seeking a way out of their
difficulties. The Workers' members observed that the
Conference Committee had over the years unanimously
acclaimed the fundamental principles of objectivity,
impartiality and independence on which the
Committee of Experts assessed individual States'
compliance with ratified Conventions. Contesting the
role of the Committee of Experts and the supervisory
system was a wrong way of dealing with legitimate
differences of view, and the efficient operation
of the Committee would be seriously impaired by
any failure of harmony and cooperation between
Employers and Workers.
12. The Employers' members stated that they
understood but did not share the concern of the
Workers' members that the image of the Committee
25/3
of Experts might be in danger. Although they did not
question the competence of the Committee of Experts
within the framework of the supervisory system,
they did not agree with all results of its work,
and that they did openly and clearly. Repeatedly, the
Workers' members had stated with respect to the
question of who was allowed to give binding interpretations:
"We share the Experts' opinion in this
matter". If the Employers were correct they had to
answer: "Then we all share the same opinion". For
in 1991 the Committee of Experts had said in paragraph
11 of their report that it had " never regarded
its views as binding decisions". With respect to the
relation between the various supervisory bodies, the
Committee of Experts stated in paragraph 12 " that
its evaluations do not prevail erga omnes". The opinion
which had been expressed by the Experts since
1991 and which had not since been changed was in
line with the ILO Constitution, and with the historical
development of the Committee of Experts and
the Conference Committee. The Employers had repeatedly
indicated this. However, in the practice of
the Conference Committee, there were deviations
from the evaluations of the Experts. The Employers
thought that this happened more often from the
Workers' than from their own side.
13. The Workers' members of the Netherlands and
the United States also noted that the Committee of
Experts' qualities of objectivity, impartiality and independence
are complemented rather than duplicated
by the present Committee, whose role it is to
bring the Experts' analyses to life through its discussions.
The Workers' member of Germany urged
the Committee of Experts not to show any weakness
by yielding to possible pressure from certain employers
and governments.
14. The Government member of Cuba considered
that the present Committee should not impede the
Committee of Experts or obstruct it from carrying
out its independent, impartial and objective tasks.
15. Several Government members (Australia,
Netherlands, United States) expressly reaffirmed
their support for the supervisory machinery. The
Government member of the United States considered
that the Committee of Experts' report was
based on sound objective and impartial legal analysis,
which endowed the present Committee with
greater authority and was in turn itself reinforced by
the weight of the tripartite Conference. In her view,
it was the Committee of Experts' international reputation
for solid legal and technical work which had
increased its independence over many years when its
views had met with virtually no objections in this
Committee. While it was true that the Committee of
Experts' findings were not legally binding, and that
there was a measure of interpretation in the functions
of both Committees, the present Committee
need not be too concerned with interpretation issues,
when it is ongoing dialogue between the two Committees
which is the key.
16. The Government member of Saudi Arabia
(speaking also on behalf of the Government members
of Bahrain, Kuwait, Qatar, United Arab Emirates)
raised the question whether there was sufficient
expertise in Islamic law in the Committee of Experts
and the Standards Department. A Workers' member
of Poland welcomed the appointment of a new female
member to the Committee of Experts and
hoped that male dominance of that body would be
further reduced. The Committee was reminded by
the representative of the Secretary-General that, in
addition to Ms. Letowska of Poland, the Committee
of Experts includes Ms. Al-Awadhi, an experienced
jurist, of Kuwait; further, one post in the Standards
Department would shortly be occupied by a native
Arabic speaker, while another of regional adviser on
standards for Arab countries would also be filled in
July 1993.
17. The Workers' member of Japan suggested that,
in order to safeguard its objectivity and impartiality,
the Committee of Experts should, when examining
individual cases, ensure that an Expert from the
country in question would refrain from participating,
so as to avoid undue outside pressure on the Expert.
(ii) Interpretation of Conventions
18. The Committee noted that an Office document
(GB.256/SC/2/2) had been submitted to the Governing
Body Committee on Standing Orders and the
Application of Conventions and Recommendations
at its May 1993 Session, concerning article 37, paragraph
2, of the Constitution and the interpretation of
international labour Conventions, and that that
Committee would continue its examination of the
matter at a future session. Article 37 (2) empowers
the Governing Body to "make and submit to the
Conference for approval rules providing for the appointment
of a tribunal for the expeditious determination
of any dispute or question relating to the interpretation
of a Convention ".
19. The Employers' members stated that the document
had been called for in discussions held in the
Conference Committee in recent years, and they
found it interesting and in many respects well-researched.
Further consideration should be given in
due course to whether a tribunal should be established
under the Constitution, as to which the Employers
reserved their judgement. The document
showed that every supervisory body examining
whether a State was fulfilling its obligations under a
Convention had to undertake the task of interpretation,
although only one - the International Court of
Justice - could do so with binding authority. The fact
that the Conference Committee might be considered
a "political" body did not mean that it does not find
its rightful place in the interpretation of Conventions,
as paragraphs 19 and 20 of the document indicated,
according to article 7 of the Conference
Standing Orders. The Employers' members recalled
that the Committee of Experts did not regard its interpretations
as establishing res judicata or decisions
binding erga omnes.
20. As regards the principles and methods of interpretation,
the Employers' members noted that the
document referred to the 1969 Vienna Convention
on the Law of Treaties, as they themselves and the
Committee of Experts had done in the past. Under
Article 32 of the Vienna Convention it was clear that
recourse should be had to preparatory work only as a
supplementary means of interpretation in order to
confirm an interpretation made under Article 31 or
to correct an ambiguous or absurd result. Paragraphs
43 to 48 of the document were also unclear in that it
was unrealistic to distinguish between diplomatic and
25/4
tripartite conferences as bodies in which international
treaties are elaborated: the decisive factor
was that it is in international law States which have
to fulfil obligations and to decide whether to incur
them. Nor did Article 5 of the Vienna Convention
help, as the ILO does not.have its own rules on interpretation.
Sometimes it was suggested or openly
maintained that the Employers had formerly said
something different. However, there was no contradiction
of today's statements. The same had already
been said in 1983 in the Employers' spokesman's
comments regarding Conventions Nos. 87 and 96
under article 19. Further continuity could be found in
the protocol of the 121st Session of the Governing
Body from 3 to 6 March 1953. More than 40 years
ago the then Employers' spokesman, Pierre Waline,
had clearly rejected the deduction of a detailed right
to strike from Conventions Nos. 87 and 98.
21. The Employers' member of the United States
remarked that disagreements over the method and
substance of interpretations arose in only a small
proportion of the vast number of comments made
over the years by the Committee of. Experts. The
report of the Conference Committee that had led to
the creation of the Committee of Experts stated that
it would have no judicial capacity or competence to
give interpretations of Conventions. Whilst the work
of the Committee of Experts was clearly of the utmost
importance to the work of the present Committee,
it could not be presumed that this Committee
would automatically accept Committee of Experts'
interpretations, which had to be discussed sometimes
over a period of time. Developing the indication in
paragraph 22 of the document, he considered that
parties who had drafted standards were in the best
position to determine their meaning: this could not
lead to "clandestine modification of meaning", as
the Conference Committee meets in public. The
Committee of Experts should highlight and explain
any new interpretations in the general part of its reports
in its observations on cases, and in general surveys,
so that they are more readily evident to everyone.
Otherwise, States may ratify Conventions with
no notice or indication from the wording or legislative
history of detailed interpretations subsequently
made and tending in some instances towards "optimal"
labour standards. Too detailed interpretation
was another factor discouraging ratification.
22. The Workers' members reaffirmed their attachment
to the interpretation of Conventions by an
impartial organ such as the Committee of Experts or
the International Court of Justice : they agreed with
the Experts that, as long as the opinions of the former
are not contradicted by the latter, they are valid
and to be accepted. It was against the ground rules of
the supervisory system for a government to criticize
the conclusions of the Committee of Experts without
having recourse to the Court. The procedures would
be prolonged to the detriment also of constructive
tripartite dialogue in the present Committee. A better
solution was to reinforce the present supervisory
bodies.
23. The Workers' members found the Employers'
arguments as to the Vienna Convention political and
legally unconvincing. Article 31 (3) (b) of the Convention
meant that account should be taken of interpretations
and viewpoints expressed by the competent
organs of the Organization (viz. the Committee
of Experts and the Committee on Freedom of
Association); Article 5 preserves the specificity of
UN specialized agencies such as the tripartite ILO.
The Workers' members as a whole associated themselves
with the analysis made by a Workers' member
of Poland, that Article 5 of the Vienna Convention
guarantees the autonomy of rules and working methods
of the ILO, and that the ordinary meaning of the
terms of a Convention concerning human rights
(such as Convention No. 87) must be found in their
context and in the light of the object and purpose of
the Convention. Human rights Conventions must
necessarily be interpreted progressively as living instruments.
24. The Committee entertained a wide-ranging exchange
of views but reached no conclusion as to the
advisability of setting up an article 37 (2) tribunal.
The Workers' members, as regards possible application
of article 37 (2), and the creation of a tribunal to
resolve any question or overcome any difficulty in
the interpretation of a Convention, consider such a
step could question the credibility and authority of
the Committee of Experts. Several members (e.g. the
Government members of France, Nigeria, Spain,
Syrian Arab Republic) expressed varying degrees of
support for a tribunal which would speedily resolve
disagreements on interpretation and take account of
the ILO's characteristics. The Workers' member of
Norway (speaking also on behalf of the Workers'
members of Denmark, Finland, Iceland and Sweden)
compared article 37 (2) to similar provisions in the
constitutions of other international organizations.
Several other members (e.g. the Government members
of Australia, Switzerland, United States) questioned
the need for a tribunal, given the existing supervisory
system, at least, in the view of the United
States Government, until there was certainty that
there would be no negative impact on the authority,
credibility or effectiveness of those bodies. The
Committee agreed that the matter required further
study.
25. The representative of the Secretary-General
assured the Committee its views would be brought to
the attention of the Governing Body when it examined
the document further, and the Committee
would be informed of developments.
(Hi) Reporting obligations
26. Following its discussions of governments' difficulties
in meeting reporting obligations in recent
years, the Committee was informed by the representative
of the Secretary-General of preliminary consideration
given by the Office to the possible rearrangement
of the procedure for requesting reports,
with the aim of maintaining and if possible improving
the quality of the supervisory system, concentrating
on cases of serious problems of application, and
reducing the workload on national administrative authorities.
27. The Employers' members agreed with the approach
taken by the Office in its internal working
document. They recalled their concern that, alongside
the increase in absolute therms in the numbers of
reports due, following the accession to membership
of the ILO of new States and the consequent new
25/5
Document No. 101
ILC, 100th Session, 2011, Report III (Part 1A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, paras 10–12

ILC.100/III/1A
International Labour Conference, 100th Session, 2011
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part 1A)
General Report
and observations concerning particular countries
International Labour Office Geneva
GENERAL REPORT
8
sessions in 2005 and 2006, issues relating to its working methods were discussed by the Committee in plenary sitting. 3
Since 2007, the subcommittee has met at each of the Committee’s sessions. 4
7. This year, the subcommittee on working methods met under the guidance of Ms Pal, who was elected to this
function for the first time. The subcommittee undertook a close examination of the comments made on specific aspects of
the work of the Committee by members of the Committee on the Application of Standards at the 99th Session of the
International Labour Conference (June 2010), as well as during the informal tripartite consultations held on the question of
the interpretation of international labour Conventions in February, March and November 2010. Following consideration of
the recommendations made by the subcommittee, the Committee agreed on the following issues.
8. With respect to its general observations on the application of Conventions, having heard the concerns
expressed during the Conference Committee, the Committee welcomes the opportunity to explain the role of general
observations. It notes that making general observations forms part of the normal discharge of its functions and contributes
to the effective implementation of the Conventions concerned. It recalls that general observations are valuable tools, to be
used on an occasional and timely basis, 5 primarily for two reasons:
– to draw attention to matters or practices which are of broad application across a number of countries;
– and/or to discuss trends in the application of a Convention.
It may be necessary to that end – as is done in individual comments – to request information from member States. In such
instances, member States are invited to respond in their regular reports on the application of Conventions. Should the
Committee find that a report form on a particular Convention has proven to be insufficient for the purpose of examining
the application of this Convention, the Committee will, as it has done on previous occasions, draw this finding to the
attention of the Governing Body so that consideration can be given to a possible revision of the report form. 6
9. With respect to the approach followed by the Committee in relation to cases of progress, it recalls that the
matter has twice been discussed extensively in recent years and its conclusion has been published as part of the General
Report. The Committee has re-examined the matter and considers that the approach adopted earlier in this respect is sound
and clear. It also emphasizes that, in indentifying cases of progress, in addition to the information set out in government
reports, it closely examines comments made by the employers’ and workers’ organizations on the application of the
Convention. It reiterates that the identification of a case of progress does not necessarily reflect a situation of overall
compliance with the Convention by the country in question and that it is limited to a specific issue arising out of the
application of the Convention and the nature of the measure taken by the government concerned. However, the Committee
acknowledges that it could more effectively highlight the specific elements that are of particular importance to a full
understanding of the approach adopted. The Committee has therefore decided to give greater visibility to the description
of the approach adopted concerning cases of progress in its General Report. 7 It has also decided that this will be set out at
the beginning of Part II 8 of its report, in which its observations on the application of ratified Conventions are published.
In this respect, the Committee recalls that its task consists of pointing out discrepancies with the requirements of
Conventions, as well as underlining progress in their application. It considers that the publicity given to cases of
satisfaction in the observations published in the Committee’s report is an important means of encouraging member States
to pursue their efforts to improve the application of ratified Conventions. Finally, with respect to the overall assessment
of compliance with a particular Convention, the Committee notes the information provided by the secretariat on the
work undertaken to assess progress towards the full application of fundamental principles and rights at work. The
Committee notes that a pilot project has been undertaken by the Office to construct a methodology for the measurement of
progress towards the application of Conventions Nos 87 and 98, taking the Committee’s comments fully into account.
10. With respect to its practice when expressing its views on the meaning of certain provisions of
Conventions, the Committee recalls the following elements, which are of particular relevance. In accordance with the
3 See General Report, 76th Session (November–December 2005), paras 6–8; General Report, 77th Session
(November–December 2006), para. 13.
4 See General Report, 78th Session (November–December 2007), paras 7–8; General Report, 79th Session
(November–December 2008), paras 8–9; General Report, 80th Session (November–December 2009), paras 7–8.
5 Twenty-eight general observations were published in the Committee’s reports from 2000 to 2010. Their breakdown is as
follows: (i) nine observations concerning fundamental Conventions (Nos 29, 87, 100, 111, 138, 182); (ii) seven observations concerning
governance Conventions (Nos 81, 122, 129); (iii) ten observations concerning technical Conventions (Nos 27, 63, 68, 73, 102, 135, 158,
159, 169); (iv) two observations related to the topics of wages and seafarers.
This year, the Committee formulated two general observations, one on the Labour Inspection Convention, 1947 (No. 81) and one
on the Indigenous and Tribal Peoples Convention, 1989 (No. 169). These are published in Part II of its report as an introduction to the
individual examination of the reports due on the application of the Conventions concerned.
6 Under article 22 of the ILO Constitution, the Governing Body approves a report form for each Convention. For further
information, see para. 36 of the Handbook of procedures relating to international labour Conventions and Recommendations, Geneva,
Rev., 2006. All report forms are available on the ILO website, under the following link:
http://www.ilo.org/ilolex/english/reportforms/reportformsE.htm.
7 See para. 62 of the General Report.
8 See Part II, p. 43, of the present report.
General Report
GENERAL REPORT
9
mandate given to it by the Governing Body, 9 its task consists of evaluating national law and practice in relation to the
requirements of international labour Conventions. It emphasizes in this respect the importance of the principles
consistently followed by the Governing Body in appointing members of the Committee. They are appointed in a personal
capacity and are selected on the basis of their independent standing, impartiality and competence. The members are drawn
from all parts of the world and possess first-hand experience of different legal, economic and social systems. The
Committee remains conscious of the fact that its work can have value only to the extent that it remains true to its
principles of independence, objectivity and impartiality. Further, the Committee has always considered that its task is
carried out in the context of an ongoing dialogue with governments, enhanced by the contribution of the employers’ and
workers’ organizations.
11. Against this background, the Committee reiterates the functional approach that it has followed with regard to its
role when examining the meaning of the provisions of Conventions. Although the Committee’s mandate does not require
it to give definitive interpretations of Conventions, it has to consider and express its views on the legal scope and meaning
of certain provisions of these Conventions, where appropriate, in order to fulfil the mandate with which it has been
entrusted of supervising the application of ratified Conventions. The examination of the meaning of the provisions of
Conventions is necessarily an integral part of the function of evaluating and assessing the application and implementation
of Conventions. The application of Conventions being the Committee’s mandate, the Governing Body has therefore
chosen to ensure that the Committee is composed of persons who are capable of fulfilling such mandate. The Committee
ensures that the understanding of the provisions remains constant and uniform so that all member States may be guided in
fulfilling their obligations arising from ratification of a Convention.
12. In responding to the request to clarify the methods followed when expressing its views on the meaning of the
provisions of Conventions, the Committee reiterates that it constantly and consistently bears in mind all the different
methods of interpreting treaties recognized under international public law, and in particular under the Vienna Convention
on the Law of Treaties, 1969. In particular, the Committee has always paid due regard to the textual meaning of the words
in light of the Convention’s purpose and object as provided for by Article 31 of the Vienna Convention, giving equal
consideration to the two authentic languages of ILO Conventions, namely the English and French versions (Article 33 of
the Vienna Convention). In addition and in accordance with Articles 5 and 32 of the Vienna Convention, the Committee
takes into account the Organization’s practice of examining the preparatory work leading to the adoption of the
Convention. This is especially important for ILO Conventions in view of the tripartite nature of the Organization and the
role that the tripartite constituents play in standard setting. 10
13. In examining these matters, the Committee has borne in mind the comments made on the desirability of
greater tripartite involvement in the supervision of the application of international labour Conventions. In keeping
with the spirit of mutual respect, cooperation and responsibility which prevails in the Committee’s relations with the
International Labour Conference and its Committee on the Application of Standards, the Committee engages in a process
of continuous improvement of its methods of work consequent to the comments of the Conference Committee, and, where
appropriate, refers to the Conference Committee’s report in its observations and direct requests. The Committee considers
that it would be in the interests of both Committees to further strengthen this relationship, by creating opportunities for an
additional and more in-depth exchange of views on matters of common interest. It invites the Office to examine the
possibilities for that purpose. It notes in this respect that the importance of reinforcing the complementary relationship
between the two Committees was also discussed during its special sitting with the two Vice-Chairpersons of the
Conference Committee on the Application of Standards.
Relations with the Conference Committee
on the Application of Standards
14. As it has just emphasized, a spirit of mutual respect, cooperation and responsibility has consistently prevailed in
the Committee’s relations with the International Labour Conference and its Committee on the Application of Standards.
The Committee of Experts takes the proceedings of the Conference Committee into full consideration, not only in respect
of general matters concerning standard-setting activities and supervisory procedures, but also in particular with regard to
specific matters concerning the way in which States fulfil their standards-related obligations. Moreover, the Committee
pays close attention to the comments on its working methods that are made by the members of the Committee on the
Application of Standards and the Governing Body, which it normally considers through its subcommittee, as it has done
this year.
15. In this context, the Committee again welcomed the participation of Ms Bellace as an observer in the general
discussion of the Committee on the Application of Standards at the 99th Session of the International Labour Conference
9 The Committee of Experts and the Conference Committee were established in 1926 under the same resolution by the
International Labour Conference (see Appendix VII, proceedings of the Eighth Session of the International Labour Conference, 1926,
Vol. 1). The Committee of Experts’ terms of reference were extended by the Governing Body in 1947 (see Minutes of the 103rd
Session of the Governing Body (1947), Appendix XII, para. 37).
10 An example of this approach can be found in the Committee’s general observation on the application of Convention No. 169
which appears in Part II of the present report.

Document No. 102
ILC, 100th Session, 2011, Report III (Part 1A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, General
Observation on the Indigenous and Tribal Peoples
Convention, 1989 (No. 169), p. 783

ILC.100/III/1A
International Labour Conference, 100th Session, 2011
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part 1A)
General Report
and observations concerning particular countries
International Labour Office Geneva
Indigenous and tribal peoples
INDIGENOUS AND TRIBAL PEOPLES
783
Indigenous and tribal peoples
General observation
Indigenous and Tribal Peoples Convention, 1989 (No. 169)
The Committee has been examining detailed reports on Convention No. 169 since the Convention came into force in
1991. The Committee notes that to date 22 countries have ratified the Convention. It also notes that one of the issues that
it has most often examined since the Convention has been adopted relates to the “obligation to consult”.
The Committee has taken note of the comments made in June 2010 during the 99th Session of the International
Labour Conference (ILC) in the Committee on the Application of Standards concerning the comments made in respect of
the application of Convention No. 169 by a number of member States and the Employer members and, in particular, the
comments made on the meaning and scope of “consultation” as provided for by the Convention. The Committee considers
that it is important, in view of the significance of this concept under the Convention for the indigenous and tribal peoples,
for governments and the social partners to further clarify its understanding of the concept.
The Committee of Experts has, on a number of occasions, stated that, although its mandate does not require it to give
definitive interpretation of ILO Conventions, in order to carry out its function of determining whether the requirements of
Conventions are being respected, it has to consider and express its views on the legal scope and meaning of the provisions
of Conventions, where appropriate. 1 In doing so, the Committee has always paid due regard to the textual meaning of the
words in light of the Convention’s purpose and object as provided for by Article 31 of the Vienna Convention on the Law
of Treaties, giving equal consideration to the two authoritative texts of ILO Conventions, namely the English and French
versions (Article 33 of the Vienna Convention). In addition and in accordance with Articles 5 and 32 of the Vienna
Convention, the Committee takes into account the Organization’s practice of examining the preparatory work leading to
the adoption of the Convention. This is especially important for ILO Conventions in view of the tripartite nature of the
Organization and the role the tripartite constituents play in standard setting.
In examining this question, the Committee has taken special note of the comments made by the Employer members
of the Conference Committee on the Application of Standards that it had interpreted the right to consultation in such a way
as to impose a more exacting requirement upon the government beyond that envisaged by the Convention. 2 This comment
was made in the context of the request made by the Committee of Experts in a case concerning the application by the
Government of Peru of Convention No. 169 and which was discussed by the Conference Committee in June 2010. 3
In light of the above, the Committee makes this general observation in order to clarify its understanding of the
concept of “consultation” in the hope that this will result in an improved application of the Convention particularly as it
concerns this right. This would be a follow-up to the general observation made by this Committee in 2008. It notes the
statement made by the Employer spokesperson during the general discussion of the Conference Committee in June 2009
that “the general observations on social security and indigenous and tribal peoples did not raise any particular issues and
were an illustration of the correct approach to making general observations that were useful and contributed to the
implementation of the Conventions concerned”. 4
As a general matter the Committee notes that, in view of the tripartite nature of the ILO, most of its Conventions
make specific provision for consultation between governments and representatives of employers and workers or their
organizations and of those concerned by the issues involved on the matters covered by the Conventions. Convention
No. 169 is no exception. However, the provisions relating to “consultation” in Convention No. 169 specifically address
consultation with indigenous and tribal peoples. The relevant provisions of the Convention are Articles 6, 7, 15 and 17. 5
Articles 27 and 28 also refer to consultation specifically regarding education.
1 See ILC, 63rd Session, 1977, Report III (Part 4A), Report of the Committee of Experts on the Application of Conventions and
Recommendations, para. 32; ILC, 73rd Session, 1987, Report III (Part 4A), Report of the Committee of Experts on the Application of
Conventions and Recommendations, para. 21; ILC, 77th Session, 1990, Report III (Part 4A), Report of the Committee of Experts on the
Application of Conventions and Recommendations, para. 7; ILC, 78th Session, 1991, Report III (Part 4A), Report of the Committee of
Experts on the Application of Conventions and Recommendations, paras 11 and 12.
2 See ILC, 99th Session, 2010, Provisional Record No. 16, Part One, para. 54; Part Two, pp. 103–107.
3 ibid., Part Two, p. 106.
4 See ILC, 98th Session, 2009, Provisional Record No. 16, Part One, para. 50.
5 Article 6
1. In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions,
whenever consideration is being given to legislative or administrative measures which may affect them directly;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at
all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and
programmes which concern them;
Document No. 103
ILO, Information paper on the history and
development of the mandate of the Committee of
Experts on the Application of Conventions and
Recommendations, February 2013

Informal Tripartite Consultations
(19-20 February 2013)
Inernational Labour Office Geneva

Mandate.CEACR.11.02.13.docx iii
Contents
Page
Informal Tripartite Consultations (19-20 February 2013) ................................................................. 5
Follow-up to matters arising out of the report of the Committee on the Application
of Standards of the 101st (June 2012) Session of the International Labour Conference ....... 5
Information paper on the history and development of the mandate of the Committee
of Experts on the Application of Conventions and Recommendations................................... 5
Introduction ....................................................................................................................................... 5
Section A. The mandate of the CEACR: Historical background ................................................... 7
1. 1926-1939: The concept of “mutual supervision” and the establishment
of the CEACR and the CAS ......................................................................................... 7
The terms of reference of the CEACR .......................................................................... 8
Composition of the CEACR ......................................................................................... 8
Methods of work of the CEACR .................................................................................. 8
Relationship between the CEACR, the CAS and the Governing Body ........................ 9
2. 1944-61: The expansion of supervision ........................................................................ 10
Terms of reference of the CEACR................................................................................ 11
Composition of the CEACR ......................................................................................... 12
Methods of work of the CEACR .................................................................................. 12
Relationship between the CEACR, the CAS and the Governing Body ........................ 12
3. 1962-1989: Supervision and diversification ................................................................. 14
The terms of reference of the CEACR .......................................................................... 14
Composition of the CEACR ......................................................................................... 16
Methods of work of the CEACR .................................................................................. 16
Relationship between the CEACR, the CAS and the Governing Body ........................ 17
4. 1990-2012: Standard-setting and globalization ............................................................ 18
The terms of reference of the CEACR .......................................................................... 18
Composition of the CEACR ......................................................................................... 18
Methods of work of the CEACR .................................................................................. 19
Relationship between the CEACR, the CAS and the Governing Body ........................ 19
Matters arising out of the discussions in the CAS at the 101st Session
(June 2012) of the ILC .................................................................................................. 20
Section B. Interpretation of ILO Conventions: Role of the CEACR and the constitutional
process of referral to the International Court of Justice ................................................ 23
1. Review of the constitutional mechanism for the interpretation
of Conventions and the Constitution............................................................................. 23
iv Mandate.CEACR.11.02.13.docx
2. Developments in practice in the ILO supervisory system relating
to the interpretation of Conventions ............................................................................. 25
1926-1939 ..................................................................................................................... 25
1944-1961 ..................................................................................................................... 25
Since 1962 .................................................................................................................... 26
3. Legal process for the referral of a request for interpretation to the ICJ ....................... 27
Section C. Main issues and possible ways forward ........................................................................ 28
End notes ...................................................................................................................................... 33
Mandate.CEACR.11.02.13.docx 5
Informal Tripartite Consultations
(19-20 February 2013)
Follow-up to matters arising out of the report of the
Committee on the Application of Standards of the
101st (June 2012) Session of the International
Labour Conference
Information paper on the history and development
of the mandate of the Committee of Experts on the
Application of Conventions and Recommendations
Introduction
1. This information paper has been prepared in response to the informal tripartite
consultations1 held on 19 September 2012 on the follow-up to the discussions in the
Committee on the Application of Conventions and Recommendations (normally known as
the Committee on the Application of Standards – CAS) at the 101st Session (2012) of the
Conference, and the decision by the Governing Body at its 316th Session (November
2012) that its Officers should pursue the informal tripartite consultations and report to its
317th Session (March 2013).2
2. During the discussions in the CAS in 2012, the Employers’ group objected to certain
observations of the Committee of Experts on the Application of Conventions and
Recommendations (CEACR) in its 2011 General Survey concerning the right to strike. The
CAS concluded by noting that “different views had been expressed on the functioning of
the Committee in relation to the reports of the Committee of Experts which were submitted
for its consideration…”. The Conference decided, upon the recommendation of the CAS,
to: (1) request the Director-General to communicate those views to the Governing Body;
and (2) invite the Governing Body to take appropriate follow-up as a matter of urgency,
including through informal tripartite consultations prior to its November 2012 session”.3
3. In November 2012, the Governing Body was provided with a brief report on the
consultations and the Employer’s group made a statement on their position. The present
paper focusses specifically on the questions that have arisen regarding the mandate of the
CEACR, particularly in relation to the question of the CEACR’s role in clarifying the
meaning of the provisions of specific Conventions, and its role in relation to that of the
CAS. In response to the September 2012 consultations, and the discussions in the
Governing Body at its 316th Session, Section A below provides details of the development
of the mandate of the CEACR within the ILO supervisory system. This information on the
historical background of the CEACR is intended to provide the Governing Body with a
firm basis for its discussions, taking into account the evolutions and related discussions
since 1926. The historical background provided in Section A is organized into four periods,
for each of which information is provided on the terms of reference, composition and
methods of work of the CEACR, and its relationship with the CAS and the Governing
Body.
6 Mandate.CEACR.11.02.13.docx
4. Section B, also in response to the requests made during the tripartite consultations and the
discussions in the Governing Body, provides further succinct information on the history of
the ILO constitutional mechanism and practices regarding the interpretation of ILO
Conventions, placing emphasis on the question that has been at the fore of the recent
discussions, namely the interpretation of ILO Conventions in the context of the functions
of the CEACR and the CAS.4 This information is intended to offer more specific
background to the indications provided by the Deputy Legal Adviser in response to a
question raised during the September 2012 consultations, and referred to during the 316th
Session of the Governing Body, namely “Whether the Governing Body has ever decided to
amend the stated terms of reference of the Committee of Experts to expressly include the
interpretation of international labour standards and, if it had not, whether the Governing
Body intended to change those terms of reference.”5 It also provides information regarding
the context and legal process for referral of a matter to the International Court of Justice
(ICJ) under article 37, paragraph 1, of the ILO Constitution.6 This information is provided
in response to requests made by the Employers’ group during the 316th Session of the
Governing Body and the Worker members in the CAS.
5. Section C provides reflections and orientations on possible ways forward.
Mandate.CEACR.11.02.13.docx 7
Section A. The mandate of the CEACR:
Historical background
1. 1926-1939: The concept of “mutual supervision”
and the establishment of the CEACR and the CAS
6. The CEACR7 and the CAS were established to carry out their respective supervisory
functions under the concept of “mutual supervision” based on Article 408 of Part XIII of
the Treaty of Versailles (article 22 of the ILO Constitution), which provides that:
Article 22
Annual reports on ratified Conventions
1. Each of the Members agrees to make an annual report to the International Labour
Office on the measures which it has taken to give effect to the provisions of Conventions to
which it is a party. These reports shall be made in such form and shall contain such particulars
as the Governing Body may request.
7. The concept of “mutual supervision” among ILO Members emerged from the work leading
to the development of the ILO (through the Labour Chapter of the 1919 Peace Treaties,
which later became the ILO Constitution), based on the precept that ILO Members would
all be bound by the same ratified Conventions, thereby preventing unfair competition
between countries.8 Each Member would therefore have an interest in ensuring that the
others applied the Conventions that they had each ratified. Although it had originally been
proposed that ratification of Conventions would be almost automatic by member States,
when the Constitution was adopted the decision as to ratification was left to the discretion
of Members, which were nevertheless under the obligation to bring Conventions and
Recommendations before the competent authorities within one year of their adoption.
However, the provisions concerning the supervisory procedures were still based on the
assumption that ratification would be the general rule and objective. The report of the
Commission on International Labour Legislation, which drafted the Labour Chapter,
emphasized that the supervisory procedures had “been carefully devised in order to avoid
the imposition of penalties, except in the last resort, when a State has flagrantly and
persistently refused to carry out its obligations under a Convention”. It added that, “while
taking the view that it will in the long run be preferable as well as more effective to rely on
the pressure of public international opinion rather than economic measures, (it)
nevertheless considers it necessary to retain the latter in the background”.9
8. Within this constitutional framework, the submission of annual reports under Article 408
of the Treaty of Versailles (now article 22 of the ILO Constitution) provided the necessary
means for an exchange of information between Members. The summary of the contents of
the reports by Members, presented by the Director-General, was to be submitted to the
delegates at the Conference for their views. The representation and complaint procedures
could potentially be implemented against Members which failed to give effect to ratified
Conventions.
9. In practice, between 1921 and 1925, neither the Conference nor individual Members used
the Director-General’s summary as a basis for further action. As a result, following their
establishment in 1926, the CEACR and the CAS were the only effective means of
supervising ratified Conventions, as the other supervisory procedures had not been fully
implemented during that period,10 and the preference was to focus on the review of annual
reports, so as to render recourse to the other constitutional procedures (representations and
complaints) unnecessary.
8 Mandate.CEACR.11.02.13.docx
The terms of reference of the CEACR
10. The Conference set up the CAS and requested the Governing Body to appoint a Committee
(now the CEACR) under the same resolution at its 8th Session (1926).11 The functions of
the CEACR were defined in the report of the Committee on the examination of annual
reports under Article 408 (the Committee on Article 408) of the Treaty of Versailles, set up
by the Conference in 1926, including the indication that the CEACR would have no
judicial capacity or interpretative authority.12 It should be noted that, from its first session,
the CEACR also examined information arising out of Article 421 (article 35 of the present
ILO Constitution) concerning the application of ratified Conventions to “colonies,
protectorates and possessions”.13
11. Some governments questioned the constitutionality or need for the machinery set up under
the 1926 resolution,14 and some constituents objected that it attributed a role to the
Conference in the supervision of Conventions that was not set out in the Constitution.15
During the adoption of the resolution, an amendment had been moved to delete the
paragraph concerning the establishment of the CAS, based on the arguments that the
complaint procedure should be used instead, that the functions of the two Committees
would be very limited and of no added value and that a Committee of the Conference
would lack both the time and continuity to examine annual reports.16 With regard to the
CEACR, it was emphasized that, under the terms of Article 408, the constitutional
responsibility of submitting a summary of the annual report regarding compliance by each
Member rested solely with the Director-General (then known as the “Director”).
12. Of the 180 reports received for the first session of the CEACR, 70 gave rise to
“observations” by the CEACR, which also made a number of remarks and suggestions on
the form and content of the report forms. The CEACR noted in its 1928 report that
governments had furnished the information based on its earlier comments.17 In 1928, the
CAS recognized that the work of the CEACR had rendered useful results and the
Governing Body decided to appoint the CEACR for one year on the understanding that its
mandate would be tacitly renewed annually, unless opposition was raised.18
Composition of the CEACR
13. Prior to the adoption of the 1926 resolution, the Chairperson and Reporter of the
Committee on Article 408 explained that the method of appointment of the members of the
CEACR should be left to the Governing Body, but that they “should essentially be chosen
on the ground of expert qualifications and on no other ground whatever”.19 In 1927 and
1928, the membership of the CEACR consisted of eight experts and a substitute member.
The experts were initially appointed for the duration of the CEACR’s two-year trial
period,20 although as from 1934 they were appointed for a renewable three-year period.21
The ILO paid travel costs, but no honorarium.22
14. The criteria for appointment to the CEACR has experienced continuity, although the
number of experts and the geographical balance evolved rapidly in response to the
CEACR’s increased workload and the diversification of ILO membership. The number of
experts rose to ten in 1928 and 11 in 1932, with one member from an “extra-European”
country. In 1939, the CEACR had 13 members, nine from European countries and four
from non-European countries.
Methods of work of the CEACR
15. In terms of workload, the number of article 22 reports on ratified Conventions rose from
180 in 1927 to 600 in 1939, due largely to the number of international labour standards
adopted. In addition, the reports submitted became more substantial as the report forms
Mandate.CEACR.11.02.13.docx 9
were developed by the Governing Body, at the instigation of the CEACR and the CAS, and
the replies were received to the observations made by the two committees. CEACR
sessions lasted an average of one week.
16. The methods of work of the CEACR evolved through interaction between the Governing
Body, the CEACR and the CAS. The CEACR developed the internal elements of its work,
such as the methods of examining annual reports, their distribution among the experts,with
specific tasks being attributed to some experts, the structuring of its technical report and
the method for its adoption by the experts. Particularly in its first reports, the CEACR
made recommendations either to the Office or the Governing Body on follow-up action
that could be taken with certain governments. During this period the CEACR also began
addressing governments directly (unless the nature of the issue justified its referral to the
Governing Body) and thereby gradually established a dialogue with governments. The
Governing Body, on the other hand, in practice confined itself to communicating the
CEACR’s observations to governments and to the Conference.
17. In its 1929 report, the CEACR suggested that certain Members might wish to engage in
direct contact to provide oral explanations on the application of ratified Conventions. The
Governing Body, despite the reservations expressed by some of its members,23 eventually
approved this procedure.
Relationship between the CEACR, the CAS
and the Governing Body
18. This period (1926-1939) was marked by regular interaction between the CEACR, the CAS
(through the Conference) and the Governing Body. The Governing Body’s active
involvement in the supervision of ratified Conventions reflected its broader involvement in
all standards-related matters at the time. The report of the CEACR gave rise to institutional
dialogue, first in the CAS, and second with follow-up by the Governing Body based on the
elements highlighted by the Office.24 In particular, by this time, this dialogue addressed
three aspects regarding the development of the report forms: (1) the practical application of
Conventions; (2) comments from employers’ and workers’ organizations (a question to this
effect was added to the report forms by the Governing Body in 1932); and (3) the
application of ratified Conventions to “colonies, protectorates and possessions”.
19. With respect to the relationship between the CEACR and the CAS, when the two
committees were established, the CAS was to base its examination on the summary of
annual reports produced by the Director and the report of the CEACR. The CAS initially
appointed “sub-reporters” to conduct an additional examination of the annual reports, but
stopped in 1932 to avoid unnecessary duplication of the work of the CEACR.25 Instead, the
CAS would focus on matters of principle and any facts that emerged during discussion.
The CAS indicated for the first time that the report of the CEACR was the basis of its
deliberations,26 while its independent examination was confined to reports received too late
to be examined by the CEACR. At this time, the CAS examined all observations made by
the CEACR, together with subsequent information received from Governments and the
views expressed by delegates. Despite this “double examination” of reports, the working
methods of the CEACR and the CAS gradually differed. While the CEACR examined
reports and other written information provided by the Office, the procedures of the CAS
gradually developed around the opportunity given to member States to submit explanations
either orally or in writing.27
20. The Governing Body regularly discussed the nature and scope of its consideration of the
report of the CEACR, and particularly whether it should approve or take note of the
report.28 However, there was no time for it to consider the CEACR’s report in detail before
its communication to the Conference. The report was submitted simultaneously to both the
10 Mandate.CEACR.11.02.13.docx
Governing Body and the Conference. In its reports, the CEACR regularly recalled the
authority of the Governing Body concerning the supervision of Conventions and sought its
“instructions.”
2. 1944-61: The expansion of supervision
21. Following the Second World War, the ILO reviewed its role, particularly in relation to
standard-setting and the supervisory machinery, based on: the first 14 years of the
operation of the supervisory machinery;29 the related tripartite discussions and decisions;
and the weaknesses of the standards system, as revealed through the operation of the
supervisory machinery.
22. In 1941, a report by the Acting Director to the special Conference convened by the
Governing Body explicitly recognized the value of standards and their supervision by the
CEACR and the CAS, an element which was taken into account when the future policies,
programmes and responsibilities of the ILO were drawn up in the new international
environment.30
23. In 1944, the 26th Session of the Conference, meeting in Philadelphia, discussed the future
policy, programme and status of the ILO. The report prepared for the discussion reviewed
the extent to which the broadening of the ILO’s responsibilities in the post-war period
would involve developments in the arrangements for the adoption and application of
Conventions and Recommendations, including improvements in existing arrangements for
the mutual supervision of the application of standards. It noted that the thoroughness of
mutual supervision depended on the combination of the independent judgment of experts,
the special knowledge of the Office and the practical experience and outlook of the
representatives of the interests affected. A weakness of the system was that, although it
offered a fairly reliable impression of the extent to which national laws and regulations
were in conformity with Conventions, it did not provide a clear picture of the extent to
which those laws and regulations were effectively applied. The report emphasized that the
operation of the arrangements for mutual supervision should be resumed as soon as
circumstances allowed.31
24. Meeting once again in 1944, the CAS emphasized in its report that it had been impossible
to examine the application of Conventions due to the absence of a preliminary examination
by the CEACR. The Conference endorsed the recommendation of the CAS that the
CEACR be reappointed at the earliest possible date and requested the Governing Body to
appoint a Constitutional Committee to examine all of the issues relating to the revision of
the Constitution.32 As indicated below, the CAS made a determining contribution to the
two-year debate on constitutional amendments.33
25. In 1945, the CAS reviewed a number of questions concerning the application of ratified
Conventions, although noting that, in so doing, it was going beyond its existing terms of
reference. The CAS emphasized that experience had demonstrated that certain obligations
of Members in respect of Conventions and Recommendations should be clarified or
amplified in order to ensure increased efficiency in the working of the Organization. A
resolution adopted unanimously by the CAS called for reports by member States on the
submission of Conventions and Recommendations to the competent authorities and on the
effect given to unratified Conventions and to Recommendations, as well as the
communication of their annual reports on ratified Conventions and on Recommendations
to the most representative national organizations of employers and workers for their
comments. It also called for future reports to be communicated by the Director-General to
the CEACR and to the Conference, and for the terms of reference of the CAS and the
CEACR to be modified accordingly.34
Mandate.CEACR.11.02.13.docx 11
26. In 1946, upon the recommendation of the Delegation on Constitutional Questions, the
Conference endorsed most of the proposals contained in the CAS resolution, including
broadening the terms of reference of the CAS and the CEACR. The Delegation also
recommended, with some reservations, that consideration should be given to a procedure
to note cases in which Conventions had not been ratified, but where the situation was not
less satisfactory than the requirements of the Convention, so that governments could
receive appropriate credit.35
27. The Conference also accepted the Delegation’s proposal that when a ratified Convention
was declared applicable to what were now designated “non-metropolitan territories,” it
would require the acceptance on behalf of the territory concerned of the reporting
obligations set out in the Convention and the Constitution. Although the representation
procedure was not modified, the procedure for complaints was adjusted, notably through
the replacement of the reference to measures of an economic character in the original
Constitution by a provision under which the Governing Body can recommend to the
Conference the measures that it deems wise and expedient to bring compliance with the
Convention concerned.36
28. The 1946 instrument of amendment of the Constitution therefore enlarged the scope of
supervision, based on the experience of the work of the CEACR and the CAS in the prewar
years. The work of the CAS and the CEACR led to reforms emphasizing the effective
application of all instruments adopted by the Conference and obtaining fuller information
on national law and practice on these instruments. Ultimately, these reforms recognized the
important role of standards in achieving the objectives of the ILO.
Terms of reference of the CEACR37
29. During this time, the Conference, the Governing Body and the Office acknowledged that
the amendments to the Constitution extended the system of information and reports to be
supplied by Members on Conventions and Recommendations.38 The CEACR noted in
1952 that its work that year marked “the end of a period of transition and adjustment.” The
Constitutional amendments had “widely extended the obligations of Governments to
submit reports.” It further noted four elements of the new procedure:
1. the new obligation on governments to report on measures to bring Conventions and
Recommendations before the competent authorities;
2. the fuller indications provided on the influence of Conventions, whether ratified or
not, and of Recommendations on national law and practice;
3. the indications provided of the causes which may have prevented more widespread
ratification of Conventions and acceptance of Recommendations, and the resulting
guidance for the ILO’s future legislative programme and decisions; and
4. the emphasis on the practical application of Conference decisions, and the enlistment
of the cooperation of the representative organizations of employers and workers by
requiring governments to communicate copies of reports to them.39
30. A further proposal was also made at that time by the Governing Body Committee on
Standing Orders, arising out of a recommendation by the Delegation on Constitutional
Questions, which would have involved enabling governments to request that the
Conference take formal note, based on the examination carried out by the CEACR and the
CAS, that their national law and practice were “in substantial conformity” with unratified
Conventions. However, in its 1948 report, the CEACR indicated that it would be difficult
to reach objective conclusions on the substantial conformity of national law and practice
12 Mandate.CEACR.11.02.13.docx
with unratified Conventions. Despite the recommendations made by the Conference and
the Governing Body, the proposal was not therefore given effect.40
31. In 1956, based on a request by the Secretary-General of the Council of Europe, the
Governing Body assigned the CEACR the task of examining country reports on the
European Social Security Code to ascertain the conformity of legislation in ratifying
countries.41 The CEACR started this examination following the entry in force of the Code
in the 1960s.
Composition of the CEACR
32. During the course of 1945, the Governing Body appointed nine experts for the 13 vacant
seats, which was the authorized number prior to the Second World War. Of those, five had
been members of the CEACR prior to 1939. Following a request by the CEACR for the
reinforcement of its membership, which had dropped to ten, and for experts qualified to
examine the application of Conventions in non-metropolitan territories, the Governing
Body had appointed three additional experts by March 1948, including the first woman
expert.
33. In 1951, the CAS recommended that the Governing Body examine the possibility of
lengthening the duration of the sessions and of adding once more to the number of
experts.42 As from the beginning of the 1950s, the sessions of the CEACR were lengthened
to an average one and a half weeks and its membership rose from 13 to 17 members.
Methods of work of the CEACR
34. The methods of work of the CEACR evolved during this period due to the extension of its
terms of reference and the corresponding increase in its workload.43 The impact of the
extension of its terms of reference on the functions of the CEACR was shaped through its
interactions with the CAS and the Governing Body. The proposals to reactivate the
procedure of the direct supply of information by governments to the CEACR were
approved by the Governing Body, but not used by governments.44 Dialogue between the
CEACR and governments had developed constantly throughout the years and was further
enhanced during this period. For example, in 1951, the Governing Body included a
question in the annual report forms requesting information on the action taken by
governments in response to observations made by the CEACR and the CAS. The
Governing Body also approved the Director-General’s proposal that he draw the attention
of the governments concerned to the requests for information and observations made by
these bodies.45 This dialogue was also characterized by the first references to technical
assistance to overcome difficulties in the application of Conventions.46
Relationship between the CEACR, the CAS
and the Governing Body
35. The institutional dialogue between the CEACR, the CAS and the Governing Body, which
had prevailed in the early years, continued, although it was adapted in light of the
Constitutional amendments regarding articles 19 and 23, paragraph 2.47
36. Relationship between the CEACR and the CAS. The CAS’ recommendation played a
determining role in the reconstitution of the CEACR, placing emphasis on the fact that the
“double examination” (by the CEACR and then the CAS) was essential to the proper
functioning of supervision. Thereafter, it repeatedly supported calls for the membership of
the CEACR to be increased and its sessions to be lengthened.48
Mandate.CEACR.11.02.13.docx 13
37. Participation of employers and workers’ organizations. Both the CEACR and the CAS
repeatedly expressed concern at the lack of comments from employers’ and workers’
organizations based on the question added to the report forms in 1932. It was only in 1953
that the CEACR could note comments received from workers’ organizations in two
countries. In 1959, it indicated that comments had been received from nine countries.49
Nevertheless, during this period, both the CEACR and the CAS focused on ensuring that
governments fulfilled their new constitutional obligation to provide representative
organizations of employers and workers organizations with copies of the information and
reports supplied under articles 19 and 22 of the Constitution.
38. Relationship between the CEACR and the Governing Body. Prior to 1939, the Governing
Body had authorized the Director-General to transmit the report of the CEACR to the
Conference without first discussing it, and in March 1947 the Director-General noted that
this had become a “standard procedure,” although the right of the Governing Body to
discuss the actual contents of the report of the CEACR was also recalled.50 The report of
the CEACR continued to be submitted directly to the Governing Body, although specific
issues raised were referred to itsCommittee on Standing Orders and the Application of
Conventions and Recommendations, which dealt with most of the matters arising out of
the work of the CEACR and the CAS during this period. As of the mid-1950s, the
Governing Body confined itself to taking note of the report of the CEACR and no longer
commented on it.
39. Supply of information and reports concerning the submission of instruments to the
competent authorities. In 1953, the CEACR defined the “principal rules with which States
should comply in carrying out their obligations under paragraphs 5(b), 6(b), 7(a) and (b) of
article 19 of the Constitution”. In light of the different possible interpretations of the scope
of this obligation, the CEACR suggested that a form should be established for
governments setting out various points on which information was to be supplied. This
proposal was strongly endorsed by the CAS, and in 1954 the Governing Body approved a
draft memorandum containing details on the extent of the obligation to submit
Conventions and Recommendations to the competent authorities, which reproduces
“extracts from the report of the Committee of Experts […] unanimously approved by the
Conference Committee on the Application of Conventions and Recommendations.”51 After
discussion in the CAS and the CEACR, the memorandum was amended in 1958 to indicate
that it “should not be considered as affecting article 37 of the I.L.O. Constitution, which
confers on the ICJ the power to interpret the provisions of the Constitution.”52
40. Information and reports on unratified Conventions and Recommendations.53 Based on the
arrangements approved by the Governing Body in March 1948, and its selection of the
Conventions and Recommendations adopted by the Conference at its 26th (1944) and
subsequent sessions, the CEACR first examined reports on unratified Conventions in 1950.
Its first examination highlighted relevant information on national law and practice
concerning the selected instruments, including the ratification situation and divergences in
interpretation. In view of the limited number of reports received and the uneven
information provided, between 1950 and 1953 the CEACR and the CAS proposed a
reduction in the number of instruments selected and a simplification in the forms to secure
better information from governments.54
41. The examination of reports on unratified Conventions and on Recommendations was
strengthened in 1955 and 1956. In November 1955, with a view to reinforcing the work of
the CAS, the Governing Body approved a proposal by its Committee on Standing Orders
and the Application of Conventions and Recommendations, which was supported by the
CAS, that the CEACR should undertake, in addition to a technical examination on the
application of Conventions, a study of general matters, such as positions on the application
of certain Conventions and Recommendations by all governments. Such studies, now
known as “general surveys”, were intended to cover the Conventions and
14 Mandate.CEACR.11.02.13.docx
Recommendations selected for the submission of reports under article 19 of the
Constitution. As the reports requested under article 19 were grouped around one or two
central themes each year, it was proposed that the reports provided under article 22 of the
Constitution might also be taken into consideration.55 The CEACR carried out this
examination in 1956 and, as from that year, the CAS has consistently discussed the general
surveys of the CEACR.
3. 1962-1989: Supervision and diversification
42. The ILO’s membership tripled between 1945 and 1982, as many territories became
independent. With new members came new needs, and the ILO began to emphasize the
assistance that it could provide to its new Members, particularly to help them meet their
obligations under ILO Conventions. The approach of certain individual constituents
towards the application of international labour standards was also changing, as some began
questioning the work of the CEACR. Some constituents had previously disagreed with the
technical examination undertaken by the CEACR; now, the competence, objectivity and
impartiality of the CEACR were questioned.56 These challenges, the expansion of the
standards system and the profound changes in patterns of work led to a new review of ILO
standard-setting activities. This review focused on the substance of ILO standards and
policy regarding their adoption, elaboration and revision.57
43. The convergence of views between the Employers’ and Workers’ groups on promoting
compliance with standards led to further developments in the work of the CEACR. This,
combined with the growth of the international trade union movement and supported by the
CEACR and the CAS, contributed to the increased participation of employers’ and
workers’ organizations in the process of the supervision of standards. By the mid-1970s, a
series of measures had been taken to strengthen tripartism in ILO activities, including
supervision, resulting in important changes in the workload and methods of work of the
CEACR. The adoption of the Tripartite Consultation (International Labour Standards)
Convention, 1976 (No. 144), established the requirement for ratifying States to consult the
representatives of employers and workers on certain standards-related matters, including
their reports on ratified Conventions.
44. The representation and complaint procedures began to be used and implemented more
systematically, resulting in the establishment of Commissions of Inquiry (to examine
complaints under article 26 of the Constitution) and tripartite committees (to examine
representations under article 24 of the Constitution). The Governing Body entrusted the
CEACR with responsibility for following up the effect given by the governments
concerned to the recommendations of these bodies. This use of all the procedures and their
coordination was a major development during the period and demonstrated that “the
different parts of the ILO supervisory system do not operate in isolation, but constitute
complementary components”.58
The terms of reference of the CEACR
45. Although the mandate of the CEACR regarding the supervision of standards did not
change during this period, its related functions were further developed.
46. First, in 1971, the Conference adopted a Resolution concerning the strengthening of
tripartism in the over-all activities of the ILO, which invited the Governing Body to
request the CEACR: (i) to give particular attention to the equality of representation
between workers and employers in tripartite bodies where provision was made in
international labour instruments; and (ii) to consider measures which the ILO could take to
ensure the effective implementation of article 23, paragraph 2, of the Constitution.59
Another Conference resolution adopted in 1977 concerning the strengthening of tripartism
Mandate.CEACR.11.02.13.docx 15
in ILO supervisory procedures of international labour standards and technical co-operation
programmes reaffirmed that “absolute impartiality in the ILO supervision of international
standards [was] the key to their credibility in order to ensure that obligations freely
contracted are complied with and remain the same for all countries irrespective of their
size, economic and social system and level of economic development.”60 As explained
below, these resolutions had an important impact on the work of the CEACR.
47. Second, while other international organizations were developing their own monitoring
mechanisms, the ILO collaborated in supervising the application of instruments relating to
matters of common interest. Following the entry into force of the European Code of Social
Security in 1968, the CEACR started examining reports on the application of the Code and
its Protocol. In 1976, at the request of the Secretary-General of the United Nations, the
Governing Body entrusted the CEACR with responsibility for examining reports from
States Parties to the International Covenant on Economic, Social and Cultural Rights in
matters falling within the ILO’s mandate.61 This collaboration ceased in 1987 at the
recommendation of the CEACR in light of the establishment in 1985 of the United Nations
Committee on Economic, Social and Cultural Rights, with a view to avoiding “any
duplication of work and possible conflict of competence” between the specialized agencies
and the new Committee, although the information in CEACR reports continues to be
shared with the United Nations.62
48. The CAS and the Conference Plenary frequently discussed the competence of the CEACR
during this period. In 1963, some governments and a minority of Worker members
formally requested the Conference to adopt “definite rules” regarding the composition and
organization of the CEACR. This request was debated each year until 1989, but agreement
was never reached. The constituents concerned indicated that the rules should be based on
a set of “principles,” such as the objective appraisal of facts, the need to take into account
the economic and social conditions of each country, the equitable representation in the
CEACR of different social and economic systems and geographical regions and the regular
replacement of its members.63 They expressed concern that an attempt was being made to
“turn the supervising machinery of the Organisation into a supranational body that has the
functions of a tribunal”,64 and emphasized that the supervisory bodies should provide
assistance to member States and promote the ratification and application of Conventions.
They added that the 1926 resolution entrusted the CEACR with purely technical terms of
reference and that its task was to assist the Director-General and the Conference in
discharging their responsibilities under the Constitution in relation to the supervision of
standards.65
49. A large number of Government and Employer members, and the great majority of Worker
members, disagreed with these views. They considered that the CEACR had functioned
well without any formal rules of procedure and “expressed their faith in the impartiality,
objectivity and integrity of the Committee of Experts, a quasi-judicial body whose
professional competence was beyond question […] Objectivity could not be guaranteed by
rules of procedure but depended upon the personal qualities of the members of the
Committee.”66 The independence of the CEACR could not be hindered by rigid rules of
procedure and its methods of work should retain the necessary flexibility to adapt to new
conditions and needs.67 They emphasized the autonomy of the supervisory bodies to define
their methods of work.68
50. In 1983, delegates from a number of socialist countries presented a memorandum to the
Conference.69 They considered, in particular, that the composition, criteria and methods of
the supervisory bodies did not reflect the present membership of the Organization and
present day conditions and that ILO procedures were being misused for political purposes
to direct criticism primarily at socialist countries and developing countries. They noted the
need for reform and, in 1984, submitted a draft resolution calling for the establishment of a
Conference working party to undertake a thorough review of the supervisory system.70 The
16 Mandate.CEACR.11.02.13.docx
resolution was not adopted and, although the Governing Body subsequently set up a
Working Party on International Labour Standards, its terms of reference did not include the
supervisory procedures.
Composition of the CEACR
51. The membership of the CEACR reached its current level of 20 experts in 1979.71 In
November 1962, the Governing Body appointed an additional member to ensure broader
geographical distribution, with the CEACR’s membership increasing to 18 in 1962, 19 in
1965 and 20 in 1979. The issue of the geographical composition of CEACR membership
took on greater importance in view of the ILO’s increased membership,72 and constituents
debated the emphasis to be given to personal qualifications versus the need to ensure
geographical distribution. Some recalled that “[g]eographical distribution, though
important, was not the prime consideration,” as “the main requirements for membership
were competence, integrity and the ability to make comparative study of the provisions of
national legislation and ILO instruments.”73 Critics of the composition of the CEACR also
suggested that it should include not only legal experts, but also experts on economic and
social policy and international trade union matters.74 In 1964, the Governing Body decided
that an honorarium of US$500 would be paid to each member of the CEACR every year.75
Methods of work of the CEACR
52. During this period, the CEACR regularly described its procedure and methods of work in
its reports, and adapted its methods of work, as indicated below.
53. In 1963, the CEACR indicated that it reviewed the practical application of ratified
Conventions, focusing on the incorporation of standards into domestic law. The CAS
concurred that standards must be applied not only in law, but also pursued nationally and
internationally.76 Moreover, for the first time, unanimous agreement among the CEACR
members could not be reached regarding Convention No. 87. The difference of views
between two experts and the rest of the CEACR was set out at the beginning of the
observations on the application of the Convention concerning particular countries. This
practice became part of the methods of work of the CEACR and mainly concerned
Conventions Nos 29 and 87.
54. In 1964, the CEACR started to record cases of progress in its report, noting that a
considerable number of governments had taken account of its past observations and direct
requests and had amended their legislation and/or practice accordingly.77 The CAS
welcomed these records and noted the tangible influence that the annual examination
carried out by the CEACR and by the Conference could have on the implementation of
Conventions.78
55. The procedure of direct contacts was introduced in 1968, at the suggestion of the CEACR,
and was further developed by the CAS79 and supported by the Governing Body. Originally
intended to address problems relating to the application of ratified Conventions, the direct
contacts procedure was extended in 1973 to cover difficulties in fulfilling the constitutional
obligations of the submission of Conventions and Recommendations to the competent
authorities, the submission of reports and information under articles 19 and 22 and possible
obstacles to ratification.
56. As from 1970, the CEACR began paying special attention to the manner in which States
met their constitutional obligation under article 23, paragraph 2, of the Constitution to
communicate to representative employers’ and workers’ organizations copies of the
information and reports transmitted to the ILO in pursuance of articles 19 and 22. The
CEACR proposed various measures to encourage greater participation by employers’ and
Mandate.CEACR.11.02.13.docx 17
workers’ organizations and further developed its practice as it began to receive an
increasing number of comments from them.80
57. In 1972, pursuant to the Conference resolution on the strengthening of tripartism, the
CEACR reviewed the role of employers’ and workers’ organizations in the supervision of
standards. It emphasized that article 23, paragraph 2, of the Constitution was intended to
enable employers’ and workers’ organizations to submit comments on the way that
governments fulfilled their standards-related obligations.81 The improvements suggested
by the CEACR, which were welcomed by the CAS and approved by the Governing Body
in November that year, included amending the questions in report forms and the
Memorandum on the submission of Conventions and Recommendations to the competent
authorities.
58. In 1973, the CEACR noted that the number of comments from employers’ and workers’
organizations had increased to 30 cases from seven the previous year. While most of the
comments were transmitted by governments in their reports, others were sent directly to
the ILO by the organizations. They were then forwarded to the governments concerned for
their observations, in accordance with the practice initiated by the CEACR in 1959. To
reduce delays in examining comments from employers' and workers' organizations, the
CEACR developed the practice of examining them once the governments’ observations
had been received, irrespective of whether a report was due. If governments did not submit
their observations within a reasonable period, the Committee nevertheless examined the
substance of the comments from employers’ and workers’ organizations.82
59. The submission of comments by employers’ and workers’ organizations became an
established practice. For example, when, in November 1976, the two-year reporting cycle
was increased to four years (except for 20 Conventions), the safeguards introduced by the
Governing Body to ensure that the effectiveness of the supervisory system was not
weakened included the consideration by the CEACR of comments on ratified Conventions
by national or international organizations of workers and employers. On the basis of these
comments, and in light of any explanations provided by the governments, detailed reports
could be requested earlier than normal. Where comments were sent directly to the Office,
they should be communicated to the government concerned for its observations.83
60. By 1986, the CEACR noted that there had been a considerable increase in the comments
received, from nine in 1972 to 52 in 1975 and 1980, 82 in 1983, 102 in 1984 and 149
in 1985. That year, the CEACR also reviewed “Practice and experience concerning the
comments by employers' and workers' organizations on the application of international
labour standards.” Its views, while documenting significant developments in its practice,
did not give rise to specific comments from the Governing Body or the CAS.84
Relationship between the CEACR, the CAS
and the Governing Body
61. The trend, which had emerged after the Second World War, continued for the Governing
Body not to involve itself in the work of the CEACR. The Governing Body continued to
take note of the CEACR’s report and, while the issues previously raised in this connection
resurfaced, “the well-established procedure” was maintained.85 Substantive matters raised
by the CEACR were handled outside the Governing Body plenary, in its Committee on
Standing Orders, or even by the Office. The composition of the CEACR was the main
issue discussed by the Governing Body, as well as entrusting the CEACR with the followup
to the effect given to the recommendations of Commissions of Inquiry and tripartite
committees.
18 Mandate.CEACR.11.02.13.docx
62. During this period, institutional dialogue mainly occurred between the CEACR and the
CAS, although it was limited due to the disagreements that arose in the CAS concerning
the work of both Committees.86 Individual constituents also had the opportunity to raise
issues relating to the work of the CEACR in the Conference Plenary.
4. 1990-2012: Standard-setting and globalization
63. As most of the issues that have arisen since 1990 are fairly familiar to readers, they are
examined more briefly. The review of standards-related activities, begun in 1970, was
broadened during this period to take into consideration the context of globalization. This
broader review was launched in 1994 based on the report of the Director-General to the
Conference,87 which raised a series of issues regarding the relevance, effectiveness and
need for adaptation of ILO standard-setting activities, as well as suggestions and options
for consideration. While the majority of constituents supported the functioning of the
supervisory system, some called for it to be further strengthened. The Governing Body and
the Conference discussed almost all aspects of the ILO standards system between 1994 and
2005.88 The discussions were expanded under the impetus of the Standards Strategy, which
was designed to enhance the impact of the standards system, and its related interim plan of
action, adopted by the Governing Body in 2005 and 2007. The discussions addressed the
methods of work of the CEACR, its role in relation to matters of interpretation and the
streamlining of the information and reports submitted by governments under articles 19
and 22. The decisions taken by the Governing Body related in particular to the reporting
cycle and the grouping of Conventions for reporting purposes.
64. The issues covered by the discussions during this period were similar to those that had
arisen during the ILO’s early years and the period prior to the Second World War, as
illustrated by the discussions leading up to the adoption of the ILO Declaration on
Fundamental Principles and Rights at Work (1998) and the ILO Declaration on Social
Justice for a Fair Globalization (2008).89
The terms of reference of the CEACR
65. In 1998 and 1999, the Office proposed to the Governing Body that the substance of
representations submitted under article 24 of the Constitution, which raised strictly legal
questions, should be referred to the CEACR, rather than to a tripartite committee. Based on
the examination by the CEACR, the Governing Body would decide on the follow-up to the
representation.90 Although this proposal was not accepted, when the Governing Body
revised the procedure for the examination of representations in 2004, it attributed a role to
the CEACR in cases where a representation declared receivable relates to facts and
allegations similar to those of an earlier representation.91
66. While the terms of reference of the CEACR were not adjusted during this period, its role in
relation to matters of interpretation gave rise to discussion in the CAS and the Governing
Body. Among other matters, the discussions covered the legal effects of the CEACR’s
views on the meaning of provisions of Conventions and its methods of developing such
views.
Composition of the CEACR
67. During this period, the membership of the CEACR remained unchanged and stands at 20,
the number approved by the Governing Body in 1979. In 2002, the CEACR decided to
establish a 15 year limit for all members, representing a maximum of four renewals after
the first three-year appointment. This decision has had an impact, as stability of
membership and continuity had been features of the CEACR’s work. For the first time, the
Mandate.CEACR.11.02.13.docx 19
Governing Body began to appoint new members regularly. Some members of the CAS
have emphasized the need to ensure that the CEACR operates at full capacity.92
68. In 1996, the dates of the sessions of the CEACR were moved from February-March to
November-December.93 The Governing Body also raised the honorarium of the experts to
CHF 4,000.
Methods of work of the CEACR
69. In 2001, the CEACR established a subcommittee on its working methods which met on
three occasions from 2002 to 2004.94 During its sessions in 2005 and 2006, the CEACR
discussed issues relating to its working methods in plenary.95 From 2007 to 2011, the
subcommittee again met each year.96 In addition to its terms of reference and the
interpretation of Conventions, the CEACR has also examined: measures to assist
governments to follow up on CEACR comments; the procedure for treating comments
from employers’ and workers’ organizations in non-reporting years; the criteria for cases
of progress; the criteria for the inclusion of special notes in its report (traditionally known
as footnotes); the identification of cases of good practice; general observations; changes to
the presentation, content and structure of its report; and measures to enable the CEACR to
manage its increasing workload better.
70. The CEACR’s review of its methods was prompted by the discussions in the Governing
Body of ILO standards-related activities, as well as the desire to effectively address its
growing workload. Particularly since 2005, most of the discussions of its subcommittee
have reflected issues raised by members of the CAS.97
71. During this period, there was an even greater increase in the number of comments received
from employers’ and workers organizations, which rose from 183 in 1990 to 1,004
in 2012.
Relationship between the CEACR, the CAS
and the Governing Body
72. During this period, there has been a heightened level of interaction between the CEACR
and the CAS in discharging their respective mandates. In addition to the CEACR
reviewing its methods of work, this led to greater coordination between the two
Committees, at the initiative of the CAS, and with the assistance of the Office, to
strengthen the follow-up to cases of serious failure by member States to fulfill their
reporting and other standards-related obligations. Both committees have also worked
jointly, with the Office, to promote the provision of technical assistance to member States
for the implementation of the Conventions.
73. However, the period has also been marked by divergences concerning the role of the
CEACR in relation to matters of interpretation and the division between the functions of
the respective Committees. In 1994, on the occasion of the ILO’s 75th anniversary, the
CEACR recalled developments in the practice of the two Committees, and concluded that
the division of functions was “one of the keys to the success of the ILO's supervisory
system in that the complementary nature of the independent examination carried out by the
Committee of Experts and the tripartite examination of the Conference Committee on
Standards makes it possible to maintain a desirable balance in the treatment of cases.”98 In
response, the Employer members, referring to the 1926 resolution, emphasized that the
function of the CEACR was to inform the CAS of the facts, and that the CAS was under no
obligation to follow the comments of the CEACR. The Worker members recalled that the
two Committees had always worked in a spirit of openness and constructive dialogue and
were therefore complementary. Some Government members expressed agreement
20 Mandate.CEACR.11.02.13.docx
concerning the complementary roles of the two supervisory bodies and emphasized the
need for dialogue and cooperation.99
74. In the meantime, the Governing Body began to address the work of the CEACR more
frequently, particularly due to: the more rapid renewal of CEACR membership; the
streamlining of the submission of information and reports on ratified Conventions; and the
new arrangements for the examination of reports on unratified Conventions and
Recommendations in light of the Social Justice Declaration. Some members of the CAS
have also called for greater integration between the work of the CEACR, the CAS and the
Governing Body.100
Matters arising out of the discussions in the CAS
at the 101st Session (June 2012) of the ILC
75. In June 2012, the CAS was for the first time unable to adopt a list of individual cases for
discussion because of the difference of views expressed on its functioning in relation to the
reports of the CEACR, which are submitted for its consideration.101 Several matters arose
out of the report of the CAS, including: (a) the submission of a list of individual cases on
the application of ratified Conventions for adoption by the CAS at the 102nd Session
(2013) of the Conference; (b) the comments of the CEACR on the right to strike under
Convention No. 87; and (c) the mandate of the CEACR. With respect to the latter issues,
the views expressed can be summarized as follows.
76. The Employer members stated that tripartite ownership of the supervision of ILO standards
had been lost sight of. ILO standards were politically negotiated texts and, in case of
problems of application or ratification, the body that had created them should be able to
review those matters and take a decision. It was not the role of the CEACR to determine
the development of the application of standards and, while acknowledging that the CEACR
might need to interpret and judge in order to undertake the preparatory work for the CAS,
the critical issue was that its observations were being viewed by the outside world as a
form of soft law labour standards jurisprudence. The Governing Body should consider how
to find an urgent way forward to improve the transparency and governance of the work of
the CEACR. The CEACR should do its work within an agreed tripartite framework. In the
past, the Employer members had repeatedly proposed changes to the format of the report
of the CEACR by giving employers, workers and governments the possibility to set out
their views on standards and issues related to supervision, including the application and
interpretation of Conventions.102
77. With respect to the General Survey on the fundamental Conventions submitted to the
Conference in 2012, the Employer members stated that they could support the great
majority of the General Survey. The CEACR was an independent body entrusted with
examining the application of ILO Conventions and Recommendations by member States.
However, overall responsibility for the supervision of ILO standards lay with the
Conference, in which the governments, employers and workers from all member States
were represented. The CEACR had a mandate to undertake the preparatory work in that
context, but not to replace the tripartite supervision carried out by the CAS. In particular,
the General Survey was a guide to the CAS to assist it in its work of supervising the
application of standards ratified by member States. The General Survey, like the report of
the CEACR, was not an agreed or authoritative text of the ILO tripartite constituents.103
78. The Employer members added that the eight fundamental Conventions were important not
only within the ILO, but also because other international institutions regularly used them in
their activities. They were embedded in the United Nations Global Compact, the OECD
Guidelines for Multinational Enterprises and the Human Rights Council’s “Protect,
Respect and Remedy” framework. The ILO supervisory machinery related to member
Mandate.CEACR.11.02.13.docx 21
States only, not to businesses, so it was vital, when other international institutions used the
fundamental Conventions, that their use was correct. A correct understanding of the
fundamental Conventions was imperative for businesses because they were used in
international framework agreements, transnational company agreements and in European
framework agreements with global trade unions, where they were often not defined. In
particular, the Employers’ group had repeatedly expressed their opposition to any attempt
by the CEACR to interpret the ways in which the right to strike, where it was recognized in
national law, could be exercised. This issue was complicated by the fact that Convention
No. 87 itself was silent on the right to strike and, in the view of the Employer members,
was therefore not an issue upon which the CEACR should express any opinion. The
mandate of the CEACR was to comment on the application of Convention No. 87 and not
to interpret a right to strike into Convention No. 87. The General Survey was simply meant
to be used by the CAS to inform its work, leaving it for the tripartite constituents to
determine, where consensus existed, the position of the ILO with regard to the supervision
of Conventions. Further, under article 37 of the ILO Constitution, only the ICJ could give a
definitive interpretation of international labour Conventions. It should also be noted that
the principle of freedom of association contained in Convention No. 87 had a separate
supervisory procedure, namely the CFA. In the view of the Employer members,
Convention No. 87 cases that concerned a nationally recognized right to strike should only
be supervised by the CFA in order to ensure certainty and coherence.104
79. The Employer members proposed, in particular, that a clarification be inserted in the
documentation prepared by the Office and the CEACR for the Conference or the
Governing Body, to the effect that the General Survey was part of the regular supervisory
process and the result of analysis by the CEACR, and that it was not an agreed or
determinative text of the ILO tripartite constituents. They also proposed an urgent review
of the working methods and mandate of the supervisory system. It remained the position of
the Employer members that the mandate of the CEACR was that which had been
historically agreed upon on a tripartite basis.105
80. The Worker members reaffirmed that the right to strike was an indispensable corollary of
freedom of association and was clearly derived from Convention No. 87. In its General
Survey, the CEACR had once again advanced a well thought-out argument on why the
right to strike was quite properly part of fundamental labour rights. It was important to
recall that the CEACR was a technical body which followed the principles of
independence, objectivity and impartiality. It would be wrong to think that it should
modify its case law on the basis of a divergence of opinions among constituents. While the
mandate of the CEACR did not include giving definitive interpretations of Conventions,
for the purposes of legal security it nevertheless needed to examine the content and
meaning of the provisions of Conventions and, where appropriate, to express its views in
that regard. The Worker members referred to the views expressed by the CEACR in its
report in 1990 regarding its role in matters of interpretation.106
81. The Worker members emphasized that they did not agree to the inclusion of a disclaimer in
the General Survey, which was the result of analyses undertaken by the CEACR. It was not
the place of the CAS, and certainly not the Employer and Worker members alone, to
discuss such a disclaimer, as a discussion of that type fell within the competence of all ILO
constituents. The Worker members might eventually agree to a joint statement on the
divergence of views on the role and mandate of the CEACR. They could thus envisage
discussing this divergence of views where it should be discussed, namely in the Governing
Body. The ILO Constitution established the competence of the ICJ for the interpretation of
Conventions.107
22 Mandate.CEACR.11.02.13.docx
82. The Worker members stated that the CEACR, which had been the cornerstone of the
supervisory system since 1926, retained the confidence of the Worker members and its
opinions, although not legally binding, still had and would always enjoy high moral
authority. As long as these opinions were not contradicted by the ICJ, they remained valid
and commonly agreed upon. This essential prerequisite had to be accepted, in particular to
ensure the legal certainty necessary for the proper functioning of the ILO. The criticisms
addressed to the CEACR concerning an alleged abuse of authority regarding the
interpretation of Convention No. 87 in relation to the right to strike were excessive and
indirectly constituted a denial of the jurisprudence of the CFA, which was itself a tripartite
body. The right to strike was not only a national matter to be dealt with and assessed
according to economic or time-bound considerations. In addition to Conventions Nos 87
and 98, the right to strike was also set out in the International Covenant on Economic,
Social and Cultural Rights, as well as several regional texts, including the Charter of
Fundamental Rights of the European Union, the European Social Charter, the Convention
for the Protection of Human Rights and Fundamental Freedoms and the Additional
Protocol to the American Convention on Human Rights in the Area of Economic, Social
and Cultural Rights (“Protocol of San Salvador”).108
83. Several Government members recalled that the right to strike was well established and
widely accepted as a fundamental right. One Government member expressed appreciation
of the CEACR for its continuing efforts to promote better understanding of the meaning
and scope of the fundamental Conventions, including the right to strike. Another
Government member added that her country fully accepted the position of the CEACR that
the right to strike was a fundamental right protected under Convention No. 87.109 It was
IMEC’s view that the role of the CAS was to consider the report of the CEACR on
individual cases, and not to question the status of its report. The issues raised by the
Employer members needed to be dealt with in an appropriate forum, but IMEC did not
consider that the CAS was the appropriate place.110 IMEC had a long history of supporting
the independence, impartiality and objectivity of the CEACR, as well as its autonomy. It
understood that there would be occasions when members or groups within the CAS would
have views that differed from those of the CEACR, and all members had the fundamental
right to express those views.111 Another Government member expressed full commitment
to the ILO supervisory system and emphasized the importance that it attached to the fair
and objective, apolitical and impartial analysis undertaken by the CEACR in the context of
its well-defined mandate.112
Mandate.CEACR.11.02.13.docx 23
Section B. Interpretation of ILO Conventions: Role
of the CEACR and the constitutional
process of referral to the International
Court of Justice
84. This section supplements the information presented on the question of the interpretation of
Conventions in the context of the informal tripartite consultations held in 2010, further to
the decisions taken by the Governing Body in November 2008 and November 2009.113
Following a brief historical review of the constitutional mechanisms, a summary is
provided of practice on the question of the interpretation of ILO Conventions and the
Constitution, focusing on the role of the CEACR in the interpretation of Conventions.
Information is also provided on the process for referring questions of interpretation to the
ICJ under article 37, paragraph 1, of the Constitution.
1. Review of the constitutional mechanism
for the interpretation of Conventions
and the Constitution
85. In 1919, the Treaty of Versailles provided, in Part XIII, Article 423, that: “Any question or
dispute relating to the interpretation of this Part of the present Treaty or of any subsequent
convention concluded by the Members in pursuance of the provisions of this Part of the
present Treaty shall be referred for decision to the Permanent Court of International
Justice.” It may be noted that an additional provision contained in the original proposed
wording, to the effect that the decision of the International Court on such questions or
disputes shall be final, was not retained “so as to remove any ambiguity on the powers” of
the Court.114
86. During the history of the ILO, five requests for advisory opinions have been submitted to
the Permanent Court of International Justice (PCIJ), the precursor to the ICJ, all through
the League of Nations. Only one involved a request for the interpretation of a Convention.
The other four concerned the interpretation of certain provisions of the ILO Constitution.
87. In 1932, Advisory Opinion No. 15 (15 November 1932) of the PCIJ on the interpretation
of the Night Work (Women) Convention, 1919 (No. 4),115 acknowledged the interpretation
given by certain governments to Convention No. 4, which had given rise to differences of
application between countries and had been referred by the CEACR to the Governing
Body. Consequently, the Governing Body decided to include an item to revise the
Convention on the agenda of the next session of the Conference, which duly adopted a
revised Convention.
88. Before the Second World War, the Governing Body held a number of discussions on
access to the PCIJ. At the time, the ILO considered that it was deprived of any direct
access, either through its jurisdiction in contested cases – open only to Members – or as an
advisory body, since only the Council and Assembly of the League of Nations could lodge
requests for an advisory opinion. The ILO made several unsuccessful attempts for direct
access by the League of Nations under its advisory jurisdiction.
89. This prompted the inclusion in the ILO Constitution in 1946, upon the proposal of the
Conference Delegation on Constitutional Questions, of a second more expeditious
procedure to deal with the interpretation of Conventions without having recourse to the ICJ
through the appointment of an ILO tribunal.116
24 Mandate.CEACR.11.02.13.docx
90. The current article 37 therefore combines the results of two constitutional drafting phases
and reads as follows:
1. Any question or dispute relating to the interpretation of this Constitution or of any
subsequent Convention concluded by the Members in pursuance of the provisions of this
Constitution shall be referred for decision to the International Court of Justice.
2. Notwithstanding the provisions of paragraph 1 of this article, the Governing Body may
make and submit to the Conference for approval rules providing for the appointment of a
tribunal for the expeditious determination of any dispute or question relating to the
interpretation of a Convention which may be referred thereto by the Governing Body or in
accordance with the terms of the Convention. Any applicable judgment or advisory opinion of
the International Court of Justice shall be binding upon any tribunal established in virtue of
this paragraph. Any award made by such a tribunal shall be circulated to the Members of the
Organization and any observations which they may make thereon shall be brought before the
Conference.
91. In 1946, when the ILO became the first specialized agency of the United Nations,
Article IX, paragraphs 2 and 3, of the “relationship agreement” authorized the ILO to
request advisory opinions from the ICJ. In light of this authorization, the Governing Body
decided that it was not necessary for the time being to consider rules for a tribunal under
article 37, paragraph 2.117 Subsequently, in 1949, the Conference authorized the Governing
Body to request advisory opinions of the ICJ.118
92. Between 1993 and 2002, the question of the interpretation of Conventions, including
possible recourse to paragraph 2 of article 37 of the Constitution, was discussed on a
number of occasions, without giving rise to any specific action.
93. In 2008 and 2009, the Governing Body asked the Office to study the question of the
interpretation of Conventions, including the possible implementation of article 37,
paragraph 2, and to start consultations in the context of the ILO Standards Strategy to
enhance the impact of the standards system and its related plan of action. Two sets of
informal tripartite consultations were held (in February-March and November 2010).
These consultations have not been resumed since.
94. The question of the implementation of Article 37, paragraph 1, was discussed by the
Governing Body and the Conference in 1999 in relation to the observance by Myanmar of
the Forced Labour Convention, 1930 (No. 29). In March 2006, the Governing Body
decided to place the item on the agenda of the 295th Session (2006) of the Conference.119
In so doing, the Governing Body instructed the Office to prepare an analysis of all relevant
options that the Conference could consider, which included: (Option 1) a binding ruling by
the ICJ under article 37, paragraph 1, of the Constitution;120 (Option 2) a decision through
the establishment by the ILO of a tribunal under article 37, paragraph 2, of the
Constitution;121 and (Option 3) an advisory opinion from the ICJ.122 The Selection
Committee, which had examined the matter, concluded that the ILO could seek an
advisory opinion from the ICJ.123 However, the Governing Body decided to defer the
question of an advisory opinion by the ICJ on the understanding that the issue would
continue to be studied and prepared by the Office, in consultation with the constituents and
using the necessary legal expertise, so that it would be available whenever necessary.124
The question of the procedure to be followed to invoke Article 37 before the ICJ was
raised by the Worker members in their statement to the CAS in June 2012.125 The same
question was also raised by the Employers’ group at the Governing Body in November
2012.126
Mandate.CEACR.11.02.13.docx 25
2. Developments in practice in the ILO supervisory
system relating to the interpretation of
Conventions127
95. Issues relating to the meaning of specific provisions of Conventions have often arisen in
practice in the supervisory system and, upon request, have been addressed by the Office.
They also often arise when Members seek information or advice when taking steps to
implement Conventions.128
1926-1939
96. Between 1926 and 1939, matters relating to the interpretation of Conventions arose
regularly before the Governing Body regarding both substance and procedure. Matters of
interpretation arising out of the application of ratified Conventions came before the
Governing Body after the establishment of the CEACR and the CAS.
97. When the question of interpretation was raised in 1926 in relation to the functions of the
CEACR, the Committee on Article 408 emphasized that the CEACR would not be
competent to give interpretations of the provisions of Conventions, but recognized that
examination by the CEACR “will certainly reveal” cases of divergences in the
interpretation of Conventions. The CEACR was invited to call attention to those cases.
98. When the CEACR identified divergences in the interpretation of Conventions, it usually
invited the Office to contact the government concerned. When the difficulties were of a
certain importance, as they affected national legislation in a number of countries, it drew
the attention of the Governing Body to them. The major difficulties were noted by the CAS
which, in turn, drew them to the attention of the Conference and invited it to request the
Governing Body to take appropriate steps.129 The CAS and the Governing Body
occasionally asked the CEACR to pay special attention to any differences of
interpretation.130
99. In relation to matters of interpretation, as indicated in its 1930 and 1931 reports, the CAS
noted the difficulties encountered in view of certain divergences.131 The Governing Body
requested its Standing Orders Committee to consider a procedure for the interpretation of
Conventions. In this context, the Office proposed that, between the unofficial procedure of
consulting the Office and the constitutional procedure of approaching the PCIJ, provision
be made for an intermediate procedure which, while not possessing the supreme authority
of the PCIJ, would nevertheless offer Members greater guarantees than were provided by
the practice at the time. The Office considered that the CEACR was the most suitable body
for the task. However, after examining the matter, the Standing Orders Committee came to
the unanimous conclusion that the procedure for the interpretation of Conventions should
not be changed.132
100. In 1933, the CAS acknowledged that the PCIJ was legally competent to interpret
Conventions, but that in practice the situation was unsatisfactory and should again be
brought to the Governing Body.133 The Governing Body noted this concern, but considered
that it “did not appear to require any decision” on its part.134
1944-1961
101. The extension of the terms of reference of the CEACR in 1946, combined with the wider
examination of reports on Conventions and Recommendations under articles 19, 22
and 35, further broadened the role of the CEACR.
26 Mandate.CEACR.11.02.13.docx
102. An important factor in this respect was the examination of information and reports on the
application of unratified Conventions and of Recommendations, which as of 1956 was
supplemented with the examination of reports received under articles 22 and 35.135 Before
1956, perhaps due to a lack of information, the CEACR had confined itself to noting the
position in law and practice with regard to the instruments selected by the Governing Body
for review. In 1959, the CEACR began incorporating the relevant findings of the
Committee on Freedom of Association (CFA) to support its own comments on the
application of Conventions.136 However, the general approach followed in the earlier years
was maintained. The CEACR’s individual comments highlighted divergencies in the
interpretation of some provisions of Conventions when analysing the extent to which the
Conventions were applied.137 The reports of the CAS recorded the statements of
government representatives referring to the “interpretations” provided by the CEACR,
either indicating that they disagreed or that they were willing to modify their national
legislation on that basis.138
Since 1962
103. As its role developed and became more visible, the CEACR began to develop its practice
in relation to interpretation. In this respect, it reiterated its acknowledgment of the different
methods of interpreting treaties under international public law, and in particular under the
Vienna Convention on the Law of Treaties, 1969.139 At the same time, as of the 1960s, the
role of the CEACR in matters of interpretation, its interpretative practice and the question
of the legal effects of its comments became the subject of numerous and repeated
discussions in the CAS. While the terms of the current discussions, which began in the
1990s, are well-known,140 those that took place between 1962 and 1989 are recalled below.
104. From 1962 to 1989, the socialist countries raised concerns relating to what they viewed as
“mistaken conclusions as regards the interpretation of national legislation and the
clarifications and explanations given by governments”. They emphasized that the
Constitution did not authorize “judgments and condemnations” or “the interpretation of the
provisions of Conventions.141 In reply, on the occasion of its 50th anniversary in 1977, the
CEACR stated that its “terms of reference do not require it to give interpretations of
Conventions, competence to do so being vested in the [ICJ] by article 37 of the
Constitution.” Nevertheless, it recalled that, to carry out its function of evaluating the
implementation of Conventions, it had to “consider and express its views on the meaning
of certain provisions of Conventions.”142 This statement did not give rise to comment in the
CAS.
105. In its 1987 report, the CEACR returned to the subject of interpretation with a similar
statement,143 which led to a number of comments by CAS members. The socialist countries
considered that the CEACR had gone beyond its terms of reference and had “converted
itself into a kind of supra-national tribunal,” and proposed once more the establishment of
a set of rules for the CEACR. This proposal was rejected by the Employer members spokes
person, the Worker members and by a number of member States, who recalled that the
report of the CEACR, “in which it evaluates the effect given to Conventions from a strictly
legal point of view, is a basis for the dialogue which takes place in the Conference
Committee.”144
106. In 1989, the Employer members voiced concern regarding the interpretation of
Conventions, and in particular “the jurisprudence of the [CEACR which] was sometimes
unstable, evolving”. They indicated that, “if the report of the [CEACR] was the very basis
of the Committee's work, this was not to say that all the opinions and evaluations of the
[CEACR] had to be shared, and different views would be expressed if necessary in
concrete cases.” They recalled that “[o]nly one body – the ICJ – could make authoritative
interpretations of international labour Conventions. Recourse to it had seldom been sought,
probably because there had been considerable satisfaction with the way the system
Mandate.CEACR.11.02.13.docx 27
functioned. Nonetheless, the role of the [ICJ] as the ultimate arbiter should always be
borne in mind. A Convention had to be interpreted in line with the principles laid down in
the Vienna Convention on Treaties (1969) […].” Attention was drawn to the CEACR’s
1989 report which “unfortunately contained a number of over-interpretations, especially
regarding basic human rights Conventions and in particular Convention No. 87.” They
reiterated that it was neither for the CEACR nor the Office to provide conclusive
interpretations of Conventions.145
3. Legal process for the referral of a request
for interpretation to the ICJ
107. As explained in the preceding paragraphs, an authoritative interpretation of an international
labour Convention can at present only be provided by the ICJ when a question or dispute is
submitted to it in accordance with article 37, paragraph 1, of the Constitution. The other
mechanism for interpretation provided for under article 37, paragraph 2, has not been
implemented.
108. The distinction between “questions and disputes” (“questions et difficulties”), to the
extent such a distinction can be understood, could have important consequences as to how
proceedings are instituted and the nature of the participants and the outcome. As to
“questions” relating to the interpretation of a Convention, the ICJ jurisdiction under
article 37, paragraph 1, is understood to be advisory in nature, and is addressed to it by the
Conference or the Governing Body.146 As to “disputes” concerning the interpretation of a
Convention under article 37, paragraph 1, it is likely that such a case before the ICJ would
involve member States that recognize the contentious jurisdiction of the ICJ pursuant to the
provisions of the United Nations Charter and the ICJ Statute. While the resulting judgment,
if the ICJ accepted jurisdiction, would binding on the States concerned, the institutional
consequences to be drawn from such a judgment raise a number of legal questions that are
beyond the scope of the present paper.
109. In considering whether to refer a matter to the ICJ, it would be for the Governing Body or
the Conference to approve the question to be submitted to the Court. Defining the question
to be submitted to the Court involves careful consideration, not only of the legal issues, but
also of any concrete facts and circumstances relevant to the question. The precise
definition of any question would be undertaken with appropriate expert advice.
110. If the question relating to the interpretation of a Convention or the Constitution is
submitted by the ILO, the advisory jurisdiction of the ICJ would apply. Once the request
containing an exact statement of the question is lodged before the Court with any relevant
documents, the ICJ Registrar gives notice of it to all States entitled to appear before the
Court. A procedure for receiving either written statements or holding a public sitting for
oral statements follows. States entitled to appear and international organizations considered
as likely to furnish relevant information may submit statements and subsequently provide
comments on other statements. Where the Court decides to issue an advisory opinion, the
period between the submission of a request and the delivery of an opinion has run to
approximately two years in recent cases. The procedure for filing written statements and
comments to other written statements is set out in article 66 of the Statute of the ICJ and at
http://www.icj-cif.org.
28 Mandate.CEACR.11.02.13.docx
Section C. Main issues and possible
ways forward
111. The specific questions raised concerning the supervisory system in the CAS in 2012 and
during the Governing Body discussions in November 2012 seek to clarify certain aspects
of the legal situation as a basis for future solutions to several more general institutional
questions. The matters that constituents may wish to consider, in the light of the
information provided in the present paper, include:
(i) How to improve coordination between the CAS and the CEACR, in particular in
relation to the consideration by the CAS of the reports of the CEACR; and
(ii) How can the CEACR fulfill its mandate in terms of providing the CAS with an
assessment of the application of a Convention in a member State based on the
submission of information from international and national tripartite sources and its
independent legal comparative review of this information for tripartite examination
by the Conference.
112. With respect to coordination between the CAS and the CEACR, as noted in Section A, the
Conference conceived the CAS and the CEACR together, providing them with
complementary roles. Neither body can replace the functions of the other, nor is one body
hierarchically superior to the other. The coordination of functions operates generally as
follows:

The CAS, like the Conference, is a tripartite body of political composition and, as
such, is intended primarily for dialogue and discussion on ways of dealing with
problems and methods of the application of standards noted in the CEACR’s
observations on the reports of member States. At each session, the Conference
appoints this standing Committee under article 7 of the its Standing Orders “to
consider ... measures taken by Members to give effect to [ratified] Conventions ...
information and reports ... communicated by Members in accordance with article 19
of the Constitution ... [and] measures taken by Members in accordance with
article 35 of the Constitution”. It “shall submit a report to the Conference.” The CAS
elects its own Officers under article 57 of the Standing Orders for the duration of the
Conference. In considering the report of the CAS, the Conference gives full effect to
the Organization’s mandate for the supervision of standards through reports submitted
by Members pursuant to articles 19, 22 and 35 of the Constitution.

In contrast with these political organs, the CEACR is an independent body called
upon to make an objective and impartial assessment of compliance with obligations
under the applicable ILO standards, from a technical standpoint. The CEACR
assumes full control of its findings and its report is not subject to approval; the
Governing Body has consistently limited its role in this respect to taking note of the
report of the CEACR without discussing it, and has left its discussion to the CAS.
This reflects the constitutional authority of the two organs: that of the Conference to
review reports under articles 19, 22 and 35, and that of the Governing Body to
determine the Conference agenda.

The main elements of the CEACR’s work currently include the following: (i) the
examination of reports sent by governments concerning the obligation under
article 19 of the Constitution to submit ILO instruments to the competent authorities;
(ii) the examination of reports sent by governments concerning ratified Conventions
under article 22 of the ILO Constitution and the comparative analysis of the situation
in national law and practice; (iii) the examination of reports sent by governments
concerning unratified Conventions under article 19 of the Constitution; within this
Mandate.CEACR.11.02.13.docx 29
framework, the analysis of difficulties in national law or practice which may prevent
or delay the ratification of unratified Conventions; (iv) the examination of cases of
failure to comply with reporting obligations; (v) the examination of employers’ and
workers’ comments under article 23, paragraph 2, of the Constitution, as well as of
failure by governments to respond to such comments; (vi) the follow-up to
recommendations in respect of the examination of representations under article 24 of
the Constitution and of complaints under article 26 of the Constitution, as requested
by the Governing Body; (vii) the follow-up of legislative issues raised by the CFA;
(viii) the follow-up given to the conclusions adopted by the CAS in individual cases;
(ix) drawing the attention of the CAS to cases which it may wish to discuss (“doublefootnoted”
cases), due to the nature of the problems encountered in the application of
ratified Conventions concerning a given country; and (x) drawing the attention of
the CAS to cases of progress where governments have introduced changes in their
law and practice, in order to eliminate discrepancies previously noted by the CEACR
or the CAS.

The Governing Body contributes to the organization of the “regular supervisory
system” based on reporting by Members as follows:
— It establishes the report forms provided for in articles 19 and 22 of the
Constitution through which States submit information on the application of
standards;
— It decides on the composition of the CEACR; it nominates CEACR members
and decides on the renewal of their mandates;
— It follows up the decisions of the Conference to coordinate the responsibilities of
the CEACR with those of the CAS. At the initiative of the Conference which,
through a 1926 resolution created the CEACR, the Governing Body:
– appointed the CEACR in response to the 1926 resolution;
– approved the continuation of the CEACR in 1928;
– has endorsed improvements in the way the CEACR’s views are
communicated to the CAS; for example, it approved the suggestion of the
CEACR that it should introduce footnotes to guide the CAS in its
discussions; and
– extended the CEACR’s mandate to include reports under articles 19 and 35
of the Constitution, thus aligning it with the extension of the mandate of the
CAS by the Conference in 1946.
113. The Governing Body exercises constitutional functions in the “case-based” aspects of the
supervision of adherence to Conventions which complement, yet operate distinctly in
purpose and scope from the regular reporting system. Its functions in this regard consist
generally of the following:

The Governing Body receives representations concerning non-observance of ratified
Conventions under article 24 of the Constitution by national and international
employers’ and workers’ associations and sets up tripartite committees to examine
them. The results in some instances are relevant to the work of the CEACR in relation
to reporting on the application of the Convention concerned.
30 Mandate.CEACR.11.02.13.docx

The Governing Body decides whether to appoint a Commission of Inquiry to
investigate complaints concerning the non-observance of ratified Conventions filed
under article 26 of the Constitution by other member States that have ratified the
Convention, or by a Conference delegate, or by the Governing Body itself.

In cases of failure to give effect to the recommendations of a Commission of Inquiry
within the time specified, it may recommend action to the Conference to secure
compliance with those recommendations pursuant to article 33 of the Constitution.

The Governing Body may also transmit the results of article 24 and 26 procedures to
the CEACR for follow-up in the framework of reporting on the country’s application
of the Convention concerned.

Through its Committee on Freedom of Association (CFA), the Governing Body
examines complaints brought against any member State concerning adherence to the
constitutional principle of freedom of association, regardless of whether the country
has ratified the relevant Conventions. It discusses and adopts the CFA’s report as a
whole, as well as its recommendations on a case-by-case basis. Where States have
ratified the relevant Conventions, the Governing Body may refer the legislative
aspects of such cases to the CEACR.
114. The other matter referred to under (ii) of paragraph 111 above, to which constituents may
wish to give particular consideration, relates to how the CEACR can fulfill its mandate
more effectively in terms of providing the CAS with an assessment of the application of a
Convention in a member State based on the submission of information from international
and national tripartite sources and its independent legal comparative review of this
information for tripartite examination by the Conference. This matter, which relates to the
basic mission of monitoring the effect given to Conventions and Recommendations, also
raises the question of how this mission can be performed effectively when authoritative
legal interpretations of ILO Conventions are needed. It should be recalled that, as indicated
in Section B, the political organs of the tripartite Conference and its Committee, the CAS,
do not have the constitutional authority to resolve questions or disputes relating to the
interpretation of Conventions or the Constitution. In such cases, a final answer of a strictly
judicial nature remains under article 37, paragraph 1, of the Constitution, under which
questions or disputes relating to the interpretation of any Convention or of the Constitution
may be referred to the ICJ.
* * *
115. In light of the above, it is clear that discussion of the interpretation of Conventions in the
context of the performance of its mandate by the CEACR will need to take into account the
fact that, in practice, recourse to the PCIJ, now ICJ, for the interpretation of a Convention
has only been made once in the history of the ILO. Account will also need to be taken of
the discussions concerning the possibility of establishing, pursuant to article 37,
paragraph 2, of the Constitution, a tribunal for the expeditious determination of disputes
relating to the interpretation of international labour Conventions. This second mechanism
has never been used by the Organization although, as indicated in Section B, its possible
use has been the subject of discussion.
116. In terms of future steps and general approaches to the role and mandate of the CEACR and
the CAS, one possibility would be to put in place a mechanism within the spirit of
article 37, paragraph 2. For example the Appellate Body of the international trade regime
or other specialized bodies, such as the International Tribunal on the Law of the Sea
(ITLOS), which operate in parallel with the ICJ, deal with interpretative issues. Such a
mechanism would be an independent body appointed by the ILO. Subject to rules
Mandate.CEACR.11.02.13.docx 31
approved by the Conference, it would have the authority and expertise to interpret
Conventions and decide on questions submitted to it in relation to ILO legal instruments.
117. Another approach would be to emphasize the role of the ICJ as the authoritative legal body
for interpreting ILO Conventions and the Constitution. The interpretative views of the
CEACR would be understood as advisory only, but useful as expert legal information for
the CAS and for individual Members giving effect within their jurisdictions to
Conventions and Recommendations.
118. It would also be possible to build explicitly on the tripartite nature and strength of the ILO
and its history, and particularly the early foundation of “mutual supervision”. The existing
combination of the technical and legal expertise of the CEACR, tripartite discussion in the
CAS and the role played by employers’ and workers’ organizations in the supervision of
standards would be maintained, as would the exclusive competence of the ICJ with respect
to the interpretation of ILO Conventions. These existing practices and approaches might
however be strengthened by procedures under which constituents (in all member States, or
only in those that have ratified the Convention concerned) would be invited to express
their views through the CAS on questions of interpretation arising for the CEACR in the
performance of its mandate, before any conclusions are reached by the Conference .

Mandate.CEACR.11.02.13.docx 33
End notes
1 The paper prepared for the informal tripartite consultations in September 2012 provided a synopsis of the
background to the establishment and role of the CEACR in the ILO supervisory system: The ILO supervisory
system: A factual and historical information note, paper prepared for the informal tripartite consultations on the
follow-up to the discussions of the Committee on the Application of Standards (19 September 2012) (hereinafter,
“2012 Information Note”).
2 Dec-GB.316/INS/5/4; GB.316/INS/5/4, para. 14; and GB.316/INS/PV/DRAFT, paras 98-115.
3 ILC, Provisional Record No. 19 Part 1 (Rev). 101st Session, Geneva, 2012, para. 208. The decision specifically
refers to paragraphs 21, 54, 81–89, 99–103 and 133–224 of the report as the basis for the CAS decisions.
4 It should be noted that the present paper does not address the important issue of the use of the comments of the
CEACR by other entities, such as national, regional and international courts. That complex issue deserves its own
comprehensive study.
5 GB/316/INS/5/4, para. 11.
6 GB.316/INS/PV/DRAFT, para 98; ILC, Provisional Record, No. 19, Part 1 (Rev.), 101st Session, op. cit.,
para. 204.
7 The title of the CEACR has varied over the years. Until 1935, it was called the “Committee of Experts appointed
to examine the annual reports made under article 408”. From 1936 to 1948, it was known as the “Committee of
Experts on the Application of Conventions”. Since 20 April 1948, its title has been the “Committee of Experts on
the Application of Conventions and Recommendations.
8 There are numerous references to the concept of “mutual supervision” in the reports of the Governing Body,
Conference, CEACR and CAS. See for example: ILC , 14th Session, 1930, Report of the Director, Appendix to
the second part, Second Part, p. 288; ILC, 19th Session, 1935, Record of Proceedings, Appendix V, p.750;
Governing Body, 49th Session, June 1930, p. 479 (statement from the Director); Governing Body, 73rd Session
(October 1935), Appendix X, p. 480.
9 ILO, Official Bulletin, Vol. 1, Apr. 1919–Aug. 1920, p. 266. The reference to economic sanctions in the 1919
Constitution was deleted when the Constitution was amended in 1946.
10 See 2012 Information Note, paras 19-21, and Resolution concerning the methods by which the Conference can
make use of the reports submitted under Article 408 (current article 22) of the Treaty of Versailles, ILC, Eighth
Session, 1926, Record of Proceedings, Vol. I, Appendix VII, p. 429. From 1919 to 1939, seven representations
were submitted for the non-observance of ratified Conventions, but the complaints procedure was never
implemented. The representation procedure was used by workers’ organizations to secure observance of the
general principles set out in article 41 of ILO Constitution including, for the first time in 1920 concerning the
principle of freedom of association. As indicated in the 2012 Information Note (para. 68), the procedure for the
examination of allegations concerning infringements of trade union rights was established in 1950 having regard
to the fact that the principle of freedom of association was enshrined in the ILO Constitution and the Declaration
of Philadelphia.
11 See note 10 supra. Under the 1926 resolution, the Conference requested the Governing Body to:
appoint … a technical Committee of experts … for the purpose of making the best and fullest use of this
information and of securing such additional data as may be provided for in the forms approved by the
Governing Body and found desirable to supplement that already available, and of reporting thereon to the
Governing Body, which report the Director, after consultation with the Governing Body, will annex his
summary of the annual reports presented to the Conference under Article 408.
12 The CEACR “would have no judicial capacity nor would it be competent to give interpretations of the
provisions of the Conventions nor to decide in favour of one interpretation rather than another. It could not
therefore encroach upon the functions of the Commission of Enquiry and of the PCIJ in regard to complaints
34 Mandate.CEACR.11.02.13.docx
regarding the non-observance of ratified Conventions or in regard to their interpretation. In the Committee’s view,
the functions of the Committee of Experts could be defined positively […]: (a) it will note the cases where the
information supplied appears inadequate for a complete understanding of the position either generally, or in a
particular country. To remedy any such deficiencies, it may suggest to the Conference that the Governing Body
should take into consideration the revision of the questionnaire with a view to securing greater precision in the
reports in general. If deficiencies concern the report of a particular country, it may suggest that the Office ask by
correspondence for any further details […] (b) Its examination will certainly reveal cases in which different
interpretations of the provisions of Conventions appear to be adopted in different countries. The Committee
should call attention to such cases. (c) Finally, it would present a technical report to the Director, who would
communicate this report to the Conference.” ILC, Eighth Session, 1926, Record of Proceedings, Appendix V,
Report of the Committee on Article 408, pp. 405-406.
13 The CEACR examined this information as it was requested in the report form under Article 408. Although
governments questioned the inclusion of a question in the report form relating to “colonies, protectorates and
possessions”, they did not object to the examination carried out by the CEACR. The 1946 Instrument for the
amendment of the Constitution clarified the matter and, in 1947, the Governing Body explicitly included article 35
of the ILO Constitution concerning the application of ratified Conventions to non-metropolitan territories in the
terms of reference of the CEACR.
14 The Resolution was adopted by 66 votes for and 36 against.
15 Governing Body, Minutes, 30th Session (January 1926), p. 56.
16ILC, Record of Proceedings, Eighth Session, 1926, Vol. I, pp. 254-255.
17 ILC, Record of Proceedings, 11th Session, 1928, Vol. II, p. 458.
18 Governing Body, 42nd Session, October 1928, Minutes, p. 546.
19 ILC, Record of Proceedings, Eighth Session, 1926, p. 239. The Office indicated that the members of the
CEACR should “possess intimate knowledge of labour conditions and of the application of labour legislation.
They should be persons of independent standing and they should be so chosen as to represent as far as possible the
varying degrees of industrial development and the variations of industrial method to be found among the States
Members of the Organisation.” Ibid., Appendix V, p. 401.
20 Governing Body, 33th Session (October 1926), Minutes, pp. 384-386; and 34th Session (January 1927), pp. 59
and 67-68.
21 Governing Body, 68th Session (September 1934), Minutes, p. 292.
22 The absence of honorarium, combined with the lack of substitute experts, affected attendance during the
sessions of the CEACR, which often indicated in its reports that experts were prevented from attending due to
their profession commitments.
23 It was recalled that the CEACR was not provided for under the Treaty of Versailles and that by having direct
contacts with governments might assume similar functions to the bodies referred to in Articles 409 and 411 of the
Peace Treaty and the PCIJ. Governing Body, 47th Session (February 1930), Minutes, pp. 68-75 and 77-78.
24 After the Conference sessions, the Governing Body generally discussed substantial matters arising out of the
supervision of ratified Conventions, based on the suggestions of the CEACR, supplemented by the views of the
CAS.
25 ILC, Record of Proceedings, 16th Session, 1932, Appendix V, p. 671.
26 In its 1939 report, the CAS indicated that, in its opinion, it was the double examination of reports by the
CEACR and the CAS “that places States Members of the Organisation on a footing of equality in respect of the
supervision of the application of the ratified Conventions. It added that “from the very nature of their
constitution”, the examination of the reports by the CEACR and the CAS differed in certain respects: the CEACR
“consists of independent experts, i.e. persons who are independent of Governments, employers and workers, and
its examination is generally limited to a scrutiny of the documentary information submitted to it by the
Mandate.CEACR.11.02.13.docx 35
Governments concerned.” The CAS, on the other hand, “is a tripartite organ […] whose membership consists of
representatives of Governments, employers and workers, who are therefore in a better position to go beyond the
mere question of conformity between national legislation and the ratified Conventions, and, as far as practicable,
to verify the day-to-day practical application of the Conventions in question […] In this system of mutual review
and supervision, the preparatory work carried by the Experts plays an essential part. ILC, Record of Proceedings,
25th Session, 1939, Appendix V, p. 414.
27 The CAS began to face important difficulties due to the lack of time and continuity of membership.
Accordingly, in 1935, the CAS suggested that the Governing Body consider the inclusion of the examination of
the annual reports on the application of ratified Conventions among the items placed on the agenda of each
Session of the Conference so that the CAS could start its work at the beginning of the Conference and delegates
could appoint advisers qualified to participate in its work. This gave rise to a far-reaching discussion in the
Governing Body on matters of principle, such as the constitutionality of the machinery set up in 1926, and
particularly of the CAS. In 1937, the Conference approved the inclusion in its Standing Orders of a provision
calling for the election “as soon as possible” of “a Committee… to consider the measures taken by Members to
give effect to the provisions of the Conventions to which they are parties”. ILC, Record of Proceedings,
23rd Session, 1937, p. 295.
28 Under the 1926 resolution, the CEACR reported to the Governing Body and the Director-General, after
consultation with the Governing Body, annexed the report of the CEACR to his summary of the annual reports
presented to the Conference under Article 408.
29 The CEACR met in 1940 (from 29 April to 2 May), but its report was not published. It did not meet between
1941 and 1944, and resumed its work in 1945. The CAS did not meet between 1939 and 1943, and resumed its
work in 1944.
30 ILO: The ILO and Reconstruction, Report of the Acting Director of the ILO, New York, October 1941,
pp. 82-83. The report emphasized that “the system of international supervision of the fulfilment of the obligations
assumed by the ratification of conventions on the basis of an expert examination of annual reports by
Governments followed by discussion in a tripartite conference where the interested parties are represented has
been one of the most successful innovations introduced by the International Labour Organisation. It is now a tried
and tested part of the machinery of international cooperation in respect of labour questions, which will have a
large part to play in the future development of the work of the Organisation.”
31 ILC, Future, policy, programme and status of the ILO, Report I, 26th Session, Montreal, 1944, pp. 95-96 and
99-100.
32 ILC, Record of Proceedings, 26th Session, Montreal, 1944, p. 186, and Appendix IV, para. 5. p. 310.
33 Haas, E.B.: Beyond the Nation-State: Functionalism and international organization, Standford University
Press, 1964, pp. 164-165.
34 ILC, Record of Proceedings, 27th Session, 1945, Appendix IX, pp. 441-442.
35 Two suggestions made by the CAS were not retained by the Delegation on Constitutional Questions: the
clarification of the nature of the "authority or authorities" to which Conventions and Recommendations have to be
submitted (the national parliament or other competent legislative authority in each country); and the proposal that
unratified Conventions and Recommendations should be resubmitted to the legislative authorities as frequently as
possible if no relevant legislation had been enacted or other action taken. The Delegation also adjusted the
reference to the communication of reports to employers’ and workers’ organizations so that they were
communicated for information only, and not for the organizations’ observations, as proposed by the CAS. ILC,
Report II(1), Reports of the Conference Delegation on Constitutional Questions, 29th Session, 1946, paras 49-50,
55-56 and 58; 2012 Information Note, para. 27.
36 Ibid., paras 62-64 and 95.
37 This Section supplements the information provided in the 2012 Information Note, paras 26-31.
36 Mandate.CEACR.11.02.13.docx
38 The Committee on Standing Orders of the Governing Body referred to the “amplification” of the terms of
reference of the CAS and drew attention to the need for “the corresponding extension of the terms of reference” of
the CEACR; Governing Body, 102nd Session (June-July 1947), p. 234. The Governing Body approved the
“extension of the terms of reference” of the CEACR without much discussion; Governing Body, 103rd Session
(December 1947), Minutes, pp. 56-59 and 167-173.
39 ILC, Report III(Part IV), 25th Session, 1952, paras 7 and 11.
40 Governing Body, 105th Session (June 1948), Minutes, p. 104.
41 When asked for its views by the Governing Body, the CEACR welcomed the suggestion, considering that its
examinations in this respect could “promote uniformity in the interpretation” of identical obligations. The
Governing Body approved the procedure in 1956: Governing Body, 132nd Session (June 1956), Minutes, p. 32,
and Appendix XI, pp. 79-80.
42 ILC, Record of Proceedings, 34th Session, 1951, Appendix VI, para. 23.
43 For information on the changes made in the methods of work of both the CEACR and the CAS to manage their
workload, see 2012 Information Note, paras 37-40 and 42.
44 The Governing Body approved the suggestion by the Office that the attention of governments might be drawn to
this possibility, as part of the improvements to the procedure for the examination of reports and information
supplied by governments. Governing Body, 103rd Session (December1947), Minutes, pp. 170-171.
45 Governing Body, 114th Session (March 1951), Minutes, pp. 18 and 99.
46 The CAS first made reference to technical assistance in 1953: ILC, Record of Proceedings, 36th Session, 1953,
Appendix VI, p. 365. The comments of the CEACR included such references in the late 1950s.
47 This dialogue continued to encompass improvements in the report forms and the important issue of workload:
see 2012 Information Note, paras 31 and 40.
48 For example, in 1952, the CAS emphasized “the high value of the work which the Experts so willingly
undertake and so effectively perform” and the fact “that the Committee is able to discharge the responsibilities
laid upon it is in no small measure due to the thorough and accurate preparatory work which is done by the
Committee of Experts in circumstances of growing difficulty. The Committee knows that the Committee of
Experts already enjoys, as it has done for many years, a special position of prestige and esteem in the International
Labour Organisation”. ILC, Record of Proceedings, 35th Session, Geneva, 1952, Appendix VI, para. 26.
49 ILC, 36th Session, 1953, Report III (Part IV), Report of the Committee of Experts on the Application of
Conventions and Recommendations, General Report, para. 15. (Hereinafter, as the report of the CEACR began to
be published as a separate Conference report, the short reference “CEACR Report”, followed by the year of the
Conference session, will be used); CEACR Report, 1959, General Report, para. 25. In one case, when an
observation from a workers’ organization had been sent directly to the Office, the CEACR asked for the
observation to be sent to the government concerned for comments and for that practice to be followed in future
cases.
50 Governing Body, 101st Session (March 1947), Minutes, p. 22; and 103rd Session (December 1947), Minutes,
p. 171.
51 Governing Body, 124th Session (March 1954), Minutes, Appendix XII, para. 7.
52 Governing Body, 140th Session (November 1958), Minutes, pp. 40-41, and Appendix XII, para. 9.
53 These elements build on the information provided in the 2012 Information Note, paras 50-55.
54 In particular, they suggested grouping Conventions and Recommendations by subject matter and that the
subjects chosen should be of current interest so that the reports could be used by the Office, Governing Body and
Conference in considering the programme of work of the Organization. They repeatedly recommended selecting
Mandate.CEACR.11.02.13.docx 37
fewer instruments. The number of instruments selected was 12 for 1950 and eight for 1951. The CEACR urged
the Governing Body to limit the number of instruments for which reports were requested.
55 Governing Body, 129th Session (May-June 1955), Minutes, pp. 89-91; and 130th Session (November 1955),
Minutes, pp. 44 and 134-136.
56 These criticisms coincided with the comments of the CEACR to certain countries on their application of the
Conventions on freedom of association, the elimination of discrimination and forced labour. See, for example, the
observation to the USSR in 1962: CEACR Report, 1962, pp. 104-111.
57 The review began in 1974 with a Governing Body paper. The Governing Body set up a Working Party on
International Labour Standards in 1977. The Director-General’s report to the 70th session (1984) of the
Conference addressed international labour standards. Following the Conference discussion, the Governing Body
established an additional Working Party on international labour standards in November 1984 and discussed its
report in March 1987; See ILO, Official Bulletin, Special Issue, Vol. LXII, Series A, 1979; ILO, Official Bulletin,
Special Issue, Vol. LXX, Series A, 1987.
58 ILC, 70th Session, 1984, Report of the Director-General, Part I, International Labour Standards, p. 35.
59 ILC, 56th Session (1971), Resolution concerning the strengthening of tripartism in the over-all activities of the
International Labour Organisation, para. 2(c) and (d).
60 ILC, 63rd Session (1977), Resolution concerning the strengthening of tripartism in ILO supervisory procedures
of international labour standards and technical co-operation programmes; preamble. Para. 2(b) invited the
Governing Body to strengthen the participation of employers’ and workers’ organizations in supervision.
61 ECOSOC resolution 1988 (LX) of 11 May 1976; Governing Body, 201st Session (November 1976), Minutes,
p. VIII/21. This decision was taken pursuant to Article 18 of the Covenant, under which the Economic and Social
Council may make arrangements with the specialized agencies in respect of the progress made in achieving
observance of the provisions of the Covenant falling within their scope of activities.
62 The Governing Body also adopted the recommendation of the CEACR to entrust the Office with
communicating to the United Nations information on the results of the various ILO supervisory procedures.
GB.236/5/3; and GB.236/PV(Rev.), p. I/12.
63 The Government members of Bulgaria, Belarus, Czechoslovakia, Romania, Ukraine and the USSR, the Worker
members of Belarus and Ukraine and the Government member of Iraq: ILC, 47th Session, 1963, Record of
Proceedings, Appendix V, pp. 513-514, para. 9.
64 ILC, Record of Proceedings, 67th Session, 1981, p. 40/22: (statement made by a Government adviser, USSR).
65 ILC, Provisional Record No. 24 (Part 1), 73rd Session, 1987, paras 20 and 26.
66 ILC, Record of Proceedings, 47th Session, 1963, p. 514, para. 10.
67 ILC, Record of Proceedings, 51st Session, 1967, Appendix VI, p. 647, para. 10.
68 For example, “The Government member of France recalled that an unwritten principle of the ILO is that all
its supervisory bodies establish their own working methods with complete autonomy.” ILC, Provisional
Report No. 24 (Part 1), 73rd Session, 1987, p. 24/5, para. 21.
69 ILC, Record of Proceedings, 69th Session, 1983, pp. 7/18-19.
70 GB.230/19/4, Appendix II, p. 14.
71 2012 Information Note, note No. 22.
72 In 1967, the CEACR noted that that it was “now composed” of five members drawn from Western Europe, four
from Asia and the Middle East, three from Eastern Europe, three from Latin America, two from Africa and one
each from North America and the Caribbean; CEACR Report, 1967, General Report, para. 24.
38 Mandate.CEACR.11.02.13.docx
73 Governing Body, 159th Session (June-July 1964), Minutes, statement by the Employers’ group, p. 49.
74ILC, Provisional Record No. 31, 63th Session, 1983, p. 31/1, para. 14.
75 Governing Body, 158th Session (February-March 1964), Minutes, p. 44.
76 ILC, 47th Session, 1963, Record of Proceedings, Appendix V, para. 5.
77 CEACR Report, 1964, General Report, para. 16.
78ILC, 48th Session, 1964, Record of Proceedings, Appendix VI, para. 6.
79 ILC, 51st Session, 1967, Record of Proceedings, Appendix VI, para. 6.
80 2012 Information Note, paras 70-74.
81 CEACR Report, 1972, paras 28-98. In so doing, the CEACR was coming back to the proposal made by the CAS
in 1945, but modified by the Delegation on Constitutional Questions in providing that information and reports
were to be communicated to employers’ and workers’ organizations for information only.
82 With a view to ensuring that employers' and workers' organizations were better informed of ways of
contributing to the implementation of ILO standards in their countries, the Office organized study meetings on the
procedures for drawing up and supervising standards for workers' representatives at the International Labour
Conference and at regional conferences. Seminars were also organized for workers and employers at the national
level.
83 2012 Information Note, para. 41.
84 CEACR, Report, 1986, paras. 80-108; GB.233/PV(rev) P.II/I; ILC, Provisional Record No. 31, Part One,
paras 42-46.
85 Governing Body, 155th Session (May-June 1963), Minutes, p. 13.
86 The comments of the CEACR on the application of the Conventions on freedom of association by certain
countries gave rise to a strong divergence of views in the CAS. At the 47th Session of the Conference (1963), it
was agreed that the discussion that had taken place the previous year should not be renewed, no additional
information concerning the Conventions should be requested and that it should be indicated in the report of the
CAS that it noted the absence of any new element in the report of the CEACR and in the position of the
governments concerned. ILC, Record of Proceedings, 47th Session, 1963, pp. 516-517, para. 26. Difficulties were
encountered in the adoption of the report of the CAS, and in 1974, 1977 and 1982 the Conference failed to adopt
its report of the CAS for lack of quorum.
87 ILC, 81st Session, 1994, Report of the Director-General (Part I), Defending values, promoting change: Social
justice in a global economy: An ILO agenda.
88 See GB.292/LILS/7 for an overview of the main developments between 1994 and 2005.
89 For example, the Report of the Director-General to the 81st Session (1994) of the Conference (op. cit.),
referring to the Preamble to the ILO Constitution, recalled that it clearly showed that “the wish of our founding
fathers to promote social reform and social justice was accompanied by a concern that States engaged in social
reform should not be placed at a disadvantage in international competition.” It added that the framers of the
Constitution had thought that fair competition could be achieved through the voluntary ratification of Conventions
(p. 55). The Report of the Director-General to the 85th Session (1997) of the Conference, in emphasizing a system
of emulation between States, noted that it reflected certain aspects of the “mutual supervision” which had
prevailed before the Second World War, and also observed that the original intent behind the examination of
reports on unratified Conventions and Recommendations under article 19 of the Constitution was to assess the
impact of the instruments on national law and practice, evaluate gaps in these instruments and draw the necessary
consequences for standard-setting action. See ILC, 85th Session, 1997, Report of the Director-General, The ILO,
standard-setting and globalization, pp. 22-25 and 60-62. These discussions ultimately resulted in new
Mandate.CEACR.11.02.13.docx 39
arrangements for the submission and examination of reports on unratified Conventions and Recommendations
under the follow-up to the Declaration on Social Justice for a Fair Globalization, 2008.
90 GB.273/LILS/1; GB.276/LILS/2.
91 Article 3, paragraph 3, Standing Orders concerning the procedure for the examination of representations under
articles 24 and 25 of the Constitution of the ILO.
92 See, for example, ILC, 95th Session, 2006, Provisional Record No. 24, Part One, para. 57, and 98th Session,
2009, Provisional Record No. 16, Part One, paras 43 and 60.
93 GB.258/6/19, paras 32-40. The change was made in response to complaints by member States that they did not
receive the CEACR report in time to be able to prepare adequately for the Conference discussion. The sessions of
the CEACR were therefore brought forward, together with the dates on which article 19 and 22 reports were due;
GB. 258/6/19, Appendix, paras 22-24.
94 CEACR Reports: 2003, General Report, paras 4-8; 2004, General Report, paras 7-9; 2005, General Report,
paras 8-10.
95 CEACR Reports: 2006,General Report, paras 6-8; 2007, General Report, para. 13; 2012, General Report,
para. 6.
96 CEACR Report, 2011, General Report, para. 6.
97 ILC, 93rd Session, 2005, Provisional Record No. 22, Part One, para. 44; 96th Session, 2007, Provisional
Record No. 22, Part One, para. 52; 97th Session, 2008, Provisional Record No. 19, Part One, paras 45, 47, 50, 52,
55; 98th Session, 2009, Provisional Record No. 16, Part One, paras 47-50, 56-58, 60; 99th Session, 2010,
Provisional Record N0.16, Part One, paras 46, 51-53; and CEACR Reports: 2006, General Report, paras 8, 36-37,
42-47; 2008, General Report, para. 8; 2009, General Report, para. 9; 2010, General Report, para. 8; 2011, General
Report, paras 7-13; 2012, General Report, paras 7-12.
98 CEACR Report, 1994, General Report, para. 39.
99 ILC, 81st Session, 1994, Provisional Record No. 25, paras 21, 23 and 26.
100 ILC, 99th Session, 2010, Provisional Record No. 16 (Part 1), para. 51.
101 ILC, Provisional Record No. 19, Part 1 (Rev.), 101st Session, op. cit., paras 208 and 226.
102 Ibid., paras 48, 49, 51.
103 Ibid., paras 61, 145.
104 Ibid., paras 145-148.
105 Ibid., paras 153 and 209.
106 Ibid., paras 85, 102.
107 Ibid., para. 186.
108 Ibid., para. 216
109 Ibid., para. 90.
110 Ibid., para.180.
111 Ibid., para. 182.
112 Ibid., para. 223.
40 Mandate.CEACR.11.02.13.docx
113 GB.303/12, paras 100-111; GB.306/10/2(Rev.), para. 44(a). The two papers prepared for the informal tripartite
consultations in 2010 were: a “non-paper” for the February-March 2010 consultations (hereinafter “2010 nonpaper”):
Interpretation of international labour Conventions, prepared by the International Labour Standards
Department in consultation with the Office of the Legal Adviser for the consultation process launched by the
Governing Body at its 306th Session (November 2009); and an “informal exploratory paper” for the November
2010 consultations (hereinafter “2010 informal exploratory paper”): Interpretation of international labour
Conventions: Follow-up to the informal tripartite consultations held in February-March 2010, prepared by the
International Labour Standards Department and the Office of the Legal Adviser. These papers were distributed for
the consultations in 2010, November 2011 and September 2012. They will be made available during the
forthcoming consultations.
114 The minutes of the discussion reveal the reluctance of some delegates to leave in the hands of a court the final
say over the interpretation of Conventions, considering that the delegates gathered at the Conference were also
entitled to have a say. La Paix de Versailles: Législation international du travail, Paris: Les Editions
internationales, pp. 377-379.
115 ILO, Official Bulletin, Vol. XVII, 1932, pp. 179-197. See also note No.129 infra.
116 2010 informal exploratory paper, Appendix I.
117 Article 96 of the United Nations Charter in combination with Article 65 of the Statute of the ICJ and
Article IX of the UN-ILO Relationship Agreement of 1946: Governing Body, 101st Session (March 1947),
Minutes, pp. 45-46 and Appendix VIII, p. 97.
118 ILO, Official Bulletin, Vol XXXII, 1949, pp. 338-9.
119 ILC, 95th Session, 2006, Provisional Record No. 2, “To review what further action could be taken by the ILO
in accordance with its Constitution in order to: (i) effectively secure Myanmar's compliance with the
recommendations of the Commission of Inquiry; and (ii) ensure that no action is taken against complainants or
their representatives.”
120 Ibid., para. 24: recourse to the ICJ was to be read as a compromissory clause which enabled Members to
obtain a ruling in case of a dispute over the interpretation of a Convention, i.e., the Court could order Myanmar to
stop the prosecution and any such ruling would be binding and the judgment enforceable through the United
Nations Security Council. A formal decision by the Conference was not required in this case, as the procedure
could be initiated by a Member at any time.
121 Ibid., while the ILO would have full control to manage its own interests, by its very nature, such a tribunal
established on a purely ad hoc basis would require substantial time and involve substantial cost. Further, while any
ruling would be binding, this option might not provide significant leverage since it would have to be enforced
through ILO procedures which had not, thus far, rendered the intended results.
122 Ibid.: while such an advisory opinion would not be binding, it carried juridical weight and, in contrast to
Option 1, would first require a formal decision by the Governing Body.
123 ILC, 95th Session, 2006, Provisional Record No. 3-2, p. 11.
124 Conclusions on item GB.298/5: Developments concerning the question of the observance by the Government
of Myanmar of the Forced Labour Convention, 1930 (No. 29), paras.139-141.
125 ILC, Provisional Record No. 19, Part 1 (Rev.), 101st Session, op. cit., para. 204.
126 GB.316/INS/PV/DRAFT, para. 98.
127 2010 non-paper, paras 28, 33-41, 48-52.
128 See GB.256/SC/2/2, paras 11-18. From the beginning, the Office has provided opinions in response to requests
from constituents concerning the meaning of certain provisions of Conventions. As the Office did not have
authority under the Treaty of Versailles to give interpretations of the provisions of Conventions, it raised the
Mandate.CEACR.11.02.13.docx 41
possibility of the Governing Body approving the opinions that it provided in response to requests for clarification.
However, the Governing Body considered that it was not qualified to give a “juridical interpretation of the text of
conventions…”: Governing Body, 9th Session (October 1921), Minutes, p. 309.
129 In its first report in 1927, the CEACR noted that a government’s interpretation of the provisions of a
Convention was not the same as that of other governments, and invited the Office to communicate with the
government concerned. In another case, it expressed doubt concerning the application of a Convention in light of
its “strict interpretation” and indicated that the Office should be invited to study the question and communicate
with the government concerned: ILC, 10th Session, 1927, Record of Proceedings, Vol. II, pp. 410 and 412. In its
1929 report, the CEACR drew the attention of the Governing Body to the difficulty in the interpretation of
Convention No. 4 raised by the British Government. It indicated that “it is difficult to interpret the absence of any
express stipulation on this subject in the Convention as implying that the employment at night of women in such
position (that is, positions of supervision, management or employed) is authorised”: ILC, 14th Session, 1930,
Report of the Director, Second Part, pp. 289-290. The ensuing discussions led to the submission of the issue to the
PCIJ. In 1932, the CEACR noted that “in considering the reports, the experts discussed a certain number of
questions referring to the application or the interpretation of Conventions of which it is not possible to give an
account here…”: ILC, 16th Session, 1932, Record of Proceedings, Appendix V, pp. 600-601. In its 1933 report,
the CEACR noted that the interpretation given by a government corresponded “neither to the spirit nor to the
letter” of Convention No. 24. It considered it useful to draw the Government’s attention to the discrepancies
between the Convention and the national legislation, and asked it to consider remedying “this disagreement”: ILC,
17th Session, 1933, Summary of annual reports under article 408, p. 496. In 1935, the CEACR recalled that it had
“no power to give interpretation” and drew the divergences in the interpretation of Conventions to the attention of
the Governing Body: ILC, 19th Session, 1935, summary of annual reports under article 408, Appendix, p. 274.
130 Governing Body, 50th Session (October 1930), Minutes, pp. 656-7, 766.
131 In its 1930 report, the CAS indicated that: “The discussions […] have shown that there exist in certain cases,
as between different States which have ratified the same Convention, divergencies of interpretation on the
meaning and scope of certain provisions of the Convention. These divergencies sometimes relate to important
questions. It is not the function of the Committee to give an authentic interpretation of the provisions in question.
The Committee […] suggests that the Conference might invite the Governing Body to study the question. It is
important to find a means of solving the questions with regard to which there have been such divergencies. The
choice of the procedure remains open…”: ILC, 14th Session, 1930, Record of Proceedings, Appendix IV, 638-39.
In its 1931 report, the CAS, noted that certain members “wondered whether the responsibility for settling
differences of interpretation of the Conventions could not be entrusted to the Conference. Other members however
considered on the one hand that by reason of its very composition the Conference was hardly the body qualified to
give an opinion on questions of law, sometimes of an extremely delicate character, and on the other that according
to the terms of Article 423 of the Treaty of Versailles, all questions or difficulties relating to the interpretation of
the Conventions adopted through the International Labour Organisation are to be referred for decision to the PCIJ.
Some members who were in favour of the intervention of the Conference in connection with questions of
interpretation accordingly wondered whether such interpretation could not in any case be given when the
Conventions came up for revision. To this it was replied that to revise a Convention and to interpret it were two
quite distinct things. It was further pointed out that the Conventions are ordinarily revisable only after a relatively
long period, and that it is obviously inadmissible that the divergences existing with regard to the real meaning of
certain Conventions should not be settled before the expiry of a number of years. In any case, it appears difficult
to the Committee not to take account of the fact that, for reasons which it is easy to guess, the PCIJ has so far not
been called upon to deal with any complaint submitted in accordance with Articles 415 and 416 of the Treaty or to
examine any question or difficulty relating to the interpretation of a Convention. […]the Committee considers that
the time appears to have come to put an end to this uncertainty which exists in the International Labour
Organisation with regard to the real meaning of certain Conventions or, rather, of certain provisions of these
Conventions […] It ventures […] to suggest that perhaps the Committee of Experts which, among its ten
members, includes five jurists, might be called upon to deal with this question […] reservations were made as
regards the suggestion referred to above. In particular one member expressed the opinion that it would be
desirable that the Committee of Experts should not deal with questions of interpretation except through the
medium of the Conference and the Committee on Article 408. […] The Committee hopes that it will not be long
before this problem, as important as it is urgent, receives a satisfactory solution: ILC, 15th Session, 1931, Record
of Proceedings, Appendix IV, pp. 618-620.
42 Mandate.CEACR.11.02.13.docx
132 Governing Body, 57th Session (April 1932), Minutes, pp. 210-211. During the discussion in the Standing
Orders Committee, “it was pointed out that no further guarantees would really be afforded to States by calling
upon the Committee of Experts to give interpretations, since the only organ provided for by the Treaty of Peace to
interpret Conventions was the PCIJ. Furthermore, the Committee of Experts was appointed by the Governing
Body, which had to approve [its] reports, so that in point of fact any interpretations given by the Committee would
have to be approved by the Governing Body itself. But the latter had already decided that it was not prepared to
give interpretations to Conventions […]. It was also suggested that it would be undesirable to give judicial powers
to a body which had been set up merely to examine the annual reports, and that the additional duty of giving
interpretations might, therefore, entail the necessity of modifying its constitution which, in view of the excellence
of the work that it performed, would be most undesirable. In view of the above considerations, the Committee
came to the unanimous conclusion that it was undesirable to make any change in the present procedure as regards
the interpretation of Conventions. Ibid., p. 345.
133 The CAS added that “the fact remains that certain provisions of Conventions are interpreted differently by
different States. In such cases the position of the Committee is extremely difficult; it can indeed discuss the
question at issue, but the only conclusion it can reach generally is that there are two conflicting assertions, that the
question is brought up by the Experts every year and that their view is opposed by the Government concerned
without any possibility of a solution being arrived at. The Committee therefore feels obliged to draw the attention
of the Governing Body once more to this question, which it considers to be very important. Ways and means
should be found of removing these discrepancies which constantly arise”: ILC, 17th Session, 1933, Record of
Proceedings, Appendix V, p. 520.
134 Governing Body, 64th Session (October 1933), Minutes, p. 339. This view may have been prompted by the
Office note, which observed that: “The Governing Body has frequently devoted consideration to the question of
the interpretation of Conventions. It has always felt, however, and will no doubt still feel, that the parties
concerned, and particularly the Governments, should avail themselves in the first place of the existing facilities for
obtaining either an unofficial interpretation from the Office, or an authentic interpretation from the PCIJ. In the
present instance, the problem is referred to the Governing Body in quite general terms, and without any concrete
and specific reference to precise points of interpretation. If at any time the Committee reports differences of
interpretation in the case of a particular convention which indicate that there is a substantial difference in the
obligations assumed by the different States as a result of ratification, the Governing Body will no doubt be ready,
as it has been in the past, to apply to the PCIJ for an advisory opinion”: Ibid., Appendix X, p. 452.
135 2010 non-paper, para. 34.
136 2012 Information Note, paras 67-69: the ILO established a procedure in 1950 for the examination of
allegations concerning the infringement of trade union rights, including a new supervisory body: the Fact-Finding
and Conciliation Commission on Freedom of Association. The CFA was established in 1951. The CEACR noted
that it was “also evident, as the [CFA] has emphasised, the degree of freedom enjoyed by occupational
organisations in determining and organising their activities depends very largely upon certain legislative
provisions of general application relating to the right of free meeting, the right of free expression and, in general,
to civil and political liberties enjoyed by the inhabitants of the country”: CEACR Report, 1959, part three, para.
71.
137 For example, CEACR Reports: 1950, General Report, p. 6, and pp. 40 (observations concerning Conventions
Nos 29, 50, 64 and 65), 55 (Appendix IV, Recommendation No. 68) and 56-57 (Appendix IV, Recommendation
No. 69).
138 See, for example, ILC, 38th Session, 1955, Record of Proceedings, Appendix V, p. 604 (statement by a
Government member concerning the application of Convention No. 52 by Israel); 39th Session, 1956, Record of
Proceedings, Appendix VI, p. 657 (statement by a Government member concerning the application of Convention
No. 1 by Belgium), and p. 662 (statement by the Government representative of Chile concerning the application of
Convention No. 11).
139 2010 non-paper, paras 48-51; CEACR Report, 2011, General Report, para. 12.
140 2010 non-paper, paras 35, 40, 52.
Mandate.CEACR.11.02.13.docx 43
141 ILC, 46th Session, 1962, Record of Proceedings, p. 417 (statement by a Government adviser of the USSR). In
view of the divergence of views regarding the interpretation of certain Conventions, some members of the CAS
asked whether the difficulties might be resolved through the implementation of article 37, paragraph 1, of the
Constitution: see, for example, ILC, 49th Session, 1965, Record of Proceedings, p. 455 (statement by a Workers’
adviser of the Federal Republic of Germany); ILC, 66th Session, 1980, Provisional Record No. 37, Part One,
para. 8 (statement by the Government member of Belarus); ILC, 69th Session, 1983, Provisional Record No. 31,
Part Two, p. 31/40 (statement by the Government member of the German Democratic Republic); ILC,
71st Session (1985), Provisional Record No. 30: part one, para. 25 (several Government members).
142 CEACR Report, 1977, General Report, para. 32.
143 The CEACR indicated that “its terms of reference do not require it to give definitive interpretations of
Conventions, competence to do so being vested in the ICJ 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”: CEACR Report, 1987, para. 21.
144 ILC, 73rd Session, 1987, Provisional Record No. 24, Part 1, paras 26-27: “The spokesman for the Employers'
members, speaking in the name of the large majority of those members, rejected the argument that the Committee
of Experts has gone beyond its terms of reference” and “The spokesman for the Workers' members speaking in the
name of the large majority of those members, recalled that the Committee of Experts is not a tribunal and does not
act like one. He repeated their convictions that the Committee of Experts should remain above the struggle and
should retain its autonomy.” See also the statements made by the Government Members of Belgium and France,
para.27.
145 ILC, 76th Session, 1989, Provisional Record No. 26, Part 1,p. 26/6, para. 21.
146 See note 118 supra.

Document No. 104
ILC, 102nd Session, 2013, Report III (Part 1A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, paras 8–36

ILC.102/III(1A)
International Labour Conference, 102nd Session, 2013
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part 1A)
General Report
and observations concerning particular countries
International Labour Office Geneva
GENERAL REPORT
8
sessions in 2005 and 2006, issues relating to its working methods were discussed by the Committee in plenary sitting. 3
From 2007 to 2011, the subcommittee met at each of the Committee’s sessions. 4
7. This year, a new subcommittee on the streamlining of treatment of certain reports was established. This
subcommittee met twice before the beginning of the work of the Committee and examined all the comments related to
repetitions (269 observations and 462 direct requests – which are comments repeating what had been said previously by
the Committee), as well as the general observations and direct requests. The subcommittee then presented, for adoption in
the plenary, its report to the Committee of Experts and drew attention to the most important issues which had been raised
during its examination. The approach taken by the subcommittee has enabled the Committee of Experts to save precious
time for the examination of individual observations and direct requests regarding ratified Conventions and it was
suggested that it should be reconvened every year.
Relations with the Conference Committee
on the Application of Standards
8. A spirit of mutual respect, cooperation and responsibility has consistently prevailed over the years in the
Committee’s relations with the International Labour Conference and its Committee on the Application of Standards. The
Committee of Experts has always taken the proceedings of the Conference Committee into full consideration, not only in
respect of general matters concerning standard-setting activities and supervisory procedures, but also with regard to
specific matters concerning the way in which States fulfil their standards-related obligations. Moreover, the Committee
has paid in recent years close attention to the comments on its working methods that have been made by the members of
the Committee on the Application of Standards and the Governing Body.
9. In this context, the Committee once more welcomed the participation of Mr Yokota as an observer in the general
discussion of the Committee on the Application of Standards at the 101st Session of the International Labour Conference
(June 2012). It noted the decision by the Conference Committee to request the Director-General to renew this invitation
for the 102nd Session (June 2013) of the Conference. The Committee of Experts accepted this invitation.
10. The Chairperson of the Committee of Experts invited the Employer Vice-Chairperson (Mr Christopher Syder)
and the Worker Vice-Chairperson (Mr Marc Leemans) of the Committee on the Application of Standards at the
101st Session of the International Labour Conference (June 2012) to participate in a special sitting of the Committee at its
present session. They both accepted this invitation.
11. This year’s special sitting was of particular importance in the light of the events that had taken place during the
session of the Conference Committee in June 2012 as well as the subsequent developments, including the informal
tripartite consultations in September 2012 and the discussions that took place during the November Session of the
Governing Body.
12. During the sitting, the Employer Vice-Chairperson insisted that for his group, this internal dialogue within the
ILO’s standards supervisory system was of utmost importance for the proper functioning of the system. He stressed that
the Employers remained fully committed to preserving and strengthening the cooperation and coordination between the
Conference Committee on the Application of Standards and the Committee of Experts.
13. Regarding the issue of the right to strike, he reiterated that the Employers had objected for many years to the
view that the right to strike was to be considered to be part of the obligations politically negotiated and agreed by the ILO
constituents under Convention No. 87. The Employers had set out on many occasions that a right to strike was not
regulated in Convention No. 87 and that the ILO constituents did not agree to the inclusion of the right to strike at the time
Convention No. 87 was adopted in 1948. According to the Employers, this was clearly stated in the preparatory work that
preceded the adoption of the Convention and the Employers had put forward detailed arguments in the past showing that
in considering all applicable rules of interpretation, a right to strike could not be read into Convention No. 87. In this
regard, the Employers regretted that in the context of the 2012 General Survey on the eight fundamental Conventions, the
Committee of Experts had included nearly 20 pages on their view that Convention No. 87 contained an inherent right to
strike.
14. The Employer Vice-Chairperson recalled that the role of the Committee of Experts was first mandated at the
ILC in 1926 and that it had been explicitly stated at the time that the functions of this new committee would be entirely
technical and that the Committee of Experts would have no judicial capacity, nor would it be competent to give
interpretations of the provisions of Conventions or to decide in favour of one interpretation rather than another. Further
explanation was provided on the role of the Committee of Experts at the ILC in 1947 when it was stated that the
supervisory machinery in question consisted of a Committee of Experts appointed by the Governing Body for the purpose
of carrying out a preliminary examination of the annual reports of governments. The Employers were of the view that
3 See General Report, 76th Session (November–December 2005), paras 6–8; General Report, 77th Session (November–December
2006), para. 13.
4 See General Report, 78th Session (November–December 2007), paras 7–8; General Report, 79th Session (November–December
2008), paras 8–9; General Report, 80th Session (November–December 2009), paras 7–8; General Report, 81st Session (November–
December 2010), paras 6–13; General Report, 82nd Session (November–December 2011), paras 6–12.
General Report
GENERAL REPORT
9
nothing had changed since then and that the decisions of 1926 and 1947 remained the guiding principles on the role and
mandate of the Committee of Experts. Therefore, the fact that the Employers inside the Conference Committee on the
Application of Standards had consistently opposed the CEACR’s view on the right to strike should not be construed as the
view of external opposition but rather as evidence that there had never been an agreement inside the ILO on the issue of
the right to strike.
15. Furthermore, the fact that many countries had enshrined a right to strike, together with restrictions on that right
was, in the Employers’ view, not determinative of the proposition that Convention No. 87 was the source of that right. To
the contrary, it would be far more supportive of a view that countries had rightly found it necessary to regulate this
important issue themselves in the face of a lack of clear and explicit guidance from an agreed source. Citing national
practice as a basis for interpreting an unstated right into an international document did not, in the Employers’ view,
advance the argument that Convention No. 87 was the source of the right to strike. In conclusion on this point, the
Employer Vice-Chairperson indicated that with regard to Convention No. 87, the Committee of Experts had taken a role
more akin to the role of the Conference Committee on the Application of Standards than the advisory role the experts were
originally assigned in 1926. It appeared that the Committee of Experts had developed and maintained views concerning
the right to strike that should have been the subject of tripartite policy debates. In order to move forward with this issue, he
recalled that the Employers had expressed their willingness to contribute to a balanced solution in this regard and had
proposed, during the 2012 November session of the Governing Body, to have a proper tripartite discussion on the right to
strike during the International Labour Conference. Such a discussion would be meant to determine if and to what extent
there was common ground amongst ILO constituents for global standard-setting on the right to strike. He once again
requested the Committee of Experts to reconsider its position on the right to strike and to immediately suspend any
references to this right in future reports until a tripartite discussion had taken place on the right to strike.
16. Regarding the issue of the mandate of the Committee of Experts and more precisely the legal status of its views
and observations, the Employer Vice-Chairperson underlined that these were not clearly and precisely set forth in the
Committee’s report, which could lead to misunderstandings outside the ILO that they were approved by the ILO’s
tripartite constituents or were legally binding. As stated under the point regarding the right to strike, it was the Employers’
understanding that the Governing Body had never decided to amend the stated terms of reference of the Committee of
Experts to expressly include the interpretation of international labour standards. In addition, it could not be the Governing
Body’s intention to change those terms of reference since the ILO Constitution provided that the authority to interpret ILO
Conventions was vested with the International Court of Justice, which meant that the Constitution would need to be
amended first. Based on this understanding, the Employers were of the view that what needed to be mentioned in all of the
Committee of Experts’ reports was that their views and observations were meant to provide a basis for the supervisory
work of the Conference Committee on the Application of Standards, they had not been approved by the tripartite bodies of
the ILO and that these views were not legally authoritative interpretations and not legally binding for ratifying countries.
In view of the above, the Employers respectfully requested the Committee of Experts to consider this issue with a view to
clarifying its mandate and the legal status of its views in a clear and concise manner in all of its future reports. This
clarification should be made at a visible place, preferably on the first pages in the reports.
17. Following exchanges with the Committee of Experts, the Employer Vice-Chairperson acknowledged that a
certain degree of interpretation by the Experts was inevitable when the provisions of a Convention were not clear, but
insisted that the main issue was when this rule of interpretation was extended into the development of policy
considerations which were the sole domain of the ILO tripartite constituents.
18. While the Employer Vice-Chairperson very much welcomed the opportunity to clarify the respective roles of
the Conference Committee on the Application of Standards and the Committee of Experts through this special sitting, he
stressed that this dialogue with the two committees should also be extended in terms of participants and time. He
suggested that rather than this limited exchange between the two spokespersons of the Conference Committee and the
members of the Committee of Experts, the Office should organize one-day consultations, outside the meeting of the
Committee of Experts’, between the CEACR and a number of Conference Committee Employer and Worker members
nominated by the two groups and assisted by ACT/EMP and the IOE as well as ACTRAV and the ITUC respectively.
Finally, he expressed the view that in the process which was currently underway in the Governing Body to move forward
on all these issues, one element that was missing was the involvement of the members of the Committee of Experts in the
discussion of their mandate.
19. For its part, the Worker Vice-Chairperson emphasized that the present meeting was an occasion that was valued
by his Group each year as an opportunity to reaffirm its confidence in the Committee of Experts, and also in the other
supervisory bodies on the application of ILO standards, and particularly the Conference Committee on the Application of
Standards and the Committee on Freedom of Association, both of which were of tripartite composition. Those two bodies
had also contributed over the years to developing principles, beyond the framework of the ILO Constitution, which were
of undeniable value for workers, employers and governments, particularly by offering security for key concepts in the
context of international labour law. Those concepts were valid because they had their origins in joint tripartite analysis.
Moreover, the reports of the supervisory bodies constituted a reference point on standards which ensured stability and
social peace in member States, not only in relation to the social partners and the world of enterprise, but also between
member States themselves, with a view to avoiding unfair competition based on social dumping.
GENERAL REPORT
10
20. With regard to the question of the mandate of the Committee of Experts, the Worker Vice-Chairperson recalled
that as early as 1928 the Conference Committee on the Application of Standards had considered, after noting that the
Committee of Experts was confining itself to examining the compliance of national laws and regulations with international
Conventions, that its analysis of the subject should not be limited to assessing the concordance of the provisions of
national laws and regulations with those of Conventions, but should also go more deeply into the issue of the effective
application of the Conventions. He emphasized that the role of the Committee of Experts was fundamental and that its
work was an essential and permanent instrument in improving the application of standards. That role consisted of
preparing, under unimpeachable conditions of scientific rigour, independence and objectivity, the work that would be
taken up by the Conference Committee on the Application of Standards with a view to ensuring that effect was given to
standards in law and practice.
21. The Worker Vice-Chairperson stated that the work of the Conference Committee on the Application of
Standards, through the examination of individual cases, was another fundamental aspect of the supervisory system. Its
examination was based on the work of the Committee of Experts, as well as the tripartite examination of individual cases.
The role of the Committee of Experts was therefore to enter into dialogue with governments through its comments. But,
however important that role might be, the Committee of Experts was only one element of the omnipresent tripartite
involvement in supervising the application of standards. Indeed, the Governing Body, with its tripartite composition, was
a constitutional body which had a determining role to play at the various levels, for example by first approving the
questionnaires under articles 19 and 22 of the Constitution. Moreover, the work of the Conference Committee on the
Application of Standards could only be valid with the total involvement of employers, workers and governments, not only
in relation to reporting obligations, but also through the comments made by the social partners under article 23(2) of the
Constitution. The Committee of Experts therefore worked in a very precise framework and its mandate, which was the
result of an evolutionary process overseen by the Governing Body, had not been left to its sole discretion.
22. The Worker Vice-Chairperson also welcomed the fact that the informal tripartite consultations held in
September 2012 had given rise to the promise that working methods would be adopted that should ensure the possibility
of serene and effective work at the next session of the Conference Committee on the Application of Standards in June
2013.
23. With reference to the issue of the right to strike, the Worker Vice-Chairperson warned against the desire to
weaken inter-occupational and sectoral social dialogue, which appeared to have its roots within the European Union. In
that respect, he emphasized that it would be difficult for the Workers’ Group to accept a method of work based on a
question of principle arising out of the differences of views concerning the relationship that existed between the right to
strike and Convention No. 87. The reasoning put forward by the Employers, calling for the right to strike only to be
addressed at the national level, was designed to weaken the trade union movement, social dialogue and the right to
collective bargaining. But all of those rights were linked in their spirit to those negotiated in Conventions Nos 87 and 98.
24. The Worker Vice-Chairperson stated that the ILO supervisory bodies recognized the right to strike and
considered it to be a fundamental instrument available to workers’ organizations for the defence of their economic and
social interests. In its 1959 General Survey the comments of the Committee of Experts had been in line with such
recognition, and it currently considered the right to strike to be an essential corollary of the right to organize. That was
also the opinion of the Committee on Freedom of Association, which had recognized such a right in 1952. It should also
be noted that 137 countries had ratified Convention No. 87 since 1952, and that 115 of those ratifications had been
registered after the publication of the 1959 General Survey on freedom of association, which clearly implied recognition
of the exercise of the right to strike. The Conference Committee on the Application of Standards also recognized the right
to strike. However, those bodies considered that it was not an absolute right and that it could be subject to certain
restrictions, or even prohibited. The Committee of Experts had therefore never gone beyond its mandate in formulating its
principles on the right to strike. Those principles were in line with reality, with the provisions of other international
instruments that referred to the right to strike and with the decisions and principles followed by other supervisory
machinery.
25. Finally, in reply to the proposal put forward by the Employers regarding the inclusion of a caveat at the
beginning of all future reports of the CEACR, the Worker Vice-Chairperson voiced his strong opposition to the inclusion
of such a caveat.
26. The Committee very much welcomed the frank and constructive interventions of both Employer and Worker
Vice-Chairpersons. Concerning its mandate, the Committee recalled that, since 1947, and during the past 50-plus years, it
had regularly expressed its views on its mandate and methods of work. Since 2001, it had done so even more thoroughly
through the efforts of its subcommittee on working methods. The Committee recalled three elements of particular
relevance in this regard: (i) it had repeatedly stressed its status as an impartial, objective, and independent body, with
members appointed by the tripartite Governing Body in their personal capacity precisely because of that impartial and
independent status; (ii) it had regularly clarified that, while its terms of reference did not authorize it to give definitive
interpretations of Conventions (competence to do so being vested in the International Court of Justice (ICJ)), in order to
carry out its mandate of evaluating and assessing the application and implementation of Conventions, it had to consider
and express its views on the legal scope and meaning of the provisions of these Conventions; and (iii) as from at least the
General Report
GENERAL REPORT
11
1950s, it had expressed its views on the meaning of specific ILO instruments in terms that inevitably reflected an
interpretive vocabulary.
27. Reviewing the position of the Employers’ group over the years, the Committee stressed that, historically, that
group had accepted the Committee’s interpretive role as part of its mandate. For instance, the Committee recalled that,
during the 1987 Conference Committee on the Application of Standards, addressing concerns raised by certain
governments, the Employers’ spokesperson had “rejected the argument that the CEACR had gone beyond its terms of
reference” and both the Employers’ and Workers’ spokespersons “supported the CEACR’s current methods of work.” In
the 1993 Conference Committee, the Employers’ group had remarked that “disagreements over the method and substance
of interpretations arose in only a small proportion of the vast number of comments made over the years by the Committee
of Experts”. More recently, during the 2011 Conference Committee, the Employers’ group had not responded to the
detailed discussion of the interpretive methods that the CEACR had presented in paragraphs 10–12 of its General Report,
which discussed in considerable detail: (a) the logical necessity of interpreting Conventions in order to fulfil its mandate,
(b) the necessity that its work remain committed to independence, objectivity, and impartiality, and (c) that the Committee
constantly bore in mind all different methods of interpreting treaty law, especially the Vienna Convention.
28. The Committee further stressed that its mandate derived from three main principles. First, assessment and
evaluation of textual meaning was logically integral to the application of ratified Conventions. In this regard, the
Committee noted that it needed to bring to the Conference Committee’s attention: (i) any national laws or practices not in
conformity with the Conventions, which inevitably required the evaluation and thus, a certain degree of interpretation, of
the national legislation and the text of the Convention; and (ii) in conformity with its working methods, the cases of
progress in the application of standards, which also required a degree of interpretation. Second, the equal treatment and
uniformity of the application of Conventions assured predictability. The Committee highlighted in this regard that its
approach to examining the meaning of Conventions also prioritized achieving equal treatment for States and uniformity in
practical application. This emphasis was essential to maintaining principles of legality, which encouraged governments to
accept its views on the application of a Convention and, in this manner, promoted a level of certainty needed for the
proper functioning of the ILO system. Third, the Committee stressed that its composition, i.e., independent persons with
distinguished backgrounds in the law and direct experience of the different national legal systems to which Conventions
were applied, helped to ensure a broad acceptance within the ILO community of its views on the meaning of Conventions.
29. The Committee acknowledged the Employers’ concerns expressed by the Employer Vice-Chairperson at the
June 2012 Conference that its observations were “being viewed by the outside world as a form of soft law labour
standards jurisprudence”. However, the Committee noted that the world outside of the ILO was not its designated or
intended audience. Rather, the Committee directed its non-binding opinions and conclusions to governments, social
partners, and the Conference Committee pursuant to its well-settled role in the ILO supervisory structure. While aware
that its guidance was taken seriously in certain specific settings, both by domestic courts and international tribunals, the
Committee considered that this reflected respect for its independent and impartial nature and for the persuasive value of its
non-binding analyses and conclusions. The Committee recalled that those analyses or conclusions could only become
authoritative in any “binding” sense if the international tribunal, or instrument, or the domestic court independently
established them as such.
30. Regarding its working methods and particularly its examination of governments’ reports and comments of
social partners, the Committee recalled that it was relying exclusively on written evidence and that there were no oral
hearings or scope for oral arguments. While the Committee took due note of the well documented and constructive
comments of the social partners, it would welcome receiving more of such comments from the employers to better reflect
their views. The Committee underscored the substantial individual and collective work it carried out in reviewing the
application of Conventions which further benefited from an intensive exchange of views from a diversity of legal, social
and cultural backgrounds. Finally, the Committee recalled that its mandate must by necessity be understood within the
framework of the ILO Constitution which firmly anchors the aims and objectives of the Organization as being the
elimination of injustice, hardship and privation and the fostering of social justice as the means for ensuring universal and
lasting peace.
31. On the matter of the right to strike, the Committee of Experts welcomed the frank discussion of issues that
enabled it to address directly a number of points. In the first instance, there appeared to remain the challenge as to whether
there was a right to strike at all under Convention No. 87. The Committee indicated that it would take into account the
arguments raised by the Employers, although the Committee considered that it had already addressed these arguments in
detail in its 2012 General Survey. The Committee recognized that the Employer Vice-Chairperson appeared to make a
distinction between interpretive application of the Convention and what the Employers felt was making policy, and gave
particular examples of such policy extension. The Committee indicated, however, that once it had decided in 1959 that the
Convention included the right to strike, the Committee was faced with the need to determine what the acceptable
restrictions were, rather than leaving it as an absolute right. The Committee did this on a case-by-case basis over the years,
looking at a country’s law and practice, bearing in mind the information provided to it, and taking into account national
circumstances, while ensuring equal treatment and universal application. In order to make this assessment, the Committee
encouraged, and continues to encourage, all parties, including the employers’ organizations, to make use of article 23(2)
of the Constitution in order to provide relevant information for its reflection. In so far as the Committee’s reliance on the
GENERAL REPORT
12
decisions of the Committee on Freedom of Association was concerned, the Committee recalled that it made its own
decisions. It takes into account the decisions of the Committee on Freedom of Association but does not justify its
observations on the basis of those decisions. Moreover, the Committee recalled several examples of complaints or
comments submitted by international and national employers’ organizations to the Committee on Freedom of Association
and the CEACR in which the employers’ organizations requested both supervisory bodies to make statements regarding
the need to set limits to the exercise of the right to strike when, in their opinion, the legislative texts contained
objectionable provisions.
32. The Committee further emphasized that, contrary to the social partners who often defend conflicting interests,
and therefore had to negotiate, it did not defend interests and, although there may be differences between the experts when
examining the application of Conventions, they did not negotiate between themselves when preparing their comments.
The experts sought legal truth, completely objectively and impartially.
The Committee’s views regarding
its mandate
33. The Committee is aware that, as a result of the informal tripartite consultation in September 2012, the tripartite
constituencies have requested that the Office prepare an information document on the mandate of the Committee of
Experts for the 317th Session (March 2013) of the Governing Body. Following its meeting with the Vice-Chairpersons of
the Committee on the Application of Standards, the Committee of Experts also has an increased understanding of the
concerns expressed by the Employers and of the positions taken by the Workers with regard to its mandate. These
concerns and positions were ably presented by the two Vice-Chairpersons at the meeting of the Committee on 1 December
2012. The Committee has decided to put forward the following considerations in the spirit of assisting the ILO
constituents in their understanding of the Committee’s work. The Committee wishes to draw attention to four principal
factors.
(a) Logically integral to application. The terms of reference of the Committee of Experts call for it to examine a range
of reports and information in order to monitor the application of Conventions and Recommendations. In fulfilling
this responsibility, the Committee must bring to the attention of the Conference Committee on the Application of
Standards any national laws or practices not in conformity with the Conventions, including the severity of certain
situations. This logically and inevitably requires an assessment, which in turn involves a degree of interpretation of
both the national legislation and the text of the Convention.
Further, in conformity with longstanding working methods, the Committee of Experts has identified over
3,000 cases of progress (noting with satisfaction) since 1964, which again logically requires an interpretive
judgment that a government’s change in law or practice has given fuller effect to a ratified Convention as it has been
construed by the Committee.
(b) Equal treatment and uniformity assure predictability in application. The Committee’s approach to examining the
meaning of Conventions stresses due regard for achieving equality of treatment for States and uniformity in practical
application. This emphasis is essential to maintaining principles of legality, which encourage governments to accept
the Committee of Experts’ views on application of a Convention. In this manner, the Committee can promote a level
of certainty needed for the proper functioning of the ILO system.
(c) Composition. The Committee of Experts’ views on the meaning of Conventions are broadly accepted because the
Committee is composed of independent persons who have distinguished backgrounds in the law and direct
experience of the different national legal systems for which they must evaluate the application of the Conventions.
The Committee’s independence is importantly a function of its members’ occupations, principally as judges from
national and international courts and as professors of labour law and human rights law. This independence is also
attributable to the means by which members are selected. They are not selected by governments, employers, or
workers, but rather by the Governing Body upon recommendation of the Director-General. The Committee’s
combination of independence, experience, and expertise continues to be a significant further source of legitimacy
within the ILO community.
(d) Consequences. Governments rely on the valid and generally recognized nature of the Committee of Experts’
observations, direct requests, and General Surveys to help structure their conduct in law and practice. If governments
were to view the Committee’s positions as somehow discounted or of less certain value, some would feel freer to
ignore its requests or invitations to comply. This would inevitably undermine orderly monitoring and predictable
application of the standards – the precise result that the Committee of Experts mandate was established and then
extended in order to prevent.
In addition, the Conference Committee, the Committee on Freedom of Association, and the Governing Body also
rely on the Committee of Experts framework of opinions about the meaning of the provisions of the Conventions in
the course of the applications process. Without this independent role, the supervisory system would lose a vital
element of impartiality and objectivity, an element that has been central to the monitoring system for 85 years.
General Report
GENERAL REPORT
13
Prior statements from the CEACR and the
Employers regarding the Committee’s mandate
34. The Committee believes it may be useful to review certain past and recurrent perceptions with regard to its
mandate, as expressed before the Conference.
(a) Statements by the CEACR. For more than 50 years, the Committee has regularly expressed its views on its mandate
and methods of operation. Since 2001, it has done so even more thoroughly through the efforts of its subcommittee
on working methods. Three elements are of special relevance here:
First, the Committee has repeatedly stressed its status as an impartial, objective, and independent body, with
members appointed by the Governing Body in their personal capacity precisely because of that impartial and
independent status. 5
Second, the Committee has regularly made clear that, while its terms of reference do not authorize it to give
definitive interpretations of Conventions – competence to do so being vested in the International Court of Justice
(ICJ) under article 37 of the ILO Constitution – in order to carry out its mandate of evaluating and assessing the
application and implementation of Conventions, it must consider and express its views on the legal scope and
meaning of the provisions of these Conventions. 6
Third, at least as far back as the 1950s, the Committee has expressed its views on the meaning of specific ILO
instruments in terms that inevitably reflect an interpretive vocabulary.
(b) Statements from the Employers’ group. Over the past 25 years, the Employers group has often made clear its support
for or endorsement of the Committee’s role in construing Convention text as a key element of the supervisory
mechanism.
Thus, for example, in 1986 in the Conference Committee on the Application of Standards, “the Employers’ members
were of the opinion that the criticism which had been expressed [by certain governments] with respect to the
supervisory machinery attested to its effectiveness. They completely rejected the idea of dismantling or weakening
the supervisory system. In their opinion, the arguments put forth against this machinery were unfounded. This was
particularly the case in regard to comments critical of the supervisory machinery because it allegedly constituted an
interference in internal affairs of States. To the contrary, it was a question of knowing whether a member State
intended to comply with obligations it had assumed. ... This procedure was clear, unambiguous, fair, and above all
necessary” (paragraph36, page 31/8). 7
Again in 1987, the Employers responded to arguments by the USSR and other Eastern European countries
(paragraph 26) that the Committee of Experts had gone beyond its 1926 terms of reference, which were purely
technical, by converting itself into “a kind of supra-national tribunal, interpreting national laws and Conventions”
although such interpretation was the responsibility of the national courts or the ICJ. The Employers’ spokesperson
“rejected the argument that the Committee of Experts had gone beyond its terms of reference” (paragraph 27) and
both the Employers’ and Workers’ spokespersons “supported the Committee’s current methods of work”
(paragraph 32). 8
While in 1990, the Employers criticized a statement in the Committee’s report that they viewed as saying in
substance that competence to interpret Conventions absent an ICJ submission rests solely with the Committee
(paragraph 22), following extended discussion involving workers and governments as well, the Employers
emphasized their view of the Vienna Convention as “the appropriate – in fact the only – yardstick to be used in
interpreting ILO Conventions. It was this yardstick that they invited the Committee to use in their interpretation of
international labour standards” (paragraph 30, emphasis added). 9
In 1993, the Employers remarked that “disagreements over the method and substance of interpretations arose in only
a small proportion of the vast number of comments made over the years by the Committee of Experts”
(paragraph 21). 10
5 ILC, Report III (Part IV), 1957, para. 15; ILC, Report III (Part IV), 1967, para. 25; ILC, Report III (Part 4A), 1977, para. 12;
ILC, Report III (Part 4A), 1987, para. 19; ILC, 1990, para. 6; ILC, Report III (Part 4A), 1991, para. 12; ILC, Report III (Part IA), 2006,
p. 2; ILC, Report III (Part IA), 2011, para. 10.
6 ILC, CEACR, Report III (Part 4A), 1977, para. 32; ILC, CEACR, Report III (part 4A), 1987, para. 21; ILC, CEACR, Report III
(Part 4A), 1990, para. 7; ILC, Report III (Part 4A), 1991, para. 9; ILC, CEACR, Report III (Part 1A), 2011, para. 11.
7 ILC, Provisional Record No. 31: Report of the Committee on the Application of Standards, 72nd Session, Geneva, 1986,
p. 31/1.
8 ILC, Provisional Record No. 24 (Part 1): Report of the Committee on the Application of Standards, 73rd Session, Geneva,
1987, p. 24/1.
9 ILC, Provisional Record No. 27 (Part 1): Report of the Committee on the Application of Standards, 77th Session, Geneva,
1990, p. 27/1.
10 ILC, Provisional Record No. 25 (Part 1): Report of the Committee on the Application of Standards, 80th Session, Geneva,
1993, p. 25/1.
GENERAL REPORT
14
In 2010, the Employers again made clear that “they were not questioning the valuable role of the Committee of
Experts but only certain of its interpretations” (paragraph 75). 11
The non-binding nature of CEACR opinions
and recommendations
35. (a) In stating that its views are to be considered as valid and generally recognized (absent contradictory ruling
from the ICJ), the Committee is not saying that it regards its views as having any res judicata or comparable effect. The
Committee does not regard itself as a court of law. Indeed, it has been consistently clear that its formulations of
guidance – presented as opinions or recommendations in the context of observations, direct requests, and General Surveys
– are not binding. Rather, the persuasive validity of the Committee’s formulations for member countries, social partners,
the Conference Committee, and others within the ILO stems from: (1) their logical relation to the standards application
process; (2) the equal treatment and uniformity that accompanies their implementation; (3) the quality of their reasoning;
and (4) the recognized independence and expertise of the Committee as a whole.
(b) In this respect, the Committee’s guidance is part of the so-called international law landscape. Like the work of
independent supervisory bodies created within other UN organizations addressing human rights and labour rights, 12 the
Committee’s non-binding opinions or conclusions are intended to guide the actions of ILO member States by virtue of
their rationality and persuasiveness, their source of legitimacy (by which is meant the independence, experience, and
expertise of the members), and their responsiveness to a set of national realities including the informational input of the
social partners. At the same time, the Committee observes that it is only before the ILO supervisory machinery that the
social partners can bring forward their concerns relating to the application of Conventions.
Proposed addition of a caveat to the Committee’s
General Surveys and Reports
36. The Committee has considered the Employers’ position that some form of caveat or disclaimer should be
prominently featured in Committee documents, stating that Committee interpretations are not authoritative and hence not
legally binding for ratifying countries, as well as the Workers’ position that such a caveat or disclaimer should not be
included. The Committee understands and respects the views of both constituents and wishes to clarify its own position on
this matter.
(a) The Committee believes that such a caveat or disclaimer is not necessary. As noted earlier in this General Report,
the Committee repeatedly states with regard to its terms of reference, both in its general reports and in other settings,
that its opinions are non-binding. The Committee includes a similarly unambiguous statement as part of the
preliminary portion of its 2013 General Survey and will continue with this practice in future years.
(b) The Committee believes that adding the caveat or disclaimer proposed by the Employers would interfere in
important respects with its independence. The Committee fully appreciates and respects that tripartism carries moral
force as well as technical authority within the ILO system. The Committee’s moral authority, however, derives
substantially from the fact that, while appointed by the tripartite Governing Body, it has remained an independent
and impartial body of experts for 85 years. As mentioned earlier, Committee members are nominated and selected
with regard to their independence and objectivity, not their participation in a tripartite framework. That this caveat is
being proposed by one group of tripartite constituents, and opposed in principle and in its specific language terms by
another group of the tripartite constituents, highlights the risks of attempting to add to the Committee’s own work
product.
(c) In this regard, it bears emphasis that the General Surveys and the report of the Committee under articles 19, 22 and
35 of the Constitution are instruments created by the Committee at the direction and pursuant to the constitutional
authority of the Conference. The Committee feels strongly about the views expressed above and believes that it
should continue to follow its current practice.
11 ILC, Provisional Record No. 16 (Part 1): Report of the Committee on the Application of Conventions and Recommendations,
99th Session, Geneva, 2010, p. 16/1.
12 The Committee on Economic, Social and Cultural Rights and the Human Rights Committee have comparable monitoring
responsibilities with respect to provisions of their Covenants, based on their impartial and independent expert status.
Document No. 105
ILC, 103rd Session, 2014, Report III (Part 1A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, paras 8–31

Report of the Committee
of Experts on the Application
of Conventions
and Recommendations
REPORT III (Part 1A)
International Labour Conference, 103rd Session, 2014
Application of International
Labour Standards 2014 (I)
GENERAL REPORT
8
7. Last year, a new subcommittee on the streamlining of treatment of certain reports was established. This
subcommittee met again this year, on two occasions, before the beginning of the work of the Committee and examined all
the comments related to repetitions (which are comments repeating what had been said previously by the Committee of
Experts), as well as the general observations and direct requests. Concerning repetitions, the subcommittee examined
143 observations (compared to 269 in 2012) and 329 direct requests (compared to 462 in 2012). This represents a
significant 35.43 per cent decrease in the total number of repetitions. The subcommittee then presented, for adoption in the
plenary, its report to the Committee of Experts and drew attention to the most important issues which had been raised
during its examination. The approach taken by the subcommittee has enabled, once again, the Committee of Experts to
save time for the examination of individual observations and direct requests regarding ratified Conventions.
Relations with the Conference Committee
on the Application of Standards
8. A spirit of mutual respect, cooperation and responsibility has consistently prevailed over the years in the
Committee’s relations with the International Labour Conference and its Committee on the Application of Standards. The
Committee of Experts has always taken the proceedings of the Conference Committee into full consideration, not only in
respect of general matters concerning standard-setting activities and supervisory procedures, but importantly with regard
to specific matters concerning the way in which States fulfil their standards-related obligations. The Committee has also
paid close attention in recent years to the comments on its working methods that have been made by the members of the
Committee on the Application of Standards and the Governing Body.
9. In this context, the Committee once more welcomed the participation of Mr Yokota as an observer, in his
capacity as Chairperson of the 2012 session of the Committee of Experts, in the general discussion of the Committee on
the Application of Standards at the 102nd Session of the International Labour Conference (June 2013). It noted the
decision by the Conference Committee to request the Director-General to renew this invitation to the Chairperson of the
Committee of Experts for the 103rd Session (May–June 2014) of the Conference. The Committee of Experts accepted this
invitation.
10. The Chairperson of the Committee of Experts invited the Employer Vice-Chairperson (Ms Sonia Regenbogen)
and the Worker Vice-Chairperson (Mr Marc Leemans) of the Committee on the Application of Standards at the
102nd Session of the International Labour Conference (June 2013) to participate in a special sitting of the Committee at its
present session. They both accepted this invitation.
11. The Chairperson of the Committee of Experts welcomed the opportunity to exchange views on issues of
common interest with the two Vice-Chairpersons of the Conference Committee. In the current institutional context arising
from the session of the Conference Committee in June 2012, the dialogue between the two committees was even more
important. This dialogue would be constructive and embedded in mutual respect, cooperation and responsibility, which
helps to generate an atmosphere of trust between the two committees. He reassured the Employer and Worker
Vice-Chairpersons that the Committee of Experts, in adhering to the fundamental principles of independence, impartiality
and objectivity, was attentive to the issues that had been raised and had continued to give them due consideration.
12. The Employer Vice-Chairperson welcomed the opportunity to participate in this meeting. In the first place, she
emphasized that the ILO supervisory mechanisms were increasing in relevance and importance for a number of reasons,
including the consideration by national courts of the international obligations of member States, the globalization of
business and the adoption by multinational corporations of codes of conduct. In that context, the Employers were
completely committed to ensuring the relevance, sustainability and credibility of the ILO supervisory system. The
technical work carried out by the Committee of Experts in preparing observations was an invaluable and crucial part of the
supervisory system. The Employers also recognized and appreciated the invaluable contribution that the Office made in
supporting the work of the Committee of Experts.
13. With reference to the ongoing process following up on the 2012 Conference Committee, she indicated that
there had been a few encouraging developments, but that the constituents were far from having achieved a definitive and
forward-looking outcome. The Employers considered that the following principles had been identified to guide the way
forward: the need to restore the balance between the different supervisory bodies, as well their complementarity so as to
eliminate overlap; the need to better articulate a progressive hierarchy and predictability in the use of the different
supervisory bodies; the possibility to require prior recourse to national jurisdiction before a claim is presented to the ILO,
as well as more objective admissibility criteria before a claim is accepted for discussion; and the need to reinforce the
capacity of the constituents to jointly provide alternative guidance on Conventions, or to explore other possibilities for the
review of labour standards, as foreseen by the ILO Constitution. The Employer Vice-Chairperson also indicated that it had
been possible to re-establish some of the trust between Employers and Workers. However, substantial progress was yet to
be achieved. The Employers felt that one of the keys to further progress also lay with the Committee of Experts and they
were fully committed to cooperating closely with the Committee for that purpose, in a spirit of respect, mutual
collaboration and responsibility.
General Report
GENERAL REPORT
9
14. Turning to the issue of the right to strike, the Employers had expressed the view on many occasions that a
“right to strike” was not regulated in the Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87). In a recent submission to the Committee of Experts, the International Organisation of Employers (IOE) had
added further arguments on the “right to strike” and Convention No. 87 in response to a submission on the same subject
by the International Trade Union Confederation (ITUC). She added that there had been an important change in the
treatment by the Conference Committee in June 2013 of cases involving the “right to strike”, when most of the
conclusions on those cases included the sentence: “The Committee did not address the right to strike in this case as the
Employers do not agree that there is a right to strike in Convention No. 87.” The sentence made two things clear: firstly,
that there was no consensus in the Conference Committee that Convention No. 87 contained and guaranteed a “right to
strike”; and secondly, that the Conference Committee accepted that, because of the lack of consensus, it was not in a
position to ask governments to change their law and practice with regard to strike issues. The statement in the conclusions
of the Conference Committee was in contrast with the current position of the Committee of Experts. The Employers
considered that a difference of opinion of that nature between the two main supervisory bodies of the ILO on such an
important matter was detrimental to the Organization and was bound to result in a loss of credibility, authority and
therefore relevance for the supervisory system in the long term. It was the hope of the Employers that there would be
coherence between the two pillars of the supervisory system on this issue and that the Committee of Experts would
therefore reconsider its views. The Employers had declared their readiness to hold an in-depth and thorough examination
of the issue of “industrial action” through a general discussion at the Conference. They therefore respectfully called on the
Committee of Experts to desist from making observations related to the “right to strike” pending the outcome of a general
discussion on this subject.
15. With regard to the mandate of the Committee of Experts and the related question of its clarification, while
appreciating the recognition by the Committee of Experts that its views were not legally binding in its 2013 report, the
Employers regretted that, by providing additional explanations, this recognition had been rendered ambiguous. They
called on the Committee of Experts to draft concise and sufficiently clear wording to be included in its reports by way of
clarification of its mandate and the legal status of its views, starting with its 2014 report.
16. With regard to the supervisory role of the Committee of Experts, the Employer Vice-Chairperson recognized
that the determination of whether there were divergences between national law and practice and the requirements of
Conventions involved a certain degree of interpretation. However, the Employers considered that it was not the role or
function of the Committee of Experts to act as a standard-setting body by adding further rules to Conventions by means of
extensive interpretations or by filling in gaps or narrowing the flexibility of Conventions by providing restrictive
interpretations. Standard setting was vested with the ILO constituents. Nor should the Committee of Experts act as a
political body by using the supervision of particular Conventions to criticize general government policies, such as fiscal
consolidation policies, or by making recommendations to ratify Conventions. These matters pertained to the Conference
and the Governing Body. The Employers appreciated that the competent tripartite bodies on standards-related matters had
a more proactive role to play and recalled their commitment to the standards review mechanism, which had been adopted
by the Governing Body in principle, but not yet operationalized. It should also be recalled that, during the general
discussion in the Conference Committee in 2013, the Employer members had made proposals to improve the effectiveness
of the standards supervisory system, for example through addressing reporting failures, improving the focus of supervision
by reducing the number of observations and measuring progress in compliance with ratified Conventions more
meaningfully and reliably. The Employers were very sensitive to the very heavy workload of the Committee of Experts
and would support any initiative to address this issue. They looked forward to a discussion of those proposals.
17. In conclusion, the Employers expressed deep appreciation of the work of the Committee of Experts in preparing
its observations. It was their desire to reach meaningful conclusions on the basis of those observations. The Committee of
Experts could be sure of the Employers’ continued commitment to the functioning and reliability of the supervisory
system. Their criticisms should be seen as a contribution to preserving the supervisory system and making it resilient for
the future.
18. The Worker Vice-Chairperson emphasized the informal nature of the meeting between the Committee of
Experts and the Vice-Chairpersons of the Conference Committee, adding that it was not an occasion for tripartite
discussions, which lay within the competence of the Governing Body. In particular, it was the tripartite constituents’
responsibility to address the issues arising from the report of the Conference Committee in June 2012. He reiterated the
support of the Workers’ group for the role and mandate of the Committee of Experts, whose independence and expertise
they respected. He also recalled the complementarity of the respective roles of the Committee of Experts and the
Conference Committee.
19. He recalled the position of his group that the recognition of the right to strike was based on a joint reading of
Articles 3 and 10 of Convention No. 87. He did not agree with the view of the Employers concerning the sentence adopted
in the conclusions of the Conference Committee in cases of the right to strike. He added that in the majority of ILO
member States the right to collective action was already regulated, including through international and regional
instruments. He also recalled that the Committee on Freedom of Association had already set a framework that was
incontestable and as yet unchallenged. He expressed the fear that other matters of controversy might emerge relating to
other Conventions, the application of which could be seen as an obstacle to enterprise competitiveness.
GENERAL REPORT
10
20. The Worker Vice-Chairperson referred to the six proposals made by the Employers’ group during the general
discussion at the Conference Committee in June and considered that the purpose of the six proposals, behind the apparent
neutrality of the language, was to weaken the Committee of Experts.
21. With reference to the request by the Employers for a “disclaimer” or “caveat”, intended to explain clearly the
non-binding nature of the opinions of the Committee of Experts, he considered that this idea was without pertinence and
that it would contribute to undermining the work of the Committee of Experts, which would automatically be suspected of
partiality or a lack of objectivity. In his view, the articulation of the supervisory mechanisms on the application of
standards, and even the role of the ILO, would be compromised. A “disclaimer” or “caveat” would amount to a denial of
responsibility and would be inadequate in light of the mandate of the Committee of Experts and the evolving nature of the
mandate which the Governing Body had entrusted to the Committee over the years. It would be contrary to the ILO
Constitution which, in light of articles 19, 22 and 35, gave a specific value to the work of the Committee of Experts. He
emphasized that the Committee of Experts itself considered that its analyses and conclusions could only become binding if
a competent body, for example a judicial body, considered them as such. He called on the Committee of Experts not to
modify its position and referred to the recent decision by the Governing Body, which had requested the Director-General
to organize consultations as a matter of priority with all the groups with a view to submitting concrete proposals to its
session in March 2014 for the resolution of the principal issues that were outstanding concerning the supervisory system.
22. With reference to the possibility of having recourse to article 37(1) of the ILO Constitution, even if his group
did not wish to take that path, he acknowledged that it remained possible, and was perhaps inevitable. In fact, article 37(1)
would be the only option. In addition, the Workers’ group hoped that the Governing Body would be able to discuss the
options and possible procedures for the implementation of article 37(2) of the ILO Constitution.
23. The Worker Vice-Chairperson reiterated the support of the Workers’ group for the Committee of Experts and
trusted that it would continue its work, in accordance with its mandate, with full confidence, based on the reports received.
24. In response, the Committee reaffirmed its technical role and stressed that it had no interest in extending its
mandate nor the wish to do so. It would continue to fulfil the mandate it had been given by the Conference and the
Governing Body. Recalling that the issues raised in relation to its mandate were fully addressed the previous year, the
Committee therefore referred to its 2013 General Report, in particular paragraph 33, in which four principal factors were
identified, that are summarized here:
– The examination of a range of reports and information in order to monitor the application of Conventions and
Recommendations logically and inevitably requires an assessment, which in turn involves a degree of interpretation
of both the national legislation and the text of the Convention.
– The Committee’s approach to examining the meaning of Conventions emphasizes due regard to achieving equality
of treatment for States and uniformity in practical application. This emphasis is essential to maintaining principles of
legality and promoting a level of certainty.
– The Committee of Experts’ views on the meaning of Conventions are broadly accepted because the Committee is
composed of independent persons who have distinguished backgrounds in law and direct experience of the different
national legal systems. This independence is also attributable to the means by which members are selected.
– If governments were to view the Committee’s positions as somehow discounted or of less certain value, some would
feel freer to ignore its requests or invitations to comply. This would inevitably undermine orderly monitoring or the
predictable application of the standards. In addition, the Conference Committee, the Committee on Freedom of
Association, and the Governing Body also rely on the Committee of Experts’ framework of opinions about the
meaning of the provisions of the Conventions in the course of the application process.
25. Concerning the right to strike in relation to Convention No. 87, the Committee appreciated the additional
thoughts shared and arguments put forward by the two Vice-Chairpersons, as well as the extensive presentations by the
IOE and the ITUC concerning the issue. The Committee had presented its views at considerable length in the past on why
the right to strike was a part of this Convention. The Committee appreciated submissions from both sides on the need to
examine situations in individual countries that involved the relationship between the right to strike and national law. These
were helpful to the Committee when fulfilling its responsibilities.
26. The Committee noted that it had spent considerable time discussing the issues raised and preparing to
communicate its positions. While this was obviously important work for the Committee, it also came at the expense of
time the Committee would be spending reviewing reports from governments and related comments from the social
partners. The Committee further noted that five of its members had returned to Geneva last February (an unprecedented
activity for the Committee) in part to respond to questions from the tripartite constituencies. It had also made a series of
adjustments to its working methods over the years, and would continue to do so, including by reviewing the proposals
made during the June 2013 general discussion of the Conference Committee. Some adjustments had already been made
this year, reflecting constructive suggestions from the social partners regarding the length of the Committee’s observations
and the possibility of shifting some informational queries into direct requests.
27. The Committee considered that it was for the International Labour Conference and the Conference Committee
to decide whether its understanding of the matters at stake should be sustained or adjusted going forward. These were
ultimately political decisions for the tripartite constituents to address and resolve. The Committee was not a political body.
General Report
GENERAL REPORT
11
28. The Employer Vice-Chairperson, in response to the discussion, expressed great appreciation of the commitment
of the Committee of Experts to its role and of the amount of work that was carried out over a short period. She emphasized
that there was no desire on the part of the Employers to weaken the role of the Committee of Experts, and that they wished
to express their appreciation of its work very clearly. She was heartened by the clear statements by the members of the
Committee of Experts acknowledging its role as a technical, and not a judicial body, and called on it to work within that
mandate. In response to the statement made by the Worker Vice-Chairperson, she added that the Employers were not
seeking a “disclaimer”, but a “clarification” to be included in the report of the Committee of Experts which was intended
to clarify the scope of its mandate. It should also be noted that the Employers had never taken the extreme view that the
Committee of Experts could not engage in any interpretation, as its supervisory work logically involved a degree of
interpretation.
29. The Worker Vice-Chairperson, in response to the discussion, recalled that the tripartite process was in the
hands of the Governing Body. He was satisfied to note that nobody wanted to weaken the Committee of Experts, the
mandate of which had been clearly defined by the tripartite constituents. In conclusion, he emphasized that there was no
need for the Committee of Experts to clarify its own mandate.
30. This year, the Committee of Experts also held for the first time an informal information meeting with
representatives of governments. The members of the Committee of Experts emphasized that the Committee’s mandate was
defined by the International Labour Conference and the Governing Body. They recalled that the Committee of Experts
was a technical body and adhered to the principles of independence, objectivity and impartiality. The members of the
Committee of Experts provided information on a number of aspects related to their work. These included: a succinct
history of the Committee and the evolution of its composition and mandate; its role in the context of the ILO supervisory
system, with particular emphasis on its relationship with the Conference Committee on the Application of Standards; the
sources of information used in carrying out its work; the preparatory work and examination of comments during its
plenary sittings; the types of comments made in its reports concerning the application of ratified Conventions in
accordance with article 22 of the ILO Constitution; and the general surveys on the law and practice of member States in
accordance with article 19 of the ILO Constitution. The Committee of Experts replied to the questions raised by
Government representatives concerning its mandate, methods of work and approach. All the Government representatives
who took the floor expressed appreciation for the holding of the informal meeting with the Committee of Experts and for
the explanations provided. They believed that dialogue between the Committee of Experts and the constituents of the ILO
was of great importance and, in this regard, hoped that such an informal meeting with Government representatives could
continue.
Mandate
31. The Committee of Experts on the Application of Conventions and Recommendations is an independent
body established by the International Labour Conference and its members are appointed by the ILO Governing
Body. It is composed of legal experts charged with examining the application of ILO Conventions and
Recommendations by ILO member States. The Committee of Experts undertakes an impartial and technical
analysis of how the Conventions are applied in law and practice by member States, while cognizant of different
national realities and legal systems. In doing so, it must determine the legal scope, content and meaning of the
provisions of the Conventions. Its opinions and recommendations are non-binding, being intended to guide the
actions of national authorities. They derive their persuasive value from the legitimacy and rationality of the
Committee’s work based on its impartiality, experience and expertise. The Committee’s technical role and moral
authority is well recognized, particularly as it has been engaged in its supervisory task for over 85 years, by virtue
of its composition, independence and its working methods built on continuing dialogue with governments taking
into account information provided by employers’ and workers’ organizations. This has been reflected in the
incorporation of the Committee’s opinions and recommendations in national legislation, international instruments
and court decisions.

Document No. 106
GB.323/INS/5/Appendix I, The Standards Initiative,
Outcome of the Tripartite Meeting on the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), in relation to the right to
strike and the modalities and practices of strike
action at national level, March 2015

This GB document is printed in limited numbers to minimize the environmental impact of the ILO's activities and processes, contribute to climate
neutrality and improve efficiency. GB members and observers are kindly requested to bring their copies to meetings and to avoid asking for
additional ones. All GB documents are available on the Internet at www.ilo.org.
INTERNATIONAL LABOUR OFFICE
Governing Body
323rd Session, Geneva, 12–27 March 2015
GB.323/INS/5/Appendix.I
Institutional Section INS
Date: 13 March 2015
Original: English
FIFTH ITEM ON THE AGENDA
The Standards Initiative – Appendix I
Outcome of the Tripartite Meeting on the
Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), in
relation to the right to strike and the modalities
and practices of strike action at national level
The tripartite constituents met in Geneva from 23 to 25 February 2015 in accordance
with the decision GB.322/INS/5 adopted by the Governing Body at its 322nd Session
(November 2014).
The meeting was conducted in a constructive atmosphere. The social partners
presented a joint statement concerning a package of measures to find a possible way out of
the existing deadlock in the supervisory system. The Government group expressed its
common position on the right to strike in relation to freedom of association and also
delivered a second statement in response to the social partners’ joint statement. The two
statements from the Government group and the Joint Statement from the Workers’ and the
Employers’ Groups are attached to this document. All statements made during the
Tripartite Meeting will be included in the report of the Meeting.
In preparing the document on the standards initiative for the 323rd Session of the
Governing Body, in view of the developments during this tripartite meeting, the Office will
take into account the aforementioned statements, in close consultation with the three
groups.

GB.323/INS/5/Appendix.I
GB323-INS_5-Appendix I_[CABIN-150304-1]-En.docx 1
Annex I
The ILO Standards Initiative – Joint Statement of
Workers’ & Employers’ Groups
(23 February 2015)
A possible way forward
The right to take industrial action by workers and employers in support of their
legitimate industrial interests is recognised by the constituents of the International Labour
Organisation.
This international recognition by the International Labour Organisation requires the
workers and employers groups to address:
■ The mandate of the CEACR as defined in their 2015 report;
■ An approach to the way in which the CAS list is elaborated and the role for the
workers and the employers representatives of the Committee in drafting of
conclusions is to be respected;
■ Improvement in the way the supervisory procedures operate (CFA, Art 24, Art 26);
and
■ Agreement on the principles to guide the regular Standards Review Mechanism
(SRM) and its subsequent establishment.
I. The Mandate of the CEACR
The parties recognise the mandate of the CEACR as defined in paragraph 29 of its
report of 2015:
“The Committee of Experts on the Application of Conventions and Recommendations is an
independent body established by the International Labour Conference and its members are
appointed by the ILO Governing Body. It is composed of legal experts charged with
examining the application of ILO Conventions and Recommendations by ILO member
States. The Committee of Experts undertakes an impartial and technical analysis of how
the Conventions are applied in law and practice by member States, while cognizant of
different national realities and legal systems. In doing so, it must determine the legal
scope, content and meaning of the provisions of the Conventions. Its opinions and
recommendations are non-binding, being intended to guide the actions of national
authorities. They derive their persuasive value from the legitimacy and rationality of the
Committee’s work based on its impartiality, experience and expertise. The Committee’s
technical role and moral authority is well recognized, particularly as it has been engaged
in its supervisory task for over 85 years, by virtue of its composition, independence and its
working methods built on continuing dialogue with governments taking into account
information provided by employers’ and workers’ organizations. This has been reflected in
the incorporation of the Committee’s opinions and recommendations in national
legislation, international instruments and court decisions.”
II. 2015 International Labour Conference
CAS Conclusions
■ Involvement in discussion and drafting of conclusions by the Workers and Employers
spokespersons is critical;
GB.323/INS/5/Appendix.I
2 GB323-INS_5-Appendix I_[CABIN-150304-1]-En.docx
■ CAS should adopt short, clear and straight forward conclusions. What is expected
from governments to better apply ratified Conventions should be clear and
unambiguous. Conclusions could also reflect concrete steps agreed with the
governments to address compliance issues. The conclusions should reflect consensus
recommendations. Where there is no consensus there will be no conclusions.
Divergent views can be reflected in the CAS record of proceedings.
List of Cases
■ Agreement between Workers and Employers on the number of cases to be discussed
in the new ILC setting; realistically with the CAS to examine up to four cases per day
over six days;
■ A long list of 40 cases (12 cases proposed by Employer/12 cases proposed by
Workers, plus double footnoted cases, and up to 10 additional cases as agreed by the
employer and the worker spokespersons) to be published 30 days before the opening
of the ILC;
■ The list should be balanced between fundamental/technical conventions, geographical
representation and level of development of the country;
■ For the 2015 and 2016 ILCs and on a trial basis, and subject to review by the workers
and employers group.
– The short list will consist of up to three cases chosen by each group with special
significance for the group; and
– A reasonable number of double footnoted cases identified by the CEACR; and
– The remaining cases reached through negotiation based on objective criteria;
– The draft list should be established by Workers’ and Employers’ spokespersons
by the Friday before the opening of the ILC. It becomes definitive after the
adoption by the groups before the official adoption by the CAS.
III. Special Supervisory procedures (CFA, Art 24, Art 26)
■ Clarification of the roles and mandates of the CFA and the Art. 24/26 procedures visà-
vis regular standards supervision.
■ Clear objective admissibility criteria, as set forth in the constitution and standing
orders, will be re-affirmed with any additional criteria as agreed.
■ Art 24 and 26 mechanisms are valuable tools where resolution of dispute is not
possible. Representation and Complaints should be accompanied by an explanation of
the measures that were taken at national level to resolve the issue(s) complained of, to
the extent relevant, and indicating where pursuing such measures may have been
futile. This does not impose any obligation to exhaust domestic remedies.
■ Employer and Worker GB Vice Chairpersons (and where agreed employers and
workers organisations) should make every effort to engage in bilateral discussions
with a view to a potential resolution prior to the GB debate of cases.
■ CFA process of review and clarification of the roles and mandates of the CFA is
scheduled, and the parties recognise that the Committee report on these matters by
March 2016.
GB.323/INS/5/Appendix.I
GB323-INS_5-Appendix I_[CABIN-150304-1]-En.docx 3
IV. The Establishment of the SRM
Modalities of the SRM Objectives
Overall Objective: The ILO has a robust body of ILS that respond to the constantly
changing patterns of the world of work, for the purpose of the protection of workers and
taking into account the needs of sustainable enterprises.
Common Principles for the Modalities of the SRM
(November 2011 LILS discussion agreed on the
establishment of the SRM)
■ Create a coherent policy framework within ILO standards machinery;
■ A clear, robust and up-to-date body of standards;
■ For the purpose of the protection of workers and taking into account the needs of
sustainable enterprises;
■ Adopt decisions by consensus;
■ Negotiate in good faith to have a clear, robust and up-to-date body of standards;
■ The social partners agree to implement these commitments.
Framework: The framework for the SRM would be the principles contained in the ILO
Declaration on Social Justice for a Fair Globalization
Overview and follow up to SRM decisions: By the Governing Body in its LILS section
Tripartite WG: the Governing Body should establish a tripartite working group
Scope: All ILS, except outdated, withdrawn, replaced or recently consolidated ILS, should
be subject to discussion and if agreed, review. In a first instance, Standards not reviewed
by the Cartier Working Party and adopted between 1985 and 2000, the instruments for
which the Cartier Working Party had requested further information, those classified by the
Cartier Working Party as having interim status, and those that remained to be revised could
be the subject of review.
Composition: 24 members, 8 G, 8 E, 8 W
Working Methods: the working group will meet for three days in March and November
every year.
This statement shall remain in force from the March 2015 Governing Body session
until the November Governing Body session in 2016. It shall continue thereafter unless in
the opinion of either the Workers’ or Employers’ Group, it is, as of November 2016, not
working according to its intent when it shall then be reviewed in line with the ILO
Constitution.
GB.323/INS/5/Appendix.I
4 GB323-INS_5-Appendix I_[CABIN-150304-1]-En.docx
Annex II
Government Group Statement
(23 February 2015)
Mr Chairperson,
1. I speak on behalf of the Governments participating to this Tripartite Meeting.
2. At the outset, let me express on behalf of Governments, our strong commitment to make
this meeting a tangible progress on unpacking the complex issue at hand. We will work,
under your able leadership, in a constructive spirit and in good faith, so as to present to the
Governing Body concrete views that will help it adopt an informed decision in March. Mr.
Chairperson, you can count on the Governments' convinced support to make these three
days of deliberations a success. We look forward to the same spirit by all the Members of
the Tripartite Meeting.
3. Mr. Chairperson, the Government Group had the opportunity to thoroughly ponder on the
question that is posed to us all, namely the relation between Convention 87 on Freedom of
Association and the right to strike.
4. The Government Group recognizes that the right to strike is linked to freedom of
association which is a fundamental principle and right at work of the ILO. The
Government Group specifically recognizes that without protecting a right to strike,
Freedom of Association, in particular the right to organize activities for the purpose of
promoting and protecting workers’ interests, cannot be fully realized.
5. However, we also note that the right to strike, albeit part of the fundamental principles and
rights at work of the ILO, is not an absolute right. The scope and conditions of this right
are regulated at the national level. The document presented by the Office describes the
multi-faceted regulations that States have adopted to frame the right to strike.
6. We are ready, right from this Tripartite Meeting, to consider discussing, in the forms and
framework that will be considered suitable, the exercise of the right to strike. We believe
that the complex body of recommendations and observations developed in the past 65
years of application of Convention 87 by the various components of the ILO supervisory
system constitutes a valuable resource for such discussions, which will also be informed by
the multi-faceted regulations that States and some regions have adopted to frame the right
to strike.
7. Mr. Chairperson, in conclusion, Governments will spare no effort to achieve a tangible
outcome in the days to come through sustained consultations and dialogue.
Thank you Mr. Chairperson.
GB.323/INS/5/Appendix.I
GB323-INS_5-Appendix I_[CABIN-150304-1]-En.docx 5
Annex III
Government Group Statement
(24 February 2015)
Mr Chairperson,
1. I take the floor on behalf of the Governments participating to this Tripartite Meeting.
2. We acknowledge the “Joint Statement of Workers and Employers groups on a possible
way forward to the ILO standards initiative” which we received yesterday, just before
entering the Plenary. We welcome the efforts and the progress made by the social partners
in reaching a common position on an extremely complex issue. The supervisory system of
this Organization was put in an impasse for the past three years. We therefore take note of
the willingness of the social partners to revitalize their dialogue.
3. We underline that the Government Group seriously prepared for the original task that this
Tripartite Meeting was given by the Governing Body. Our common position is expressed
in a comprehensive and balanced statement that was delivered yesterday afternoon. We
consider of the utmost importance that the statement be reflected in the outcome and report
of this meeting and be taken into account in tripartite development of a durable solution in
the GB
4. We observe, that the issues raised by the social partners’ statement mainly pertain to the
competence of the Governing Body and that they exceed the mandate of the current
Tripartite Meeting. We therefore want to hold a comprehensive tripartite discussion at the
next session of the Governing Body in March and we are ready to engage in a fruitful
debate in that occasion. We want also to explore ways to advance the discussion in the
weeks leading to the GB session.
5. We recall that, according to the ILO Constitution, Member States are responsible for the
effective implementation and observance of labour standards. We have therefore a stake in
the well-functioning of the supervisory system.
6. We look forward to a renewed, long lasting cooperation and to contributing in a tripartite
way to a durable and effective solution to the issues related to the supervisory system,
which is the pulsing heart of the Organization to which we all belong.

Document No. 107
GB.323/INS/5/Appendix II, The Standards Initiative,
Final report of the Tripartite Meeting on the Freedom
of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), in relation to the right to
strike and the modalities and practices of strike action
at national level, March 2015

This GB document is printed in limited numbers to minimize the environmental impact of the ILO's activities and processes, contribute to climate
neutrality and improve efficiency. GB members and observers are kindly requested to bring their copies to meetings and to avoid asking for
additional ones. All GB documents are available on the Internet at www.ilo.org.
INTERNATIONAL LABOUR OFFICE
Governing Body
323rd Session, Geneva, 12–27 March 2015
GB.323/INS/5/Appendix II
Institutional Section INS
Date: 13 March 2015
Original: English
FIFTH ITEM ON THE AGENDA
The Standards Initiative – Appendix II
Final report of the Tripartite Meeting on the
Freedom of Association and Protection of
the Right to Organise Convention, 1948
(No. 87), in relation to the right to strike
and the modalities and practices of
strike action at national level
(Geneva, 23–25 February 2015)
Introduction
1. The Tripartite Meeting on the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), in relation to the right to strike and the modalities
and practices of strike action at national level was held from 23 to 25 February 2015 at the
International Labour Office in Geneva, in accordance with a decision taken by the
Governing Body at its 322nd Session (November 2014). The Governing Body had decided
that the Meeting, open to observers with speaking rights through their groups, would be
composed of 32 Governments, 16 Employers and 16 Workers and would report to the
323rd Session (March 2015) of the Governing Body.
2. The Meeting had before it a background document which contained a Part I entitled: “ILO
Convention No. 87 and the right to strike”; and a Part II entitled: “Modalities and practices
of strike action at the national level”. Its two appendices contained information on
modalities and practices of strike action at the national level, as well as statistical data on
strike action and lockouts extracted from the ILO statistical database. This document was
widely acclaimed by participants as a useful basis for the discussions. 1
1 The document can be found in document GB.323/INS/5/Appendix III.
GB.323/INS/5/Appendix II
2 GB323-INS_5-Appendix II_[CABIN-150305-2]-En.docx
3. The Meeting was chaired by H.E. Mr Apolinário Jorge Correia, Ambassador, Permanent
Mission of Angola, current Chairperson of the Governing Body. Mr Jorgen Rønnest
(Denmark) and Mr Luc Cortebeeck (Belgium) were Employer and Worker spokespersons,
respectively.
ILO Convention No. 87 and the right to strike
4. The Clerk of the Meeting said that, following group meetings held earlier in the day, a joint
statement had been agreed by the Workers’ and Employers’ groups and another statement
agreed by the Government group. 2
5. The Director-General welcomed participants and expressed the hope that their combined
efforts in the days ahead would enable the Governing Body to take decisions that would
then permit agreement to be reached on the action to be taken on the overall package of
interconnected issues that made up the standards initiative, as well as on how to ensure the
sound and effective functioning of the Committee on the Application of Standards (CAS)
and the ILO supervisory system as a whole.
6. The Worker spokesperson said that representatives of the Workers’ and Employers’ groups
had continued discussions following the 322nd Session of the Governing Body, in order to
find at least a partial resolution that would allow the supervisory system to function again.
The joint statement agreed by the Workers’ and Employers’ groups included the following:
– Respect for the mandate of the Committee of Experts on the Application of
Conventions and Recommendations (CEACR).
– A functioning CAS in 2015.
– A proposal for the establishment of the lists of cases, to be implemented on a trial
basis in 2015 and 2016, with increased involvement of the spokespersons in the
elaboration of consensual conclusions.
– A review of the working methods of the Governing Body Committee on Freedom of
Association (CFA), as already planned.
– A review of the use of procedures under articles 24 and 26 of the ILO Constitution.
– An agreement to proceed with the Standards Review Mechanism under guidelines to
be agreed.
7. He hoped that the Governments recognized the important steps taken by the Workers and
Employers and would lend them their support. The agreement would allow the ILO to
resume its supervision of standards. It was of critical importance that the supervisory
system functioned for the promotion of decent work everywhere. That would require a
commitment to social dialogue, in order to address violations of standards when and where
they occurred. While the Workers would spare no effort to ensure that the proposals
contained in the joint statement worked, a review of the proposals was foreseen by the
Governing Body at its 328th Session (November 2016).
2 These statements are reproduced in full in document GB.323/INS/5/Appendix I.
GB.323/INS/5/Appendix II
GB323-INS_5-Appendix II_[CABIN-150305-2]-En.docx 3
8. The Workers’ views on the right to strike had not changed. The right to strike was a
foundation of democracy and a fundamental option for workers facing protracted
opposition to collective bargaining, unsafe workplaces and exploitation. It was protected
by Convention No. 87. He welcomed the Employers’ commitment to restore mature
industrial relations and acknowledged their recognition of the right to take industrial
action, by workers and employers, in support of their legitimate interests. He asked for the
joint statement agreed by the Workers’ and Employers’ groups, together with the
observations of the Governments, to be transmitted to and acted upon at the next session of
the Governing Body.
9. The Employer spokesperson said that he had believed social dialogue had not been
exhausted at the conclusion of the 322nd Session of the Governing Body. Through the
good offices of members of the Workers’ group, discussions had been resumed and a
common position had been reached that morning. It had not been possible to inform
governments in advance but he trusted that their support would be forthcoming. Indeed,
without active government involvement and contributions, the process would not be
successful.
10. Speaking on behalf of the Government group, 3 a Government representative of Italy said
that the group recognized that the right to strike was linked to freedom of association
which was one of the ILO fundamental principles and rights at work. The group also
recognized that, without protecting a right to strike, freedom of association, and in
particular the right to organize activities for the purpose of promoting and protecting
workers’ interests, could not be fully realized. However, albeit part of the fundamental
principles and rights at work of the ILO, the right to strike was not an absolute right: its
scope and conditions were regulated at national level. The background document described
the multifaceted regulations that States had adopted to frame that right. Governments were
ready to consider discussing, in the forms and framework that would be considered
suitable, the exercise of the right to strike. The complex body of 65 years of
recommendations and observations on Convention No. 87 by the various components of
the ILO supervisory system constituted a valuable resource for such discussions.
11. Speaking on behalf of the group of Latin American and Caribbean countries (GRULAC), a
Government representative of the Bolivarian Republic of Venezuela noted that the
abundant information regarding the modalities and practice of strike action contained in
studies on the Latin American region had not been included among the sources cited in the
background document. He recalled that the Meeting was part of a broader package that
included the question of the necessity or not for a request to the International Court of
Justice (ICJ) to render an urgent advisory opinion, and the working methods of the CAS.
The group understood that the right to strike existed in international law: it was an essential
component of freedom of association and the right to organize. Countries in the region
attached considerable importance to the International Covenant on Economic, Social and
Cultural Rights and the Additional Protocol of the American Convention on Human Rights
in the area of Economic, Social and Cultural Rights, known as the “Protocol of San
Salvador”, both of which were legally binding documents that made specific reference to
the right to strike. The right of a trade union to freely organize its activities and to
formulate its programme of action, set out in Article 3 of Convention No. 87, would be
limited if the trade union did not have the right to strike, to be exercised in conformity with
the laws of the country. While freedom of association was neither exclusive to Convention
No. 87, nor to the ILO, the Preamble to the ILO Constitution and the Declaration of
Philadelphia both enshrined the concept of freedom of association, as did the ILO
3 First statement of the Government group, reproduced in full in document
GB.323/INS/5/Appendix I, Annex II.
GB.323/INS/5/Appendix II
4 GB323-INS_5-Appendix II_[CABIN-150305-2]-En.docx
Declaration on Fundamental Principles and Rights at Work. In the legal systems of the
region, the right to strike was an inherent right directly linked to freedom of association.
The issue that had arisen at the 101st Session of the International Labour Conference in
2012 had been rooted in the interpretation of the right to strike by the CEACR, rather than
in the existence of the right to strike per se. The question to be considered by the Meeting
was therefore how that right should be protected in the frame of competence of each body
in the ILO supervisory system. Convention No. 87 could not be considered in isolation; in
particular, due account should be taken of the provisions of article 19(8) of the ILO
Constitution, whereby the adoption or ratification of any Convention could not be deemed
to affect any law or agreement that ensured more favourable conditions to the workers
concerned than those provided for in the Convention.
12. Speaking on behalf of the Africa group, a Government representative of Zimbabwe
observed that over the years, the right to strike had become associated with Convention
No. 87 owing to the position taken by the CEACR. He welcomed the statement agreed by
the Workers’ and Employers’ groups and expressed his group’s willingness to engage with
other groups in finding a lasting solution to the problem.
13. Speaking on behalf of the European Union (EU) and its Member States, a Government
representative of Latvia said that all 28 Member States of the EU had ratified Convention
No. 87 and were bound by the Charter of Fundamental Rights of the European Union,
which recognized the right to collective bargaining and strike action. The European Court
of Justice stated that the right to collective action, including the right to strike, was a
fundamental right, but the exercise of that right could be subject to restrictions. The dispute
that began in 2012 regarding the interpretation of Convention No. 87 could be resolved by
referring the matter to the ICJ or by appointing a tribunal, in accordance with article 37 of
the Constitution of the International Labour Organisation. The EU and its Member States
were ready to accept such referral to the ICJ as part of a six-point package, though hoped it
might be avoided. The question before the present Meeting concerned Convention No. 87
in relation to the right to strike. Since its entry into force, Convention No. 87 had been
supervised by the CEACR, the CAS and the CFA, without persistent objections from
governments, but only some disagreement on specific findings. Article 19 of the ILO
Constitution contained a minimum standard provision whereby ratified Conventions
should not be deemed to affect any law, award, custom or agreement which ensured more
favourable conditions for the workers concerned than those provided for in ILO
Conventions. The United Nations International Covenant on Economic, Social and
Cultural Rights, 1966, in its Article 8(d), protected the right to strike. Some 140 countries
had ratified both the Covenant and Convention No. 87. The right to strike was thus a
corollary of freedom of association, even though it was not mentioned explicitly in
Convention No. 87. However it was not an absolute right, but could be governed by
national law and practice. The Tripartite Meeting could be useful in achieving a better
understanding of the right to strike in order to ensure a positive outcome at the
323rd Session of the Governing Body.
14. Speaking on behalf of the Asia and Pacific group (ASPAG), a Government representative
of China believed that the dispute regarding the interpretation of Convention No. 87 in
relation to the right to strike could be resolved through tripartite consultation. ASPAG
welcomed the joint statement by the Employers’ and Workers’ groups. Strike action was a
last resort once all other means had been exhausted. The right to strike was not however an
absolute right. It was recognized in the national law of 150 countries, and was regulated
according to national laws.
15. Speaking on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway and
Sweden), a Government representative of Norway supported the EU statement. The right to
strike could be derived from Convention No. 87. However, the ILO and its supervisory
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bodies did not exist in isolation from the rest of the world. An international instrument had
to be interpreted and applied within the framework of the entire legal system prevailing at
the time of interpretation. The International Covenant on Economic, Social and Cultural
Rights obliged its parties to respect the right to strike in accordance with national law.
Some 141 of the 153 countries party to Convention No. 87 had ratified the Covenant. A
general ban on strike action would considerably restrict trade unions from defending the
interests of their members. In many countries employers could take action through
lockouts. Based on a reading of previous statements up to 2012, the Nordic countries noted
that almost all member States had recognized a right to strike. Similarly, the Employers
seemed to have recognized that there was a general right to strike that could be derived
from Convention No. 87, and their objections appeared to be related to the restrictions on
this right. The CEACR’s interpretation of Convention No. 87 was in accordance with
Article 31 of the Vienna Convention. Strike action was a means whereby workers could
apply pressure in defence of their interests; the meaning of the word “programmes”
therefore naturally included such action. As the CEACR was permitted to interpret a
general right to strike under Convention No. 87, so it should also be entitled to place
restrictions on this right. The longer the time before a State actively objected to the
CEACR’s jurisprudence, the greater the weight of its interpretations. It appeared that most
governments accepted the CEACR’s recommendations and adopted measures accordingly.
Several international treaties regulated the right to strike. It would be paradoxical if the
International Labour Organization did not recognize the right to strike within its own
Conventions. The CEACR should continue to evaluate its interpretation and application of
instruments against a background of society and legislation in evolution. If an agreement
regarding Convention No. 87 and the right to strike could not be reached during the
Meeting, referral to the ICJ would be necessary.
16. A Government representative of the United States regretted that the CEACR’s function had
been called into question as it was an essential part of the ILO and had been supported by
every United States Administration over the past 60 years. It was vital to address this issue
in a way that would strengthen the ILO supervisory system. In the decades since the
adoption of Convention No. 87, the CEACR and the CFA had provided observations and
recommendations with regard to the right to strike. Convention No. 87 was meant to
protect freedom of association rights of workers and employers, and the right to organize
activities and formulate programmes. Working within their mandates through the
examination of specific cases they had observed that freedom of association and
particularly the right of workers to organize their activities for the purpose of promoting
and protecting their interests could not be fully realized without protecting the right to
strike. The same logic had prevailed in the United States, where the National Labor
Relations Act protected workers’ rights, and the Supreme Court of the United States had
deemed strikes to be a protected activity. The CFA had confirmed and applied the
relationship between the right to strike and the right to freedom of association in almost
3,000 cases without dissent. The United States concurred that the right to strike was
protected under Convention No. 87, even though the right was not explicitly mentioned in
the Convention. It lent its full support to the dedicated work of the CEACR and the CFA,
which for more than 60 years had provided non-binding observations and
recommendations addressing the protection, scope and parameters of the right to strike.
The United States also welcomed the opportunity to discuss how countries could promote
this right and hoped that interference with ILO supervisory organs would not continue.
17. A Government representative of Germany said that the right to strike was an essential part
of Convention No. 87, and was reflected in his country’s national legislation. It was an
essential tool to establishing and maintaining negotiations, but was not an absolute right. It
should be exercised in accordance with national circumstances, law and practice. The
CEACR had upheld the right to strike over many years and calling into question this
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interpretation would result in a challenge to the entire system of standards supervision and
its impact in other jurisdictions.
18. A Government representative of France said that the debate regarding the interpretation of
standards needed to be concluded so that the ILO could focus on its mandate of promoting
decent work and establishing and monitoring international labour standards. The ILO
should be equipped with instruments, accepted by all parties, which would settle any
differences of interpretation that might arise. France considered strike action an essential
part of fundamental freedoms, which was reflected in its Constitution. It welcomed signs
of consensus, namely the recognition of the universal right to strike derived from
Convention No. 87 and the implementation of a tripartite process for examining the
modalities for the exercise of the right to strike.
19. A Government representative of India believed that the supervisory system was an integral
part of the ILO, and that the ILO Constitution should govern every decision related to the
functioning of the Organization. The International Labour Conference was the supreme
forum for deciding the course of action for world of work matters. The right to strike was
essential, and should be guided by national laws. It was not an absolute right, but
restrictions and limitations should be kept to a minimum.
20. A Government representative of Jordan said that the present conflict should be resolved
through dialogue among the social partners. Jordan was encouraged by the joint statement.
It was convinced that tripartite constituents could resolve the problem without reverting to
external bodies.
21. A Government representative of Japan said that this issue should be resolved through
tripartite consultations. It was of utmost importance that the ILO supervisory organs
resumed their normal functioning as soon as possible and examined individual cases with
regard to the right to strike with due respect to tripartism and national laws and practices in
each country, and therefore he welcomed the fact that the Employers and Workers had
reached consensus.
22. A Government representative of Mexico said that Mexico placed great importance on
freedom of association and the right to strike, which were protected under its Constitution
since 1917. While the right to strike was not explicitly mentioned in Convention No. 87, it
was protected under international law and should therefore be protected under the
Convention. It was however a fundamental right, not an absolute right. The supervisory
bodies of the ILO should have a solid legal basis on which to base their examination of
cases concerning this right. The joint statement of the Employers and Workers was
therefore welcome. The principles established by the CEACR and the CFA aided in
attaining better protection of freedom of association rights, among others. The clarity,
impartiality and transparency of the mandate of the CEACR and the way in which the
supervisory procedures functioned were of particular importance to Mexico. By
recognizing the right to strike as a right inherent to freedom of association, and achieving
consensus on the legal framework protecting it and on the principles guiding the Standards
Review Mechanism, the Organization could move forward with the improvement of its
supervisory system.
23. A Government representative of Italy considered the right to strike as a fundamental labour
right, as reflected in Italy’s Constitution. Without it, freedom of association could not be
recognized. Italy agreed with the ILO supervisory bodies’ interpretation of Convention
No. 87. As the ILO was the UN specialized agency devoted to promoting human and
labour rights, the right to strike should have a place in the Organization. The Tripartite
Meeting should expressly recognize that strike action was already protected under
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Convention No. 87, and that member States were bound to respecting it as a fundamental
principle and right at work.
24. A Government representative of the Islamic Republic of Iran said that it was imperative to
remove any ambiguity by defining the scope of the right to strike. The consolidation of the
related terms, concepts and definitions would also contribute to the reliability and
international comparability of statistics on strike action over time and across countries. The
right to strike had been considered on three occasions by the International Conference of
Labour Statisticians. The last discussion yielded a resolution concerning strikes, lockouts
and other actions related to labour disputes, which should be taken into consideration. The
current issue concerned the whole standards system and the Office should therefore
amplify its work on the design of a Standards Review Mechanism and set the stage for its
implementation.
25. A Government representative of Panama said that the right to strike was upheld by public
international law. Although not actually cited in Convention No. 87, it was protected
thereunder. Panama agreed with the view of the CFA that the right to strike was an
intrinsic corollary of freedom of association. It was also enshrined in other international
instruments including the International Covenant on Economic, Social and Cultural Rights,
the European Social Charter, the Inter-American Charter of Social Guarantees of 1948 and
the Protocol of San Salvador of 1988. Under those instruments, States parties should
guarantee the right to strike within their national legislations, or expressly recognize the
right to strike in cases of conflict of interest, without prejudice to the conditions of relevant
collective agreements. Panama had recognized the right to strike under section 69 of the
national Constitution, and its legislation guaranteed its exercise. Any restrictions of the
right to strike in the public service were consistent with ILO provisions in that regard.
26. A Government representative of Argentina said that the provisions of Convention No. 87
and the right to strike were enshrined in section 14bis of the national Constitution. The
right to strike was not absolute but it was a human right and should only be restricted in the
case of essential services or special conditions, which should be regulated by the proper
independent commission. Furthermore, States were also bound by the limitation set out in
Article 53 of the Vienna Convention. As the right to strike was a human right within
Convention No. 87, this limitation was applicable to it as well.
27. A Government representative of China welcomed the joint statement by the social partners.
China had ratified the International Covenant on Economic, Social and Cultural Rights and
hoped that the current issue could be resolved through tripartite consultation.
28. A Government representative of the Bolivarian Republic of Venezuela thanked the
Workers’ and Employers’ groups for their statement. He hoped that the Meeting would
achieve tripartite consensus in line with the principles of the Governing Body. His
Government continued to believe that the current problem should be addressed in
accordance with article 37(1) of the ILO Constitution, referring the matter to the ICJ. That
course of action would have avoided the high costs of the Tripartite Meeting. The
Bolivarian Republic of Venezuela had ratified ILO Convention No. 87 and the right to
strike was protected under the Constitution and legislation of the Bolivarian Republic of
Venezuela. His Government identified with workers and was committed to workers’ rights,
in particular the right to strike. The crisis in the ILO since 2012 was greatly damaging to
the Organization and its credibility in the world of work.
(The Meeting adjourned, to reconvene on the afternoon of Tuesday, 24 February.)
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29. Speaking on behalf of the Government group, a Government representative of Italy
delivered a second statement agreed by the group. 4 She acknowledged the joint statement
by the social partners and their efforts to reach a common position. It was important that
her group’s two statements should be reflected in the outcome and/or report of the Meeting
and taken into consideration in the tripartite development of a durable solution in the
Governing Body. The issues raised by the social partners mainly pertained to the
competence of the Governing Body and exceeded the Meeting’s mandate. Comprehensive
tripartite discussions should therefore be held at the next session of the Governing Body
and ways to advance the discussion should be explored prior to that session. Under the ILO
Constitution, member States were responsible for the effective implementation and
observance of labour standards and therefore also had responsibility for the proper
functioning of the supervisory system. The group looked forward to establishing longlasting
cooperation and to contributing in a tripartite manner to a durable and effective
solution for the supervisory system.
30. Speaking on behalf of GRULAC, a Government representative of the Bolivarian Republic
of Venezuela said that the Meeting should not stray from its original mandate as decided
by the Governing Body at its 322nd Session (November 2014). GRULAC would react to
the matters raised in the joint Employers’ and Workers’ statement at the Governing Body
session in March 2015.
31. Speaking on behalf of ASPAG, a Government representative of China welcomed the joint
statement by the social partners which indicated the renewal of social dialogue and
consensus through consultation. The interpretation of Convention No. 87 should be
addressed through in-house social dialogue and tripartite consultation.
32. Speaking on behalf of the Africa group, a Government representative of Zimbabwe
observed that the dynamics had changed and that the joint statement provided a basis for
resolving issues. His group wished to be part of an agreement, in the spirit of tripartism.
33. Speaking on behalf of the group of industrialized market economy countries (IMEC), a
Government representative of the United States said that the strength and authority of the
ILO supervisory system was of fundamental importance for the Organization as a whole
and in ensuring labour standards throughout the world. An effective and lasting solution
was needed and it was hoped that the social partners’ joint statement was a step in the right
direction. It contained matters that required discussion in the Governing Body, and
governments wished to be part of such a discussion.
34. Speaking on behalf of the EU and its Member States, a Government representative of
Latvia noted that the joint statement was related mainly to issues of concern to all
constituents that would be discussed at the next session of the Governing Body. He
stressed that the Government group’s first statement had recognized that the right to strike
was linked to freedom of association, and that without protecting the right to strike,
freedom of association, in particular the right to organize activities for the purpose of
promoting and protecting workers’ interests, could not be fully realized. It had noted,
however, that the right to strike was not an absolute right and that the scope and conditions
of that right were regulated at the national level. That consensus should be reflected in the
outcome and report of the Meeting. States were responsible for implementation and
application of Conventions and, in the event of dispute, solutions could be found under
article 37 of the ILO’s Constitution. The EU and its Member States attached great
importance to the ILO’s role in defending human rights and to its supervisory system.
4 This statement is reproduced in full in document GB.323/INS/5/Appendix I, Annex III.
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35. A Government representative of Australia welcomed the social partners’ joint statement.
The tripartite nature of the ILO continued to serve it well. His Government actively
supported the CEACR and the CAS in their normal operations. In that respect, the joint
statement cleared the way for the CAS to work effectively. His Government acknowledged
the agreement on the mandate of the CEACR, namely that their opinions and
recommendations were persuasive but non-binding, and considered that the joint statement
should be discussed at the Governing Body session in March 2015. His Government was
committed to collaborating with all parties to achieve an outcome which supported and
strengthened the ILO supervisory system.
36. A Government representative of Germany welcomed the social partners’ joint statement,
considering it an important first step towards ensuring the effectiveness of the supervisory
system. He also highlighted the importance of the consensus reached in the Government
group and would be interested to hear the social partners’ views on the Governments’
statement that “the right to strike is linked to freedom of association” and that “without
protecting the right to strike, freedom of association, in particular the right to organize
activities for the purpose of promoting and protecting workers’ interests, cannot be fully
realized”. In view of the tripartite structure of the ILO, government contributions to the
discussions at the Governing Body in March 2015 were of great importance. Such
contributions would help promote the social partners’ temporary agreement to bring a
durable solution with regard to Convention No. 87.
37. A Government representative of Japan said that his Government welcomed the efforts
made by the social partners in reaching the joint statement. The package was a good
starting point to improve the functioning of the ILO supervisory mechanisms, but many
points remained to be discussed in order to make the package feasible. Discussions should
continue at the next session of the Governing Body. The participation of governments in
that discussion was of great importance as they were responsible for the effective
implementation and observance of labour standards.
38. The Employer spokesperson agreed that all interventions should be reflected and taken into
account in the Meeting outcome and report. His group also agreed that many of the
subjects dealt with should be discussed by the Governing Body. He wished to clarify that
the fundamental difference between the Employers and Workers concerning the
interpretation of Convention No. 87 in relation to the right to strike remained unresolved,
but that this should not prevent the re-establishment of a functioning ILO supervisory
system to protect workers’ rights. The groups had agreed on a way of deciding on a list of
cases for 2015 and 2016, which could be revised in the event of its breakdown. However,
they were committed to achieving a workable solution, as with regard to the conclusions
and discussions of the CAS. The joint statement provided for tripartite participation to
produce short and clear conclusions directed at governments. Furthermore, they expected
the CFA to meet before the Governing Body to discuss cases. A discussion would later
take place on the possibility of amending certain provisions relating to article 24 and
26 procedures and on establishing the Standards Review Mechanism. No guidelines or
instructions had been mentioned for the CFA, considering that it was a matter for that
Committee to deal with and report back to the Governing Body. If necessary, the
Employers’ group would be happy to engage with governments and regional groups to
discuss the joint statement.
39. The Worker spokesperson apologized for the fact that the Governments had not had the
time to respond properly to all the elements included in the Workers’ and Employers’
groups’ joint statement; the statement was not intended as a proposal for conclusions, but
set out joint priorities and demonstrated the social partners’ commitment to moving out of
the impasse. The Workers noted that the Governments’ statement recognized the right to
strike and its link to freedom of association; the Governments’ position was not far distant
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from that of the social partners. The functioning of the supervisory system that the
Workers and Employers sought implied that the CEACR would continue to interpret
Convention No. 87, as it had up to the present. It was true that the Workers and Employers
had combined issues relating to the standards initiative with the right to strike in their joint
statement; they believed that such an approach would provide useful building blocks for
the upcoming Governing Body discussion, help the Office to prepare a document for
presentation to the Governing Body and provide the groundwork for successful discussions
of the CAS at the June 2015 International Labour Conference.
The modalities and practices of strike
action at national level
40. A Government representative of India highlighted that political parties, trade unions, social
and other organizations were essential to the democratic functioning of a society and the
government. The national Constitution, adopted in 1950, guaranteed the fundamental rights
to form and join associations or unions, freedom of speech and expression, as well as
freedom of movement throughout the territory. While some restrictions might be imposed
on these freedoms, they should be of a reasonable nature, meaning not arbitrary or beyond
what was required in the interest of the public. The Trade Unions Act, 1926, and the
Industrial Disputes Act, 1947, were the two main pieces of legislation in relation to the
freedom of association and collective bargaining rights of workers in India. The Industrial
Disputes Act provided for the protection of trade union leaders and members against acts
of anti-union discrimination. It also provided that interference in union activities and
victimization of workers participating in trade union activities and legal strikes would
amount to unfair labour practices. While the law in India neither restricted nor promoted
strikes, the provisions of the Industrial Disputes Act provided for a regulatory mechanism
in the interest of industrial relations and public interest.
41. Speaking on behalf of the Africa group, a Government representative of Zimbabwe
thanked the Office for the comprehensive and informative background document. The
factual information contained therein had helped participants understand and appreciate the
linkage between the right to strike and freedom of association and would provide a useful
background for the discussions at the next session of the Governing Body. While the extent
to which it was legislated differed from one country to another, the right to strike was
enshrined in constitutions and/or labour legislation of a number of the African countries.
Governments of other African countries, together with their social partners, were in the
process of reviewing their labour legislation and, thus, addressing the right to strike.
42. A Government representative of Panama highlighted that, in his country, the right to strike
was recognized by law and confirmed by case law. The 1941 Constitution recognized the
right to strike, although prohibiting solidarity strikes and strikes in public services. Unlike
the earlier Constitution, the Constitution of 1946 only limited the exercise of the right to
strike for public services, as determined by law, thus allowing solidarity strikes. He added
that, by judgment of 7 March 1950, section 321 of the Labour Code which prohibited
strikes in public services was declared unconstitutional by the Supreme Court of Justice.
The Court’s reasoning was based on the fact that the legislator’s office had exceeded its
powers by developing provisions of the Constitution which did not prohibit the right to
strike; rather it provided that the exercise of such right might be limited by law for the
public services. Limitations to the right to strike did not annul the exercise of such right.
These limitations only concerned public services established by law. The above
considerations (legal framework) did not apply to the exercise of the right to strike by
public employees of the Panama Canal Authority which had a special constitutional
mandate to ensure the efficient and uninterrupted transit of vessels of all nations, pursuant
to Title XIV of the Constitution. A judgment of 27 April of 2009 found that the provisions
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of Act No. 19 of 1997 prohibiting strikes in the Authority of the Panama Canal were not
unconstitutional. Moreover, the abovementioned Act had not been an impediment to the
exercise of the right to strike in accordance with the legal standards regulating private
employment relationships in the context of the Canal’s extension. Case law had found that
the protection of the right to strike was widespread, in so far as the Constitution did not
provide for the prohibition of strikes in public services, but for its exercise under certain
limits in public services fixed by law (judgment of the Supreme Court of 23 March 1999).
The right to strike was linked to freedom of association and collective bargaining, as
repeatedly found by case law. In its judgment of 2 October 2006, the Supreme Court of
Justice, when examining the constitutionality of provisions of Decree Law No. 8 of 1998
regulating maritime labour, highlighted that collective agreements were tightly linked to
freedom of association and the right to strike. Such a link had also been emphasized by the
Supreme Court of Justice on other occasions (e.g. judgments of 22 July 1998 and 21 July
2009). Moreover, section 401 of the Labour Code stated that the employer should negotiate
a collective agreement when so requested by a trade union. Finally, the right to strike could
not be considered outside the context of labour relations; it was a fundamental right,
although not an end in itself.
43. A Government representative of Algeria indicated that, in Algeria, the right to organize and
the right to strike were fundamental rights granted to all workers and were protected by the
Constitution. In this regard, article 56 of the Constitution stated that the right to organize
was recognized for all citizens and article 57 provided that the right to strike was exercised
within the framework of the law. These rights were reflected in national labour legislation
through Act No. 90-02 of 6 February 1990 on the prevention and settlement of collective
labour disputes and the exercise of the right to strike, and Act No. 90-14 of 2 June 1990
concerning the exercise of the right to organize. The provisions of these laws applied to all
workers and employers, individuals or legal entities, excluding civilian and military
personnel of the national defence services.
44. Strike action, however, was considered as a last resort after all channels of dialogue had
been exhausted. As such, Act No. 90-02 of 6 February 1990, referred to above, had
introduced the modalities and preventive measures aimed at avoiding, as much as possible,
strike action and to promote consultation and dialogue between the social partners to
resolve labour disputes. Conciliation mechanisms to try to resolve disputes without
recourse to strike action were provided by the legislation. In the absence of conventional
conciliation procedures, or in cases where the latter failed, the territorially competent
labour inspection services were seized of the collective labour dispute by the employer or
by the workers’ representatives. In case of failure of the conciliation procedures on all or
part of the issues relating to the collective labour dispute, the labour inspector established a
report recording the failure to achieve conciliation. In this case, the parties could agree to
use mediation or arbitration, as provided by legislation.
45. In the absence of issues being resolved, the higher authority convened a conciliation
meeting with the parties to the collective labour dispute with representatives of the
territorially competent authority responsible for the public service and labour inspection.
During the conciliation meeting of the collective labour dispute, if it was found that the
dispute touched upon the interpretation of laws or regulations, the public service
authorities would then submit those issues to the joint council of the public service. If the
dispute persisted after the exhaustion of conciliation and, secondarily, mediation
procedures provided by legislation, and failing the resolution of other channels provided by
agreement or agreement of the parties, the right of workers to resort to strike action could
then be exercised in accordance with the conditions and modalities covered by the
provisions of Act No. 90-02 of 6 February 1990. In this case, the workers’ organization
concerned would be convened (the employer would be informed) to a general meeting to
be held at the usual places of work in order to provide information on the persistent issues
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of disagreement and to decide on the possibility of a concerted and collective work
stoppage. The workers’ organization would then hear, at their request, representatives of
the employer or the administrative authority concerned.
46. Strike action was approved by secret ballot by a majority of the workers in a general
assembly, which should gather at least half of the workers of the group concerned. Once
the strike was approved in accordance with the law, it took effect at the end of a notice
period which ran from the date of its filing before the employer; the relevant labour
inspection was also informed. The duration of the notice period was fixed by negotiation
and could not be less than eight days from the date of its filing. The parties to the collective
labour conflict were required during the notice period and after the outbreak of the strike,
to continue their negotiations for the settlement of their disagreement, which was the
subject of the conflict. Thus, the right to strike exercised in the prescribed manner was
protected by law and strike action that took place under these conditions did not break the
employment relationship. It suspended its effects for the duration of the collective work
stoppage, except with respect to what the parties to the dispute had agreed through
Conventions or agreements. No sanctions could be imposed against workers because of
their participation in a strike that had been regularly triggered in accordance with the
conditions set forth in the law. However, when the strike concerned activities whose
complete interruption was likely to affect the continuity of essential public services, vital
economic activities, supply of the population or the safeguarding of existing goods and
facilities, the continuation of indispensable activities was organized in the form of a
mandatory minimum service or resulting from negotiations, Conventions or agreements in
accordance with the law. The mandatory minimum service was organized in a number of
services, inter alia: hospital services for custody, emergencies and drug distribution;
services related to the operation of the national telecommunications network,
radio/television and radio broadcasting; services related to the production, transportation
and distribution of electricity, gas, oil products and water, etc.
47. A Government representative of Argentina stated that the right to strike was fully effective
in his country, in accordance with article 14bis of the national Constitution, and that the
said right was recognized for both workers and their organizations. The regulation of
strikes was only limited to essential services by virtue of Act No. 25877 which had been
drafted following ILO principles. Exceptionally, if there was a need to qualify a new
service as essential, in some activities or situations an independent committee of jurists
would be established to do so. Regarding collective disputes, Act No. 14786 provided for
two time-bound conciliation interventions with a view to ensuring the collaboration of the
parties for the purposes of dispute resolution. Upon expiry of the time period, the
administrative authority would allow the parties to resume in their conflict resolution
capacity. Concerning collective bargaining in the private sector, parties were able to
regulate their own disputes, including resorting to the right to strike. The speaker added
that his country had ratified the two most important international treaties on the matter: the
United Nations International Covenant on Economic, Social and Cultural Rights and the
Protocol of San Salvador. Furthermore, article 11 of the Common Market of the Southern
Cone (MERCOSUR)’s Social and Labour Declaration established that no national
provision or regulation should impede the exercise of the right to strike.
48. A Government representative of Germany indicated that the right to strike was not
explicitly mentioned in the German Constitution. In his country, the right to strike was
derived from the jurisprudence of the courts in Germany, which recognized that for
collective bargaining purposes, the right to strike was essential for workers as it placed
them on an equal footing with employers.
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49. Speaking on behalf of the Nordic countries, a Government representative of Norway
indicated that, in the Nordic countries, the right to strike had been formalized through laws
and collective agreements. In some Nordic countries, the right to take industrial action was
protected constitutionally. The right to industrial action, including both the right to strike
and the right to lockout, was a corollary of freedom of association and the right to
collective bargaining. Strike was the ultimate tool that could be used after having
exhausted all other available procedures. As long as a collective agreement remained in
force, no industrial action could be undertaken to amend it. In the Nordic countries,
sympathy action was permitted when it supported a lawful industrial action.
50. Referring to the situation in Norway, she explained that the focus on international law and
the right to strike had been raised due to the individual complaints brought by the social
partners to the CFA and the comments of the CEACR. She recalled that before the late
1980s, Norway prohibited strikes on a larger scale on the assumption that they were
harmful to society. Following the reasoning of the CEACR according to which the
consequences and damaging effects of a strike had to be clear and imminent, the
Government had revised its practice. A bill to prohibit a strike could be submitted to
Parliament only when it had been proven that the damaging effects of a conflict would be
of such a nature so as to endanger the life, personal safety or health of the population.
While Norway did not disagree with the interpretation of the CFA and the CEACR,
sometimes it had a differing assessment of the damaging effects of a strike and situations
where the prohibition of a strike or lockout was justifiable. For example, when strikes
widened to a full hold in all oil and gas production, the consequences were of such
dimensions that the authorities had considered it necessary to intervene. Nevertheless, the
Government intended to study recent observations of the CEACR and recommendations of
the CFA with a view to possible further adjustments.
51. Nordic countries respected their international obligations and the developments in
jurisprudence in accordance with the Vienna Convention. There were no strong objections
from the Governments to the interpretation made by the CEACR and CFA. She considered
that the interpretation of international instruments had to be a living process. Since the
situation concerning the right to strike varied, there would always be discussions on its
limits and restrictions. Those limits and restrictions could not be written in stone and
should remain flexible.
52. A Government representative of the Bolivarian Republic of Venezuela indicated that the
right to strike was protected and guaranteed under article 97 of the national Constitution
and that it was developed at great length by the Organic Labour Act. A definition of
“strike” was provided for under section 486 of the said Act; it was worthy of mention that
such provision had been omitted from the relevant footnote in Part II of the background
document (footnote No. 12). The Bolivarian Republic of Venezuela had ratified the
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87). In accordance with national legislation, strikes were conceived as part of the right
of workers and of trade union organizations for the best defence of their rights and
interests, within the framework of the law. He reiterated that his Government had
identified with the workers and was committed to trade union rights, particularly the right
to strike. He added that his country had not been indifferent to workers’ right to strike, in
relation to Convention No. 87. His country’s attentiveness was reflected in the background
document, notwithstanding the fact that the references made came short of portraying the
breadth of his country’s legislation on the matter. He highlighted that the right to strike had
existed in the Bolivarian Republic of Venezuela well before 1948, the year in which
Convention No. 87 was adopted. Venezuelan freedom of association and right to strike
were linked to the respect and observance of both national legislation and Convention
No. 87.
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53. The speaker, also speaking on behalf of the Cuban Government delegation which was an
observer at the Meeting, added that both governments would reserve the opportunity to
comment on all the questions concerning the standards initiative during the next Governing
Body session. In his view, this was not the forum to address subject matters of such
relevance to the Organization, nor should such matters be addressed in a bipartite manner
with governments being excluded. The Governments of Cuba and of the Bolivarian
Republic of Venezuela were cognizant of the fact that the ILO’s essence was tripartism,
with a view to reaching the agreements that might ensue in the context of consensus; only
then would the world of work be able to reach real solutions that did not obey vested
interests and, more importantly, did not constitute precarious solutions but lasting ones,
under a tripartite approach.
54. A Government representative of Angola welcomed the background document, which
clearly and objectively addressed the items on the agenda, and enabled a better
understanding thereof. The modalities and practices of strike action at the national level
were unquestionably linked to the recognition of the right to strike. The Republic of
Angola considered that the right to strike was a fundamental right protected by article 51 of
the Constitution. However, the right to strike was not absolute as it was regulated by laws
which determined its regular exercise and its limits, in the framework of consultation and
social dialogue. The right to strike was correlated to freedom of association and was one of
the fundamental pillars of the ILO. The principle of this right was included in the
legislation of a number of member States for the defence of workers’ rights, while
guaranteeing the right to freedom of enterprise in accordance with national laws and
practices. The Republic of Angola considered that the right to strike was a legitimate right
and promoted social dialogue with a view to ensuring social peace.
55. A Government representative of Colombia stated that, for her Government, the right to
strike was inherent to the rights to freedom of association and collective bargaining and
that these rights could not be separated from the exercise of the right to strike. The right to
strike had been legally recognized and regulated in Colombia since 1919 and it was today
enshrined in the national Constitution. This right was closely linked to the constitutional
principles of solidarity, dignity and participation, as well as the realization of an equitable
social order. The Constitutional Court of Colombia considered that the right to strike
benefited from a double constitutional protection, both through its direct recognition by
article 56 of the national Constitution and through its close relationship with freedom of
association. The right to strike was comprehensively regulated by several provisions of the
Labour Code that had given rise to jurisprudential developments. Strike action complying
with the legal requirements was one of the most valuable rights enabling workers to settle
collective labour disputes with their employer. Yet being a fundamental right, the right to
strike was not absolute. According to national legislation, strike actions were only
restricted in essential public services. Even though the right to strike could be limited in
some situations in order to protect other fundamental rights, it was clear that workers’
prerogatives could not be undermined. Following the guidance provided by ILO
supervisory bodies, especially the CFA and the CEACR, Law 1210 of 2008 now granted to
the courts the competence to declare the legality or illegality of strike actions.
56. A Government representative of Uruguay, referring to the statement made earlier by
GRULAC, indicated that he shared the group’s views on the absence of reference to Latin
American regional studies. 5 The region’s contribution consisted of important legal
developments on freedom of association and the right to strike. Collective labour law had
been conceived by a Latin American labour law scholar based on three essential and
interdependent pillars: the right of association; the right to strike; and the right to collective
5 See para. 11 above.
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bargaining. The absence or weakening of one of these pillars would impede the
functioning of the legal system. Similarly, the ILO, through the CEACR, the CAS and the
CFA, had considered for many years that the right to strike was a part of trade union
activities, as a component of their strategy to better defend the interests of workers. To
understand freedom of association solely as the right to associate and to establish workers’
and employers’ organizations would not fully reflect its scope as a civil and political
freedom. Freedom of association was more than the right to associate; it was the right to
organize trade union activities, including strikes.
57. The speaker highlighted that the Constitution of his country established the right to strike
as a trade union right and the same provision provided that the law would promote the
creation of trade unions. The constitutional framework had, since 1934, closely linked
freedom of association and the right to strike. Labour administration also recognized the
autonomy of organizations of workers and employers to interact without restriction in
exercising their freedom of association, except in the case of essential services or by reason
of public policy provisions. The absence of definition and of legal regulation of strikes
constituted one of the singularities within the Uruguayan labour relations system. The
Government of Uruguay safeguarded the tradition of respect for the independence and
autonomy of trade unions and employers’ organizations to organize their activities and
formulate their programmes in accordance with Convention No. 87, also promoting
conciliation and mediation.
58. A Government representative of Ghana noted that the Meeting had been marked by the
reprise of social dialogue which, as demonstrated by the social partners’ joint statement,
had already begun to yield dividends and would ensure that the Organization continued to
exercise its standards supervisory mandate. Ghana was among the many ILO Members that
recognised the right to strike in its national Constitution and that this right gave workers a
means to defend their interests. Nevertheless, that right had to be exercised within the
confines of national laws in accordance with national circumstances. The issue that the
ILO had been facing over the previous three years was not about the legitimacy of the right
to strike but rather whether that right was enshrined in Convention No. 87. Her delegation
welcomed the proposal to initiate the standards review mechanism as an opportunity to
address this concern. Her delegation also looked forward to the full functioning of the CAS
during the 104th Session of the International Labour Conference (2015).
The way forward
59. The Office circulated a text presenting the outcome of the Meeting to participants, which
read as follows:
The tripartite constituents met in Geneva from 23 to 25 February 2015. The Meeting was
conducted in a very constructive atmosphere. In view of the positive progress made during the
discussions, the Office was requested to prepare, in close consultation with the three groups, a
document addressing all outstanding issues in the standards initiative for the 323rd Session of
the Governing Body.
The joint statement from the Workers’ and the Employers’ groups and the two
statements from the Government group are attached to this document. All statements made
during the Tripartite Meeting will be included in the report of the Meeting.
60. The Chairperson explained that the text was intended to provide a short, factual
introduction to the outcome document together with some indication of the preparations
for the discussion at the March session of the Governing Body. The joint Employers’ and
Workers’ statement and the two Government group statements would be annexed to the
document.
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61. Speaking on behalf of the Government group, a Government representative of Italy
proposed some amendments to the text, agreed by the group, as follows:
The tripartite constituents met in Geneva from 23 to 25 February 2015 in accordance
with the decision GB.322/INS/5 adopted by the Governing Body at its 322nd Session
(November 2014).
The Meeting was conducted in a constructive atmosphere. The social partners presented
a joint statement concerning a package of measures to find a possible way out of the existing
deadlock in the supervisory system. The Government group expressed its common position on
the right to strike in relation to freedom of association and also delivered a second statement in
response to the social partners’ joint statement. The two statements from the Government
group and the joint statement from the Workers’ and the Employers’ groups are attached to
this document. All statements made during the Tripartite Meeting will be included in the
report of the Meeting.
In preparing the document on the standards initiative for the 323rd Session of the
Governing Body, in view of the developments made during this Tripartite Meeting, the Office
will take into account the aforementioned statements, in close consultation with the three
groups.
These were reformulations of the elements that the text already contained, and she hoped
that they would meet with the social partners’ approval. The amendment to the first
paragraph was intended to place the Meeting in the context of the other Governing Body
procedures aimed at breaking the impasse. The amendment to the second paragraph was
intended to give a factual account of what had happened over the course of the Meeting,
for clarity and for the benefit of those who had not been present. The third paragraph was a
rewording to deal with a procedural concern: the group did not feel that the present
Meeting had a mandate to request the Office to prepare a document for the Governing
Body. This request had already been covered by the Governing Body decision of
November 2014.
62. The Employer and Worker spokespersons supported the text with the amendments
proposed by the Government group.
(The outcome document was adopted.)
63. Speaking on behalf of GRULAC, a Government representative of the Bolivarian Republic
of Venezuela thanked the governments that had shared their national experiences, in line
with the mandate conferred on the Meeting by the Governing Body of November 2014. He
welcomed the efforts made by the social partners on this issue of great importance to the
ILO, and highlighted the importance of the consensus reached within the Government
group on the link between freedom of association and the right to strike. He hoped that the
outcome of the Meeting would provide a useful foundation for the work of the Governing
Body.
64. The Director-General said that the current Meeting had been convened by the Governing
Body in November 2014 in difficult circumstances and in the hope that it would break the
impasse, which had been having negative consequences for the Organization’s work in
several ways. The Meeting had in fact exceeded the hopes vested in it by the Governing
Body. The constructive working atmosphere, mentioned in the outcome document, had
required participants to be flexible and accommodating, and to make real compromises in
order to reach solutions. Coordination in and between groups had been remarkable. The
immediate effect of the three days’ work was to open up new positive perspectives for the
upcoming Governing Body session, which would address issues related to all the
interconnected elements of the standards initiative. The tripartite constituents could look
forward to the next Governing Body session with confidence.
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65. In its preparation of the documentation for the March 2015 Governing Body session, the
Office would take full account of the outcome document and papers adopted at the present
Meeting, and would work in close consultation with the three groups which had been
involved. If the Organization was to reach solutions and move ahead it would be with full
tripartite consensus. The Meeting had provided momentum for the next steps.
66. The Chairperson said that the Meeting had resulted in significant advances which should
lead the Organization forward with newfound confidence in dialogue and tripartism, and
he did not doubt that the same constructive attitude would characterize discussions on the
CAS at the next Governing Body session.

Document No. 108
GB.323/INS/5/Appendix III, The Standards Initiative,
Background document for the Tripartite Meeting on
the Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), in relation to
the right to strike and the modalities and practices of
strike action at national level (revised) (Geneva, 23–25
February 2015), March 2015

This GB document is printed in limited numbers to minimize the environmental impact of the ILO's activities and processes, contribute to climate
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additional ones. All GB documents are available on the Internet at www.ilo.org.
INTERNATIONAL LABOUR OFFICE
Governing Body
323rd Session, Geneva, 12–27 March 2015
GB.323/INS/5/Appendix III
Institutional Section INS
Date: 13 March 2015
Original: English
FIFTH ITEM ON THE AGENDA
The Standards Initiative – Appendix III
Background document for the Tripartite
Meeting on the Freedom of Association and
Protection of the Right to Organise
Convention, 1948 (No. 87), in relation to the
right to strike and the modalities and
practices of strike action at national level
(revised) (Geneva, 23–25 February 2015)
Contents
Page
Introduction ....................................................................................................................................... 1
Decision on the fifth item on the agenda: The standards initiative:
Follow-up to the 2012 ILC Committee on the Application of Standards .................. 1
Part I. ILO Convention No. 87 and the right to strike ..................................................................... 3
I. Introduction ................................................................................................................ 3
II. The Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87) ......................................................................... 3
II.1. Negotiating history prior to the adoption of the Convention ........................... 3
II.2. Related developments after the adoption of the Convention ........................... 5
III. Supervision of obligations arising under or relating to Conventions ......................... 6
III.1. Committee of Experts on the Application of Conventions
and Recommendations ..................................................................................... 6
III.2. Conference Committee on the Application of Standards ................................. 9
III.3. Complaints as to the infringement of freedom of association .......................... 14
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III.4. Article 24 representations and article 26 complaints as to the
observance of ratified Conventions .................................................................. 17
IV. Rules of international law on treaty interpretation ..................................................... 18
Part II. Modalities and practices of strike action at the national level .............................................. 21
I. Legal and constitutional protection of strike action at the national level ................... 21
1. National legal frameworks for strike action: Constitutions,
general legislation, specific legislation, common law recognition .................. 21
2. National definitions of strike action ................................................................. 23
II. Scope and restrictions of strike action at the national level ....................................... 28
1. Categories of workers excluded ....................................................................... 28
2. Determination of essential services at the national level ................................. 33
3. Restrictions on strikes during the term of a collective agreement ................... 34
4. Declaring a strike unlawful or postponing strike action .................................. 35
5. Compensatory guarantees ................................................................................ 36
III. Modalities of strike action at the national level.......................................................... 36
1. Prerequisites ..................................................................................................... 36
2. Strike ballot requirements ................................................................................ 38
3. Minimum service: Conditions, modalities and mechanisms
for determining the minimum service .............................................................. 39
IV. The course of the strike .............................................................................................. 41
1. Picketing, occupation of the workplace, access to the enterprise/
prohibition of violence and freedom to work of non-striking workers ............ 41
2. Requisitioning of strikers and hiring of external replacement workers ........... 42
V. Compulsory arbitration .............................................................................................. 43
VI. Consequences of strike action at the national level .................................................... 44
1. Breach or suspension of contract ..................................................................... 44
2. Wage deductions .............................................................................................. 45
3. Sanctions for unlawful strikes .......................................................................... 46
VII. Statistics of strike action over time and countries ...................................................... 47
Appendices
I. Modalities and practices of strike action at the national level .............................................. 49
II. Statistical data on strike action and lockouts extracted from
the ILO statistical database ................................................................................................... 131
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Introduction
This document is set out in two parts and has been prepared in the context of the
follow-up to the decision taken by the Governing Body at its 322nd Session
(30 October–13 November 2014) which is reproduced below. It is intended to assist the
tripartite constituents and to facilitate the discussion at the meeting in the context of point 1
of the decision.
Decision on the fifth item on the agenda:
The standards initiative: Follow-up to the 2012 ILC
Committee on the Application of Standards
Further to the wide-ranging discussion held under the fifth item on the agenda of the
Institutional Section, the Governing Body decided to:
(1) convene a three-day tripartite meeting in February 2015, open to observers with
speaking rights through their group, to be chaired by the Chairperson of the Governing
Body and composed of 32 Governments, 16 Employers and 16 Workers with a view to
reporting to the 323rd Session (March 2015) of the Governing Body on:
■ the question of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), in relation to the right to strike; and
■ the modalities and practices of strike action at national level;
(2) place on the agenda of its 323rd Session, the outcome and report from this meeting on
the basis of which the Governing Body will take a decision on the necessity or not for a
request to the International Court of Justice to render an urgent advisory opinion
concerning the interpretation of the Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), in relation to the right to strike;
(3) take the necessary steps to ensure the effective functioning of the Committee on the
Application of Standards at the 104th Session of the International Labour Conference,
and to this end reconvene the Working Group on the Working Methods of the
Conference Committee on the Application of Standards to prepare recommendations to
the 323rd Session of the Governing Body in March 2015, in particular with regard to the
establishment of the list of cases and the adoption of conclusions;
(4) defer at this stage further consideration of the possible establishment of a tribunal in
accordance with article 37(2) of the Constitution;
(5) as part of this package, refer to the 323rd Session of the Governing Body the following:
(a) the launch of the Standards Review Mechanism (SRM), and to this effect establish
a tripartite working party composed of 16 Governments, eight Employers and eight
Workers to make proposals to the 323rd Session of the Governing Body in March
2015 on the modalities, scope and timetable of the implementation of the SRM;
(b) a request to the Chairperson of the Committee of Experts on the Application of
Conventions and Recommendations (CEACR), Judge Abdul Koroma (Sierra
Leone), and the Chairperson of the Committee on Freedom of Association (CFA),
Professor Paul van der Heijden (Netherlands), to jointly prepare a report on the
interrelationship, functioning and possible improvement of the various supervisory
procedures related to articles 22, 23, 24 and 26 of the ILO Constitution and the
complaints mechanism on freedom of association.
(Document GB.322/INS/5(Add.2), paragraph 1, as amended according to the discussion.)
Part I of the document provides a factual background on Convention No. 87 and the
right to strike starting from the circumstances of its adoption and subsequent experience in
its supervision. It then presents relevant elements of the rules of international law on treaty
interpretation, in particular the 1969 Vienna Convention on the Law of Treaties.
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Part II provides a broad overview of modalities concerning strike action at the
national level in both law and practice.
The tripartite constituents will be keenly aware of the importance for the ILO of the
issues under consideration, and of the tripartite discussions that have taken place in the
International Labour Conference and in the Governing Body since June 2012. 1
The document does not contain any concrete proposals on the possible options for
action. It is however hoped that the factual information would assist constituents in
identifying solutions to the issues that have arisen: they are urgently needed.
1 Provisional Record No. 19, Part 1(Rev.), International Labour Conference, 101st Session, Geneva,
2012; GB.315/INS/4; GB.315/PV, para. 75; GB.316/INS/5/4; GB.316/PV(&Corr.), para. 115;
GB.317/INS/4/1; GB/317/PV, paras 52–76; Discussion at the 319th Session, item LILS/4 (no
document submitted) in GB.319/PV, paras 548–567; GB.320/LILS/4; GB320/PV,
paras 572–599; Provisional Record No. 13, Part 1, International Labour Conference, 103rd Session,
Geneva, 2014; GB.321/PV, paras 59–68; GB.322/INS/5; GB.322/INS/5(Add.);
GB.322/INS/5(Add.1); GB.322/INS/5(Add.2); GB.322/INS/5(Add.3); GB.322/PV/Draft,
paras 47–210.
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Part I. ILO Convention No. 87 and
the right to strike
I. Introduction
1. The term “strike” is generally understood to cover a refusal to work decided by an
organized body of employees as a form of protest, typically in an attempt to gain a
concession from their employer. Although this form of action is recognized in the
Constitution and/or regulated in the labour legislation of many countries, international
labour Conventions, including Convention No. 87, do not contain any express provisions
on the right to strike. However, two of the ILO’s supervisory organs, the Governing Body
Committee on Freedom of Association and the Committee of Experts on the Application of
Conventions and Recommendations, have consistently considered that Convention No. 87
covered the right to strike and have developed over the years a body of detailed principles
in relation to the scope and limits of that right. Recently, some questions have been raised
concerning the legal basis for inferring a right to strike from Convention No. 87 as well as
the competence of the Committee of Experts to interpret the provisions of ILO
Conventions in general. 1
2. This paper contextualizes in a strictly factual and descriptive manner the ongoing debate
around the status and legal value of the ILO principles on the right to strike in the light of
the provisions of Convention No. 87. The paper first provides a brief account on the
preparatory work that led to the adoption of Convention No. 87 as well as on a few related
developments after its adoption. It then reviews the main findings of the ILO supervisory
organs in the last 50 years with respect to the scope of the right to strike and the conditions
for its legitimate exercise. The paper also offers brief explanations on the rules of
international law governing treaty interpretation.
3. The review of the practice of the ILO supervisory organs in the field of the right to strike
proceeds in chronological order. Given the extent of such practice, no attempt is made for
an exhaustive coverage but instead a summary overview is proposed through key citations
and sample references.
II. The Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87)
II.1. Negotiating history prior to the adoption
of the Convention
4. The Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87), is one of the eight fundamental Conventions adopted by the ILO and ranks
among the most ratified ILO Conventions. 2
1 For ease of reference, all relevant background documents, or extracts thereof, have
been numbered consecutively and may be accessed at: https://www.ilo.org/public/
english/bureau/leg/c87interpret.htm. Accordingly, all document references contained in this paper
follow the numbering of the web-posted documents.
2 As of 3 February 2015, Convention No. 87 has been ratified by 153 member States. The
ratification status is found at: www.ilo.org/normlex.
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5. The question of the adoption of international labour standards on freedom of association
and industrial relations came before the ILO at the request of the Economic and Social
Council of the United Nations, which in March 1947 adopted a resolution requesting that
the item “Guarantees for the exercise and development of trade unions rights” be placed on
the agenda of the Organization and considered at the next session of the International
Labour Conference. The Council had been called upon by the World Federation of Trade
Unions and the American Federation of Labor to consider the problem of trade unions
rights with reference to a series of questions, including one as “to what extent is the right
of workers and their organizations to resort to strikes recognized and protected”.
6. At the request of the Governing Body, the Office prepared a report on “Freedom of
Association and Industrial Relations” which was submitted to the 30th Session of the
Conference in June 1947 (doc. 3). Together with a survey of legislation and practice, the
report contained a proposed resolution concerning freedom of association and industrial
relations as well as a list of points which would form the basis for discussion at the
Conference (ibid., pp. 127–135). Apart from freedom of association, the report also
addressed other important aspects of the so-called “problem of association”, namely the
protection of the right to organize and to bargain collectively; collective agreements;
voluntary conciliation and arbitration; and cooperation between the public authorities and
employers’ and workers’ organizations. While the right to strike was discussed in some
length under the topic of voluntary conciliation and arbitration, no reference to it was made
in the proposed resolution and the related list of points.
7. In introducing the first paragraph of the proposed resolution on the principles of freedom
of association, the Office report noted that while there should be no distinction between
workers, public or private, as regards freedom of association, “the recognition of the right
of association of public servants in no way prejudges the question of the right of such
officials to strike, which is something quite apart from the question under consideration”
(ibid., p. 109). This explanation echoes the conclusions that the report draws from the
survey of domestic laws and practices on this issue. The report noted that while several
legal systems excluded civil servants from the application of the right of association, “the
legislature actually intended to debar them from the right to strike and not from the right of
association” (ibid., p. 46).
8. In 1947, during the discussions of the Conference Committee on Freedom of Association,
an amendment was moved by the Government representative of India with a view to
excluding the police and armed forces from “the field of application of freedom of
association, because they were not authorised to take part in collective negotiations and
had not the right to strike”. The Worker member of France opposed the amendment on the
ground that “public employees should enjoy full freedom of association” and “a restrictive
Convention could not serve as a model for less advanced countries” and the amendment
was eventually rejected (doc. 4, p. 570).
9. In the event, the Conference adopted a resolution concerning freedom of association and
the right to organize and to bargain collectively without making any specific reference to
the right to strike. The Conference also decided to place on the agenda of its 31st Session
the questions of freedom of association and the protection of the right to organize with a
view to their consideration under the single-discussion procedure and to this end, a
questionnaire was drafted for the consultation of governments (docs 6 and 9).
10. The questionnaire asked, inter alia, whether “it would be desirable to provide that the
recognition of the right of association of public officials by international regulation should
in no way prejudge the question of the right of such officials to strike”. Most governments
replied in the affirmative stressing that the recognition of the right of association of public
officials is without prejudice to the question of the right to strike (docs 10 and 11). In
analysing the replies of governments, the Office noted that “several Governments have
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emphasized, justifiably it would appear, that the proposed Convention relates only to the
freedom of association and not to the right to strike, a question which will be considered in
connection with Item VIII (conciliation and arbitration) on the agenda of the Conference”
(doc. 11, p. 87). 3
11. On the basis of the replies from the governments, a final report containing the text of a
proposed Convention was placed before the 1948 session of the Conference for final
discussion and decision. The discussions at the Conference Committee on Freedom of
Association and Industrial Relations did not address the right to strike, and the text of the
proposed Convention was adopted with no substantive changes. Only the Government of
Portugal recalled that in their replies to the questionnaire, several governments stated more
or less explicitly that the drafting of the Convention should not imply the idea that public
servants are granted the right to strike, and associated itself to these reservations (doc. 13,
p. 232).
II.2. Related developments after the adoption
of the Convention
12. In 1955, a member of the Governing Body Committee on Standing Orders and the
Application of Conventions and Recommendations suggested that the report form used for
the purposes of regular reporting on the application of Convention No. 87 could be
supplemented by including two additional questions relating to provisions in national
legislation restricting the right to strike and to provisions applicable with regard to freedom
of association for public employees. The Committee noted, in this respect, that “the
Freedom of Association and Protection of the Right to Organise Convention does not cover
the right to strike” and considered that “it would not be advisable to include in the form of
annual report a question which would go beyond the obligations accepted by ratifying
States” (doc. 14, p. 188).
13. Reference to the right to strike in relation to Convention No. 87 was also made in two
resolutions adopted by the International Labour Conference. The Resolution concerning
the Abolition of Anti-Trade Union Legislation in the States Members of the International
Labour Organisation, adopted in 1957, makes express reference to Convention No. 87 in
its preamble and calls upon member States to ensure “the effective and unrestricted
exercise of trade union rights, including the right to strike, by the workers” (doc. 15). The
Resolution concerning Trade Union Rights and Their Relation to Civil Liberties, adopted
in 1970, recalls that Convention No. 87 lays down “basic standards of freedom of
association for trade union purposes”, “reaffirms the ILO’s specific competence in the field
of freedom of association and trade union rights (principles, standards, supervisory
machinery) and of related civil liberties” and invites the Governing Body to instruct the
Director-General “to prepare reports on law and practice in matters concerning freedom of
association and trade union rights and related civil liberties falling within the competence
of the ILO”, giving particular attention to a series of questions, including the right to strike
(doc. 16). 4 In contrast, the Resolution concerning the 40th anniversary of the adoption of
3 In 1948, the Office submitted a report to the Conference on the other aspects of industrial
relations. In relation to conciliation and arbitration, the report included a survey on domestic law
and practice concerning “temporary legal restrictions of strikes and lockouts” (doc. 12,
pp. 111–118).
4 In yet another Resolution concerning the Policy of Colonial Oppression, Racial Discrimination
and Violation of Trade Union Rights Pursued by Portugal in Angola, Mozambique and Guinea-
Bissau, adopted in 1972, the Conference referred to “Portuguese trade union legislation which is in
open and flagrant contradiction with the letter and the spirit of ILO standards”, in particular
Convention No. 87, and considered that the workers of Angola, Mozambique and Guinea-Bissau
were “denied basic trade union rights including, above all, the right to set up free and democratic
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the Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87), adopted in 1987 with a view to recall the fundamental principles enshrined in the
Convention and launch an appeal for its ratification, contains no reference to the right to
strike (docs 17 and 18).
14. Mention should also be made of at least one initiative suggesting that standard-setting
action should be undertaken with regard to the right to strike. In October 1991, the
Government of Colombia requested the Director-General “to include the question of a
Convention on the right to strike on the agenda” of the Conference. The Governing Body
discussed this proposal in two consecutive sessions and whereas several voices were raised
in favour of an international instrument, or at least a general discussion on the subject, it
finally decided not to place an item concerning the right to strike on the agenda of the
Conference (docs 19 and 20).
III. Supervision of obligations arising
under or relating to Conventions
III.1. Committee of Experts on the Application of
Conventions and Recommendations
15. The Committee of Experts evaluates the conformity of national legislation on the basis of
regular reports received from member States and prepares country-specific comments. The
Committee is also responsible for carrying out on an annual basis a General Survey of
national laws and practices relating to a specific Convention or group of Conventions,
chosen by the Governing Body. In fulfilling its functions over the years, the Committee
has commented extensively on the duties and obligations arising out of Convention No. 87,
including with regard to the protection of the right to strike. 5
16. To date, the Committee of Experts has prepared five General Surveys on Convention
No. 87. In the 1959 General Survey, the Committee of Experts reviewed state practice as
regards legal restrictions on the right to strike and indicated that:
the problem of the prohibition of strikes by workers other than public officials acting in
the name of the public powers raises questions which are often complex and delicate. It is
certain that such a prohibition may sometimes constitute a considerable restriction of the
potential activities of trade unions. … there is a possibility that this prohibition may run
counter to Article 8, paragraph 2, of the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), according to which “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 the
Convention, and especially the freedom of action of trade union organisations in defence of
their occupational interests; it is therefore necessary that, in every case in which certain
trade unions and to join them, the right of assembly, the right to elect their officers freely and the
right to strike”.
5 The Committee of Experts was established in 1926 as a distinguished body of 20 independent
authorities appointed by the Governing Body to serve in their personal capacities. The Committee
draws up two types of comments: observations in cases of serious failure to comply with obligations
under a Convention, and direct requests which deal with technical issues or maters of secondary
importance. General Surveys are established mainly on the basis of reports submitted by all member
States under article 19 of the Constitution (whether or not they have ratified the concerned
Conventions) and information communicated by employers’ and workers’ organizations. These
surveys allow the Committee of Experts to examine the impact of Conventions and
Recommendations, to analyse the difficulties indicated by governments as impeding their
application, and to identify means of overcoming these obstacles.
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workers are prohibited from striking, adequate guarantees should be accorded to such workers
in order fully to safeguard their interests (doc. 21, para. 68).
17. In the General Survey of 1973, the Committee of Experts elaborated further on the various
types of restrictions applicable to the right to strike in different countries and concluded
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
members (Article 10 of Convention No. 87) and of the right of trade unions to organize
their activities (Article 3)” (doc. 22, para. 107). Turning to special categories of workers,
especially public servants and workers in essential services, the Committee stated that:
with regard to the former, it may be considered that the recognition of the principle of
freedom of association does not necessarily imply the right to strike. … Strikes in essential
services are also forbidden in a number of countries … . The Committee on Freedom of
Association has called attention to the abuses that might arise out of an excessively wide
definition in the law of the term “essential services” and has suggested that the prohibition of
strikes should be confined to services which are essential in the strict sense of the term. (ibid.,
para. 109).
The Committee of Experts concluded that “in all the cases where strikes may be prohibited
for certain workers, particularly civil servants and persons engaged in essential services, it
is important that sufficient guarantees should be accorded to these workers in order to
safeguard their interests” (ibid., para. 111).
18. In the 1983 General Survey, the Committee of Experts expressed the view that “the right to
strike is one of the essential means available to workers and their organisations for the
promotion and protection of their economic and social interests” (doc. 23, para. 200). After
making reference to Article 8 of the International Covenant on Economic, Social and
Cultural Rights 6 and the European Social Charter as recognizing explicitly the right to
strike at the international and regional levels respectively, the Committee of Experts
6 Article 8 of the Covenant reads as follows:
1. The States Parties to the present 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 restrictions 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 organizations;
(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
Organisation Convention of 1948 concerning Freedom of Association 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.
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reiterated its position that “a general ban on strikes seriously limits the means at the
disposal of trade unions to further and defend the interests of their members (Article 10 of
the Convention) and their right to organize their activities (Article 3) and is, therefore, not
compatible with the principles of freedom of association” (ibid., para. 205). Reviewing
national laws imposing specific restrictions on strike action, the Committee reaffirmed that
“the principle whereby the right to strike may be limited or prohibited in the public service
or in essential services, whether public, semi-public or private, would become meaningless
if the legislation defined the public service or essential services too broadly” (ibid.,
para. 214) and also suggested that “restrictions relating to the objectives of a strike and to
the methods used should be sufficiently reasonable as not to result in practice in a total
prohibition or an excessive limitation of the exercise of the right to strike” (ibid.,
para. 226).
19. The General Survey of 1994 contained an entire chapter on the right to strike. For the first
time, the Committee of Experts’ analysis is preceded by some general observations on the
process which has led the Committee to establish certain principles on this subject. The
Committee observed, in this connection, that “although the right to strike is not explicitly
stated in the ILO Constitution or in the Declaration of Philadelphia, nor specifically
recognized in Conventions Nos 87 and 98, it seemed to have been taken for granted in the
report prepared for the first discussion of Convention No. 87” and added that “during the
discussions at the Conference in 1947 and 1948, no amendment expressly establishing or
denying the right to strike was adopted or even submitted” (doc. 24, para. 142). The
Committee went on to say that “in the absence of an express provision on the right to strike
in the basic texts, the ILO supervisory bodies have had to determine the exact scope and
meaning of the Conventions on this subject” (ibid., para. 145), and recalled its views
expressed in the three previous General Surveys on the compatibility of a general
prohibition of strikes with Convention No. 87 by stating that its “reasoning is based on the
recognized right of workers’ and employers’ organizations to organize their activities and
to formulate their programmes for the purposes of furthering and defending the interests of
their members (Articles 3, 8 and 10 of Convention No. 87).” (ibid., para. 147). Referring
specifically to Article 3, the Committee expressed the opinion that “the ordinary meaning
of the word ‘programmes’ includes strike action” and also that strike action is “an activity
of workers’ organizations within the meaning of Article 3” (ibid., paras 148–149). In
concluding its general observations, the Committee confirmed “its basic position that the
right to strike is an intrinsic corollary of the right to organize protected by Convention
No. 87”, but added that “the right to strike cannot be considered as an absolute right: not
only may it be subject to a general prohibition in exceptional circumstances, but it may be
governed by provisions laying down conditions for, or restrictions on, the exercise of this
fundamental right” (ibid., para. 151).
20. In the 2012 General Survey, the Committee of Experts explained at the outset that:
it was mainly on the basis of Article 3 of the Convention, which sets out the right of
workers’ organizations to organize their activities and to formulate their programmes, and
Article 10, under which the objective of these organizations is to further and defend the
interests of workers, that a number of principles relating to the right to strike were
progressively developed by the Committee on Freedom of Association as a specialized
tripartite body (as of 1952), and by the Committee of Experts (as of 1959, and essentially
taking into consideration the principles established by the Committee on Freedom of
Association) (doc. 25, para. 117).
The Committee observed that the “absence of a concrete provision is not dispositive, as the
terms of the Convention must be interpreted in the light of its object and purpose” and
while recognizing the preparatory work as an important supplementary interpretative
source, drew attention to “other interpretative factors, in particular, in this specific case, to
the subsequent practice over a period of 52 years” (ibid., para. 118). The Committee
reaffirmed that “the right to strike derives from the Convention”, and took the view that
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“the principles developed over time on a tripartite basis should give rise to little
controversy” as they only sought to ensure that this right was duly recognized and
protected in practice (ibid., para. 119).
21. A large number of observations that the Committee of Experts addresses every year on the
application of standards related to freedom of association contain comments on a broad
spectrum of issues concerning the scope and purpose as well as the conditions for the
legitimate exercise of the right to strike. These comments by and large draw upon the
conclusions of the Committee on Freedom of Association on a number of issues outlined
in paragraphs 45–48 below.
22. Generally speaking, the Committee of Experts’ recommendations in matters related to the
exercise of the right to strike meet with the acceptance of the governments concerned, as
shown by the steps undertaken by many, which are often acknowledged with satisfaction
by the Committee. However, at times, governments express their disagreement with
specific findings of the Committee of Experts concerning compliance with Convention
No. 87 with respect to the right to strike.
23. Finally, reference should be made to the clarifications provided by the Committee of
Experts in its 2011 report (doc. 26, para. 12, p. 9) concerning the methods followed when
expressing its views on the meaning of the provisions of Conventions. The Committee
indicated, in this respect, that:
it constantly and consistently bears in mind all the different methods of interpreting
treaties recognized under international public law, and in particular under the Vienna
Convention on the Law of Treaties, 1969. In particular, the Committee has always paid due
regard to the textual meaning of the words in light of the Convention’s purpose and object as
provided for by Article 31 of the Vienna Convention, giving equal consideration to the two
authentic languages of ILO Conventions, namely the English and French versions (Article 33).
In addition and in accordance with Articles 5 and 32 of the Vienna Convention, the
Committee takes into account the Organization’s practice of examining the preparatory work
leading to the adoption of the Convention. This is especially important for ILO Conventions in
view of the tripartite nature of the Organization and the role that the tripartite constituents play
in standard setting. 7
III.2. Conference Committee on the
Application of Standards
24. As an essential component of the ILO supervisory system, the Conference Committee on
the Application of Standards complements the work of the Committee of Experts by
adding its tripartite and political authority to the independent appraisal undertaken by the
Committee of Experts. 8 Following the technical examination of government reports
carried out by the experts, the parliamentary function of the Conference Committee offers
the opportunity for a broader exchange on issues related to compliance with international
7 For more on the interpretative functions of the ILO supervisory bodies in general, see Non-paper
on interpretation of international labour Conventions, Feb. 2010, pp. 11–24 (doc. 54). For an
overview of the employers’ and workers’ views, see Alfred Wisskirchen: “The standard-setting and
monitoring activity of the ILO: Legal questions and practical experience”, in International Labour
Review, Vol. 144, 2005, pp. 253–289, and International Trade Union Confederation (ITUC): The
right to strike and the ILO: The legal foundations, Mar. 2014, both available at:
https://www.ilo.org/public/english/bureau/leg/c87interpret.htm.
8 The Conference Committee, set up under article 7 of the Standing Orders of the International
Labour Conference, is a standing tripartite body which examines every year the report published by
the Committee of Experts. The Conference Committee examines every year 25 individual cases
among the most serious cases of failure to implement ratified Conventions and adopts conclusions.
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labour standards. The Conference Committee also discusses on an annual basis the general
surveys prepared by the Committee of Experts, thus engaging in a multifaceted debate on
topical matters of law and policy. The different General Surveys prepared by the experts
on Convention No. 87, in particular the views expressed on the right to strike, have
progressively given rise to strong arguments that eventually led to the current controversy.
25. In the context of the examination of the 1973 General Survey on Convention No. 87, the
Worker members indicated that “while it was often stated that the right to strike was not
protected by international labour Conventions, Convention No. 87 did provide for the right
of trade unions to organize their activities and formulate their programmes, and thus
implicitly guaranteed the right to strike”. For their part, the Government members of Japan
and Switzerland, referring specifically to the right to organize of public servants, took the
view that the Convention did not cover the right to strike in the public sector (doc. 27,
p. 544).
26. At the time of the Conference Committee discussion of the 1983 General Survey on
Convention No. 87, the Worker members “welcomed the fact that the Committee of
Experts had considered that the right to strike constituted one of the essential means at the
disposal of the workers for the defence and promotion of their interests”. The Government
member of Tunisia expressed disagreement with the interpretation which the Committee of
Experts had given to the concept of essential services and called for a better definition of
the difficult concept of the right to strike and the adoption of a specific international
Convention on this subject (doc. 28, pp. 31/13–31/14).
27. In 1989, several Employer members, while acknowledging that the Committee of Experts’
report was the very basis of the Conference Committee’s work, indicated that they could
not share all the opinions and evaluations of the Committee of Experts, especially as “the
jurisprudence of the Committee of Experts was sometimes unstable, evolving and
variable”. They noted that “the report of the Committee of Experts unfortunately contained
a number of over-interpretations especially regarding basic human rights Conventions and
in particular Convention No. 87” and observed in this respect that a Convention had to be
interpreted in line with the principles laid down in the Vienna Convention on the Law of
Treaties while the role of the International Court of Justice as the ultimate arbiter should
always be borne in mind. The Worker members objected to what they considered a
dangerous stance, particularly with respect to Convention No. 87. The Worker members
also observed that it was only normal that the doctrine of the Committee of Experts had
evolved but this did not imply incoherencies (doc. 29, p. 26/6, paras 21–22).
28. At the Conference Committee discussion of 1990, the Employer members recalled that
they had a “different interpretation” from the Committee of Experts on the question of the
right to strike. They drew attention to the fact that “the Experts had progressively deduced
from Convention No. 87 a right to strike which was hardly limited”, which they could not
accept “not only because they considered the Experts’ opinion questionable in law but also
because the issue touched directly on employers’ interests”. The Employers members
referred to the general rules of interpretation under Article 31 of the Vienna Convention on
the Law of Treaties (ordinary meaning of the terms used, object and intent of a provision,
and subsequent practice by the parties) and noticed that despite the considerably diversity
in state practice regarding the regulation of the right to strike, the Committee of Experts
“had given a very narrow interpretation of the acceptable legal limits on this right, which
had resulted in an enormous gap between the practical application of Convention No. 87
by member States and its interpretation by the Committee of Experts” (doc. 30, p. 27/6,
paras 23–24).
29. The same point was raised again in 1992, when the Employer members pointed to the
“expansive application of the right to strike [by the Committee of Experts] even though the
legislative history of Convention No. 87 did not relate to it”. They stated that “from 1960
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through the 1980s the Committee of Experts had concluded that those Conventions
[Conventions Nos 87 and 98] contain an ever-widening right to strike, including sympathy,
political and solidarity strikes, [while] they applied a narrower and narrower definition of
essential services”, which made the Employer members wonder “at what moment evolving
Committee of Experts’ interpretations became ‘valid and generally recognised’” (doc. 31,
p. 27/5, para. 22). In contrast, the Worker members expressed “their support for the
principles applied by the Experts as a whole, including the right to strike” and observed
that “a State which does not agree with the Committee of Experts’ views may take the
matter to the International Court of Justice but it should not expect the Conference
Committee to contradict the Committee of Experts on points of law” (ibid., p. 27/5,
paras 23–24).
30. At the Conference Committee discussion of 1993, the Employer members reiterated that
Convention No. 87 did not regulate the right to strike since “the text of the Convention did
not mention it, and the preparatory work showed the Conference had reached no consensus
on the matter” (doc. 32, p. 25/9, para. 58). For the Employer Vice-Chairman of the
Conference Committee:
the only measuring rod for the interpretation of Conventions is international customary
law as well as international law in the written form set forth in Articles 31 and 32 of the
Vienna Convention on the Law of Treaties. … none of the interpretation methods that are
relevant under international law allows for the “creation” of an extremely broad right to strike
to be derived from Convention No. 87, such has been gradually developed by the Committee
of Experts. Neither the text nor any discernible agreement between the signatory States or
their subsequent conduct allow for such an interpretation. On the contrary, in the drafting of
Conventions Nos 87 and 98, it was clear that issues of the right to strike were not to be dealt
with. … Implicitly, the right to strike developed by the Committee of Experts is virtually
unlimited and the regulatory scope of the member States therefore tends to be non-existent.
The formulae developed by the Committee of Experts, which allow almost any type of strike
and proscribe almost any restriction as being contrary to international law, cannot be justified
on the basis of any interpretation instrument derived from Convention No. 87 (ibid.,
p. 28/11).
31. For their part, the Worker members “strongly supported the views of the Committee of
Experts with regard to the right to strike, which were in accord with the case law of the
Committee on Freedom of Association”. Considering the Employers’ criticism as
politically rather than legally motivated, they stated that “the right to strike was inseparable
from the notion of freedom of association” and recalled that “the Committee of Experts’
interpretation of the right to strike in Convention No. 87 had been accepted over many
years” (ibid., p. 25/10, para. 61).
32. This last point was raised again at the plenary discussion of the Conference Committee
report, where the Worker members argued that according to Article 31 of the Vienna
Convention, “it matters not whether all the contracting parties have explicitly agreed to the
interpretation of the Convention concerned. On the contrary, silence can be taken as
consent. … it is necessary to take into account any subsequent practice in the application
of the treaty which establishes the agreement of the parties regarding its interpretation. For
many years, there has been absolutely no contradiction by the Employers on the
Conference Committee as regards the existing case law” (ibid., p. 28/16). Reacting to this
argument, the Employer members referred to the momentous change in world relations,
particularly the demise of the struggle between east and west, and indicated that
“disagreements that the Employers have always had with just a few interpretations by the
Experts, particularly concerning the right to strike, were muted in a show of solidarity to
preserve the supervisory machinery. … For the most part the Conference Committee
follows the findings and interpretations of the Experts, but this does not mean that the
Conference Committee is a rubber stamp for the Experts” (ibid., p. 28/17).
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33. In 1994, during the discussion of the Committee of Experts’ General Survey on
Conventions Nos 87 and 98, several Government members expressed general agreement
with the Committee of Experts’ position on strikes as an indispensable corollary of
freedom of association, and emphasized moreover that the Committee had explained that
this was not an absolute right. The Government member of Venezuela, in particular, took
the view that the Experts had adopted a more flexible and dynamic interpretation to a
literal and dogmatic one, taking into account not only the text, but also its precedents, in
the context of its adoption and the changes which had occurred. The Government members
of Belarus and of Portugal, however, expressed some doubts about certain principles on the
exercise of the right to strike put forward by the Committee of Experts as rules of
international law. The Employer members stressed that they absolutely could not accept
that the Committee of Experts deduced from the text of the Convention a right so
universal, explicit and detailed. Referring to the preparatory work that led to the adoption
of Convention No. 87, and rejecting the experts’ axiomatic and unconditional acceptance
of the right to strike despite the absence of explicit and concrete provisions on the subject,
the Employer members considered that “the interpretation of the Committee of Experts
was creating and developing law”. They added that “they were not so much criticizing the
fact that the Committee of Experts wanted to recognize the right to strike in principle, but
rather that it took as a point of departure a comprehensive and unlimited right to strike”.
The Employer members recognized that an extensive right to strike did indeed exist in
some countries, but this was a matter of national law and not a right established by ILO
instruments or derived from them. They also drew attention to the fact that the experts
gradually expanded their views on the matter from one paragraph in the General Survey of
1959 to an entire chapter and no less than 44 paragraphs in 1994. In these circumstances,
they suggested that it would seem reasonable to submit the question of the right to strike to
the legislator of the ILO, that is, the International Labour Conference, with a view to
adopting after sufficient preparation specific regulations. The Worker members found that
a new discussion at the Conference of an essential aspect of a fundamental Convention
dealing with human rights as Convention No. 87 was not a good idea as it might paralyse
tripartism and the ILO (doc. 33, paras 85, 115–148).
34. At the Conference Committee discussion of 1997, in response to an observation made by
the Worker members that the Employer members have started openly criticizing the
tripartite Committee on Freedom of Association for its approach to the right to strike, the
Employer members acknowledged that “the principle of industrial action, including the
right to strike and lockouts, formed part of the principles of freedom of association as set
out in Convention No. 87” but clarified that “their criticisms were aimed at all the detailed
jurisprudence developed over the years on the basis of these principles” (doc. 34, p. 19/35,
paras 99–100). In 2001, in the context of the Conference Committee examination of an
individual case, the Government member of Germany stated that “contrary to the position
taken by the Employer members, the right to strike was an essential component of freedom
of association, despite the fact that it was not expressly covered under Convention No. 87.
Accordingly, it was the right of the Committee of Experts and the Conference Committee
to address this issue, and the Committee should urge the Government to conduct a
comprehensive review of the national legislation that unacceptably limited trade union
activities” (doc. 35, p. 2/23).
35. In 2012, the General Survey on the fundamental Conventions concerning rights at work in
light of the 2008 Social Justice Declaration came up for discussion before the Conference
Committee on the Application of Standards. The Employer members, while
acknowledging that a right to strike existed at the national level in many jurisdictions, “did
not at all accept that the comments on the right to strike contained in the General Survey
were the politically accepted views of the ILO’s tripartite constituents” and “fundamentally
objected to the Experts’ opinions concerning the right to strike being received or promoted
as soft law jurisprudence”. They considered that the situation was particularly important
since General Surveys were published and distributed worldwide without any prior
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approval by the Conference Committee and also because the fundamental Conventions
were embedded in many international instruments such as the UN Global Compact and the
OECD Guidelines for Multinational Enterprises (doc. 36, para. 82). The Employer
members recalled that the mandate of the Committee of Experts was to comment on the
application of Convention No. 87 and not to interpret a right to strike into Convention
No. 87, and also objected to the use of the Committee on Freedom of Association cases by
the Committee of Experts when interpreting the right to strike as this added to the
confusion and lack of certainty of the supervisory system (ibid., para. 147).
36. For their part, the Worker members reaffirmed their position that “the right to strike was an
indispensable corollary of freedom of association and was clearly derived from Convention
No. 87”. They also recalled that “the Committee of Experts was a technical body which
followed the principles of independence, objectivity and impartiality [and] it would be
wrong to think that it should modify its case law on the basis of a divergence of opinions
among the constituents” (ibid., para. 85). The Worker members indicated that “without that
right, workers would not be in a position to exert any influence in collective bargaining”
and stressed that “questioning the right to strike as an integral part of freedom of
association would mean that other rights and freedoms were meaningless in practice”
(ibid., para. 86).
37. With a view to clarifying the mandate of the Committee of Experts with regard to the
General Survey, the Employers proposed that the following clarification be inserted in the
General Survey before publication: “The General Survey is part of the regular supervisory
process and is the result of the Committee of Experts’ analysis. It is not an agreed or
determinative text of the ILO tripartite constituents” (ibid., para. 150). The Worker
members indicated that they “could not agree to the inclusion of a disclaimer in the
General Survey, which was the result of analyses undertaken by the Committee of
Experts” (ibid., para. 186), and eventually negotiations on this proposal broke down. The
two groups being unable to draw up a list of individual cases, the Committee on the
Application of Standards failed, for the first time since its creation in 1926, to complete its
work with respect to article 22 of the Constitution.
38. During the general discussion of the Conference Committee, the Government member of
the United States “expressed appreciation of the Committee of Experts for its continuing
efforts to promote better understanding of the meaning and scope of the fundamental
Conventions, including the right to strike”, while the Government member of Norway
stated that Norway “fully accepted the position of the Committee of Experts that the right
to strike was a fundamental right protected under Convention No. 87” (ibid., para. 90).
39. In 2013, to prevent any recurrence of the failure of 2012, the Employers’ and Workers’
groups reached a compromise to address their disagreement on the question as to whether
the right to strike was included in Convention No. 87 with the inclusion in the conclusions
of cases that involved the issue of the right to strike of the following sentence: “The
Committee did not address the right to strike in this case, as the employers do not agree
that there is a right to strike recognized in Convention No. 87” (doc. 37, para. 232). In their
plenary statements, the two groups explained how they interpreted this compromise
solution. For the Employers’ group, although this phrase is not perfect, it makes two things
transparent: first, there is no agreement in the Committee that Convention No. 87
recognizes a right to strike, and second, in the absence of consensus on this issue, the
Committee is not in a position to ask governments to change their internal laws and
practices with regard to strike issues (ibid., p. 19/3). For the Workers’ group, the sole
objective of this concession was to avoid the failures of 2012 and, in this sense, this
approach would not be repeated. They reiterated that:
seeking to have the right to strike legislated for at the national level alone places the
government of the member State concerned in an unequal balance of power in which the main
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weight falls to its advantage. … By taking this line, the Employers are simply repudiating
texts such as Article 8.1(d) of the International Covenant on Economic, Social and Cultural
Rights, Article 6.4 of the European Social Charter of 1961 and also the Additional Protocol to
the American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights (ibid., p. 19/6).
40. At the 103rd Session of the International Labour Conference, in June 2014, the Employer
members indicated that the divergence in views between the Conference Committee and
the Committee of Experts on the question of the interpretation of the right to strike needed
to be addressed and proposed “a fresh tripartite examination of this subject in light of the
overall current industrial relations in member States”. In the meantime, the Employer
members were favourable to the inclusion of the same sentence that had been agreed upon
by the social partners the previous year (doc. 38, paras 50–51). The Worker members
refused to submit conclusions that became non-consensual as soon as it concerned the
interpretation of Convention No. 87, and considered that “accepting once again the
reservations put forward by the Employer members on the cases concerning Convention
No. 87 would give the impression that a tacit jurisprudence in relation to freedom of
association cases was creeping into the Committee” (ibid., para. 209).
III.3. Complaints as to the infringement of
freedom of association
III.3.1. Governing Body Committee on Freedom of Association
41. The Governing Body Committee on Freedom of Association has developed over the years
a body of detailed principles relating to trade union rights, including the right to strike – a
body of principles that have often been reflected in positions taken by the Committee of
Experts with respect to the right to strike (doc. 39, pp. 109–136). 9 As early as the first year
of its operation, the Governing Body Committee on Freedom of Association 10 propounded
the principle that “the right to strike and that of organising trade union meetings are
essential elements of trade union rights” (Case No. 28, United Kingdom–Jamaica, 1952,
9 For an overview of the principles regarding the right to strike laid down by the Committee on
Freedom of Association, see B. Gernigon, A. Odero and H. Guido: “ILO principles concerning the
right to strike”, in International Labour Review, Vol. 137, 1998, pp. 441–481; J. Hodges-Aeberhard
and A. Odero: “Principles of the Committee on Freedom of Association concerning strikes” in
International Labour Review, Vol. 126, 1987, pp. 543–563. See also A. Odero and M.M. Travieso:
“Le Comité de la liberté syndicale”, in J.-C. Javillier and B. Gernigon (eds): Les normes
internationales du travail: un patrimoine pour l’avenir – Mélanges en l’honneur de Nicolas
Valticos, 2004, pp. 159–216. These articles may be accessed at: https://www.ilo.org/public/english/
bureau/leg/c87interpret.htm.
10 The Committee on Freedom of Association was set up in 1951 for the purpose of examining
complaints about violations of freedom of association, whether or not the country concerned had
ratified the relevant Conventions Nos 87 and 98. Complaints may be brought against a member
State by employers’ and workers’ organizations. The Committee on Freedom of Association is
composed of an independent chairperson and six representatives each from the Government group,
the Employers’ group and the Workers’ group. When the Committee on Freedom of Association
decides to receive a case, it establishes the facts in dialogue with the government concerned. If it
finds that there has been a violation of freedom of association standards or principles, it issues a
report through the Governing Body and makes recommendations on how the situation could be
remedied. Governments are subsequently requested to report on the implementation of its
recommendations. The Committee on Freedom of Association often transmits legislative aspects to
the Committee of Experts when the relevant Convention has been ratified. In over 60 years of
operation, the Committee on Freedom of Association has examined approximately 3,000 cases.
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para. 68). 11 In 1956, the Committee on Freedom of Association reaffirmed that the right to
strike “is generally regarded as an integral part of the general right of workers and their
organisations to defend their economic interests” (Case No. 111, USSR, 1956, para. 227),
while in the years that followed, the Committee further stressed that freedom of association
and the right to strike were linked by arguing that “allegations relating to prohibitions of
the right to strike are not outside its competence when the question of freedom of
association is involved” (Case No. 163, Myanmar, 1958, para. 51; Case No. 169, Turkey,
1958, para. 297).
42. These early findings of the Committee on Freedom of Association met with the opposition
of the representative speaking on behalf of the Employers who felt bound to “oppose any
attempt by the Committee to depart from the field of freedom of association proper and
encroach on that of the right to strike”. He pointed out that “there were no provisions
concerning the right to strike either in the Constitution or in any of the Conventions
adopted by the International Labour Conference” and considered it important to “define
the position of the Employers in respect of freedom of association because the ILO was
opening up a new and particularly delicate branch of its activities in this field and was
making an experiment which [had to] be conducted with great caution” (doc. 40, p. 38).
43. Ever since, the Committee has consistently taken the view that the right to strike is “an
intrinsic corollary to the right to organize protected by Convention No. 87”, that it
constitutes “a fundamental right of workers and of their organizations”, and also that it is
“an essential” or “legitimate” means of defending their economic and social interests. 12
44. Beyond the basic finding that the right to strike derives from the broad provisions on
freedom of association set out in Convention No. 87, the Committee on Freedom of
Association has developed numerous principles on the scope of the right to strike, the
conditions for its exercise and permissible restrictions.
45. Concerning preconditions for the exercise of the right to strike, for instance, the Committee
has indicated that compulsory arbitration may be an acceptable alternative to industrial
action only with good reason, such as in the public service, essential services or in the
event of an acute national crisis (see, for instance, Case No. 2329, Turkey, 2005,
para. 1275).
46. As regards the permissible objectives of strike action, the Committee on Freedom of
Association has recognized that strikes that are purely political in character do not fall
within the scope of freedom of association (see, for instance, Case No. 1067, Argentina,
1982, para. 208), that trade unions should be able to have recourse to protest strikes (see,
for instance: Case No. 2094, Slovakia, 2002, para. 135; Case No. 2251, Russian
Federation, 2004, para. 985), that a general prohibition of sympathy strikes could lead to
abuse (see, for instance, Case No. 2326, Australia, 2005, para. 445), and that strikes with
mixed economic and political objectives may under certain circumstances be regarded as
legitimate (see, for instance: Case No. 1793, Nigeria, 1994, para. 603; Case No. 1884,
Swaziland, 1997, para. 684).
11 In some early cases, the Committee on Freedom of Association concluded, however, that in so far
as the right to strike was not specifically dealt with in Convention No. 87, no opinion could be given
on the question as to how far the right to strike in general should be regarded as constituting a trade
union right; see Case No. 60, Japan, 1954, para. 53; Case No. 102, South Africa, 1955, para. 154.
12 For recent reaffirmation of those findings in the Committee’s extensive case law, see Case
No. 2258, Cuba, 2003, para. 522; Case No. 2305, Canada, 2004, para. 505; Case No. 2340, Nepal,
2005, para. 645; Case No. 2365, Zimbabwe, 2005, para. 1665.
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47. With respect to implications of strike action on public welfare, the Committee on Freedom
of Association has observed that the right to strike may only be restricted or prohibited in
the following narrowly defined and carefully circumscribed situations: in the public service
only for public servants exercising authority in the name of the State; in essential services
in the strict sense, that is, in services the interruption of which would endanger the life,
personal safety or health of the whole or part of the population; in the event of an acute
national emergency for a limited period of time (see, for instance: Case No. 1581,
Thailand, 2002, para. 111; Case No. 2257, Canada, 2004, para. 466; Case No. 2244,
Russian Federation, 2005, para. 1268; Case No. 2340, Nepal, 2005, para. 645; Case
No. 2383, United Kingdom, 2005, para. 759).
48. In relation to the penalties that may be imposed to workers for participating in a legitimate
strike, the Committee on Freedom of Association has found that although pay deductions
proportionate to the length of the strike may be acceptable, workers should not suffer
dismissal on grounds of their participation or organization of a legitimate strike (see, for
instance: Case No. 2141, Chile, 2002, para. 324; Case No. 2281, Mauritius, 2004,
para. 633), nor should they be subject to any other discriminatory practices (see, for
instance, Case No. 2096, Pakistan, 2001, para. 446). The Committee has also expressed the
view that all penalties in respect of illegitimate actions linked to strikes should be
proportionate to the offence (see, for instance, Case No. 2363, Colombia, 2005, para. 734),
while arbitrary arrests, detention, the use of torture and the imposition of compulsory
labour are all unacceptable violations of civil liberties (see, for instance: Case No. 2048,
Morocco, 2000, para. 392; Case No. 1831, Bolivia, 1995, para. 396).
III.3.2. Fact-Finding and Conciliation Commission on
Freedom of Association
49. In 1964, a Fact-Finding and Conciliation Commission on Freedom of Association 13 was
appointed to examine the case concerning persons employed in the public sector in Japan.
The Commission “noting that there is no decision of the International Labour Conference
defining the extent of the right to strike in public services, endorsed the principles
established by the Governing Body Committee on Freedom of Association”, in particular
that, with respect to limitations of the right to strike, the relevant legislation should
distinguish between publicly owned undertakings that are genuinely essential because their
interruption may cause serious public hardship and those which are not, and also that
where strikes in essential services are restricted or prohibited, adequate guarantees should
be provided to safeguard to the full the interests of the workers thus deprived of an
essential means of defending occupational interests (doc. 41, p. 516).
50. Another Fact-Finding and Conciliation Commission on Freedom of Association was
appointed in 1991 to examine a complaint of infringements of trade union rights in South
Africa. In its report, the Commission described the situation concerning the coverage of the
right to strike by international labour standards as follows: “While in international law the
right to strike is explicitly recognized in certain texts adopted at the international and
regional levels, the ILO instruments do not make such a specific reference. Article 3 of
Convention No. 87, providing as it does for the right of workers’ organizations “to
organise their administration and activities and to formulate their programmes”, has been
the basis on which the supervisory bodies have developed a vast jurisprudence relating to
13 The Fact-Finding and Conciliation Commission on Freedom of Association was established in
1950 at the request of the Economic and Social Council of the United Nations. It is a neutral body
composed of nine independent persons. Unlike the Committee on Freedom of Association, this
mechanism may only be activated with the consent of the government concerned, and therefore has
been rarely used in practice. To date, only six complaints have been examined by Fact-Finding and
Conciliation Commissions.
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industrial action. In particular, they have stated as the basic principle that the right to strike
is one of the essential means available to workers and their organizations for the promotion
and protection of their economic and social interests. The exercise of this right without
hindrance by legislative or other measures has been consistently protected by the ILO
principles. At the same time certain restrictions have been seen as acceptable in the
circumstances of modern industrial relations” (doc. 42, para. 303). As a result, in
formulating its conclusions, the Commission drew on the principles refined by both the
Committee of Experts and the Committee on Freedom of Association on a number of
issues, including the recourse to protest strikes (ibid., para. 647), the limitations of strikes
in essential services in the strict sense (ibid., para. 654), the imposition of criminal
sanctions and the dismissal of trade unionists for exercising the right to strike (ibid.,
paras 667–668), as well as the limits of strike action in the public sector (ibid., para. 730).
III.4. Article 24 representations and article 26
complaints as to the observance of
ratified Conventions
51. As indicated above, the Constitution provides for two special supervisory procedures; the
representation procedure, set out in articles 24 and 25, grants an industrial association of
employers or of workers the right to present to the Governing Body a representation
against any member State which, in its view, has failed to secure in any respect the
effective observance within its jurisdiction of any Convention to which it is a party. In
addition, under articles 26–34 of the Constitution, a complaint may be filed against a
member State for not complying with a ratified Convention by another member State
which ratified the same Convention, a delegate to the International Labour Conference or
the Governing Body in its own capacity.
52. Representations concerning the application of Conventions Nos 87 and 98 are generally
referred for examination to the Committee on Freedom of Association. There have been
20 Article 24 representations on Convention No. 87, of which four referred to the right to
strike. In adopting its conclusions, the Committee on Freedom of Association has often
reaffirmed that “[it] considers the right to strike to be a legitimate means of defending the
workers’ interests” (doc. 44, para. 140), and that “it deems strike action to be legitimate
only when exercised peacefully and without intimidation or physical constraint” (ibid.,
para. 141). The Committee has recalled that “the right to strike may be restricted or
prohibited: (1) in the public service only or public servants exercising authority in the
name of the State; or (2) in essential services in the strict sense of the term (that is, services
the interruption of which would endanger the life, personal safety or health of the whole or
part of the population)” (doc. 46, para. 55). It has also considered that “nobody should be
deprived of his liberty or subjected to penal sanctions for the mere fact of organizing or
participating in a peaceful strike” (doc. 43, para. 99), and further specified that sanctions
for strike action could only be imposed “solely in cases in which the action is not in
conformity with the principles of freedom of association and should not be
disproportionate with the severity of the offence involved” (doc. 45, para. 62).
53. Article 26 complaints may give rise to the appointment of a Commission of Inquiry,
composed of three independent members, which is responsible for carrying out a full
investigation of the complaint, ascertaining all the facts of the case and making
recommendations on measures to be taken. In a Commission of Inquiry report adopted in
1968, it was stated that while “Convention No. 87 contains no specific guarantee of the
right to strike. … an absolute prohibition of strikes would constitute a serious limitation of
the right of organisations to further and defend the interest of their members (Article 10 of
the Convention) and could be contrary to Article 8, paragraph 2, of the Convention, under
which “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”, including the right of unions to
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organize their activities in full freedom (Article 3)” (doc. 47, para. 261). In another
complaint examined in 1982, the Commission of Inquiry came to the conclusion that even
though “Convention No. 87 provides no specific guarantee concerning strikes, the
supervisory bodies of the ILO have always taken the view – which is shared by the
Commission – that the right to strike constitutes one of the essential means that should be
available to trade union organisations for, in accordance with Article 10 of the Convention,
furthering and defending the interests of their members” (doc. 48, para. 517). Finally, the
Commission of Inquiry appointed in 2010 to examine the observance of Conventions
Nos 87 and 98 by another member State confirmed that “the right to strike is an intrinsic
corollary of the right to organize protected by Convention No. 87” (doc. 50, para. 575).
There have been six article 26 complaints, of which five referred to the right to strike.
IV. Rules of international law on treaty interpretation
54. The significance of the information provided in respect of the circumstances of the
adoption of Convention No. 87, and of the positions taken by the supervisory system in
relation to the right to strike, may be assessed in the light of the principles and rules of
international law applicable to treaty interpretation, in particular the 1969 Vienna
Convention on the Law of Treaties (doc. 51).
55. The ILO’s supervisory bodies have no authority to interpret authoritatively international
labour Conventions – such authority being vested exclusively with the International Court
of Justice. At the same time, it is generally acknowledged that, in discharging their
responsibilities, supervisory mechanisms may, as a matter of necessity, carry out some
degree of functional interpretation. As the scope and limits of such interpretative function
are not clearly established, it becomes important to consider the methods of interpretation
used by supervisory bodies in the light of the generally applicable international rules on
treaty interpretation.
56. According to Article 31 of the Vienna Convention, the principal method of interpretation is
to seek to establish in good faith the ordinary meaning of the terms of the treaty in their
context and in the light of the object and purpose of the treaty, while taking also into
account any subsequent agreement between the parties, any subsequent practice reflecting
an agreement on interpretation, and any relevant rules of international law applicable in the
relations between the parties. Article 31 seems therefore to give precedence to a textual
approach (focus on the natural meaning of the words employed), which incorporates
however the principle of effectiveness (aim towards effective achievement of the declared
or apparent object and purpose of the treaty) and also takes into consideration subsequent
practice (how the treaty is applied or operated by parties and authorized organs). 14 In
affirming that the right to strike is an intrinsic corollary of the right to organize, the
Committee of Experts has opted for a dynamic, or teleological, interpretation of Articles 3
and 10 of Convention No. 87, which consists in adopting an interpretative approach that
effectively responds to the object and purpose of these provisions.
14 See O. Dörr and K. Schmalenbach (eds): Vienna Convention on the Law of Treaties – A
Commentary, 2012, pp. 541–560. The principle of effectiveness brings a teleological element in the
general rule of interpretation in that a treaty is to be interpreted in a manner that advances the
latter’s aims (ut res magis valeat quam pereat), which implies a contrario that any interpretation
that would render the provisions of a treaty inoperative or diminish their practical effect is to be
avoided. As regards subsequent practice, the consistent jurisprudence or practice of organs set up to
monitor the application of a treaty carry significant weight in interpreting that treaty. As the
International Court of Justice has held in the Diallo case, for the sake of clarity, legal security and
consistency, great weight should be ascribed to the interpretation adopted by the independent body
that was established specifically to supervise the application of the treaty concerned; see Ahmadou
Sadio Diallo (Rep. of Guinea v. Democratic Rep. of the Congo), Judgment (2010), para. 66.
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57. Article 32 of the Vienna Convention provides that as supplementary means of
interpretation, the preparatory work and circumstances of adoption may be used to
determine the meaning of the terms of a treaty when the result of an interpretation in
accordance with the preceding general rule leaves the meaning ambiguous or obscure, or
leads to an absurd or unreasonable result. Being a “supplementary means” of
interpretation, recourse to preparatory work may not be used as an autonomous or
alternative method of interpretation, distinct from the general rule, and may therefore have
only a subsidiary value. 15 These rules are widely recognized today as being part of
customary international law. 16
58. However, according to Article 5 of the Vienna Convention, these basic rules of
interpretation are without prejudice to any specific rules applicable to treaties adopted
within international organizations. Such specific rules may include not only written rules
but also unwritten practices and procedures of an organization. The function of Article 5 is
that of a general reservation clause, in the sense that the relevant rules of the organization
(lex specialis) prevail, in cases of conflict, over the general rules set out in the Convention
(lex generalis). 17 Such specific rules of the organization may, in the case of the ILO,
include the principle of the inadmissibility of reservations to international labour
Conventions due to the tripartite process of their adoption. It is recalled that Wilfred Jenks
– then Principal Deputy Director-General and former Legal Adviser of the ILO –
participating as an observer at the Vienna Conference, had asked for “a clear recognition
that an international organization might have a lex specialis that could be modified by
regular procedures, in accordance with established constitutional processes” noting that
“the principle that Conventions adopted within an international organization might be
subject to a lex specialis was of long-term as well as immediate importance” (doc. 52,
pp. 36–37). 18 Jenks had also drawn attention to the fact that contrary to the secondary
reference to preparatory work under Article 32 of the Vienna Convention, such material
15 See O. Dörr and K. Schmalenbach (eds): Vienna Convention on the Law of Treaties – A
Commentary, 2012, pp. 571–572. Article 32 is activated only where the application of the general
rule leads to a manifestly absurd or unreasonable result, which in itself may be a matter of
subjective interpretation, especially since the absurdity has to be “manifest”.
16 As the International Court of Justice stated for the first time in 1991: “Articles 31 and 32 of the
Vienna Convention may in many respects be considered as a codification of existing customary
international law on the point”; see Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal),
Judgment, 1991, para. 48. For subsequent affirmations to the same effect, see: Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004,
para. 94; Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment (2007), para. 160; Dispute
Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment (2009), para. 47;
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment (2010), para. 65. Therefore, to
the extent that the rules laid down in Articles 31 and 32 of the Vienna Convention are universally
binding as customary international law, they apply to all treaties outside the scope of the
Convention, namely treaties concluded before the Convention and also treaties between States that
are not all parties to the Convention.
17 See O. Dörr and K. Schmalenbach (eds): Vienna Convention on the Law of Treaties – A
Commentary, 2012, p. 89. See also O. Corten and P. Klein (eds): The Vienna Conventions on the
Law of Treaties – A Commentary, 2011, Vol. I, pp. 97–98.
18 For more on the ILO’s role in shaping Article 5 of the Vienna Convention, see A. Trebilcock: The
International Labour Organization’s approach to modern treaty law”, in M.J. Bowman, and
D. Kritsiotis (eds): Conceptual and contextual perspectives on the modern law of treaties
(forthcoming).
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had been a primary source for the “informal opinions” prepared by the Office. 19 In his oral
statement to the Vienna Conference, he mentioned that “ILO practice on interpretation had
involved greater recourse to preparatory work than that envisaged” in the draft Convention.
59. An illustration of the interpretation of treaties applied to ILO Conventions, including
consideration of ILO specificities, is provided by the 1932 advisory opinion of the
Permanent Court of International Justice on the interpretation of Article 3 of the Night
Work (Women) Convention, 1919 (No. 4), to date the only interpretation of a Convention
requested pursuant to article 37 of the ILO Constitution (doc. 53). 20
19 Until 2002, Memoranda of the Office containing informal opinions or clarifications on the
meaning of provisions of Conventions were published in the Official Bulletin. Informal opinions are
provided in response to requests from member States subject to the standard reservation that the
ILO Constitution confers no competence to the Office to give an authentic interpretation of the
provisions of international labour Conventions adopted by the Conference. It is worth noting, in this
respect, that under the 1952 and 1968 Office Instructions on the procedure concerning requests for
interpretations of Conventions and Recommendations, the Office should not “give any opinion on
requests for the interpretation of Convention No. 87 and Convention No. 98 in view of the special
procedure instituted by the Governing Body for dealing with complaints in the matter of freedom of
association”. These Instructions have been superseded by a 1987 Circular which no longer makes
reference to Conventions Nos 87 and 98, yet the Office still refrains from expressing an opinion on
interpretation of freedom of association-related standards.
20 Faced with the question whether the Convention applies to women who hold positions of
supervision or management and are not ordinarily engaged in manual work, the Court indicated that
the wording of the provision “considered by itself gives rise to no difficulty: it is general in its terms
and free from ambiguity or obscurity” and added that “it is necessary to find some valid ground for
interpreting the provision otherwise than in accordance with the natural sense of the words”. The
Court used, in fact, other means of interpretation, such as the ILO Constitution, its own advisory
opinions concerning the interpretation of the ILO Constitution and the preparatory work leading to
the adoption of the Convention before concluding that an examination of the preparatory work also
confirmed the textual interpretation and therefore “there is no good reason for interpreting Article 3
otherwise than in accordance with the natural meaning of the words”.
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Part II. Modalities and practices of strike action
at the national level
60. The following highlights the main elements of the information provided in Appendix I on
national law and practice respecting the modalities and practices of strike action. 1 Where
reference is made to legislation in this document, the relevant provisions are indicated in
Appendix I [in the original or in another official language of the ILO]. Appendix II
contains statistical data on strike action and lockouts over certain periods of time, countries
and regions for which information was available.
I. Legal and constitutional protection of strike
action at the national level
1. National legal frameworks for strike action:
Constitutions, general legislation, specific
legislation, common law recognition
61. Constitutional framework – At least 97 ILO member States have an explicit protection of
strike action in their national Constitutions, leaving it to the legislator to regulate its
exercise in practice. 2
1 This section of the report is mainly based on the information collected by the International Labour
Office from its constituents. It also draws on other sources, in particular: R. Blanpain: Comparative
labour law and industrial relations in industrialized market economies, 2010; B. Waas: The right to
strike: A comparative view (Wolters Kluwer, 2014); R. Blanpain: The Laval and Viking cases:
Freedom of services and establishment v. industrial conflict in the European Economic Area and
Russia (Wolters Kluwer, 2009); S. Van der Velden et al.: Strikes around the world 1968–2005:
Case-studies of 15 countries (Amsterdam AKSANT, 2007); E. Tucker: “Can worker voice strike
back? Law and the decline and uncertain future of strikes”, in A. Bogg and T. Novitz (eds): Voices
at work: Continuity and change in the common law world (Oxford University Press, 2014). The
Waas book on the right to strike contains contributions from a variety of scholars around the world:
Effrosyni Bakirzi, Hadara Bar-Mor, Florian Burger, Tankut Centel, Charles Chapman Lopez,
Charles Craver, Darcy du Toit, Flor Espinoza Huacón, Hugo Fernández Brignoni, Piotr Grzebyk,
Michael Horovitz, Mijke Houwerzijl, Petr Hürka, Caroline Johansson, Edit Kajtár, Anthony Kerr,
Francis Kessler, Polonca Koncar, Attila Kun, Yumiko Kuwamura, Johannes Lamminen, Kwang-
Taek Lee, Nikita Lyutov, Jonas Malmber, Emilio Morgado-Valenzuela, Richard Naughton,
Magdalena Nogueira Guastavino, Carlos Mariano Núñez, Paolo Pascucci, Daiva Petrylaitè, Marilyn
Pittard, Jeremias Prassé, Willemijn Roozendaal, Alejandro Sánchez Sánchez, Sharifah Suhanan
Binti Syed Ahmad, Mirna Wilches Navarro. In reply to comments during the Meeting, the Office is
also compiling a bibliography of major scholars who have written on the right to strike.
2 This is the case in Albania, Algeria, Angola, Argentina, Armenia, Azerbaijan, Belarus, Benin,
Plurinational State of Bolivia, Bosnia and Herzegovina (through a reference to the rights
protected in the International Covenant on Economic, Social and Cultural Rights), Brazil, Bulgaria,
Burkina Faso, Burundi, Cabo Verde, Cambodia, Cameroon (Preamble of the Constitution),
Central African Republic, Chad, Chile (the Constitution establishes the prohibition of strike
action for certain workers of the public sector, thereby indirectly recognizing the right to strike of
the other categories of workers), Colombia, Congo, Czech Republic, Costa Rica, Côte d’Ivoire,
Croatia, Cyprus, Democratic Republic of the Congo, Djibouti, Dominican Republic, Ecuador,
El Salvador, Equatorial Guinea, Estonia, Ethiopia, France (Preamble to the Constitution),
Georgia, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana (freedom to strike), Haiti,
Honduras, Hungary, Italy, Kazakhstan, Kenya, Republic of Korea (collective action),
Kyrgyzstan, Latvia, Lithuania, Luxembourg, Madagascar, Republic of Maldives (freedom to
strike), Mali, Mauritania, Mexico, Republic of Moldova, Montenegro, Morocco, Mozambique,
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62. In other countries, the guarantee of a constitutional right to strike has been recognized by
the courts based on the rights of organization, association and collective bargaining. This is
the case, for instance, in Finland, 3 Germany 4 and Japan. 5 In both India and Pakistan, 6
the supreme courts have ruled that constitutional protection of the freedom to form unions
does not in itself imply a right to strike that carries the status of constitutional protection.
The Indian Supreme Court found that “the right to strike or the right to declare a lock-out
may be controlled or restricted by appropriate industrial legislation”. 7 In a judgment dated
30 January 2015, the Supreme Court of Canada found that the right to strike is protected
under section 2(d) of the Charter of Rights and Freedoms by virtue of its unique role in the
collective bargaining process. 8
63. Legal framework – In many ILO member States, the regulation of strike action is relatively
detailed and specified in statutes. However, in others the legislation is more limited. More
than 150 countries have included regulation of the modalities of strike action in their
general legislation (e.g. labour laws, industrial relations and employment relations
legislation, laws on the public service, criminal codes, etc.). About 50 countries have
adopted specific legislative measures on the issue (e.g. “legislation on strikes”, “essential
services legislation”, etc.). However, the absence of explicit recognition of strike action in
the legislation does not mean that strikes cannot be exercised in practice. For a list of
legislative measures on strike action adopted by each country, see Appendix I.
64. While most civil law countries provide for a right to strike (see Appendix I), common law
countries do not generally provide specifically for such a right (exceptions include Kenya,
Namibia and South Africa, where the right to strike is explicitly guaranteed by the
Constitution). However, common law countries do provide for a freedom to strike, that is,
a freedom to act collectively to pursue common interests, under which strikers are not
liable under the common law, notably for breach of contract, and are given immunity from
civil law proceedings. In common law countries, participation in collective bargaining is
assumed to be the principal means by which workers pursue their interests, and the ability
to take strike action is conceived as an essential corollary of collective bargaining. In
Guyana and the Republic of Maldives, the national Constitutions enshrine the freedom to
strike. In Australia, the legal system defines protected industrial action and the
corresponding immunities. In the United States, the law allows employees to engage in
concerted activities, such as strikes and peaceful picketing, in support of lawful bargaining
Namibia, Nicaragua, Niger, Panama, Paraguay, Peru, Philippines, Poland, Portugal,
Romania, Russian Federation, Rwanda, San Marino, Sao Tome and Principe, Senegal, Serbia,
Seychelles, Slovakia, Slovenia, Somalia, South Africa, Spain, Suriname, Sweden (industrial
action), Switzerland, Syrian Arab Republic, the former Yugoslav Republic of Macedonia,
Timor-Leste, Togo, Tunisia, Turkey, Ukraine, Uruguay, Bolivarian Republic of Venezuela,
and Zimbabwe.
3 In a 2003 opinion, the Finnish Parliament’s Constitutional Law Committee found that the right to
strike falls within the scope of the Constitution’s freedom of association rights (article 13 specifies
that a member has the right to “participate in the activities of an association”).
4 Based on article 9 of the Basic Law for the Federal Republic.
5 Based on article 28 of the Constitution.
6 Civil Aviation Authority, Islamabad v. Union of Civil Aviation Employees (1997).
7 All India Bank Employees v. National Industrial Tribunal (1961).
8 Saskatchewan Federation of Labour v. Saskatchewan (2015), SCC 4, paras 75–77.
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objectives or to protest against unfair labour practices. 9 The situation in India tends to be
based on the granting of immunity for lawful strike action.
65. Regulation by the courts in judicial decisions – In certain countries where the statutory
rules on strike action are not detailed, the regulation of industrial conflict is left to the
courts. In these countries, legal principles, such as proportionality or ultima ratio, play an
important role in assessing the lawfulness of strikes. 10 In Japan, although the law includes
a number of provisions regarding the right to strike, court decisions have largely
substantiated the statutory rules.
66. Regulation by the social partners – In some countries, the social partners can
autonomously regulate strike action to a considerable extent, notably in relation to the
provision of minimum services. Various aspects of strike action can be regulated in the bylaws
of trade unions. In Malaysia, for instance, the law provides that the taking of
decisions by secret ballot on all matters relating to strikes or lockouts is among the issues
“for which provision must be made in the rules of every registered trade union”. In
Sweden, the constitutional right to strike can be restricted both by statute and by collective
agreement (and thus by the social partners). 11
67. Finally, in some countries the statutory protection of strike action remains under debate. In
China, the standard interpretation of the current legal status of the right to strike (in the
national legislation, including the Constitution, the Trade Union Law, the Labour Law and
the Labour Contract Law) is that it is “neither denied nor granted”. The amended 2001
Trade Union Law mentions “work stoppage” and includes a reference to the possibility, in
such circumstances, for trade unions to hold consultations with the enterprise or institution
or the parties concerned, present the opinions and demands of the workers and staff
members, and put forth proposals for solutions. The Guangdong People’s Congress has
recently (December 2014) adopted a provincial regulation on collective bargaining, which
touches upon strike action.
2. National definitions of strike action
Main elements of definitions of strike action at the national level
68. Definitions – Most countries have included a definition of strike action (or “industrial
action”) in national legislative measures. 12 Although the definitions differ slightly, they
9 P. Shea, and E. LaRuffa: “United States”, in E.C. Collins (ed): The Employment Law Review (Law
Business Research Ltd, fifth ed., 2014), p. 818.
10 This is the case, for instance, in Belgium, Denmark, France, Germany, Greece, Ireland,
Israel, Italy, Luxembourg, Netherlands and Colombia (Constitutional Court, Ruling
No. C-201/02 concerning the lawfulness of strike action).
11 J. Malmberg and C. Johansson: “The right to strike: Sweden”, in B. Waas: op. cit., 2014, p. 525.
12 See, for example, the various definitions of strike in the national legislation of the following
countries: Afghanistan, Antigua and Barbuda, Australia, Bahrain, Barbados, Belize,
Botswana, Brunei Darussalam, Burkina Faso, Burundi, Cambodia, Cameroon, Canada,
Chad, Colombia, Comoros, Congo, Côte d’Ivoire, Czech Republic, Djibouti, Dominica,
Eritrea, Estonia, Ethiopia, Fiji, Grenada, Guatemala, India, Indonesia, Ireland, Jamaica,
Kazakhstan, Kenya, Kiribati, Republic of Korea, Lesotho, Madagascar, Malawi, Malaysia,
Mauritania, Mexico, Mongolia, Montenegro, Mozambique, Myanmar, Namibia, New Zealand,
Niger, Pakistan, Philippines, Romania, Russian Federation, Rwanda, Saint Lucia, Seychelles,
Singapore, Slovakia, Solomon Islands, United Republic of Tanzania, Thailand, Timor-Leste,
Togo, Turkey, Tuvalu, Ukraine, Viet Nam and Zimbabwe.
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often comprise a stoppage of work (or other forms of interruption of normal work); a
concerted action; and a purpose linked to obtaining satisfaction of workers’ demands, such
as remedying a grievance or resolving a dispute in respect of a matter of mutual interest.
However, in Canada, India, Pakistan and United States, a strike is defined simply as a
cessation (or stoppage, retardation, etc.) of work, without any explicit specification that the
definition includes a reason for such cessation connected with the employment of those
involved.
69. Definitions are quite convergent in civil law countries. For instance, in Burkina Faso, the
law defines strike action as a concerted and collective cessation of work to support
professional claims and ensure the defence of the material and moral interests of workers.
In Cambodia, a strike means a concerted work stoppage by a group of workers that takes
place within an enterprise or establishment for the purpose of obtaining satisfaction of their
demand from the employer. In Cameroon, the legislation refers to a collective and
concerted refusal by all or part of the workers of an establishment to respect the normal
rules of work.
70. In common law countries, such as Nigeria, the legislation specifies that “cessation” of
work includes working at less than the usual speed or with less than usual efficiency. The
South African definition includes a partial refusal to work or the retardation or obstruction
of work. The United Republic of Tanzania defines a strike as a total or partial stoppage
of work. In the United States, the definition includes a stoppage, slowdown or other
interruption of work. In Pakistan, a “go-slow” is defined separately from strike action and
is explicitly excluded from protection.
71. In some countries, in the absence of a legislative definition, the definition of strike action
falls to the courts (e.g. Austria, Finland, Germany, Hungary, Israel, Italy, Spain and
Uruguay). In some cases, the courts have referred the matter back to the legislator. For
instance, in Colombia, the Constitutional Court has repeatedly stressed that only the
legislator can limit the right to strike and only if certain requirements are met. 13
72. Forms of action – With regard to types of concerted action, strikes may take various forms.
Alongside “traditional” forms of work stoppage, there are other forms of action, such as a
refusal to work overtime hours, a slowdown in work (a “go-slow” strike), the strict
application of work rules (“work-to-rule”), etc. 14 In some countries, the legislation
explicitly prohibits certain of these forms of strike action, or removes the protection
afforded to regular strikes. For instance, in Angola, any reduction or change in working
time or methods decided upon collectively which does not result in a refusal to work is not
considered to be a strike and is therefore liable to disciplinary action. Similarly, go-slow
strikes are prohibited in Pakistan under penalty of dismissal from trade union office and
disqualification from trade union functions during the unexpired term of the mandate. 15 In
India, go-slows are defined as an unfair labour practice, punishable by law. Case law in
Ireland also seems to establish that the protections extended to strike action do not
necessarily cover other forms of industrial action. 16
13 B. Waas: op. cit., 2014, p. 6.
14 ILO: The right to strike: Document for the use of the Committee on Freedom of Association,
2006, para. 118.
15 ibid., para. 120.
16 Crowley v. Ireland and others (1980); Talbot (Ireland) Ltd v. Merrigan and others (1981).
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73. Bearers of the right to strike – In many countries, individual workers are seen as the
bearers of the right to strike, although this right may only be exercised collectively
(e.g. Colombia, Finland, Ireland, Italy and Uruguay). In Burundi, the law provides that
the right to strike belongs to all workers, whether or not they are organized. In practice, if
the right to strike is an individual right, then “wildcat” strikes are theoretically legal, in
contrast with the situation in countries where the right to call a strike is reserved for trade
unions. 17
74. In other countries, strike action is a collective right which belongs to the unions (or in
many Latin American countries, to gremios). 18
75. In other member States, the right to strike can be exercised by both workers and their
representative bodies. This is the case, for instance, in Argentina, Ecuador, Estonia,
Hungary and Kazakhstan. In Benin, the law provides that all workers may defend their
rights and interests under the conditions provided by law, either individually or collectively
or through trade union action. In the United States, work stoppages may be initiated by
employees who act alone or by a representative labour union. 19 In Ireland, non-unionized
bodies, as well as workers themselves, may call or launch strikes (though some of the
immunities provided by statutory law are only applicable to members and officials of trade
unions). 20 In Finland, strikes can also be organized by a group of workers or a trade union
(although workers who strike in response to a call to strike by a trade union enjoy better
protection from dismissal). 21
76. Rights of federations and confederations – In many countries, federations and
confederations are entitled to take strike action. However in some countries, trade union
federations cannot call a strike. This is the case, for instance, in Honduras, Ecuador
(implicit ban) and Panama. In Colombia, the Constitutional Court has expressly held that
the decision to call a strike must be linked to the workers at the given company, because it
is only at that level that the economic and legal effects of a strike and its impact on
employment contracts can be assessed. 22 According to the Government of Nigeria, in
practice trade union federations go on strike or protest against national socio-economic
policies without sanctions. 23
Purpose of the strike: Collective bargaining, political strikes,
protest action, solidarity and sympathy strikes
77. In some countries with a tradition of little state intervention in industrial conflicts, strike
action has almost no limitations and can therefore take various forms (e.g. Austria and
Uruguay). In other countries, strike action is limited to the area of collective bargaining or
17 ILO: op. cit., 2006, para. 23.
18 This is the case, for instance, in Belarus, Croatia, Cyprus, Czech Republic, Denmark,
Germany (only unions that enjoy the “capacity to bargain collectively”), Iceland, Lithuania,
Mauritania, Portugal, Slovakia, Trinidad and Tobago, and France (in relation to public
services).
19 B. Waas: op. cit., 2014, p. 15
20 ibid.
21 ibid.
22 ibid., p. 16.
23 CEACR, observation, 2013, Convention No. 87.
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to the framework of collective negotiations, and strikes cannot take place during the period
of validity of a collective agreement and are generally only possible as a means of pressure
for the adoption of a first collective agreement or its renewal. In these countries, the right
to strike is provided as a means to induce employers to conclude collective agreements.
This system prevails, for instance, in Australia, Chile, Czech Republic, Germany,
Japan, New Zealand, Turkey and United States. On the issue of restrictions on strikes
during the term of a collective agreement (i.e. the “social peace obligation”), see
paragraphs 112–116 below.
78. Similarly, certain countries distinguish between strike action taken to pursue disputes over
rights and that taken in relation to disputes of interest. 24 Disputes of rights concern the
interpretation or application of existing rights, whether statutory rights or rights arising
from collective agreements. Disputes of interest concern the content of collective
agreements under negotiation. In Hungary, South Africa, United Republic of Tanzania
Turkey and Viet Nam, for example, lawful strike action cannot usually be taken in pursuit
of disputes over rights.
79. Political strikes – In many countries, political strikes, understood as non-work related
industrial action, constitute a “grey zone” where a gap exists between law and practice. It
is often difficult to distinguish between the political and occupational aspects of a strike,
since a policy adopted by a government frequently has immediate repercussions for
workers, in particular regarding employment, social protection and standards of living. 25
80. South Africa and the United Republic of Tanzania have similar legislation which
extends the protection normally afforded to lawful strike action to political or protest
strikes. In both cases, this kind of action is defined as strike action taken with the purpose
of “promoting or defending the socio-economic interests of workers”. Such strike action
(excluding the normal definition of a strike) is legal, provided that it is called by a
registered union or union federation which has given appropriate notice to the relevant
government agency and explored in good faith the possibilities for alternative means of
resolving the issue in question. It is also subject to criteria of reasonableness and
proportionality. In Turkey, a recently adopted law has eliminated restrictions on politically
motivated strikes, solidarity strikes, the occupation of work premises and go-slows to bring
the legislation into line with the 2010 constitutional amendments. 26
81. Explicit prohibition of political strikes is included, for instance, in the national legislations
in Belarus, Congo and Gabon (with respect to “purely” political strikes).
82. Inferences relating to the limitation of lawful action may also be drawn from the
legislation of Paraguay, which provides that the sole purpose of the strike must be directly
and exclusively linked to the workers’ occupational interests. Similarly, the Constitution of
Guatemala provides that the right to strike can be exercised only for reasons of a socioeconomic
nature. In Djibouti, the law defines restrictively the possible purposes of a strike
when defining strike action (i.e. requesting a change in working conditions or in
remuneration).
24 B. Waas: Strike as a fundamental right of the workers and its risks of conflicting with other
fundamental rights of the citizens, General Report III, ISLSSL, XX World Congress, Santiago de
Chile, Sept. 2012, p. 20.
25 ILO: op. cit., 2006, para. 102.
26 Law On Trade Unions And Collective Labour Agreements (Law No. 6356, 2012).
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83. In other countries, an effective prohibition of political strikes arises from the restriction of
lawful strike action to the sphere of collective bargaining. This is the case, for instance, in
Australia, Chile, Germany, 27 Japan, 28 Mongolia and Panama. In certain other common
law jurisdictions, the possibility of taking lawful or protected strike action is limited to
disputes between workers and their employer or other employers, known in law as trade or
industrial disputes. Precisely what constitutes a trade dispute is frequently contested in the
courts and interpretations vary. In the United Kingdom, for example, case law has defined
“trade dispute” in such a way as to exclude most political or protest strikes from legal
protection. In Indonesia, strike action is considered to be a fundamental right of workers
only if it results from failed negotiation. Interestingly, political strikes are in principle
permitted in Finland and do not violate the peace obligation that is part of every collective
agreement.
84. In other countries, although political strikes would appear to be prohibited, court decisions
have introduced some nuances (e.g. Netherlands and Spain). In Israel, the assumption is
that a political strike is not protected, since it does not involve improvement of the
economic situation of workers: however, recognition has been given to “quasi-political
strikes”, which are launched against the sovereign power, but also pertain to the economic
conditions of workers who have been harmed by changes in national policy. 29
85. Solidarity/secondary/sympathy strikes – Solidarity, secondary and sympathy strikes are a
form of industrial action in support of a strike initiated by workers in a separate
undertaking. Definitions vary slightly. In the Czech Republic, the law defines solidarity
strikes as strikes in support of the demands of striking employees in a dispute over the
conclusion of another collective agreement.
86. A number of countries recognize the lawfulness of solidarity strikes. That is the case, for
instance, in Belgium, Croatia, Ecuador, Finland, 30 Greece, Hungary, Republic of
Moldova, Panama, Poland, Romania and Bolivarian Republic of Venezuela. If the
primary strike is lawful, solidarity strikes are also considered legal in Albania, Benin,
Denmark, France and Sweden. 31 In the United States, outside certain limited
exceptions, secondary action is not lawful. In Ireland, where there is no statutory
exclusion of secondary action, this definition has been held by the courts to permit
secondary industrial action. In Finland, “sympathetic action” is only legal if it does not
affect the participants’ own terms of employment and is not directed towards modifying
their own collective agreement. 32 In South Africa, secondary action is lawful on condition
that it can be shown that the nature and extent of the action is reasonable and
proportionate, taking into account the effect the action will have on the primary employer.
Similarly, in the United Republic of Tanzania, lawful secondary strike action is possible
where a connection can be established between that action and the resolution of a dispute
with the primary employer and where the action is “proportional” in light of the effect of
the strike on the secondary employer and the likely contribution of the strike to resolving
the primary dispute. In Ghana, the law protects legal sympathy strikes, subject to certain
conditions. In Croatia, notice has to be given to the employer and the strike cannot
27 B. Waas: op. cit., 2014, p. 14.
28 Supreme Court Grand Bench Judgment of 25 April 1973.
29 Israel: High Court of Justice, HCJ 1181/03, points 78–79.
30 R. Blanpain: op. cit., 2010, p. 676.
31 ibid., p. 676.
32 J. Lamminen:“The right to strike: Finland”, in B. Waas: op. cit., 2014, p. 195.
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commence before the procedure for the conciliation of the initial strike has been followed,
nor within a period of two days of the initial strike.
87. In contrast, in other countries, sympathy strikes that have the objective of putting pressure
on a secondary employer are almost always considered unlawful (e.g. Canada, Lithuania,
Romania, Switzerland and United Kingdom). 33 Kenyan law expressly defines
“sympathetic” strikes as unlawful, where a “sympathetic strike” is any strike against an
employer who is not a party to the trade dispute. In Congo, solidarity strikes are
considered to be illegal if the solidarity strikers are not concerned at all by the purpose of
the strike. In the Plurinational State of Bolivia, the law prohibits solidarity strikes under
threat of penal sanctions. In Viet Nam, strike action cannot be utilized for the sake of
solidarity. In the Russian Federation, this form of strike action is unlawful because the
underlying demands are not addressed to the actual employer. 34 Burundi prohibits
sympathy strikes by public servants. Moreover, solidarity or sympathy strikes are not
permitted in many countries where strike action is limited to the sphere of collective
bargaining. In Japan, solidarity or sympathy strikes are not forbidden, but the courts have
not accepted that these types of strikes are covered by the protection of the right to
strike. 35
88. In many countries, there are no specific legal provisions on the subject, either authorizing
or prohibiting these forms of strikes, and it is left to the courts to decide. 36 However, in
Germany, following a recent change, the courts have approved sympathy strikes on
condition that they remain “proportional”. 37 In Italy, the Constitutional Court has
extended the right to strike to include interests that are common to entire categories of
workers. 38 Similarly in Colombia, the Constitutional Court has declared that solidarity
strikes shall enjoy constitutional protection. 39
II. Scope and restrictions of strike action
at the national level
1. Categories of workers excluded
89. In most ILO member States, the right to strike may be restricted in certain circumstances,
or even prohibited. These restrictions can relate to the rights and freedoms of others. For
instance, both the Constitution of Mexico and the law in Honduras provide that strikes are
legal “provided they have as their purpose the attaining of equilibrium between the various
factors of production, by harmonizing the rights of labour with those of capital”. In Togo,
the law provides that under certain conditions workers can go on strike on condition that
they respect the freedom to work of non-strikers and that they abstain from destroying
33 R. Blanpain: op. cit., 2010, p. 676.
34 B. Waas: op. cit., 2014, p. 49.
35 Japan: Supreme Court Grand Bench Judgment, 26 Oct. 1966; Supreme Court 2nd Petty Bench
Judgment, 25 Sept. 1992.
36 ILO: op. cit., 2006, para. 107.
37 B. Waas: op. cit., 2014, p. 50.
38 Italy: Constitutional Court, Ruling No. 123/1962.
39 Colombia: Supreme Court of Justice, Ruling No. C-201/02.
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property, committing assault and sequestering the employer, his or her subordinates, or the
administrative authority.
90. Moreover, restrictions on strike action also often concern certain categories of public
servants (in particular the armed forces and the police), workers in essential services, or
certain situations of national crisis. Compensatory guarantees may be provided for workers
who are deprived of the right to strike. In some countries, the law provides that strike
action can be prohibited on the grounds of its possible economic consequences
(e.g. Algeria, Australia, Benin and Chile). In other countries (Philippines, Senegal and
Swaziland), reference is made to the prejudice caused to public order, the general or
national interest, for the prohibition of strikes. 40 In practice, it is the responsibility of the
national authorities (executive, legislative and judicial) to ensure that the conditions
established for limiting the right to strike are strictly observed on the ground.
Workers in the public sector
91. In various countries, the right to strike of workers in the public sector is limited, or even
prohibited. A number of countries have adopted specific legislative measures regarding
strike action in the public sector. 41 In others, the regulation of strike action in the public
sector is included in the general public service regulations. 42 Identifying those workers
who may face restrictions with respect to strike action is a matter of degree, which is in
practice often left to the interpretation of the courts.
92. In some countries, nearly all workers in the public sector enjoy the right to strike, with the
only restriction concerning members of the police and the armed forces (e.g. Congo,
Croatia, Ireland and Uruguay). In Slovenia, all persons in the public service (including
judges) in principle enjoy the right to strike, irrespective of the type and nature of the
activity involved. 43 In Sweden, employees who exercise public authority may only strike,
but not engage in other forms of industrial action; sympathy actions are restricted to the
benefit of employees in the public sector. 44
93. The Constitution of Guatemala explicitly protects the right to strike of state workers and
of workers of decentralized and autonomous entities, provided that essential services are
maintained. The national Constitutions of Côte d’Ivoire and the Bolivarian Republic of
Venezuela protect the right to strike of workers in both the public and private sectors,
leaving it to the legislator to establish its limits. The Constitutions of Ethiopia and the
Republic of Korea explicitly state that government employees who can enjoy the right to
strike shall be determined by law. However, under the laws of the Republic of Korea,
public officials do not enjoy the right to strike. In Mexico, the Constitution refers to the
need to give a ten-day notice period before strike action in public services.
40 ILO: op. cit., 2006, para. 60.
41 For example, in Canada (Quebec), Central African Republic, Chad, Côte d’Ivoire, France,
Guatemala, Italy, Mali, Niger and Togo.
42 For example, Algeria, Bulgaria, Central African Republic, Chad, Comoros, Gabon and Togo.
43 B. Waas: op. cit., 2014, p. 42.
44 ibid., p. 44.
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94. In other countries, there are numerous restrictions on strike action in the public sector. 45 In
India, the law provides that no government servant shall resort to any form of strike in
connection with any matter pertaining to his or her service or the service of any
government servant. In Denmark, civil servants employed under the Civil Service Act are
denied the right to strike. In Bulgaria, the right to strike of public servants is limited to
wearing or displaying signs, armbands, badges or protest banners, without any interruption
of public duties. In Hungary, strikes are prohibited for public servants who fulfil a
fundamental function (according to the Government, those exercising managerial
functions, that is, with the power to appoint and dismiss staff and initiate disciplinary
proceedings). 46 In Viet Nam, state officials and public servants are excluded from the
right to strike as they are not technically regarded as employees under the Labour Code;
strikes are also prohibited in a number of specified enterprises, while the provincial
authorities may also stay or suspend a strike if it poses a danger of serious detriment to the
national economy or public interest. Where a strike is alleged to violate any of these
restrictions, the employer may request a court to declare the strike unlawful and order
compensation. In Chile and El Salvador, the national Constitutions prohibit strike action
for certain workers in the public sector.
95. Armed forces and the police – In many countries, strike action is statutorily prohibited for
members of the armed forces and the police. In some countries, this prohibition is even
included in the national Constitution. 47
96. Other restrictions – In some countries, the national Constitution prohibits (or limits) the
right to strike, not only in the armed forces and the police, but also in certain other public
services. 48 In Greece, the Constitution extends this limitation to judicial employees. In
Slovakia, the constitutional prohibition of the right to strike also covers judges,
prosecutors, and members and employees of the fire and rescue services. In Tunisia, the
Constitution extends it to customs officers. Other national Constitutions refer to the
possibility of limiting the right to strike for the purpose of ensuring the continuity of
certain public services (e.g. Honduras, Madagascar and Panama). In France, police and
prison officers, judges, military personnel and some categories of employees in air
navigation do not enjoy the right to strike. 49 In Poland, the law provides that strikes shall
be prohibited at the internal security agency, the intelligence agency, in units of the police,
armed forces, prison services, frontier guards, customs services, as well as fire brigades.
97. In some countries, in order to assess who can engage in industrial action, a distinction is
made between two categories of workers in the public sector, namely employees and civil
servants. For example, in Germany, “civil servants” (Beamte) are denied the right to
strike, while workers in the public sector enjoy the right 50 (see the 2014 ruling of the
45 ILO: op. cit., 2006, para. 48. This is the case, for instance, in Albania, Chile, Dominican
Republic, El Salvador, Estonia, India, Japan, Kazakhstan, Republic of Korea, Lesotho,
Panama, Poland and United States (most public servants).
46 ibid., para. 46.
47 For example, in Algeria, Azerbaijan, Burundi, Congo, Croatia, Cyprus, Democratic
Republic of the Congo, Greece, Montenegro, Paraguay, Slovakia, the former Yugoslav
Republic of Macedonia and Tunisia.
48 For example, in Algeria, Croatia, Cyprus, Democratic Republic of the Congo, Montenegro,
Paraguay and the former Yugoslav Republic of Macedonia.
49 See F. Kessler: “The right to strike: France”, in B. Waas: op. cit., 2014, p. 213.
50 B. Waas: op. cit., 2014, p. 44.
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Federal Administrative Court on the constitutional strike ban for civil servants) 51 . In
Kazakhstan, the prohibition to strike concerns only “civil servants” and excludes
“administrative civil servants” and “public servants” (teachers, doctors, bank employees,
etc.).
98. In Mexico, the legislation recognizes the right to strike of state employees (including
employees in the banking sector and those of many decentralized public bodies, such as the
national lottery or the housing institute) only in the event of a general and systematic
violation of their rights. In Switzerland, the situation has changed: although all federal
public servants were previously denied the right to strike, since 2002 the prohibition has
been limited to public servants exercising authority in the name of the State. In some other
countries, including Lithuania and Norway, 52 the right to strike in the public sector is
recognized, except for certain categories of senior civil servants.
Workers in essential services
99. In many countries, in addition to the situation of civil servants as such, strike action is also
restricted, or prohibited, for workers involved in “essential services”. What is meant by
essential services varies from country to country and is often linked to considerations
relating to the particular circumstances prevailing in the country. Essential services may
refer to services performed either by civil servants only, by workers/employees in the
private sector or both. Several countries also define situations where a non-essential
service may become essential if a strike lasts beyond a certain time or extends beyond a
certain scope.
100. In certain countries, the national Constitution explicitly refers to limitations on strike
action for workers in certain specific services that are considered to be of vital
importance. 53
101. The situation varies at the statutory level. In some countries, the legislation provides for a
definition of essential services, without listing the services. Examples include Bahrain (the
list is to be issued by order of the Prime Minister), Egypt (the list is to be issued by the
Prime Minister), Ghana (the list is to be issued by the Minister) and Poland. In other
countries, the legislation includes both a definition of essential services and a list (long or
short) of these services. Elsewhere, national legislative measures only provide for the
determination of a list (long or short), without defining the services. Specific national
legislation on essential services has been adopted, for instance, in Belize, Nigeria and
Solomon Islands.
51 BVerwG 27.2.2014 – 2 C 1/13.
52 ILO: Manual on collective bargaining and dispute resolution in the public service, 2011, p. 125.
53 This is the case, for instance, in Albania, Algeria, Angola, Brazil, Chile, Colombia, Croatia,
Cyprus, Czech Republic, Democratic Republic of the Congo, Dominican Republic, Ecuador,
El Salvador, Georgia, Greece, Guatemala, Guinea-Bissau, Honduras, Madagascar,
Montenegro, Mozambique, Panama, Paraguay, Portugal, Romania, Spain, the former
Yugoslav Republic of Macedonia, Timor-Leste, and Zimbabwe.
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102. Definition and list of essential services – Examples of countries where national legislative
measures include both a definition and a list of essential services (which is not in all cases
exhaustive) include: Albania (services of vital importance where the interruption of work
would jeopardize the life, personal security, or the health of a part or the entire population),
Algeria (services the interruption of which may endanger the life, personal safety or health
of the citizens, or where strike action is liable to give rise to a serious economic crisis),
Armenia (services required for meeting the essential (vital) needs of society, the absence
of which may endanger human life, health and safety), Azerbaijan (certain service sectors
that are vital to human health and safety), Bahamas (any service declared by the
Governor-General by order to be an essential service), Benin (establishments where the
full cessation of work could bring serious harm to the safety and health of the populations),
Burkina Faso (services indispensable for the safety of persons and assets, the maintenance
of public order, the continuity of the public service or the satisfaction of the basic needs of
the community), Chad (services the complete interruption of which would endanger the
life, safety or health of the whole or part of the population), Dominican Republic
(services the interruption of which may endanger the life, personal safety or health of the
whole or part of the population), Eritrea (undertakings that render indispensable services
to the public in general), Ethiopia (services rendered by undertakings to the general
public), Fiji (services that are vital to the success of the national economy or gross
domestic product, or those in which the Government has a majority and essential interest,
and which are declared essential by the minister) and Indonesia (enterprises that serve the
public interest and/or whose types of activities, when interrupted by a strike, will lead to
the endangering of human life). In Argentina, the law explicitly refers to the criteria
established by the supervisory bodies of the ILO when addressing the issue of the
determination of essential services and the establishment of minimum services.
103. Only a list of essential services – Examples of countries where national legislative
measures set out a list of essential services include: Antigua and Barbuda, Argentina
(however an activity that is not in the list may exceptionally be deemed an essential service
by an independent commission), Belize, Botswana, Brazil, Brunei Darussalam, Cabo
Verde, Czech Republic, Democratic Republic of the Congo, Djibouti, Dominica,
Ecuador, Grenada, Guatemala, Kenya and Turkey.
104. Depending on the country, the (restricted or broad) list of services in which strike action
can be limited or prohibited at the national level has included, for instance: air traffic
control services; telephone services; services responsible for dealing with the
consequences of natural disasters; firefighting services; health and ambulance services;
prison services; security forces; water and electricity services; meteorological services;
social security services; administration of justice; the banking sector; railways; transport
services; air transport services and civil aviation; teachers and the public education service;
the agricultural sector; fuel distribution services and the hydrocarbon; natural gas and
petrochemical sector; coal production; maintenance of ports and airports; port services;
postal services; municipal services; services for the loading and unloading of animals and
of perishable foodstuffs; export processing zones; government printing services; road
cleaning and refuse collection; radio and television; hotel services and construction.
105. Both Canada and the United States have separate systems of labour law for government
and private sector employees. In Canada, the Labour Code and the National Industrial
Relations Act apply mainly to private sector workers, with certain exclusions, including
agricultural workers in both of the laws. In neither case does the concept of essential
services apply to private sector workers. In the United States, the concept of essential
services does not exist in the public sector either, but employees of the federal Government
whose employment is regulated by the Federal Service Labor–Management Relations
Statute cannot lawfully take strike action. In Canada, in contrast, employees falling under
the authority of the Public Service Labour Relations Act (the vast majority of federal
government employees) have the right to strike unless their work has been designated an
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essential service. The federal Government has broad powers to specify the positions within
a public sector bargaining unit that it deems to be essential. Workers who occupy these
positions cannot lawfully take strike action.
106. Kenya, South Africa and the United Republic of Tanzania share the basic elements in
their approach to essential services. Strikes in essential services are unlawful but, unlike in
Canada, essential services may be in either the public or private sectors. What counts as
an essential service is designated either by a dedicated advisory body (South Africa and
United Republic of Tanzania) or by the labour ministry in consultation with a general
industrial relations advisory body (Kenya). Disputes in essential services are ultimately
resolved through compulsory arbitration. In South Africa, if employers and unions in
bargaining units that are deemed to be essential services can agree on the definition of a
minimum service, workers who are not involved in providing this service may lawfully
take strike action. Elsewhere, practice varies. The concept of essential services does not
exist in the labour law of the United Kingdom, although the police and the armed forces
are not allowed to strike. In Ireland, codes of practice on dispute resolution in essential
public services (defined as including health, energy supplies, water and sewage services,
emergency services and certain transport services) were introduced in 2003, but remain
voluntary. The armed forces and the police are not permitted to strike.
107. In India, “government servants” are not allowed to strike in accordance with the rules of
the Central Civil Service. Workers employed in a “public utility service” can take strike
action but must respect a six-week notice requirement. Public utility services are defined
broadly as including transport, communications, energy, water and sanitation, but also
those parts of any industrial organization concerned with safety and maintenance. The
Government also has broad powers to designate new public utility services. In Nigeria,
strikes in essential services are unlawful, and all public services are defined as falling into
this category, together with a long list of industrial sectors and types of activity that can be
carried out by private enterprises on behalf of the Government or for the general good of
the community.
2. Determination of essential services
at the national level
108. Mechanisms for the determination of essential services – In some countries, the law leaves
discretion to the authorities to declare a service essential (e.g. Bahamas, Bahrain, Central
African Republic, Chile (each year in July, a joint resolution of various ministers should
establish a list of services) and Zimbabwe). Ministerial decrees on essential services have
also been adopted in Mali and Rwanda. In the Bolivarian Republic of Venezuela, the
law provides that, in the event of a collective labour dispute, the Minister of People’s
Power, within 120 hours following the admission of petitions, can issue a motivated
resolution indicating the areas or activities which cannot be paralysed by the exercise of
the right to strike. In Canada, the employer in the public sector has the exclusive right to
determine whether any government service, facility or activity is essential because it is, or
will be, necessary for the safety or security of the public or a segment of the public.
109. Elsewhere, this issue is left to the higher judicial authorities. For instance, in Colombia,
the Supreme Court of Justice has considered that the Constitutional Court will examine in
each individual case referred to it, even where there may exist a legislative definition of the
classification of a public service as essential, whether or not a particular activity, taking
into account its material content, corresponds to an essential service.
110. Specialized bodies for the determination of essential services – In other countries,
specialized bodies have been established for the determination of essential services. In
South Africa, an Essential Services Committee has been created with the function of
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investigating whether or not the whole or a part of any service is an essential service, and
then deciding whether or not to designate the whole or a part of that service as an essential
service. Similarly, in Namibia, an Essential Services Committee has been established to
recommend to the Labour Advisory Council all or part of a service as an essential service.
In the United Republic of Tanzania, the Essential Services Committee may designate a
service as essential if the interruption of that service endangers the personal safety or
health of the population or any part of it. In Argentina, the law envisages the possibility
that, in addition to the essential services listed in the law, another activity may be
exceptionally qualified as an essential service by the independent tripartite Guarantees
Committee.
111. Agreement by the social partners – In other countries, the determination of the services
which should be considered as essential can be the outcome of a joint decision by the
social partners, who are required to find solutions for the specific needs of essential
services. In Cyprus, for instance, a tripartite agreement on the procedure for resolving
labour disputes in essential services (2004) defines the notion of essential services and
provides a list thereof. In France, under a recent law relating to the right to strike in
passenger air transport, the employer and the representative trade unions are encouraged to
hold negotiations with a view to signing a framework agreement that establishes a dispute
prevention procedure and promotes the development of social dialogue. Under this
agreement, strike action is only possible after negotiations between the employer and the
trade unions have been unsuccessful. The framework agreement also lays down rules for
determining the structure and operation of negotiations prior to any dispute.
3. Restrictions on strikes during the term
of a collective agreement
112. In various countries, collective agreements are viewed as “social peace treaties” for a
certain period during which strikes and lock-outs are prohibited, with workers and
employers having access in compensation to arbitration machinery. Under these systems,
industrial action is illegal during the period of validity of the collective agreement if it is
directed against the collective agreement as a whole, or part of it. Strikes are generally only
possible as a means of pressure with a view to the adoption of a first collective agreement
or its renewal. The obligation of social peace may be set out explicitly in law (e.g. Egypt),
in a general agreement between confederations of workers and employers at the central
level (e.g. Denmark), in an explicit clause contained in the collective agreements
concluded by the parties or by case law (e.g. Austria, Germany and Switzerland). 54
113. In Canada and the United States, unless a dispute concerns the immediate safety of
workers or certain other unfair labour practices, collective agreements must have expired,
or the appropriate notice of intent to open negotiations for the revision of a collective
agreement must have been given, before the existence of a dispute can be registered and
conciliation procedures embarked upon. Conciliation is compulsory in Canada, but
voluntary in the United States, where most collective agreements contain no-strike
clauses.
114. In many other countries, strike action for the purpose of enforcing a collective agreement is
considered illegal because it is regarded as a violation of the peace obligation (e.g. Chile,
Czech Republic, Finland and Turkey). In Germany, a strike is only lawful if its
underlying objective is to reach a collective bargaining agreement. 55 In Australia, the law
54 ILO: op. cit., 2006, para. 90.
55 B. Waas: op. cit., 2014, p. 10.
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provides for immunity against tort and other legal actions for workers engaging in
industrial action in certain limited circumstances. In particular, the industrial action must
only be in relation to the negotiation of a collective agreement at a single enterprise (and
not at the industry level); it is unlawful to take industrial action during the period of
validity of a collective agreement, unless the expiry date has passed, and the bargaining
representatives of the workers must be genuinely trying to reach agreement. In Sweden,
collective action aimed at the conclusion of a collective agreement is allowed. However,
collective action to enforce a collective agreement is prohibited, with the exception of
collective action to recover unpaid wages. 56 In Israel, the law defines “unprotected
strikes” as strike action by employees in a public service where a collective agreement
applies, except a strike unconnected with wages or social conditions and declared or
approved by the central national governing body of the authorized employees’
organization.
115. Major differences exist regarding the consequences of violations of the peace obligation. In
Germany, for instance, as in many countries, a strike that violates the peace obligation is
illegal. In Japan, on the other hand, it is far from clear whether such a violation impacts on
the lawfulness of the strike as such, or whether it should be regarded as a mere breach of
contract. 57
116. In other countries, no peace obligation exists, either relative or absolute. This is the case,
for instance, in Slovenia, where even if a no-strike clause is agreed by the parties to a
collective agreement, such a clause could not prevent workers from striking. 58
4. Declaring a strike unlawful or
postponing strike action
117. In most countries, the decision to declare strikes unlawful is left to the courts or, in some
cases, to specialized independent bodies. However, in certain countries this power lies with
the administrative authorities, such as in the Plurinational State of Bolivia (General
Directorate of Labour) and Fiji (Minister of Labour). 59 In various countries, strike action
can also be ended through compulsory arbitration, either automatically, at the discretion of
the public authorities or at the request of one of the parties (see section V below).
118. Without going as far as a decision to end a strike, the law may provide for the suspension
of strikes for a certain period. This is the case in Albania (in exceptional situations) and
Angola (in situations affecting public order or in the event of public calamities). 60 In
Romania, the employer can request the courts to order the postponement or suspension of
a strike for a maximum period of 30 days. 61 In Finland, the Ministry of Employment and
the Economy can postpone a planned strike for a maximum of two weeks at the request of
the conciliator if the strike would have an effect on essential services and would cause
unreasonable harm. An additional seven days’ postponement applies in the case of disputes
56 J. Malmberg and C. Johansson: op. cit., 2014, p. 528.
57 Y. Kuwamura: “The right to strike: Japan”, in B. Waas: op. cit., 2014, pp. 355–356.
58 ibid., p. 38.
59 ILO: op. cit., 2006, para. 114.
60 ibid., para. 116.
61 ibid., para. 115.
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covering public servants. These postponements allow the parties to explore avenues of
agreement. 62
5. Compensatory guarantees
119. When the right to strike is restricted or prohibited in certain enterprises or services that are
considered essential, or for certain public servants, some national systems provide for
compensatory guarantees for the workers that are deprived of the right to strike. Such
compensation may include, for example, impartial conciliation, and possibly arbitration
procedures. In Kenya, Namibia and South Africa, the law provides that any party to a
dispute of interest that is prohibited from participating in a strike or a lockout, because that
party is engaged in an essential service, may refer the dispute to the Labour Commissioner,
who may refer it to an arbitrator.
III. Modalities of strike action at the national level
1. Prerequisites
120. The requirement of the prior notification of strikes to the administrative authorities or the
employer and the obligation to have recourse to conciliation and arbitration procedures in
collective disputes before calling a strike exist in a significant number of member States. 63
In some countries, the requirement to enter into and to continue negotiations before strike
action is relatively weak. In Japan, for instance, strikes do not need to be a means of last
resort. Once negotiations have started, it is up to the union to decide at what stage it will
resort to strike action, even while negotiations are still in progress (yet a principle of fair
play applies, resulting from the faithfulness principle in union-management relations). 64
However, in many other countries, a principle of ultima ratio applies to strike action.
Exhaustion of prior procedures (conciliation, mediation
and/or voluntary arbitration)
121. Since strike action is, almost by definition, a means employed when negotiations fail,
many countries establish an obligation to have recourse to prior conciliation and voluntary
arbitration procedures in collective disputes before a strike may be called. In many cases,
these provisions are conceived as a stage designed to encourage the parties to engage in
final negotiations before resorting to strike action, and therefore as a way of encouraging
and promoting the development of voluntary bargaining.
122. In Argentina, the Constitution sets out various steps to be followed before strike action,
including conciliation and arbitration. In Switzerland, the Constitution refers to the need
to attempt mediation and conciliation before resorting to strike action. The law in Poland
explicitly states that “a strike shall be a means of last resort”. The legislation of
El Salvador is also very clear on the various steps to be undertaken before going on strike.
62 ILO: op. cit., 2011, p. 135.
63 ILO: op. cit., 2006., para. 69.
64 B. Waas: op. cit., 2014, p. 354.
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123. Various other national legislations also provide that strike action must be preceded by
serious negotiations, conciliation and mediation attempts. 65 In Viet Nam, under the 2012
Labour Code, a strike can take place only after failure to resolve the dispute through the
conciliation and arbitration procedures set forth by law. In Kenya, Nigeria, Pakistan,
South Africa and United Republic of Tanzania official conciliation procedures must
have been exhausted without resolution of the dispute for lawful strike action to be
possible. However, no such requirement exists in India, Ireland or the United Kingdom.
124. In many countries, including Croatia, Djibouti, Jordan and Mali, no worker may go on
strike while proceedings concerning a dispute are pending before a conciliation board. In
Togo, the parties are requested by law to pursue negotiations during the strike. In some
cases, such as in the United Republic of Tanzania, although the law foresees a number of
steps that have to be taken before strike action can be declared, it also specifies that the
social partners can decide to agree on their own strike procedure in a collective agreement,
in which case the provisions in the law do not apply.
125. Specialized bodies for the prevention of strike action – In practice, various countries have
adopted institutional arrangements for the prevention of collective disputes, either by
creating a dedicated dispute-handling unit within the labour administration, or by
establishing independent and autonomous statutory dispute resolution bodies. Their
objective is to ensure that, wherever possible, the parties to the dispute resolve it through a
consensus-based process, such as conciliation and mediation, before reverting to
arbitration and/or adjudication through a tribunal or labour court. 66
Advance notice and cooling-off periods
126. Advance notice – A large number of countries require advance notice of strikes to be given
to the administrative authorities or to the employer. 67
127. In Papua New Guinea, an employer or an industrial organization that is a party to, or is
involved in, an industrial dispute which gives rise, or seems likely to give rise, to a strike or
lockout must immediately notify the departmental head or an officer of the department. In
the United Kingdom, notice is required not just of strike action, but of the intention to
hold a strike ballot. A minimum of seven days must elapse between the decision to hold a
ballot and the ballot, and a further minimum notice period of seven days must be given
before strike action can begin after a vote in favour.
65 For instance in Burundi, Cameroon, Chile, Czech Republic, Ethiopia, Honduras, Ghana, Lao
People’s Democratic Republic, Libya, Lithuania, Kazakhstan, Mali, Mauritania, Namibia,
Senegal and Turkey.
66 Examples of dispute resolution agencies include: Cambodia – Cambodia’s Arbitration Council
(CAC); Ireland – Law Reform Commission (LRC); Japan – Central Labour Relations
Commission; Republic of Korea – National Labour Relations Commission (NLRC); South Africa
– Commission for Conciliation, Mediation and Arbitration (CCMA); United Kingdom – Advisory,
Conciliation and Arbitration Service (ACAS); United States – Federal Mediation Conciliation and
Arbitration Service (FMCA).
67 This is the case, for instance, in Algeria, Armenia, Australia, Bahamas, Benin, Bulgaria,
Canada, Chad, Chile, Comoros, Croatia, Czech Republic, Estonia, Ethiopia, Finland, Ghana,
Hungary, Indonesia, Ireland, Jordan, Kenya, Latvia, Lithuania, Madagascar, Mauritania,
Mauritius, Mexico, Morocco, Pakistan, Poland, Romania, Russian Federation, Senegal,
Seychelles, Slovakia, Slovenia, South Africa, Spain, Swaziland, United Republic of Tanzania,
Thailand, Togo, Turkey, United States and Yemen; ILO: op. cit., 2006, para. 77.
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128. Among the national systems which do not include compulsory cooling-off periods are
those in Belgium, France (except for the public sector) and Italy (where such provisions
have been included in collective agreements). In Germany, there are no official provisions
requiring a cooling-off period, although such requirements have nevertheless been
established through case law in accordance with the rule of proportionality between the
action taken and the damages incurred. This also applies in the Netherlands, where strikes
are legal only where all possibilities of negotiation have been exhausted. 68 In some cases,
the cooling-off period can be quite long. This is the case, for instance, in Seychelles and
the United Republic of Tanzania (public sector), where the cooling-off period is
60 days. 69
129. Public sector – Many systems require additional notice to be given in the case of strike
action in the public sector. For instance, in South Africa, 48-hours notice of industrial
action is required for private sector industrial disputes, and seven-days notice where the
State is the employer. 70 Similarly, in Jordan, no worker shall go on strike without giving
the employer notice thereof at least 14 days before the date set for the strike; where work is
related to a public service, the notice period shall be double. In Italy, notice should be
given only for strikes in essential services (ten-days notice).
130. Duration of strikes – In certain cases, the notice has to be accompanied by notification of
the length of the strike. This is the case, for instance, in Benin (where, according to the
Government, strikes may however continue beyond the period notified), Bulgaria,
Burundi (for civil servants), Chad, Egypt, Georgia, Mongolia, Tajikistan, Tunisia and
Yemen. 71
2. Strike ballot requirements
131. Another type of prerequisite for calling a strike consists of making the exercise of the right
to strike conditional upon approval by a certain percentage of the workers. Many national
legislative measures provide that to be able to call a strike, it must be so decided by a
certain percentage of workers, members or those present and voting, for instance more
than the half (Bulgaria, Burundi, Canada, Chile, Costa Rica (60 per cent), Dominican
Republic, El Salvador, Eritrea, Ethiopia (quorum of two-thirds and the decision by the
majority), Ireland, Kyrgyzstan (quorum of two-thirds and the decision by the majority),
Latvia, Lithuania, Mauritius, Nigeria, Peru, United Republic of Tanzania, Trinidad
and Tobago, Turkey, United Kingdom and Zimbabwe); or by two-thirds (Angola,
Armenia, Guatemala, Honduras, Kiribati, Malaysia, Mexico, Russian Federation,
Seychelles and Tajikistan,): or three-quarters (Bangladesh and Plurinational State of
Bolivia). The legislation in Chile specifies the day when the voting should take place.
132. In some countries, account is taken only of the votes cast, while in others this distinction is
not applied. For instance, in Turkey, if one fourth of the workers employed in a workplace
call for a vote on strike action, the strike can take place if the absolute majority of all the
workers employed (not only the members of the trade union) vote in favour. In addition,
national systems vary with respect to the consequences of the vote (in cases where the
required threshold has or has not been reached).
68 ibid., para. 76.
69 ibid., para. 78.
70 ILO: op. cit., 2011, p. 135.
71 ILO: op. cit., 2006, para. 81.
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133. The requirement that strike action must be explicitly authorized by union members via a
ballot held before any action is not present in all common law jurisdictions. A ballot is not
among the requirements for lawful industrial action in India or Pakistan. In South Africa,
although unions are required to provide for the holding of pre-strike ballots in their
Constitutions, the absence of a ballot does not in itself make strike action unlawful. In
Kenya, while there is no explicit provision in the Labour Relations Act that lawful strike
action must be authorized in a ballot, it requires unions to include in their Constitutions
provision for taking decisions on strike action via secret ballots. In the United States,
although strike balloting is commonplace, it is not required by law and employers are not
allowed to require the presence of pre-strike ballot clauses in collective agreements. 72
134. Ballot modalities – Another distinction relates to whether the modalities for ballots are
established by law, or whether it is left to trade unions to adopt rules. Some countries have
established a comprehensive set of rules concerning strike ballots, including requirements
for union by-laws (e.g. Australia, Ireland and United Kingdom). In others, such as
Poland, this issue is essentially considered an internal matter for trade unions. In
Germany, most trade unions have established guidelines in this respect. 73 In practice,
most trade union rules require a direct secret vote before starting a strike.
135. In some countries, the national legislation requires the prior approval of the strike by a
higher-level trade union organization (e.g. Egypt, Myanmar and Tunisia). Some
countries provide for the supervision of the strike ballot by the administrative authority
(e.g. Angola, Bahamas, Swaziland and United Republic of Tanzania).
3. Minimum service: Conditions, modalities
and mechanisms for determining
the minimum service
136. Many countries provide for the possibility in limited cases of introducing a negotiated
minimum service as a possible alternative to a total prohibition of strikes. 74 The national
Constitutions of Portugal and Timor-Leste explicitly refer to minimum services. Some
countries have adopted legislative provisions on the participation of the organizations
concerned in the definition of minimum services. Elsewhere, the issue has been resolved
by joint decision of the parties.
137. In other countries, the national legislation determines unilaterally the level at which a
minimum service is to be provided and specifies a specific percentage. This is the case, for
instance, in Bulgaria (50 per cent for railways), Ecuador (20 per cent) and Panama
(50 per cent for essential public services). In Romania, medical services, social assistance
and public transport must operate at least at one third of their normal level and be able to
respond to the vital needs of the community. 75 In Hungary, the level of service deemed
sufficient and the related requirements may be defined by an act of Parliament; if there is
none, they shall be agreed upon by the parties during the pre-strike negotiations; or, failing
such agreement, they shall be determined by final decision of the court of public
administration and labour.
72 NLRB v. Wooster Division of Borg-Warner Corp., 356 US 342, 78 S. Ct. 718 (1958).
73 B.Waas: op.cit., 2014, p. 26.
74 For example, in Albania, Armenia, Cabo Verde, Gabon, Italy, Mauritius, Slovakia, Solomon
Islands, United Republic of Tanzania, Tuvalu, Vanuatu and Bolivarian Republic of Venezuela;
ibid., para. 136.
75 ILO: op. cit., 2006, para. 126.
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138. Elsewhere, the social partners play an important role in defining minimum services. For
instance, in Cyprus, the social partners signed an agreement in 2004 on the procedure for
resolving labour disputes in essential services, including the provision of negotiated
minimum services. 76 In Germany, the guidelines on industrial action of the umbrella trade
union organization oblige unions to ensure the establishment of minimum services in case
of emergency. 77 In Canada, all employers and trade unions involved in a dispute are
obliged to “continue the supply of services, operation of facilities or production of goods to
the extent necessary to prevent an immediate and serious danger to the safety or health of
the public”. What this minimum service involves in practice must either be defined in a
collective agreement or will be determined by the Canada Industrial Relations Board.
139. In many countries, the legislation requires the parties to the dispute (the employer and
workers) to strive together to find an agreement on the modalities of the minimum services
to be provided during a strike. If an agreement cannot be found, depending on the country,
either an administrative authority or a specific body can decide on the matter (Albania and
Ecuador). For instance, in Togo the parties to the dispute are obliged to meet during the
notice period to continue negotiations and organize a minimum service in the company in
order to avoid accidents and ensure the protection of facilities and equipment. If an
agreement cannot be reached, the labour inspector can determine the minimum service. In
Peru, in the case of disagreement on the number and occupation of the workers who are to
continue working, the labour authority shall designate an independent body for their
determination. Guatemala introduced the possibility of a minimum service in essential
public services that is determined with the participation of the parties and the judicial
authorities. Argentina has established an independent tripartite Guarantees Committee
which is entrusted with advising on minimum services. In Croatia, at the proposal of the
employer, the trade union and the employer must agree on the provision of those services
which must not be interrupted during a strike. If they do not reach agreement, the employer
or the trade union may request that these assignments be defined by an arbitration body.
This arbitration body consists of one representative of the trade union, one representative
of the employer and an independent chairperson.
140. In South Africa, the legislation gives the parties concerned space to negotiate “minimum
services” agreements in respect of services designated as essential. Where the parties can
so agree, and where their agreement has been ratified by the Essential Services Committee:
(i) the minimum services then become the only strike-free zone; and (ii) the broader
prohibition on strike action in the balance of the services previously designated as essential
and the obligatory reference to arbitration of unresolved disputes then fall. The act also
provides for services to be declared “maintenance services”, that is, services which, if
interrupted, would have “the effect of material physical destruction to any working area,
plant or machinery”. Disputes in such services must generally be directed towards
arbitration, and industrial action is not permitted in such cases. In the United Republic of
Tanzania, a person engaged in an essential service may engage in a strike or lockout if
there is a collective agreement providing for minimum services during a strike or lockout,
and if that agreement has been approved by the Essential Services Committee. In France,
the legislator entrusts the social partners with signing a “collective agreement of
predictability” identifying the functions necessary to ensure the levels of service and work
organization in the event of a strike in the area of land transport for passengers.
141. In Cabo Verde, the minimum service is determined by the employer after consultation
with workers’ representatives with a view to meeting essential social needs. In
Montenegro, the amended Law on Strikes now provides that, when determining the
76 ibid., para. 65.
77 B. Waas: op. cit., 2014, p. 14.
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minimum service, the employer shall be obliged to obtain an opinion from the competent
body of the authorized trade union organization, or more than half of the employees. In
Bosnia and Herzegovina (Republika Srpska), the employer is authorized to determine the
minimum service to be maintained, taking into consideration the opinion of the trade
union. If the employer does not provide such a minimum service, it is for the public
authorities to establish the conditions for its effective provision and to engage workers
from outside the enterprise if the work cannot be performed otherwise. 78 In Chad, the
minister has discretion to determine minimum services and the number of officials and
employees who will ensure that such services are maintained in the event of a strike in the
essential services enumerated in the law.
IV. The course of the strike
1. Picketing, occupation of the workplace, access
to the enterprise/prohibition of violence and
freedom to work of non-striking workers
142. In some countries, strike action is accompanied by the presence, at the entry to the
workplace, of strike pickets aiming to ensure the success of the strike by persuading the
workers concerned to stay away from work. The ordinary or specialized courts are
generally responsible for resolving problems which may arise in this respect. In practice,
while certain countries establish general rules that are confined to avoiding violence and
protecting the right to work and the right to property, others explicitly limit or prohibit the
right to establish strike pickets or the occupation of the workplace during a strike.
143. For instance, in Malaysia, the law refers to the concept of intimidation in limiting strike
pickets. In Burkina Faso and Senegal, the law provides that the exercise of the right to
strike shall on no account be accompanied by the occupation of the workplace or
immediate surroundings, subject to penal sanctions. In Belarus, the law on picketing
provides that during the course of picketing it is prohibited, inter alia, to impede traffic,
pitch tents or other temporary structures, influence in any form employees for the purposes
of impeding the fulfilment of the service, use posters and other means containing calls for
a change of the constitutional order by force, or flags not registered in the established
order. In Panama, the law provides that the owners, directors, managing director and staff
closely involved in these functions and workers in positions of trust shall be able to enter
the enterprise during the strike, provided that their purpose is not to recommence
production activities. It should be noted that the free access of non-striking workers is not
provided for in the event of a strike.
144. In common law jurisdictions, there is a general presumption that if an act would be
unlawful or illegal when carried out by an individual, it is not protected by industrial
relations law. This includes violence and the sequestration of any individual. Sometimes
provisions to this effect are included explicitly in the law (for example in Nigeria).
Practices such as gherao, an Indian form of “bossnapping” in which managers are barred
by workers from leaving the workplace, are almost always unlawful, whether or not they
involve violence. Peaceful picketing, on the other hand, is generally protected either
specifically in the legislation or through constitutional protections of freedom of assembly
and/or expression. One exception is the United Republic of Tanzania, where picketing is
expressly forbidden by law. In Australia, the definition of industrial action does not
include picketing, which is therefore unlawful if it is obstructive.
78 ILO: op. cit., 2006, para. 127.
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145. In Ireland, picketing is expressly permitted in circumstances in which strike action is
lawful. In Nigeria, picketing, whether of a primary or secondary employer, is legal
provided that it is in contemplation or furtherance of a trade dispute. In South Africa, if
strike action would qualify as protected, then picketing is permitted in pursuit of the
resolution of the dispute. In the United Kingdom, picketing is permitted if carried out in
contemplation or furtherance of a trade dispute, but is governed by a detailed code of
practice which, among other provisions, specifies that the maximum number of people
allowed to picket any one workplace is six. Secondary picketing is not allowed. Pickets are
not allowed to block access to the workplace or to obstruct roads nearby. In the United
States, picketing is allowed under certain circumstances. The most notable exclusions are
secondary and mass picketing, and picketing in connection with a recognition dispute. In
Namibia, peaceful picketing is authorized at or near the workplace to inform and persuade
other workers not to work. 79 In Botswana, a code of good practice on picketing was
adopted in 2002 which provides practical guidance on picketing in support of a protected
strike. It seeks to guide the exercise of this right and to assist employers, employees and
their organizations to agree picketing rules and to assist mediators in determining them.
146. While in some countries strike pickets are merely a means of information, ruling out any
possibility of preventing non-strikers from entering the workplace, in other countries they
may be regarded as a form of the right to strike, and the occupation of the workplace as
their natural extension, and are rarely questioned in practice, except in extreme cases of
violence against persons or damage to property. In Japan, the Supreme Court has
considered that picketing is lawful, on condition that it remains within the confines of
peaceful verbal persuasion. 80
2. Requisitioning of strikers and hiring of
external replacement workers
147. In many countries, the replacement of striking workers is prohibited or, in any event,
restricted. Although certain systems continue to retain fairly broad powers to requisition
workers in the case of a strike, other countries limit powers of requisitioning to cases in
which the right to strike may be limited or prohibited. In Cambodia, for instance, the law
provides that during a strike the employer is prohibited from recruiting new workers to
replace strikers, except to maintain a minimum service; any violation of this rule places the
employer under the obligation to pay the salaries of the striking workers for the duration of
the strike. In the United Republic of Tanzania, there is a general prohibition on hiring
replacement workers during lawful strikes. In Canada, employers are permitted to hire
replacement workers during a lawful strike, but they cannot be used “for the demonstrated
purpose of undermining a trade union’s representational capacity rather than the pursuit of
legitimate bargaining objectives”. 81 In South Africa, the hiring of replacement workers is
in general legal, but is excluded when the service in question has been designated a
maintenance service.
148. Examples of national legislation which prohibit employers from hiring external workers to
ensure continued production or services include Botswana (except in the absence of
agreement on a minimum service, in which case replacement is possible after 14 days of
strike), Chile (except under certain limited conditions), Greece, Republic of Korea,
Madagascar (except in cases of problems of public order and in which the life, personal
79 ILO: op. cit., 2006, para. 133.
80 Japan: Supreme Court 2nd Petty Bench Judgment; 2 Oct. 1992; Supreme Court (Grand Bench),
Asahi Shinbunsha case of 22 Oct. 1952; Y. Kuwamura: op. cit., 2014, p. 358.
81 Canada Labour Code, 94.2.1.
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safety or health of the whole or part of the population is endangered), Montenegro (except
to ensure the safety of persons or property), Namibia (except where the work is necessary
to prevent danger to the life, personal safety or health of any individual) and Turkey. In
Slovenia, any enterprise or association which, during a strike, hires new employees to
replace striking workers is liable to a fine. An employer cannot hire other employees to
replace strikers under the law in Argentina, Czech Republic, Greece, Hungary and
Lithuania (except in certain cases linked to vital public needs). 82
149. The national legislation in other countries, such as Djibouti, Mali and Togo, prohibits
recourse to private employment agencies to replace striking workers. In the United
Kingdom, employers are not allowed to take on temporary agency workers to replace
strikers.
150. In contrast, in other countries, such as India, Ireland, Kenya, Nigeria, Pakistan and
United States, there are no restrictions on taking on replacement workers during lawful
strikes. In the Russian Federation, striking workers can be replaced and temporary
agency workers may also be used. 83
151. The law also allows the requisitioning of striking workers in certain circumstances in
Angola, Central African Republic (where so required by the general interest), Ghana
(minimum maintenance services), Madagascar (in the event of a state of national
necessity or a threat to a sector of national life or a part of the population), Sao Tome and
Principe (essential services) 84 and Senegal (for workers in the public and private sectors
engaged in jobs considered to be essential for the safety of persons and property, the
maintenance of public order, the continuation of the public service and the satisfaction of
the essential needs of the country). In France, striking workers may only be requisitioned
in an emergency, when required by a real or foreseeable breach of the peace, public health,
public order and public safety and when the means at the prefect’s disposal no longer allow
the latter to pursue the objectives for which he or she has powers of enforcement.
152. In Benin, Djibouti and Niger, the possibility of requisitioning is restricted to public
servants. The same applies in Mexico in certain public services when the national
economy could be affected. 85 In Burkina Faso, a specific decree regulates the modalities
for the requisitioning of workers.
V. Compulsory arbitration
Conditions, mechanisms and requirements
for compulsory binding arbitration
153. In some countries, binding compulsory arbitration is provided for in order to bring an end
to strike action. In such cases, collective labour disputes and strikes are resolved by a final
judicial award or an administrative decision that is binding on the parties concerned, with
strike action being prohibited during the procedure and once the award has been issued.
82 B. Waas: op. cit., 2014, p. 61.
83 B. Waas: op. cit., 2014, p. 61.
84 ILO: op. cit., 2006, para. 138.
85 ILO: op. cit., 2006, para. 139.
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154. Some countries authorize recourse to compulsory arbitration, either automatically, at the
discretion of the public authorities, 86 or at the request of one of the parties.
155. In some cases, compulsory arbitration can take place only in essential services (e.g.
Côte d’Ivoire (in essential services or cases of acute national crisis), Dominica, Ghana,
Grenada, Guyana (in some public services) and Mozambique), or in situations of acute
national crisis. In Australia, compulsory arbitration was formerly widely available, but
now only occurs when the Fair Work Commission or the Minister of Labour issues an
order prohibiting strike action (e.g. because of a risk to public safety or significant
economic harm to the employer, the employees, the Australian economy or a third party).
In that case, the Commission can arbitrate the claims and make a “workplace
determination”, which has essentially the same effect as a collective agreement. In
Singapore, an issue can be referred by either the employer or the union to compulsory
arbitration by the Industrial Arbitration Court, which renders continuation of a strike
unlawful.
156. Some countries authorize recourse to compulsory arbitration in situations that are not
limited to essential services or situations of acute national crisis, or in cases in which
disputes continue for more than a certain period. This is the case in Ghana, Nicaragua,
Peru and Spain (exceptionally after a certain duration of the strike). In certain instances,
compulsory arbitration is also used, particularly through the adoption of return to work
laws by Parliament to bring an end to collective disputes in the public service. Examples
include Canada and Norway. 87
VI. Consequences of strike action at
the national level
1. Breach or suspension of contract
157. The provision of the right to strike in law means that there is no breach of contract on the
part of a worker who participates in a lawful strike. In most civil law systems, the
employment relationship is maintained during strike action; the contract is suspended, and
modalities vary with respect to the payment of wages. 88
158. In Denmark, there is a long-standing customary rule (the so-called “no detriment rule”)
which ensures that the broken employment relationship is re-established after an industrial
dispute, and that all striking workers are therefore reinstated at the end of a strike. 89 In
Mauritius, the suspension of the contract applies to all lawful strikes, but it is also
extended if the worker participates for the first time in a strike that is unlawful.
159. There are a number of common law countries in which taking lawful strike action does not
amount to breach of contract. In the United Republic of Tanzania, for example, the law
provides that “notwithstanding the provisions of any law, including the common law, a
86 This is the case, for example, in Denmark (at the request of the Public Mediator), Guatemala,
Kenya (public sector), Madagascar, Mauritania and Panama (private transport enterprises).
87 ILO: op. cit., 2006, para. 51.
88 For example, in Albania, Argentina, Bahrain, Burundi, Cambodia, Chad, Chile, Colombia,
Comoros, Congo, Democratic Republic of the Congo, Djibouti, Guatemala, Honduras,
Madagascar, Mali, Panama, Poland, Senegal, Togo, Turkey, Uruguay, Viet Nam and Yemen.
89 Conclusions of the European Committee of Social Rights, Conclusions XIX-3 (2010).
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lawful strike or lawful lock-out” shall not be a breach of contract, a tort or a criminal
offence. The situation is similar in Kenya, Namibia and South Africa: by taking part in a
lawful strike, a person does not commit a delict or a breach of contract. In Grenada, any
period during which an employee is absent from work because of participation in a strike
shall not interrupt the continuity of employment, but nor shall it count for the purposes of
calculating the length of continuous employment. In Canada, employers are obliged to
reinstate workers who have taken lawful strike action.
160. In some other common law countries, a lawful strike action is regarded as a breach of the
employment contract and in certain circumstances can give rise to dismissal. In Ireland,
the fact that a strike is lawful does not affect the employers’ right to dismiss strikers, but
they cannot be dismissed selectively. Either or all strikers are dismissed, or none. In the
United Kingdom, workers taking lawful strike action are protected from dismissal, but
only for a period of 12 weeks. Where industrial action lasts longer than this, and where an
employer has made good faith efforts to settle the dispute, workers may be dismissed, on
condition that all those taking action are dismissed.
161. In the United States, an employer that has hired permanent replacement workers is not
obliged to rehire former strikers in the case of economic strikes, but has to give preference
to these workers in any subsequent hiring process. In case of strikes called in response to
unfair labour practices, the employer is obliged to rehire former strikers. 90
2. Wage deductions
162. National legislation that addresses the question of wage deductions for strike days
normally provides that the employer is not under the obligation to pay wages during a
strike. Some countries ban the payment of wages during the strike period. 91 Non-payment
of wages corresponding to the strike period is considered in most cases as a mere
consequence of the absence from work, and not a sanction. For instance, in Albania,
Botswana, Cambodia, Jordan, Latvia, Madagascar, Mauritius, Namibia, Togo and
Trinidad and Tobago an employer is not obliged to remunerate an employee for services
that the employee does not render during a strike. In Viet Nam, the payment of wages
depends on whether or not the strike is lawful and on the responsibility of the employer.
Where the strike is lawful and the employer is at fault, wages are to be paid in full. Where
the employer is not at fault, payment can be negotiated. In the event of an unlawful strike,
in a situation in which the employer is at fault, the wages are to be paid in a proportion of
between 50 and 70 per cent. Wages are not paid in the event of an unlawful strike where
the employer is not at fault. 92 In Ecuador, the law provides that workers are entitled to
their remuneration during strike days, except in three cases: when the court so decides
unanimously; when the ruling rejects all the claims; and where the strike was called
outside the cases indicated in section 497 of the Code, or was maintained after the ruling.
In these cases, strikers do not benefit from the related guarantees.
163. In practice, in many countries, the issue of wage deductions is a matter that is often
resolved by the parties themselves in the context of the agreement signed at the end of the
strike. Moreover, many trade unions have strike funds to support striking workers whose
salaries have been suspended. In South Africa and the United Republic of Tanzania,
employers are obliged to carry on with any agreed payments in kind (for example food)
and are not allowed to evict strikers from company lodgings. Equivalent costs may be
90 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
91 For example, Australia.
92 ILO: op. cit., 2006, para. 145.
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recovered once the strike is over. However, in the United Republic of Tanzania, the law
adds that nothing shall prevent a trade union or employer or employers’ association from
concluding a collective agreement that regulates such matters differently. Conversely, in
Turkey, the law provides that the employer shall not pay any wages or social benefits to
workers whose contracts of employment are suspended for the period of a strike, and that
this period shall not be taken into account for the calculation of severance pay. The law
adds that collective labour agreements or contracts of employment may not include any
clause contrary to these provisions.
164. With respect to other social security entitlements, in Latvia, employees taking part in a
strike do not receive a salary and employers are not required to make social security
payments for such employees, unless the parties to the labour dispute have agreed upon a
different arrangement. In Turkey, during strikes and lockouts workers benefit from
insurance benefits in accordance with the relevant provisions. In Albania, while the right
to remuneration is suspended during strike action, this suspension does not affect the rights
defined by law concerning social security, accidents at work or occupational diseases, and
does not affect seniority and its related effects. In the Netherlands, workers who
participate in a lawful strike lose their right to wages and have no right to social security
benefits. 93 In Colombia, strike action also represents a suspension of the employment
contract. During the strike, the employer is not obliged to make contributions to
occupational accident insurance. 94
3. Sanctions for unlawful strikes
165. Dismissals – Many countries afford protection against dismissal to strikers by guaranteeing
that recourse to strike action does not suspend or constitute a breach of the contract of
employment (see above on the suspension of contract). The protection may even cover
unlawful strikes. For example, in Malta, where the period of the strike does not constitute
an interruption of service, protection against dismissal is valid even in cases where the
strike has been called when the dispute has been submitted to compulsory arbitration. 95 In
other cases, such as India, Kazakhstan and the Philippines, participation in an unlawful
strike results in dismissal. In Egypt, failure to comply with the legislation respecting
strikes is considered to be a serious fault and therefore results in liability to dismissal. The
same applies in Mauritania, where the worker is not entitled to any compensation for
dismissal. In Indonesia, it is considered as absence from work and as resignation if the
worker does not return to work after being called upon to do so twice within a period of
seven days. In the event of failure to comply with the annulment of a strike ordered by the
courts, the legislation in Pakistan explicitly refers to the dismissal of strikers as a penalty.
In Cambodia, the law provides that workers who are required to provide a minimum
service and who do not appear for such work are considered guilty of serious misconduct
and thus liable for termination of employment.
166. Civil liabilities – In common law countries, the principal consequence of unlawful strike
action is that the legal immunities that would otherwise protect strikers and unions do not
apply. Striking is thereby treated as an actionable repudiation or material breach of the
employment contract. In these circumstances, it is open to employers to discipline or
dismiss the workers concerned. (In Pakistan, uniquely, the dismissal of unlawful strikers
requires an order of the National Industrial Relations Commission.) Those who organize
unlawful strike action, most usually trade unions, may be guilty of one or more economic
93 B. Waas: op.cit., 2014, p. 57.
94 ibid., p. 58.
95 ILO: op. cit., 2006, para. 152.
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torts, such as conspiracy or inducement to breach of contract, and may therefore be liable
for damages. In the United Kingdom and Ireland, but also in other jurisdictions, such as
Canada, India, South Africa and the United Republic of Tanzania, the possibility that
strike action may be unlawful can be used as a basis for seeking injunctions against unions
to prevent strikes from beginning or continuing until the question of lawfulness has been
finally settled by the appropriate court or tribunal. Breaking such injunctions may lead to
the award of damages or proceedings for contempt of court.
167. Penal sanctions (including imprisonment) – Most legislation restricting or prohibiting the
right to strike provides for various sanctions against workers and trade unions, including
penal sanctions. Specific penalties for strike action are included in the criminal codes of at
least 30 countries. Specific penalties of imprisonment can apply under certain conditions
against striking workers or against the organizers of unlawful strike action. 96 In
Cambodia, the law provides that a strike must be peaceful. Committing violent acts during
a strike is considered to be serious misconduct that could be punished, including by work
suspension or disciplinary lay-off.
168. In some cases, penalties of imprisonment may also be applied to the employer or any other
responsible person who lays off employees on the grounds of taking part in a lawful strike
(Montenegro). In the Philippines, the law provides that penalties of imprisonment may be
imposed “upon any person who, for the purpose of organizing, maintaining or preventing
coalitions or capital or labor, strike of labourers or lock-out of employees, shall employ
violence or threats in such a degree as to compel or force the laborers or employers in the
free and legal exercise of their industry or work”. In Romania, the law establishes that a
person who, by threats or violence, impedes or obliges a worker or a group of workers to
participate in a lawful strike or to work during the strike can be sentenced to imprisonment.
169. In some cases, strikers are convicted under the terms of more general provisions of the
penal legislation, such as in the Republic of Korea, where the offence of impeding the
activity of an enterprise is severely sanctioned (up to five years imprisonment). In China,
workers have been convicted under provisions relating to offences against public order and
impeding transport. 97 Finally, certain countries provide for sentences of imprisonment for
failure to appear before the conciliator in the framework of the settlement of an industrial
dispute (e.g. Bangladesh), or provide for penal sanctions in the case of a work slowdown
(e.g. Pakistan).
VII. Statistics of strike action over time and countries
170. Appendix II contains statistical data on strike action and lockouts extracted from the ILO
Statistical database. In figure 1, the information shows that in the 56 countries for which
data was available, fewer days were not worked due to strikes and lockouts in the period
2008–13 as compared to the period 2000–07. Figure 2 provides information for the same
periods relating to average number of workers involved in strikes and lockouts with respect
to 53 countries (31 developed and 22 developing countries). Based on the data, six out of
the 22 developing countries and eight out of 31 developed countries reflected an increase
in the number of workers involved in strikes and lockouts. Figure 3, covering the same
96 For example, Albania, Angola, Armenia, Bahamas, Bangladesh, Democratic Republic of the
Congo, Ecuador, Ethiopia (public servants), Fiji, Guyana, India, Libya, Madagascar, Malaysia,
Montenegro, Nigeria, Pakistan (essential services), Romania, Rwanda (members of the armed
forces), Senegal (in the area of education), Singapore, Tajikistan, Trinidad and Tobago
(essential services) and Tunisia (seafarers).
97 ILO: op.cit., 2006, para. 167.
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periods, show data on working days lost in Europe due to strikes and lockouts with nine
out of 29 European countries reflecting an increase. Figure 4 shows data for 1998 and 2008
concerning strikes and lockouts from a selected number of countries by region (Africa,
Americas, Asia and the Pacific, and Europe and central Asia).
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GB.323/INS/5/Appendix III
Appendix I
Modalities and practices of strike action at the national level
Constitutional and legal framework for strike action at the national level
Note: The table hereunder provides examples of legislative measures on strike action. It is not meant to be exhaustive and focuses on most recently
adopted or amended provisions in this area. It is possible, especially in the case of legislation not subject to review by the regular supervisory
machinery, that some references may be out of date or incomplete. In this case, governments are encouraged to provide the latest information to
[email protected], which will be incorporated in the final version of the document to be made available a few days before the meeting.
Country Constitutional provisions referring to strike action Legislative measures on strike action
1. Afghanistan Law on Gatherings, Strikes, and Demonstrations, 2003
Article 3 – Definition of strike
Articles 6–7 – Prerequisites
Article 8 – Other types of restrictions
Articles 12–14 – The course of action
Article 15 – Political strikes
Articles 19 and 24 – Prohibition of violence and freedom of non-striking
workers
Article 21 – Restriction on strikes during state of emergency
Article 26 – Prohibition of participation by military staff of the armed forces
2. Albania Constitution
Article 51
1. The right of an employee to strike in connection with work relations is
guaranteed.
2. Limitations on particular categories of employees may be established by law
to assure essential social services.
1995 Labour Code – Law No. 7961 of 12 July 1995
The right to strike – Articles 197–197.10
The entity entitled to go to strike
The protection of the right to work and of the right to strike
Lawfulness of strike
Special cases
Services of vital importance (essential services)
Minimum services
Solidarity strike
The effects of the lawful strike
The effects of the unlawful strike
Termination of strike
Criminal Code
Article 264 – Forcing to attend or not a strike
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Country Constitutional provisions referring to strike action Legislative measures on strike action
3. Algeria Constitution
Article 57
Le droit de grève est reconnu.
Il s’exerce dans le cadre de la loi.
Celle-ci peut en interdire ou en limiter l’exercice dans les domaines de défense
nationale et de sécurité, ou pour tous services ou activités publics d’intérêt vital
pour la communauté.
Loi no 90-11 du 21 avril 1990 modifiée portant sur les relations
de travail
Article 5 – Les travailleurs jouissent des droits fondamentaux suivants:
… recours à la grève.
Loi no 90-14 du 2 juin 1990 modifiée portant sur les modalités
d’exercice du droit syndical
Article 38 – Possibilité des syndicats de participer aux grèves
Ordonnance no 06-03 du 19 Joumada Ethania 1427 correspondant
au 15 juillet 2006 portant statut général de la fonction publique
Article 36 – Reconnaissance du droit de grève aux fonctionnaires
Loi no 90-02 du 6 février 1990 relative à la prévention et au règlement
des conflits collectifs de travail et à l’exercice du droit de grève
Article 43 – Services essentiels
Loi no 91-27 du 21 décembre 1991 modifiant et complétant la loi
no 90-02 du 6 février 1990 relative à la prévention et au règlement
des conflits collectifs de travail et à l’exercice du droit de grève
4. Angola Constitution
Article 51
(Right to strike and prohibition of lockouts)
1. Workers shall have the right to strike.
2. …
3. The law shall regulate the exercise of the right to strike and shall establish
limitations on the services and activities considered essential and urgent in
terms of meeting vital social needs.
Collective Bargaining Act No. 20-A/92
Strikes Act/Ley núm. 23/91 sobre la huelga
Section 10 – Decision of strike
Section 20(3) – Satisfaction of basic needs
Section 27 – Penalties
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Country Constitutional provisions referring to strike action Legislative measures on strike action
5. Antigua and Barbuda Industrial Court Act, 1976
Part III – Lockouts and strikes
20. Strikes and lockouts prohibited during hearings, etc.
21. Stop order in the national interest
22. Offence for persons to contribute financial assistance to promote or
support strike or lockout
23. Continuing offences
Labour Code (No. 14 of 1975)
Part III – Industrial action
K19 Right to industrial action
Limitation
Application of limitations
Penalties and sanctions
Special provisions certain services
The Essential Services Act, 2008
Schedule
Section 2 – Essential services
6. Argentina Constitución
Artículo 14 bis
[…] Queda garantizado a los gremios: concertar convenios colectivos de
trabajo; recurrir a la conciliación y al arbitraje; el derecho de huelga. Los
representantes gremiales gozarán de las garantías necesarias para el
cumplimiento de su gestión sindical y las relacionadas con la estabilidad
de su empleo. […]
Ley núm. 25877, Régimen Laboral de 2004
Capítulo III – Conflictos colectivos de trabajo
Artículo 24 – Servicios esenciales
Ley núm. 14786, Conciliación Obligatoria, 22 de diciembre de 1958
Decreto núm. 272/2006 – Reglamentación a la que quedan sujetos los
conflictos colectivos de trabajo que dieren lugar a la interrupción total
o parcial de servicios esenciales o calificados como tales en los
términos del artículo 24 de la ley núm. 25877. Facultades de la
Comisión de Garantías prevista en el tercer párrafo del mencionado
artículo.
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Country Constitutional provisions referring to strike action Legislative measures on strike action
7. Armenia Constitution
Article 32
Employees shall have the right to strike for the protection of their economic,
social and employment interests, the procedure for and limitations thereon shall
be prescribed by law.
2004 Labour Code
Article 73 – Strike
Article 74 – Declaration of a strike
Article 75 – Restriction of strikes
Article 76 – The body leading a strike
Article 77 – Course of a strike
Article 78 – Dispute about lawfulness of a strike; essential services
Article 79 – Legal status and guarantees of strikes
Article 80 – Actions prohibited to the employer upon declaration of and
during the strike
Article 81 – Termination of a strike
Article 82 – Liability in case of illegal strike
Act of 5 November 2000 on Trade Unions
Article 20 – Right of trade unions to strike and other mass actions
2009 Law No. H-130-N to amend the Labour Code of the Republic of
Armenia – Amends some provisions of the Labour Code concerning strike
Criminal Code
Article 155 – Forcing to refuse from participation in a strike or forcing to
participate in a strike
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Country Constitutional provisions referring to strike action Legislative measures on strike action
8. Australia Fair Work Act, 2009
Chapter 1 – Introduction
Part 1-2 – Definitions
Division 4 – Other definitions
Section 19 – Meaning of industrial action
Chapter 2 – Terms and conditions of employment
Part 2-5 – Workplace determinations
Chapter 3 – Rights and responsibilities of employees, employers,
organizations, etc.
Division 4 – Industrial activities
Articles 346–350
Part 3-3 – Industrial action
Division 2 – Protected industrial action
Subdivision A – What is protected industrial action
Articles 408–412
Subdivision B – Common requirements for industrial action to be protected
industrial action
Articles 413–414
Subdivision C – Significance of industrial action being protected industrial
action
Articles 415–416A
Division 3 – No industrial action before nominal expiry date of enterprise
agreement, etc.
Division 4 – FWC orders stopping, etc., industrial action
Articles 418–421
Division 5 – Injunction against industrial action if pattern bargaining is being
engaged in
Article 422
Division 6 – Suspension or termination of protected industrial action by the
FWC; Essential services
Articles 423–430
Division 7 – Ministerial declarations
Articles 431–434
Division 8 – Protected action ballots
Articles 435–469
Division 9 – Payments relating to periods of industrial action
Articles 470–476
9. Austria
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Country Constitutional provisions referring to strike action Legislative measures on strike action
10. Azerbaijan Constitution
Article 36. Right for strikes
I. Everyone has the right to be on strike, both individually and together with
others.
II. Right for strike for those working based on labour agreements might be
restricted only in cases envisaged by the law. Soldiers and civilians
employed in the army and other military formations of the Azerbaijan
Republic have no right to go on strike.
III. Individual and collective labour disputes are settled in line with legislation.
Labour Code of 1 February 1999
Chapter 43 – Right to strike in order to resolve collective labour disputes
Article 270 – Legal basis of strikes
Article 271 – Making a decision to go on strike
Article 272 – Informing the employer of the decision to strike
Article 273 – Warning strike
Article 274 – Group leading the strike
Article 275 – Duties of the parties and relevant authorities during a strike
Article 276 – Guarantees to individuals who refuse to participate in a strike
Article 277 – Right of strikers to freely assemble
Article 278 – Strike funds
Article 279 – Ending or suspending a strike
Article 280 – Situations in which the right to strike is limited or prohibited
Article 281 – Sectors where strikes are forbidden; essential services
Article 282 – Illegal strikes
Article 283 – Compensation of employees who participate in a strike
Article 286 – Liability for violation of the rules hereof for resolving collective
labour disputes
11. Bahamas Industrial Relations Act (Act No. 14 of 1970) as amended 2001
Part VI – Trade Dispute Procedure
72. Essential services
74. Strikes and lockouts
75. Illegal strikes and lockouts
76. Power of Minister to refer legal strike or lockout to Tribunal
77. Strikes and lockouts prohibited during hearings
80. Breach of contract involving danger to life or property
82. Prevention of intimidation or annoyance by violence or otherwise
12. Bahrain Law No. 36 of 2012 – The promulgation of the labour law in the private
sector
Article 8 – Right to strike
Law No. 49 of 2006 amending some provisions of the Workers Trade
Union Law promulgated by Legislative Decree No. 33 of 2002
Section 21 – Strikes
Workers’ Trade Union Law
Section 21 – Strikes
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13. Bangladesh Labour Act, 2006 (XLII of 2006)
196. Unfair labour practices on the parts of workers
210. Settlement of industrial disputes
211. Strike and lockout
225. Prohibition on serving notice of strike or lockouts while proceeding
pending
226. Power of labour court and tribunal to prohibit strike, etc.
227. Illegal strikes and lockouts
291. Penalty for unfair labour practices
294. Penalty for illegal strike or lockout
295. Penalty for instigating illegal strike or lockout
296. Penalty for taking part in or instigating go-slow
301. Penalty for non-compliance with the provisions of section 210(7)
Export Processing Zones (EPZ) Workers Welfare Association and
Industrial Relations Act of 2010 (Act No. 43 of 2010)
14. Barbados 2012 Employment Rights Act
Article 2 – Definition of strike
Part VIII – Voluntary dispute settlement procedure
15. Belarus Constitution
Article 41
… Citizens shall have the right to protection of their economic and social
interests, including the right to form trade unions and conclude collective
contracts (agreements), and the right to strike.
Article 84. The President of the Republic of Belarus shall: … (23) have the right,
in instances specified in the law, to defer a strike or suspend it for a period not
exceeding three months.
Labour Code of 26 July 1999 (text No. 432)
Part IV – General rules for the regulation of collective labour relations
Sections 388–399
Law No. 1605-XII of 22 April 1992 on Trade Unions
Article 22 – Right of trade unions to declare strikes
Law No. 204-Z of 14 June 2003 on Public Service in the Republic of
Belarus (text No. 2/953)
Act No. 416 of 23 November 1993 on the fundamental principles of
employment in the public service
– Public service employees may not take part in strikes
Presidential Decree No. 24 concerning the use of foreign gratuitous aid
Act of 30 December 1997 on gatherings, meetings, street processions,
demonstrations and picketing
Article 11 – Picketing
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16. Belgium Code pénal social, 2010
Section 8 – Les prestations d’intérêt public, article 207
Loi du 11 juillet 1990 portant approbation de la Charte sociale
européenne et de l’annexe, faites à Turin le 18 octobre 1961
Code pénal
Article 141ter – Aucune disposition du présent titre ne peut être interprétée
comme visant à réduire ou entraver des droits ou libertés fondamentales
tels que le droit de grève (…)
17. Belize Labour (Amendment) Act, 2005
Part I – Preliminary
Section 2 – Interpretation of strike
Settlement Of Disputes In Essential Services Act, Chapter 298 (revised
edition 2003) – Essential services
Settlement of Disputes in Essential Services (Amendment) Act, 1996
(No. 17 of 1996)
Settlement of Disputes (Essential Services) Order, 1977
Settlement Of Disputes In Essential Services Act, 1953
Section 2 – Application of the Act to persons employed by or under the
Government
Section 3 – Meaning of strike
Section 15 – Prohibition of lockouts and strikes
18. Benin Constitution
Article 31
L’Etat reconnaît et garantit le droit de grève. Tout travailleur peut défendre,
dans les conditions prévues par la loi, ses droits et ses intérêts
soit individuellement, soit collectivement ou par l’action syndicale.
Le droit de grève s’exerce dans les conditions définies par la loi.
Article 98
Sont du domaine de la loi les règles concernant:
[…] – du droit du travail, de la sécurité sociale, du droit syndical
et du droit de grève;
Loi no 2001-09 du 21 juin 2002 portant exercice du droit de grève
Titre IV – De la réquisition
Articles 13-20 – Services essentiels
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19. Bolivia, Estado
Plurinacional de
Constitución
Artículo 53
Se garantiza el derecho a la huelga como el ejercicio de la facultad legal
de las trabajadoras y los trabajadores de suspender labores
para la defensa de sus derechos, de acuerdo con la ley.
Ley General del Trabajo / Decreto supremo de 24 de mayo de 1939,
por el que se dicta la Ley General del Trabajo, elevado a ley el 8 de
diciembre de 1942
Título X – De los conflictos
Capitulo II – De la huelga y el lock-out
Código Penal / Decreto supremo núm. 0667 por el que se aprueba
el Texto Ordenado del Código Penal
Artículo 234 – Lock-out, huelgas y paros ilegales
Artículo 306 – Violencias o amenazas, por obreros y empleados
Ley núm. 316, de 11 de diciembre de 2012, que despenaliza el derecho
a la huelga y la protección del fuero sindical en materia penal
20. Bosnia and Herzegovina Constitution
Article 4 – Non-discrimination
The enjoyment of the rights and freedoms provided for in this Article or in the
international agreements listed in Annex I to this Constitution shall be secured
to all persons in Bosnia and Herzegovina 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.
Annex I includes, inter alia, ICESCR
Article 8(d) of the ICESCR provides: “The right to strike, provided that it is
exercised in conformity with the laws of the particular country.”
Act of 14 December 2005 on strike (Zakon o strajku)
Act of 7 April 2000 on strike (text No. 90)
Provides for general strike organization. Workers shall be free to participate
or not in a strike. Strikes shall be organized by trade unions for the
protection of economic and social rights of their members.
Act on Strike, 1998
21. Botswana Trade Disputes Act, 2003 (Act No. 15 of 2004) (Cap. 48:02)
Part VI – Unlawful industrial action and enforcement of collective labour
agreements and decisions of the Industrial Court
39. Right to strike and lockout
40. Regulation of strikes and lockouts
41. Strikes and lockouts in compliance with this Part
42. Prohibition of certain strikes and lockouts
Part VII – Protection of essential services, life and property
Schedule – Essential services
National industrial relations code of good practice, 2002
Part D – Collective bargaining
Section 18 – Strikes and lockouts
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22. Brazil Constitution
Article 9
The right to strike is guaranteed, it being the competence of workers to decide
on the advisability of exercising it and on the interests to defend thereby.
Paragraph 1. The law shall define the essential services or activities and shall
provide with respect to the satisfaction of the community’s undelayable needs.
Paragraph 2. The abuses committed shall subject those responsible to penalties
of the law.
Decreto-ley núm. 5452, de 1.º de mayo de 1943, por el que se aprueba
la codificación de las leyes del trabajo
Chapter VII – DAS PENALIDADES
Section 1 Do “Lockout” E Da Greve / Article 722
Ley núm. 7783 sobre el Ejercicio del Derecho de Huelga, definición de
las actividades esenciales, regulación de las necesidades perentorias
de la comunidad, y por la que se provee a otros fines de 28 de junio
de 1989
23. Brunei Darussalam Trade Disputes Act, 1961
Part II – Trade disputes
Article 7(7) – Essential services
Article 9 – Illegal strikes and lockouts
Article 10 – Penalty for illegal strikes and lockouts
Article 11 – Penalty for giving financial aid to illegal strikes and lockouts
Article 12 – Prosecutions
Article 13 – Protection of persons refusing to take part in illegal strikes or
lockouts
Article 14 – Peaceful picketing and prevention of intimidation
24. Bulgaria Constitution
Article 50
Workers and employees shall have the right to strike in defence of their
collective economic and social interests. This right shall be exercised in
accordance with conditions and procedures established by law.
Regulations of 2003 on the organization and activities of the National
Institute for Conciliation and Arbitration
Railway Transport Act, 2000
Section 51 – Satisfactory transport services to be ensured to the public in
case of strike
Law for the Civil Servant, 1999
Article 47 – Right to strike
Act of 6 March 1990 on the settlement of collective labour disputes
Section 11(2) – Majority needed to call a strike
State Gazette No. 87/27.10.2006 amending the Settlement of Collective
Labour Disputes Act.
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25. Burkina Faso Constitution
Article 22
Le droit de grève est garanti. Il s’exerce conformément aux lois en vigueur.
Loi no 028-2008/AN portant Code du travail au Burkina Faso
Section 3 – Grève et lock-out
Articles 382 et suivants
Article 384 – Services minimums
Article 386 – Occupation des lieux de travail
Arrêté no 2009-022/MTSS/SG/DGT/DER du 18 décembre 2009
déterminant les emplois réquisitionnés et les conditions
et modalités de réquisition en cas de grève
Articles 2 et 3 – Services essentiels
26. Burundi Constitution
Article 37
Le droit de fonder des syndicats et de s’y affilier ainsi que le droit de grève
sont reconnus. La loi peut réglementer l’exercice de ces droits et interdire
à certaines catégories de personnes de se mettre en grève.
Dans tous les cas, ces droits sont interdits aux membres des corps de défense
et de sécurité.
Décret-loi no 1-037 du 07 juillet 1993 portant Code du travail
Article 41 – Suspension du contrat de travail en cas de grève légale
Articles 191-210 – Des différends collectifs
Article 217 – Services minimums
Chapitre 3 – Droit de grève
(Articles 211-223)
Section 1 – Disposition générale
Section 2 – Restrictions à l’exercice du droit de grève
Section 3 – Les effets de la grève
Loi no 1/015 du 29 novembre 2002 portant réglementation de l’exercice
du droit syndical et du droit de grève dans la fonction publique
27. Cambodia Constitution
Article 37
Les droits de grève et de manifestations pacifiques doivent s’exercer
dans le cadre de la loi.
1997 Labour Law – Kram dated 13 March 1997 on the Labour Law
Chapter XIII – Strikes and lockouts (Articles 318–337)
General provisions
Procedures prior to the strike
Effects of a strike
Illegal strikes
2000 Circular/Pakras on the Right to Strike – No. 005 MoSALVY
28. Cameroon Préambule de la Constitution:
– La liberté d’association, la liberté syndicale et le droit de grève sont garantis
dans les conditions fixées par la loi.
Loi no 92-007 du 14 août 1992 portant Code du travail
Titre 9 – Des différends du travail
Chapitre 2 – Du différend collectif
Article 157 – Définitions et conditions de légitimité des grèves
Article 165 – Sanctions
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29. Canada In a judgment dated 30 January 2015, the Supreme Court of Canada found that
the right to strike is protected under section 2(d) of the Charter of Rights and
Freedoms by virtue of its unique role in the collective bargaining process.
Section 2 of the Charter of Rights and Freedoms
Everyone has the following fundamental freedoms:
…
(d) freedom of association.
Trade Unions Act of Canada (in force since 1 June 2001)
Canada Labour Code, 1985
Article 3 – Definition of strike
Article 87.3.1 – Strike ballot within the previous 60 days secret ballot simple
majority of those voting
Article 87.2.1 – Imposes minimum 72 hours’ notice of strike or lockout
Article 87.4 – Maintenance of activities
Article 87.4.8 – Compulsory arbitration
Article 87.6 – Reinstatement
Article 87.7.1 – Specific minimum service provisions exist for the grain
shipping industry
Division VI – Prohibitions and enforcement
Strikes and lockouts
Article 88 – Definitions
Article 89 – Certain requirements for calling a strike
Article 90 – Limitations to the right to strike
Article 94.2.1 – Prohibition of replacement hires
Article 94.3 – Rights of striking workers
Public Service Labour Relations Act, 2003
Section 4 – Essential services
Division 8 – Essential services
Section 119(1) – Essential services
Division 14 – Prohibitions and enforcement
Article 194 – Declaration or authorization of strike
Québec / Décret no 754-2007 du 28 août 2007 concernant le maintien
des services essentiels en cas de grève dans certains services publics
Québec / Décret no 1227-2005 du 7 décembre 2005 relatif au maintien
des services essentiels en cas de grève dans certains services publics
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30. Cabo Verde Constitution
Article 64 – The right to strike and prohibition of lockout
(1) The right to strike shall be guaranteed; workers have the right to decide on
the occasions to strike and the interests which the strike is intended to
defend.
(2) The law shall regulate the exercise of the right to strike.
(3) …
2007 Labour Code / Decreto-Legislativo nº 5/2007
Section 2 – Right to strike
112. Notion of strike
113. Illegal strikes
114. Decision to go on strike
115. Advance notice
116. Representatives of striking workers
117. Strike pickets
118. Conciliation and mediation
119. Freedom to join a strike
120. Prohibition of replacing striking workers
121. Effects of strike
122. Obligations during strike
123. Determination of minimum services
124. Provision of minimum services
125. End of strike
126. Effects of illicit strikes
127. Remission
31. Central African Republic Constitution
Article 10
(…)
Le droit de grève est garanti et s’exerce dans le cadre des lois qui le régissent
et ne peut, en aucun cas, porter atteinte ni à la liberté de travail ni au libre
exercice du droit de propriété.
Loi no 09-004 du 29 janvier 2009 portant Code du travail
Section III – De la grève et du lock-out
Articles 377-386
Article 381 – Services minimums
Loi no 09-14 du 10 août 2009 portant statut général de la fonction
publique
Article 23 – Reconnaissance du droit de grève aux fonctionnaires
Ordonnance no 81/028 portant réglementation du droit de grève
dans les services publics
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32. Chad Constitution
Article 29
Le droit de grève est reconnu.
Il s’exerce dans le cadre des lois qui le réglementent.
Loi no 38/PR/96 du 11 décembre 1996 portant Code du travail
Article 133 – Suspension du contrat de travail en cas de grève légale
Articles 455 et suivants – De la grève et du lock-out
Articles 456-461 – L’exercice du droit de grève
Loi no 017-PR-2001 portant statut général de la fonction publique
Article 9 – Reconnaissance du droit de grève aux fonctionnaires
Loi no 008/PR/2007 du 9 mai 2007 portant réglementation de l’exercice
du droit de grève dans les services publics
Articles 18-21 – Services essentiels
33. Chile Constitución
Artículo 19, 16º
[…] No podrán declararse en huelga los funcionarios del Estado ni de las
municipalidades. Tampoco podrán hacerlo las personas que trabajen en
corporaciones o empresas, cualquiera que sea su naturaleza, finalidad o
función, que atiendan servicios de utilidad pública o cuya paralización cause
grave daño a la salud, a la economía del país, al abastecimiento de la
población o a la seguridad nacional. La ley establecerá los procedimientos para
determinar las corporaciones o empresas cuyos trabajadores estarán
sometidos a la prohibición que establece este inciso;
Código del Trabajo, 2011 (versión refundida)
Artículos 303-414
Título VI – De la huelga y del cierre temporal de la empresa
Artículos 369-385
Artículo 384 – Servicios esenciales
Ley núm. 12927, Seguridad Interior del Estado
Artículo 11 – El paro o huelga en ciertos servicios puede sancionarse
con presidio o relegación.
34. China Trade Union Law of the People’s Republic of China (amended 2001)
Article 27 – Consultations to be held with the trade union in case of work
stoppage or slowdown strike.
35. Colombia Constitución
Artículo 56
Se garantiza el derecho de huelga, salvo en los servicios públicos esenciales
definidos por el legislador.
La ley reglamentará este derecho.
Una comisión permanente integrada por el Gobierno, por representantes
de los empleadores y de los trabajadores, fomentará las buenas relaciones
laborales, contribuirá a la solución de los conflictos colectivos de trabajo
y concertará las políticas salariales y laborales. La ley reglamentará
su composición y funcionamiento.
Ley núm. 50, de 28 de diciembre de 1990, por la que se introducen
reformas al Código Sustantivo del Trabajo y se dictan otras
disposiciones
Artículo 51 – Suspensión del contrato de trabajo por huelga
Artículo 429 – Definición
Artículo 444 – Decisión de los trabajadores
Artículo 445 – Desarrollo de la huelga
Artículo 448 – Funciones de las autoridades
Artículo 449 – Efectos jurídicos de la huelga
Artículo 450 – Casos de ilegalidad y sanciones
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36. Comoros Code du travail de 2012
Titre IX – Des différends du travail
Chapitre II – Du différend collectif
Article 247 – Droit de grève
Loi du 28 juin 2012 abrogeant, modifiant et complétant certaines
dispositions de la loi no 84-108/PR portant Code du travail
Article 68 – Suspension du contrat de travail pendant la grève
Articles 247-249 – Droit de grève; services essentiels
Loi no 04-006 du 10 novembre 2004 portant statut général
des fonctionnaires
Article 9 – Reconnaissance du droit de grève aux fonctionnaires
Code Pénal
Article 391
37. Congo Constitution
Article 25
A l’exception des agents de la force publique, les citoyens congolais jouissent
des libertés syndicales et du droit de grève dans les conditions fixées par la loi.
Loi no 45-75 instituant un Code du travail de la République populaire
du Congo
Titre 2 – Du contrat de travail
Chapitre 2 – Du contrat de travail individuel
Article 47 – De la suspension du contrat de travail
Titre 8 – Du règlement des différends de travail
Chapitre 2 – Du différend collectif (articles 242-249.4)
Article 248-2 – Définition de la grève
Article 248-3 – Grèves licites
Article 248-4 – Grèves illicites ou abusives
Articles 248.5-249.4 – Autres modalités
Article 248-15 – Services minimums
38. Costa Rica Constitución
Artículo 61
Se reconoce el derecho de los patronos al paro y el de los trabajadores
a la huelga, salvo en los servicios públicos, de acuerdo con la determinación
que de éstos haga la ley y conforme a las regulaciones que la misma
establezca, las cuales deberán desautorizar todo acto de coacción
o de violencia.
Código del Trabajo (refundido en 2014)
Artículos 371-378 – De las huelgas legales e ilegales
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39. Côte d’Ivoire Constitution
Article 18
Le droit syndical et le droit de grève sont reconnus aux travailleurs des secteurs
public et privé qui les exercent dans les limites déterminées par la loi.
Loi no 95/15 du 12 janvier 1995 portant Code du travail
Chapitre 2 – Différends collectifs
Articles 82.1-82.5 sur la définition et les modalités de la grève
Section 5, article 82.11 – Arbitrage obligatoire
Loi no 92-570 du 11 septembre 1992 portant statut général de la fonction
publique
Décret no 95-690 du 6 septembre 1995 portant modalités particulières
d’exécution du service minimum en cas de grève dans les services
publics
Décret no 94-92 du 2 mars 1994 portant modalités du service minimum
en cas de grève dans un établissement public sanitaire et social
Loi no 92-571 du 11 septembre 1992 relative aux modalités de la grève
dans les services publics
40. Croatia Constitution
Article 60
The right to strike shall be guaranteed.
The right to strike may be restricted in the armed forces, the police, the civil
service and public services as specified by law.
Labour Act of 4 December 2009 (text No. 3635)
Part XX – Strike and collective labour dispute resolution
Article 269 – Strike and solidarity strike
Article 270 – Disputes in which mediation is mandatory
Article 274 – Resolution of disputes by arbitration
Article 278 – Rules applicable to work assignments which must not be
interrupted
Article 279 – Effects of organization of a strike or participation in a strike
Article 280 – Proportional reduction of salary and salary supplements
Article 281 – Judicial prohibition of an illegal strike and compensation for
damages
Article 283 – Judicial jurisdiction to prohibit a strike or a lockout
Article 284 – Strikes in the armed forces, police, state administration and
public services
Criminal Code
Article 111 – Violation of the right to strike
41. Cuba
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42. Cyprus Constitution
Article 27
1. The right to strike is recognised and its exercise may be regulated by law for
the purposes only of safeguarding the security of the Republic or the
constitutional order or the public order or the public safety or the
maintenance of supplies and services essential to the life of the inhabitants
or the protection of the rights and liberties guaranteed by this Constitution to
any person.
2. The members of the armed forces, of the police and of the gendarmerie shall
not have the right to strike. A law may extend such prohibition to the
members of the public service.
Industrial Relations Code, 1977 (the Industrial Relations Code is a
gentleman’s agreement signed by the Social Partners in 1977)
Part II – Procedural provisions
B. Procedure for the settlement of grievances
1. Direct negotiations
(d) Violations of collective agreements – Resort to strike
43. Czech Republic Constitution
Article 44
…
A law may place restrictions upon the exercise of the right to strike by persons
who engage in professions essential for the protection of human life and health.
Act No. 2/1991 on collective bargaining
Section 16 – Grounds for strike
Section 17 – Conditions
Section 18 – Participation
Section 19 – Cooperation
Section 20 – Unlawful strike
44. Democratic Republic of
the Congo
Constitution
Article 39
Le droit de grève est reconnu et garanti.
Il s’exerce dans les conditions fixées par la loi qui peut en interdire ou en limiter
l’exercice dans les domaines de la défense nationale et de la sécurité
ou pour toute activité ou tout service public d’intérêt vital pour la nation.
Loi no 015/2002 du 16 octobre 2002 portant Code du travail
Section 1 – La conciliation préalable des conflits collectifs de travail
Article 57 – Suspension du contrat de travail
Article 305 – Demande devant le Tribunal de travail en cas de conflit
collectif non résolu
Article 315 – Cessation collective du travail
Article 326 – Peine en cas de cessation collective du travail
Loi n° 016/2002 portant création, organisation et fonctionnement
des tribunaux du travail
Article 28 – Application de l’article 305 du Code du travail
Note circulaire no 12/CAB.MIN/ETPS/05/09 du 14 août 2009 relative
aux instructions procédurales pour l’usage du droit de grève
en République démocratique du Congo aux organisations
professionnelles des employeurs et des travailleurs, entreprises
et établissements de toute nature
Article 10 – Services essentiels
Annexe
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Country Constitutional provisions referring to strike action Legislative measures on strike action
45. Denmark Labour Court and Industrial Arbitration Act, 2008
Part 1 – The Labour Court
Section 9, subsection 2 – Work stoppage
Section 12 – Illegal work stoppage
Consolidation Act on Conciliation in Industrial Disputes, 2002
Part 1 – Conciliators
Section 2(4) – Notices of work stoppage
Section 4(4) – Work stoppage following failure of negotiations
46. Djibouti Constitution
Article 15
(…)
Le droit de grève est reconnu. Il s’exerce dans le cadre des lois qui le régissent.
Il ne peut en aucun cas porter atteinte à la liberté du travail.
Loi no 133/AN/05/5ème L du 28 janvier 2006 portant Code du travail
Articles 36, 41, 188, 189, 190
Décret no 83-099/PR/FP du 10 septembre 1983 fixant les conditions
d’exercice du droit syndical et du droit de grève
Article 23 – Services essentiels
Décret no 95-0091/PRE du 5 septembre 1995 portant réquisition
du personnel de certains services publics
Article premier – Services essentiels
47. Dominica Industrial Relations Act (Act No. 18 of 1986)
Part VIII – Settlement of trade disputes and managerial trade disputes
Article 2 – Definition of essential services
Schedule – Essential services
Article 59 – Essential services
Article 61 – When strike or lockout may occur
Article 64 – When employee may participate in a strike
Article 71 – No right to pay during strike
48. República Dominicana Constitución
Artículo 62, 6
Para resolver conflictos laborales y pacíficos se reconoce el derecho de
trabajadores a la huelga y de empleadores al paro de las empresas privadas,
siempre que se ejerzan con arreglo a la ley, la cual dispondrá las medidas para
garantizar el mantenimiento de los servicios públicos o los de utilidad pública;
Ley núm. 16-92 que aprueba el Código del Trabajo
Libro 6 – De los conflictos económicos, de las huelgas y de los paros
Título I – De los conflictos económicos
(Artículos 395-400)
Título II – De las huelgas
(Artículos 401-412)
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49. Ecuador Constitución
Artículo 326
Párrafo 10 – Se adoptará el diálogo social para la solución de conflictos
de trabajo y formulación de acuerdos.
Párrafo 12 – Los conflictos colectivos de trabajo, en todas sus instancias,
serán sometidos a tribunales de conciliación y arbitraje.
Párrafo 14 – Se reconocerá el derecho de las personas trabajadoras
y sus organizaciones sindicales a la huelga. Los representantes gremiales
gozarán de las garantías necesarias en estos casos. Las personas
empleadoras tendrán derecho al paro de acuerdo con la ley.
Párrafo 15 – Se prohíbe la paralización de los servicios públicos de salud
y saneamiento ambiental, educación, justicia, bomberos, seguridad social,
energía eléctrica, agua potable y alcantarillado, producción hidrocarburífera,
procesamiento, transporte y distribución de combustibles, transportación
pública, correos y telecomunicaciones. La ley establecerá límites
que aseguren el funcionamiento de dichos servicios.
Codificación del Código del Trabajo, 1997 (enmendado en 2012)
Artículo 235 – Declaratoria de huelga
Artículo 330 – Normas en caso de huelga
Artículo 467 – Derecho de huelga
Artículo 468 – Pliego de peticiones
Artículo 469 – Término del conflicto
Artículo 470 – Mediación obligatoria
Artículo 471 – Prohibición de declaratoria de huelga
Artículo 474 – Integración del Tribunal de Conciliación y Arbitraje
Artículo 485 – Apelación de los huelguistas
Artículo 497 – Casos en que puede declararse la huelga
Artículo 498 – Declaratoria de huelga
Artículo 499 – Providencias de seguridad
Artículo 501 – Prohibición de emplear trabajadores sustitutos
Artículo 502 – Terminación de la huelga
Artículo 504 – Remuneración durante los días de huelga
Artículos 505-508 – Huelga solidaria
Artículo 511 – Suspensión del contrato de trabajo
Artículo 514 – Declaración de huelga en las instituciones y empresas
que prestan servicios de interés social o público
Artículos 515 y 522 – Servicios mínimos
Artículo 521 – Servicios esenciales
Ley Orgánica de Empresas Públicas (LOEP)
Artículo 24
Ley general de Instituciones del Sistema Financiero
Artículo 56
Código Penal
Artículo 241 – Impedimento o limitación del derecho a huelga
Artículo 346 – Paralización de un servicio público
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50. Egypt Labour Code (No. 12 of 2003)
Book 4 – Collective labour relationships
Part IV – Collective labour litigations
Articles 192–201 on strike action
Trade Union Act No. 35 of 1976 (as amended by Act No. 12 of 1995)
Section 14
Decree No. 1185 of 2003 determining the vital or strategic
establishments where strike is forbidden
51. El Salvador Constitución
Artículo 48
Se reconoce el derecho de los patronos al paro y el de los trabajadores a la
huelga, salvo en los servicios públicos esenciales determinados por la ley. Para
el ejercicio de estos derechos no será necesaria la calificación previa, después
de haberse procurado la solución del conflicto que los genera mediante las
etapas de solución pacífica establecidas por la ley. Los efectos de la huelga o
el paro se retrotraerán al momento en que éstos se inicien.
La ley regulará estos derechos en cuanto a sus condiciones y ejercicio.
Artículo 221
Se prohíbe la huelga de los trabajadores públicos y municipales, lo mismo que
el abandono colectivo de sus cargos.
Código del Trabajo, decreto núm. 15, de 23 de junio de 1972
Capítulo III – Del procedimiento en los conflictos colectivos
económicos o de intereses
Sección 7 – De la huelga
(Artículos 527-538)
Sección 9 – De la calificación de la huelga y el paro
(Artículos 546-565)
Sección 10 – De la terminación de la huelga y el paro
(Artículo 566)
52. Guinea Ecuatorial Constitución
Artículo 10
El derecho a la huelga es reconocido y se ejerce en las condiciones previstas
por la ley.
Ley núm. 12/1992, de fecha 1.º de octubre, de Sindicatos y Relaciones
Colectivas de Trabajo
Título segundo – Relaciones colectivas de trabajo
Capítulo I – Negociación colectiva
Capítulo II – Huelga
Capítulo III – Cierre patronal
Capítulo IV – Procedimientos para la solución de los conflictos de trabajo
Capítulo V – Sanciones
53. Eritrea Labour Proclamation (No. 118/2001)
Title IX – Strike and lockout and unfair labour practices
Article 115 – Strike and lockout
Article 116 – Legality of a strike
Article 117 – Labour dispute resolution in undertakings which supply
essential services
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54. Estonia Constitution
Article 29
…
Everyone may freely belong to unions and federations of employees and
employers. Unions and federations of employees and employers may uphold
their rights and lawful interests by means which are not prohibited by law. The
conditions and procedure for the exercise of the right to strike shall be provided
by law.
Trade Unions Act of 14 June 2000 (as amended 2010)
Section 18 – Rights of trade unions
(1) In order to exercise their competence, trade unions have the right to:
…
(6) in order to achieve their objectives, organise meetings, political meetings,
street parades, pickets and strikes pursuant to the procedure prescribed by
law; …
Civil Service Act of 13 June 2012
Article 59 – Strike ban on official
2000 Imprisonment Act
Article 135 – A prison officer is prohibited to participate in strikes, pickets
and other service-related pressure activities
Act on resolution of collective labour disputes of 5 May 1993
(consolidation)
Article 13 – Creation of right to strike or lockout
Chapter III – Strikes and lockouts
Article 14 – Decision-making
Article 15 – Advance notice of strike or lockout
Article 16 – Direction of strike
Article 18 – Warning and support strike
Article 19 – Postponement or suspension of strike or lockout
Article 20 – Freedom to participate in strike
Article 21 – Restrictions on right to strike
Article 22 – Unlawful strikes and lockouts
Article 23 – Declaration of strikes or lockouts as unlawful
Article 24 – Rights and liability of participants in strikes or lockouts
Article 25 – Remuneration during strike or lockout
Article 26 – Liability in case of strike or lockout declared unlawful
Article 28 – Making up for time lost by reason of strike
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55. Ethiopia Constitution
Article 42
1. (a) Factory and service workers, farmers, farm labourers, other rural workers
and government employees whose work compatibility allows for it and who are
below a certain level of responsibility, have the right to form associations to
improve their conditions of employment and economic well-being. This right
includes the right to form trade unions and other associations to bargain
collectively with employers or other organizations that affect their interests.
(b) Categories of persons referred to in paragraph (a) of this sub-article have
the right to express grievances, including the right to strike.
(c) Government employees who enjoy the rights provided under paragraphs (a)
and (b) of this sub-article shall be determined by law.
…
Labour Proclamation No. 377/2003
Part 9 – Labour dispute
Article 136 – Definition of strike
Chapter 5 – Strike and lockout
General
Conditions to be fulfilled
Procedure for notice
Prohibited actions
(Articles 157–160)
Criminal Code/Proclamation No. 414/2004
Article 420 – Penalties
Article 421 – Unlawful striking
56. Fiji Employment Relations Promulgation, 2007
Part 18 – Strikes and lockouts
175. Secret ballot a prerequisite to strike
177. Unlawful strikes or lockouts
178. Lawful strikes or lockouts on grounds of safety or health
179. Effect of lawful strikes or lockouts
180. Power of the Minister to declare strike or lockout unlawful
181. Court may order discontinuance of strike or lockout
182. Employers not liable for wages
183. Record of strikes and lockouts
184. Prohibition of expulsion of members
Part 19 – Protection of essential services, life and property
185. Object of this Part
186. Strikes in essential services
Part 21 – Offences
250. Offences where strikes or lockouts are unlawful
256. Penalties
Essential National Industries (Employment) Decree, 2011
27. Job actions, strikes, sick outs, slowdowns, and lockouts
Public Service (Collective Bargaining) Act, 1973 (No. 123)
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57. Finland Constitution
Section 13(2) – Freedom of assembly and freedom of association
Everyone has the freedom of association. Freedom of association entails the
right to form an association without a permit, to be a member or not to be a
member of an association and to participate in the activities of an association.
The freedom to form trade unions and to organize in order to look after other
interests is likewise guaranteed.
Act on Mediation in Labour Disputes, 1962
Chapter 2 – Arrangement of stoppages of work
Section 7 – Notice of stoppage of work
Section 8 – Deferment of stoppage of work
Employment Contracts Act (55/2001, amendments up to 398/2013
included)
Chapter 7 – Grounds for termination of the employment contract by means
of notice
Section 2.2 – Termination grounds related to the employee’s person
Collective Agreements Act, 1946
58. France Constitution
Préambule
Le droit de grève s’exerce dans le cadre des lois qui le réglementent.
Décret no 2008-1246 du 1er décembre 2008 relatif aux règles
d’organisation et de déroulement de la négociation préalable
au dépôt d’un préavis de grève prévue aux articles L. 133-2
et L. 133-11 du Code de l’éducation
Circulaire du 30 juillet 2003 relative à la mise en oeuvre des retenues
sur la rémunération des agents publics de l’Etat en cas de grève
Loi no 2007-1224 sur le dialogue social et la continuité du service
public dans les transports terrestres réguliers de voyageurs
Loi no 2012-375 du 19 mars 2012 relative à l’organisation du service
et à l’information des passagers dans les entreprises de transport
aérien de passagers et à diverses dispositions dans le domaine
des transports
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59. Gabon Loi no 3/94 du 21 novembre 1994 portant Code du travail
Chapitre II – Des conflits collectifs du travail
Section 1 – De la grève
Articles 342-352
Sous-section 2 – Des dispositions particulières concernant la grève
dans les services publics
Articles 353-355
Loi no 1/2005 du 4 février 2005 portant statut général de la fonction
publique
Article 68 et 69 – Exercice du droit de grève par les agents publics; préavis
et service minimum
60. Gambia Labour Act, 2007 – Act No. 5 of 2007
Article 137 – Picketing
Article 138 – Secondary action
Article 139 – Political action and action in breach of procedure
Article 140 – Emergency provisions – Essential services
61. Georgia Constitution
Article 33
The right to strike shall be recognized. Procedure of exercising this right shall be
determined by law.
The law shall also establish the guarantees for the functioning of services of
vital importance.
Law on Trade Unions,1997
Article 13 – Right to participate in settling collective labour disputes
Criminal Code
Article 165 – Encroachment upon right to strike
62. Germany The constitutional guarantee of the right to strike has been established by the
courts on the basis of article 9(3) of the Basic Law (Grundgesetz).
Basic Law
Article 9(3)
The right to form associations to safeguard and improve working and economic
conditions shall be guaranteed to every individual and to every occupation or
profession. Agreements that restrict or seek to impair this right shall be null and
void; measures directed to this end shall be unlawful. Measures taken pursuant
to article 12a, to paragraphs (2) and (3) of article 35, to paragraph (4) of
article 87a, or to article 91 may not be directed against industrial disputes
engaged in by associations within the meaning of the first sentence of this
paragraph in order to safeguard and improve working and economic conditions.
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63. Ghana Labour Act, 2003 – Act No. 651
Part XIX – Strikes
159. Notice of intention to resort to strike or lockout
160. Strike and lockout
161. Cooling-off period
162. Essential services
163. Prohibition of strike or lockout in respect of essential services
164. Compulsory reference to arbitration
168. Illegal strike and lockout
169. Legal effect of lawful strike and lockout
170. Temporary replacement of labour
171. Picketing
175. Definitions of essential services and strike
64. Greece Constitution
Article 23
1. The State shall adopt due measures safeguarding the freedom to unionize
and the unhindered exercise of related rights against any infringement
thereon within the limits of the law.
2. Strike constitutes a right to be exercised by lawfully established trade unions
in order to protect and promote the financial and the general labour interests
of working people.
Strikes of any nature whatsoever are prohibited in the case of judicial
functionaries and those serving in the security corps.
The right to strike shall be subject to the specific limitations of the law regulating
this right in the case of public servants and employees of local government
agencies and of public law legal persons as well as in the case of the
employees of all types of enterprises of a public nature or of public benefit, the
operation of which is of vital importance in serving the basic needs of the
society as a whole. These limitations may not be carried to the point of
abolishing the right to strike or hindering the lawful exercise thereof.
Act No. 1264, respecting the democratization of the trade union
movement and the protection of workers’ trade union freedoms, 1982
Article 19 – Right to strike
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65. Grenada Labour Relations Act (Act No. 15 of 1999)
45. Reporting of trade disputes
46. Power to refer dispute to Arbitration Tribunal
Part IX – Employees’ ancillary rights, etc.
64. Peaceful picketing and prevention of intimidation
65. Refusal to do strikers’ work
66. Right to return to work after strike action
67. Negation of conspiracy re trade disputes
68. Negation of liability re interfering with another’s business
69. Intimidation and annoyance
Employment Act (Act No. 14 of 1999)
44. Continuity of employment pursuant to participation in strike
66. Guatemala Constitución
Artículo 116
Se reconoce el derecho de huelga de los trabajadores del Estado y sus
entidades descentralizadas y autónomas. Este derecho únicamente podrá
ejercitarse en la forma que preceptúe la ley de la materia y en ningún caso
deberá afectar la tensión de los servicios públicos esenciales.
Código del Trabajo (2001)
Título 7 – Conflictos colectivos de carácter económico
Capítulo 1 – Huelgas
(Artículos 239-244)
Capítulo 3 – Disposiciones comunes a la huelga y al paro
(Artículos 253-256)
Decreto núm. 18-2001, por el que se enmienda el Código del Trabajo
(en particular, la lista de trabajadores que no pueden ejercer el derecho
de huelga)
Ley de Sindicalización y Regulación de la Huelga de los Trabajadores
del Estado, decreto núm. 71-86, del Congreso de la República
(enmendado por decreto núm. 35-96, de 28 de mayo de 1996)
Sección 4 – Arbitraje obligatorio en caso de servicios no esenciales.
67. Guinea Constitution
Article 20
[…] Le droit de grève est reconnu. Il s’exerce dans le cadre des lois
qui le régissent. Il ne peut en aucun cas porter atteinte à la liberté du travail.
La loi fixe les conditions d’assistance et de protection auxquelles ont droit
les travailleurs.
Code du travail de 2014
Titre III – Conflits collectifs
Chapitre 1 – La grève
(Articles 431.1-431.10)
Chapitre 3 – L’arbitrage
Chapitre 4 – Exécution des accords de conciliation et des sentences
arbitrales
Arrêté no 680/MTASE/DNTLS/95 du 24 octobre 1995 portant définition
et détermination des services essentiels dans le cadre de l’exercice
du droit de grève
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68. Guinea-Bissau Constitution
Article 47
1. It is recognized a workers’ right to strike under the law which is responsible
for defining the scope of professional interests to defend through the strike,
and its limitations in essential services and activities in the interest of the
pressing needs of society.
2. …
Ley núm. 9/91, sobre la Huelga
Se reconoce el derecho de huelga a los trabajadores en defensa de sus
intereses socioprofesionales dentro de los límites de los demás derechos
reconocidos a los ciudadanos. Se prohíbe la huelga en las fuerzas armadas
y en la policía. Se prohíbe la discriminación de los trabajadores con motivo
de su adhesión o no a una huelga. Se determinan los casos en que la
huelga es ilegal y las prácticas ilícitas. Se garantiza la libertad de trabajo
de los no adherentes y se prohíbe la substitución de los trabajadores
huelguistas. Se determinan los órganos competentes para declarar la
huelga. Otras disposiciones de la ley se refieren a los piquetes de huelga,
a la intervención conciliatoria, a los servicios mínimos, a la huelga con
motivo de la aplicación de una norma legal o convencional, a la huelga
en empresas o servicios de interés público esencial, a la finalización
de la huelga, a la prohibición del cierre de talleres, a las sanciones, etc.
(NATLEX)
69. Guyana Constitution
Article 147(2)
Except with his or her consent no person shall be hindered in the enjoyment of
his or her freedom to strike.
Judicial Service Commission Rules (included in the Constitution)
Article 20 – Special provisions for officers of the judicial service commission
concerning strike action.
Public Utility Undertakings and Public Health Services Arbitration Act
(Chapter 54:01), as amended up to 2012
Section 12 – Prohibition of lockouts and strikes
Section 19 – Penalty for participation in illegal strike
Public Utility Undertakings and Public Health Services Arbitration
(Amendment) Act, 2009
Article 6 – Schedule defining essential services
Public Utility Undertakings and Public Health Services Arbitration Act
(Chapter 54:01)
Article 19 – Compulsory arbitration and the sanction (fine or imprisonment,
as amended by the Public Utility Undertakings and Public Health Services
Arbitration (Amendment) Act, 2009) imposed on workers who take part in an
illegal strike.
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70. Haiti Constitution
Article 35.5
Le droit de grève est reconnu dans les limites déterminées par la loi.
Code du travail, 1984
Titre III – Des conflits du travail
Chapitre VI – De la grève
Article 204 – Conditions
Article 205 – Formes de grève
Article 206 – Légalité de la grève
Article 207 – Suspension du contrat de travail
Article 208 – Contenu de la grève
Article 209 – Interdiction de la grève dans les services essentiels
Article 210 – Grève illégale
71. Honduras Constitución
Artículo 128, 13)
Se reconoce el derecho de huelga y de paro. La ley reglamentará su ejercicio
y podrá someterlo a restricciones especiales en los servicios públicos
que determine;
Decreto núm. 189, que promulga el Código del Trabajo
Artículo 495 – Atribución exclusiva de la Asamblea
Artículo 550 – Definición de huelga
Artículo 551 – Objeto de la huelga
Artículos 552-553 – Efectos jurídicos de las huelgas
Artículos 555-557 – Restricciones al derecho de huelga en los servicios
públicos
Capítulo II – Declaración y desarrollo de la huelga
(Artículos 562-568)
Capítulo IV – Terminación de la huelga
(Artículos 572-573)
Capítulo VI – Disposiciones comunes a la huelga y al paro
(Artículos 585-590)
72. Hungary 2011 Fundamental Law
Article XVII
(2) Employees, employers and their representative bodies shall have a statutory
right to bargain and conclude collective agreements, and to take any joint action
or hold strikes in defence of their interests.
Act I of 2012 on the Labour Code
Sections 216 and 266
2010 Amendment of Act VII of 1989 on Strikes
73. Iceland Act on Trade Unions and Industrial Disputes, No. 80/1938 (as amended
2011)
Section II – Respecting strikes and lockouts
Articles 14–19
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74. India Freedom of association subject to constitutional protection Article 19.1.c “All
citizens shall have the right to ... form associations and unions”, but no mention
of the right to strike.
Main case law on constitutional protections is All India Bank Employees v.
National Industrial Tribunal (1961) in which it is stated: “we have reached the
conclusion that even a very liberal interpretation of sub-cl. (c) of cl. (1) of Art. 19
cannot lead to the conclusion that the trade unions have a guaranteed right to
an effective collective bargaining or to strike, either as part of collective
bargaining or otherwise. The right to strike or the right to declare a lockout may
be controlled or restricted by appropriate industrial legislation”.
The same judgment goes on to say “the right guaranteed by sub-cl.(c) of cl.(1)
of Art. 19 does not carry with it a concomitant right that the unions formed for
protecting the interests of labour shall achieve the purpose for which they were
brought into existence, such that any interference, to such achievement by the
law of the land would be unconstitutional unless the same could be justified as
in the interests of public order or morality”.
Industrial Disputes Act, 1947
Article 2.q – Definition of strike
Article 2.n – Definition of public services
Article 10.3 – Power of referral
Chapter V – Strikes and lockouts
Sections 22–25
Chapter Vc – Unfair labour practices
Section 25.u – Penalties
Schedule 5, sections 4, 5, 6, 7, 8, 12, 15, Part II
Trade Unions Act, 1926
Sections 17 and 18
The Central Civil Services (Conduct) Rules, 1964
Rule 7 – Demonstration and strikes
75. Indonesia Act No. 13 of 2003 concerning manpower
Part 8 – Institutes/agencies for the settlement of industrial relations
disputes
Articles 137–145 – Strikes
Act No. 2 of 2004 on Industrial Relations Disputes Settlement
Kapolri Regulation No. 1/2005 (Guidelines on the conduct of the
Indonesian police to ensure law enforcement and order in industrial
disputes)
76. Iran, Islamic Republic of Labour Code of 20 November 1990
Section 142 refers to “stoppage of work” and “deliberate reduction of
production by the workers”.
77. Iraq Act No. 71 of 1987 promulgating the Labour Code
Part VIII – Dispute resolution (Labour Code)
Chapter I – Labour disputes
Section 136
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78. Ireland Case law suggests that it is likely a right to strike can be derived from
article 40.3 of the Constitution, which protects the “personal rights” of citizens,
but this protection does not necessarily extend to other forms of industrial
action, for example Crowley v. Ireland and Others (1980) and Talbot (Ireland) v.
Merrigan and Others (1981).
Industrial Relations Act, 1990
Part II – Trade Union Law
Section 8 – Definitions
Section 10 – Acts in contemplation or furtherance of trade dispute
Section 11 – Peaceful picketing
Section 12 – Removal of liability for certain acts
Section 13 – Restriction of actions of tort against trade unions
Section 14 – Secret ballots
Section 15 – Power to alter rules of trade unions
Section 16 – Enforcement of rule for secret ballot
Section 17 – Actions contrary to outcome of secret ballot
Section 18 – Non-application of sections 14–17 to employers’ unions
Section 19 – Restriction of right to injunction
Unfair Dismissals Act, 1977
Article 5 – Strike dismissal
79. Israel Settlement of Labour Disputes Law, 5717-1957
Part Two – Conciliation
Article 5A – Duty to give notice of strike or lockout
Part Four – Collective agreements in public service
Article 37A – Definitions
Unprotected strike or lockout
Part Four – Collective agreements in public service
Article 37A – Definitions
Unprotected strike – A strike of employees in a public service where a
collective agreement applies, except a strike unconnected with wages or
social conditions and declared or approved by the central national governing
body of the authorized employees’ organization.
80. Italy Constitution
Article 40
Le droit de grève doit s’exercer dans le respect de la loi.
Loi no 83 du 11 avril 2000 portant modifications et compléments à la loi
no 146 du 12 juin 1990 réglementant le droit de grève dans les services
publics essentiels ainsi que les droits de la personne prévus
par la Constitution
Loi no 146/1990 portant dispositions relatives à l’exercice du droit
de grève dans les services publics essentiels et à la sauvegarde
des droits de la personne protégés par la Constitution et instituant
une commission de garantie de l’application de la loi
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81. Jamaica Labour Relations and Industrial Disputes Act, 1975
Section 2 – Definitions
Section 9 – Industrial disputes in undertakings providing essential services
Section 10 – Ministry may act in public interest to settle dispute
Section 11 – Reference of disputes to the tribunal at the request of the
parties
Part III – Establishment and functions of the industrial disputes tribunal
Section 13 – Unlawful industrial action
Section 31 – Prohibition of industrial action while appeals from the tribunal
are pending in court
Section 32 – Prohibition of industrial action prejudicial to the national
interests
82. Japan According to the courts, dispute acts, including strikes, are protected by
article 28 of the Constitution.
Constitution
Article 28
The right of workers to organize and to bargain and act collectively is
guaranteed.
Labour Union Act (Act No. 174 of 1 June 1949)
Article 5(2) – The constitution of a labour union shall include the provisions
listed in any of the following items:
…
(viii) that no strike shall be started without a majority decision made by
direct secret vote either of the union members or of delegates elected
by direct secret vote of the union members.
Article 8 – An employer may not make a claim for damages against a labour
union or a union member for damages received through a strike or other
acts of dispute which are justifiable acts.
Labour Relations Adjustment Law (Law No. 25 of 27 September 1946 as
amended through Law No. 82 of 14 June 1988)
Provides for conciliation, mediation, arbitration, and emergency arbitration.
83. Jordan Labour Law and its Amendments No. 8 of the Year 1996
Articles 134–136 – Strike action
Regulation No. (8) of the Year 1998 – The regulation of the conditions
and procedures of strike and lockout
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84. Kazakhstan Constitution
Article 24
Paragraph 3 – The right to individual and collective labour disputes with the use
of methods for resolving them, stipulated by law including the right to strike,
shall be recognized.
Labour Code of the Republic of Kazakhstan No. 251 of 15 May 2007
Article 296 – Guarantees in connection with settlement of a collective labour
dispute
Article 297 – Obligations of the parties and mediation
bodies in settling collective labour disputes
Article 298 – The right to strike
Article 299 – Announcement of a strike
Article 300 – Powers of the body heading the strike
Article 301 – Obligations of the parties to the collective labour
dispute during a strike
Article 302 – Guarantees to employees in connection
with a strike being called
Article 303 – Illegal strikes
Article 304 – Consequences of a strike being declared illegal
Criminal Code
Article 335 – Directing of a prohibited strike, and impeding the work of an
enterprise or an organization under the conditions of an emergency
situation.
85. Kenya Constitution
Article 41
(1) Every person has the right to fair labour practices.
(2) Every worker has the right:
(c) to form, join or participate in the activities and programmes of a trade
union; and
(d) to go on strike.
Employment Act, 2007
Part I – Preliminary
Section 2 – Interpretation – definition
Labour Relations Act, 2007
Part X – Strikes and lockouts
Section 76 – Protected strikes and lockouts
Section 77 – Powers of industrial court
Section 78 – Prohibited strikes or lockouts
Section 79 – Strike or lockout in compliance with this Act
Section 80 – Strike or lockout not in compliance with this Act
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86. Kiribati Industrial Relations Code (Amendment) Act, 2008
Industrial Relations Code, 1998
Article 27 – Strike, lockout or boycott unlawful where procedures are not
exhausted
Article 28 – Strike, lockout or boycott where award or agreement still in force
Article 30 – Offences where strike, lockout or boycott unlawful
Part VI – Protection of essential services, life and property
Article 37 – Protection of life and property
Article 39 – Strike ballots (see amendments 2008)
Extradition Act, 2003
Terrorist offence – However, an act is not a terrorist act if it is committed as
part of … industrial action and is not intended to result in any harm …
87. Korea, Republic of Constitution
Article 33
(1) To enhance working conditions, workers shall have the right to independent
association, collective bargaining, and collective action.
(2) Only those public officials, who are designated by Act, shall have the right
to association, collective bargaining, and collective action.
(3) The right to collective action of workers employed by important defence
industries may be either restricted or denied under the conditions as
prescribed by Act.
Trade Union and Labour Relations Adjustment Act, 1997 (Law
No. 5310) (as amended 2010)
Chapter IV – Industrial action
Article 37 (Basic principles of industrial action)
Article 38 (Guidance and responsibility of trade union)
Article 39 (Restriction on detention of workers)
Article 40 (Support for labour relations)
Article 41 (Restriction on and prohibition of industrial action)
Article 42 (Prohibition of acts of violence)
Article 43 (Restriction on hiring by employer)
Article 44 (Prohibition of demands for wage payment during the period of
industrial action)
Article 45 (Adjustment precedent to industrial action)
Act on the Establishment, Operation, etc. of Public Officials’ Trade
Unions, 2005
Article 1 (Prohibition of industrial action) – A trade union and its members
shall not take any action, including strikes
88. Kuwait Law No. 6/2010 concerning Labour in the Private Sector
Chapter V – Collective Labour Relations/Section 3 – Collective labour
disputes
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89. Kyrgyzstan Constitution
Article 43
Everyone shall have the right to strike.
Labour Code of 4 August 2004 (text No. 106)
Article 436 – Right to the strike
Article 437 – Announcement of the strike
Article 438 – The organ heading the strike
Article 439 – Obligations of the parties of the collective employment dispute
during the strike
Article 440 – Illegal strikes
Article 441 – Guarantees and the legal status of workers in connection with
carrying out the strike
Article 443 – Responsibility for evasion from participation in conciliatory
procedures and failure to carry out of the agreement reached as a result of
conciliatory procedure
Article 444 – Responsibility of workers for illegal strikes
Article 445 – Maintaining documentation in case of permission of the
collective employment dispute
90. Lao People’s Democratic
Republic
Labour Law, 2013
Article 154 – Prohibition of work stoppage during disputes
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91. Latvia Constitution
Article 108
Employed persons have the right to a collective labour agreement, and the right
to strike. The State shall protect the freedom of trade unions.
Law on Trade Unions of 1990 (as amended 2005)
Section 20 – Right of trade unions to declare strikes
Trade unions have the right to declare strikes in accordance with the
procedures specified by law.
1998 Act on Strikes (amended in 2002 and 2005)
Part I – General conditions
Sections 1–7
Part II – Pre-strike negotiations
Sections 8–10
Part III – Declaration of strikes
Sections 11–15
Part IV – Limits of the right to strike
Sections 16–18
Part V – Supervision of the strike procedure
Sections 19–22
Part VI – Illegality of the strike or the strike declaration
Sections 23–25
Part VII – The rights and obligations of employees during the strike
Sections 26–33
Part VIII – Responsibility for contravention of this Act
Section 34
92. Lebanon Penal Code – Legislative Decree No. 340 of 1943
Article 342 – Sanction for suspension of inter-urban or international
transport, postal, telegraphic or telephone communications or public water or
electricity distribution service.
Article 343 – Sanctions for anyone who has led or maintained a concerted
work stoppage by means of a gathering on public roads or places or by
occupying workplaces.
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93. Lesotho 1992 Labour Code
Part XIX – Strikes, lockouts and essential services
3. Definition
229. Notice of strikes and lockouts
230. When strike lockout lawful
231. Offences in connection with strikes and lockout declared unlawful
232. Threat to essential services
Part XX – Picketing, intimidation and other matters related to trade
disputes
233. Peaceful picketing and prevention of intimidation
234. Intimidation
235. Conspiracy in trade disputes
Public Services Act (2005)
Article 19 – Prohibition for public officers
94. Liberia Labour Practices Law, 1956
Title 18A – Labour Practices Law
Part VI – Labour organizations
Chapter 44 – Unlawful picketing, strikes and boycotts
Section 4403 – Essential services
Section 4503 – Notice and secret ballot for strike
Section 4506 – Unlawful strikes against Government
95. Libya 1970 Labour Code
Part IV – Trade unions
Part V – Labour disputes, section 150 – Requirements for prior conciliation
and arbitration
Part VI – Penalties, section 176 – Liability for contravention of section 150
Law No. 12 of 1378 (2010) on Labour Relations
Chapter 4 – Labour disputes, conciliation and arbitration,
 sections 101–109
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96. Lithuania Constitution
Article 51
While defending their economic and social interests, employees shall have the
right to strike.
The limitations of this right and the conditions and procedure for its
implementation shall be established by law.
Labour Code, 2002
Part I
Chapter III – Representation of labour law subjects
Article 22(3) – Right of employees to organize and manage strikes
Chapter X – Regulation of collective labour disputes
Article 76 – Definition of strike
Article 77 – Declaration of a strike
Article 78 – Restrictions on strikes
Article 79 – Body leading a strike
Article 80 – Course of a strike
Article 81 – Lawfulness of a strike
Article 81(4) – Essential services
Article 82 – Legal status and guarantees of the employees on strike
Law on Works Councils, 2004
Chapter V – Rights and duties of the Works Council
Article 19 – Rights of the Works Council
Article 19(10) – Decision to call a strike
Law On Public Service, 1999
Chapter IV – Duties and rights of civil servants
Article 21.1(10) – Right of civil servants to strike
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97. Luxembourg Constitution
Article 11
4) La loi garantit le droit au travail et l’Etat veille à assurer à chaque citoyen
l’exercice de ce droit. La loi garantit les libertés syndicales et organise
le droit de grève.
Code du travail
Article L162-11 – Obligation de trêve sociale durant la période de validité
de la convention collective
Article L.163-2, paragraphe 1) – Avant toute grève ou lock-out, les litiges
collectifs visés aux points 1 et 2 de l’article L163-1, paragraphe 2),
sont portés obligatoirement devant l’Office national de conciliation.
Article L163-2, paragraphe 5) – Jusqu’à la constatation de la non-conciliation
par l’Office national de conciliation les parties s’abstiendront […] ainsi que
de toute grève ou mesure de lock-out.
Loi du 16 avril 1979 fixant le statut général des fonctionnaires de l’Etat
Chapitre 11 – Droit d’association, représentation du personnel
Article 36, paragraphe 1) – Les fonctionnaires jouissent de la liberté
d’association et de la liberté syndicale. Toutefois, ils ne peuvent recourir
à la grève que dans les limites et sous les conditions de la loi
qui en réglemente l’exercice.
Arrêt du 24 juillet 1952 de la Cour de cassation luxembourgeoise
«La participation à une grève professionnelle, légitime et licite, constitue
pour le travailleur un droit proclamé implicitement par l’article 11, alinéa 5,
de la Constitution.» Confirmé par arrêt du 15 décembre 1959.
98. Madagascar Constitution
Article 33
Le droit de grève est reconnu sans qu’il puisse être porté préjudice
à la continuité du service public ni aux intérêts fondamentaux de la nation.
Les autres conditions d’exercice de ce droit sont fixées par la loi.
Loi no 2003-044 portant Code du travail
Titre VII – Du différent de travail
Chapitre II – Du règlement des différends collectifs de travail
Section 2 – La grève
Articles 13 et 229 – Suspension du contrat de travail pendant certaines
actions de grève
Articles 220-227 – De l’arbitrage
Article 228 – Réquisition de travailleurs
Article 258 – Pénalités
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99. Malawi Labour Relations Act, 1996
Article 2 – Definition
Part V – Dispute settlement
46. Strike or lockout procedures
47. Strike or lockout in essential services
48. Status of collective agreement and employment contract
49. Civil immunity
50. Right to return to employment
51. Temporary replacement labour
52. Refusal to do strikes’ work
53. Peaceful picketing
54. Injunction in respect of strike or lockout
100. Malaysia Industrial Relations Act, 1967
Article 2 – Definition
Part IX – Trade disputes, strikes and lockouts and matters arising therefrom
Article 43 – Restrictions on strikes and lockouts in essential services
Article 44 – Prohibition of strikes and lockouts
Article 45 – Illegal strikes and lockouts
Article 46 – Penalty for illegal strikes and lockouts
Trade Unions Act, 1959
Article 2 – Definition
25A. Strikes and lockouts
40. Secret ballot
First schedule – Section 38
101. Maldives, Republic of Constitution
Article 31
Every person employed in the Maldives and all other workers have the freedom
to stop work and to strike in order to protest.
New Labour Relations Act under discussion, which will address the right to
strike.
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102. Mali Constitution de 1992
Article 21
Le droit de grève est garanti. Il s’exerce dans le cadre des lois et règlements
en vigueur.
[Constitution de 2012 – article 32
L’Etat reconnaît et garantit le droit de grève.
Tout travailleur peut défendre, dans les conditions prévues par la loi, ses droits
et ses intérêts soit individuellement, soit collectivement par l’action syndicale.
Le droit de grève s’exerce dans les conditions définies par la loi.]
Loi no 92-020/AN-RM du 23 septembre 1992 portant Code du travail
Article L.34 (7) – Suspension du contrat de travail pendant la grève
Article L.231 – Grève illicite pendant la procédure de conciliation
et ses effets
Article L.311 – Interruption immédiate des opérations de placement
pendant la grève
Code pénal de 2001
Chapitre VII – Coalition de fonctionnaires
Article 82 – Les dispositions qui précèdent ne portent en rien préjudice
au droit de grève et à la liberté de se regrouper au sein d’organisations
de coopération ou d’organisations syndicales de leur choix pour la défense
de leurs intérêts professionnels.
Loi no 87-47/AN-RM du 4 juillet 1987 relative à l’exercice du droit
de grève dans les services publics
Décret no 90-562/PRM du 22 décembre 1990 fixant la liste des services
et emplois et les catégories de personnel indispensable à l’exécution
du service minimal en cas de cessation concertée du travail dans
les services publics de l’Etat et des collectivités territoriales et des
organismes personnalisés chargés de la gestion d’un service public
103. Malta Employment and Industrial Relations Act, Chapter 425 (Act XXII of
2002)
Article 63 – Immunity of trade unions and employers’ associations to actions
in tort
Article 64 – Acts in contemplation or furtherance of trade disputes –
Exclusion of persons employed in essential services
Article 65 – Peaceful picketing
Article 73 et seq. – Industrial tribunal
104. Marshall Islands
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105. Mauritania Constitution
Article 14
Le droit de grève est reconnu. Il s’exerce dans le cadre des lois
qui le réglementent.
Loi no 2004-017 portant Code du travail
Titre II – Règlement des différends collectifs
Chapitre IV – Arbitrage
(Articles 350-356)
Article 350 – Décision ministérielle de recourir à l’arbitrage
Chapitre V – Grève et lock-out
(Articles 357-366)
Article 357 – Définition
Article 358 – Préavis de grève
Article 359 – Obligations des grévistes
Article 360 – Réquisition
Article 361 – Effets de la grève licite
Article 362 – Grève illicite
Article 363 – Effets de la grève illicite
106. Mauritius Employment Relations Act, 2008 (Act No. 32 of 2008), as amended by
the Employment Rights (Amendment) Act, 2013 (No. 6 of 2013)
Part VII – Strikes and lockouts
76. Right to strike and recourse to lockout
77. Limitation on right to strike or recourse to lockout
78. Strike ballot
79. Notice of strike or lockout
80. Picketing
81. Minimum service
82. Acute national crisis
83. Legal effect of strike on contract of employment
84. Civil and criminal immunity
Employment Rights Act, 2008 (Act No. 33 of 2008)
9. Continuous employment
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107. Mexico Constitution
Title VI – Labour and social security
Article 123.
(50) The Congress of the Union, without contravening the following basic
principles, shall formulate labour laws which shall apply to:
19. Workers, day labourers, domestic servants, artisans (obreros, jornaleros,
empleados domésticos, artesanos) and in a general way to all labour
contracts:
…
q. The laws shall recognize strikes and lockouts as rights of workmen and
employers.
r. Strikes shall be legal when they have as their purpose the attaining of
equilibrium among the various factors of production, by harmonizing the
rights of labour with those of capital. In public services it shall be
obligatory for workers to give notice ten days in advance to the Board of
Conciliation and Arbitration as to the date agreed upon for the
suspension of work. Strikes shall be considered illegal only when the
majority of strikers engage in acts of violence against persons or
property, or in the event of war, when the workers belong to
establishments or services of the Government.
…
v. (54) An employer who dismisses a worker without justifiable cause or
because he has entered an association or union, or for having taken part
in a lawful strike, shall be required, at the election of the worker, either to
fulfil the contract or to indemnify him to the amount of three months’
wages. The law shall specify those cases in which the employer may be
exempted from the obligation of fulfilling the contract by payment of an
indemnity. He shall also have the obligation to indemnify a worker to the
amount of three months’ wages, if the worker leaves his employment due
to lack of honesty on the part of the employer or because of ill-treatment
from him, either to himself or to his wife, parents, children, or brothers
and sisters. An employer may not relieve himself of this responsibility
when the ill-treatment is attributable to his subordinates or members of
his family acting with his consent or tolerance.
Federal Labour Law, 1970
Title VIII – Strikes
Chapter I – General provisions
Article 440 – Definition of strike
Article 441 – Illegal strikes
Chapter II – Objectives and procedures
Article 450 – Objectives
Article 451 – Requirements
Article 469 – End of strike
Article 925 – Public services
Federal Act on State Employees
Section 94, Title 4 – Right to strike in limited circumstances for state
employees
Section 99(II) – Requirements for support of strike
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The branches of the union, the governments of the federal district and of the
federal territories and their workers:
…
j. Workers shall have the right to associate together for the protection of their
common interests. They may also make use of the right to strike after first
complying with requirements prescribed by law, with respect to one or more
offices of the public powers, whenever the rights affirmed by this article are
generally and systematically violated.
108. Moldova, Republic of Constitution
Article 45 – Right to strike
(1) The right to strike shall be acknowledged. Strikes may be unleashed only
with the view of protection the employees’ professional interests of economic
and social nature.
(2) The law shall set forth conditions governing the exercise of the right to strike,
as well as the responsibility for illegal unleash of the strikes.
2003 Labour Code
Part XII – Chapter III
Settlement of collective labour conflicts
Chapter IV
The strike
Article 362 – Strike announcement
Article 363 – Strike organization at the enterprise
Article 364 – Strike organization at the territorial level
Article 365 – Strike organization at the branch level
Article 366 – Strike organization at the national level
Article 367 – Place of holding the strike
Article 368 – Strike suspension
Article 369 – Restriction of participation to strikes
Article 370 – Responsibility for illegal organization of strikes
Law No. 1129 of 7 July 2000 on trade unions
Article 22 – The right to organize and conduct meetings
Criminal Code
Article 357 – Organizing or leading an illegal strike and hindering the activity
of an enterprise, institution, or organization in conditions of emergency,
siege, or a military situation.
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109. Mongolia Labour Law of Mongolia of 14 May 1999
Chapter 10 – Settlement of collective labour disputes
Article 119 – Exercise of the right to strike
Article 120 – Announcing a strike; temporary denial of access to the
workplace
Article 121 – Parties which may organize a strike; suspension and
termination of a strike
Article 122 – Prohibition, postponement, or temporary suspension of a strike
Article 123 – Deeming a strike or denial of access to the workplace unlawful
Article 124 – Guarantees of the rights of employees related to the settlement
of a collective labour dispute
110. Montenegro Constitution
Article 66 – Strike
The employed shall have the right to strike.
The right to strike may be limited to the employed in the army, police, state
bodies and public service with the aim to protect public interest, in accordance
with the law.
2003 Act on Strikes
The concept of strike and decision-making freedom
Types of strike
Making a decision on strike
Elements of the decision to go on strike
Announcement of strike
Initiating the procedure of conciliation, mediation and arbitration
Obligations of a strike committee and strike participants
Termination of strike
Strike in specific activities
Minimum work process
Strike announcement
Initiating the procedure of conciliation, mediation and arbitration
Cooperation with the employer and execution of its instructions
Protection of employees’ rights
Obligations of the employer
Termination of employment
Picket duty
Authorizations of the state body
Inspection supervision
Penalties for offences
Criminal Code
Articles 227 and 228
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111. Morocco Constitution
Article 29
Sont garanties les libertés de réunion, de rassemblement, de manifestation
pacifique, d’association et d’appartenance syndicale et politique. La loi fixe
les conditions d’exercice de ces libertés. Le droit de grève est garanti. Une loi
organique fixe les conditions et les modalités de son exercice.
Code Pénal
Chapitre IV – Des crimes et délits commis par des particuliers contre l’ordre
public
Section VI – Des infractions relatives à l’industrie, au commerce
et aux enchères publiques
Article 288 – Pénalités
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112. Mozambique Constitution
Article 87
1. Workers shall have the right to strike, and the law shall regulate the exercise
of this right.
2. The law shall restrict the exercise of the right to strike in essential services
and activities, in the interest of the pressing needs of society and of national
security.
3. …
Labour Law, 2007
Chapter V – Collective rights and collective employment relations
Section VI – Rules on collective bargaining
Subsection V – Arbitration of labour pursuits
Article 189 – Compulsory arbitration
Article 191 – Arbitration process
Section VII – Right to strike
Subsection I – General provisions on strikes
Article 194 – Right to strike
Article 195 – Concept of strike
Article 196 – Limits on the right to strike
Subsection II – General principles
Article 197 – Resort to strike
Article 198 – Democratic rules
Article 199 – Freedom to work
Article 200 (Prohibition against discrimination)
Article 201 (Representation of employees on strike)
Article 202 (Duties of the parties during a strike)
Subsection III – Special strike regimes
Article 205 – Strike in essential services and activities
Subsection IV – Procedures, effects and effective implementation of the
strike
Article 207 – Prior notice
Article 208 – Conciliatory action
Article 209 – Putting the strike into effect
Article 210 – Effects of the strike
Article 211 – Effects of an unlawful strike
Article 212 – Termination of the strike
Article 213 – Exceptional measures by Government
Article 214 – Content of civil requisition
Article 215 – Objective of civil requisition
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113. Myanmar Labour Organization Law (No. 7 of 2011)
Chapter XI – Lockout and strike
Article 38 – Strike in a public utility service
Article 39 – Strike in a non-public utility service
Article 41 – Illegal strikes
Chapter XII – Prohibitions
Articles 43–47 – Prohibitions in respect of strikes
The Settlement of Labour Dispute Law, 2012
Chapter VI – Settlement of dispute
Article 28(b) – Exercising the right to strike
Chapter VIII – Prohibitions
Article 42 – Prerequisites for strike
114. Namibia Labour Act, 2007 (Act No. 11 of 2007)
Chapter 7 – Strikes and lockouts
Sections 74–79
Chapter 8 – Prevention and resolution of disputes
Sections 80–91
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115. Nepal Labour Act, 1992 of 15 May 1992
Article 76 – Notice of strike
Article 78 – Prohibition of strikes
Article 80 – Power to issue order to stop strikes
Article 83 – Special arrangements for the settlement of disputes
Article 51(f) and (g) – Misconduct: participation in a strike that has been
declared irregular or illegal or without fulfilling the legal requirements
Essential Services Operation Act, 2014 (1957) – Act No. 15 of 2014
Article 2 – Definitions of essential service and strike
Article 3 – Right of the Government of Nepal to restrict strike
Article 4 – Punishment to a person committing a restricted strike or
participating or continuing to participate in the same
Article 5 – Punishment to an encourager
Article 6 – Punishment to a person contributing in cash to a restricted strike
Trade Union Act, 1992
Article 30 – Special powers of the Government in the event that the activities
of a trade union are considered to be likely to create an extraordinary
situation and thus disturb the law and order situation within the country or to
adversely affect the economic interests of the country.
116. Netherlands
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Country Constitutional provisions referring to strike action Legislative measures on strike action
117. New Zealand Employment Relations Act, 2000
Part 8 – Strikes and lockouts
81. Meaning of strike
82. Meaning of lockout
Lawfulness of strikes and lockout
82A. Requirement for union to hold secret ballot before strike
82B. Terms of question for secret ballot
82C. When requirement for secret ballot does not apply
83. Lawful strikes and lockouts related to collective bargaining
84. Lawful strikes and lockouts on grounds of safety or health
85. Effect of lawful strike or lockout
86. Unlawful strikes or lockouts
Suspension of employees during strikes
87. Suspension of striking employees
88. Suspension of non-striking employees where work not available during
strike
89. Basis of suspension
90. Strikes in essential services
92. Chief executive to ensure mediation services provided
Procedure to provide public with notice before strike or lockout in
certain passenger transport services
93. Procedure to provide public with notice before strike in certain
passenger transport services
95. Penalty for breach of section 93 or section 94
Performance of duties of striking or locked out employees
97. Performance of duties of striking or locked out employees
Record of strikes and lockouts
98. Record of strikes and lockouts
Jurisdiction of Employment Court
99. Jurisdiction of court in relation to torts
100. Jurisdiction of court in relation to injunctions
Crimes Act, 1961 (No. 43 of 1961)
79. Sabotage: (2) No person shall be convicted of an offence against this
section by reason only of the fact that he or she takes part in any strike or
lockout.
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307A. Threats of harm to people or property: (4) To avoid doubt, the fact
that a person engages in any protest, advocacy, or dissent, or engages in
any strike, lockout, or other industrial action, is not, by itself, a sufficient
basis for inferring that a person has committed an offence against
subsection (1).
118. Nicaragua Constitución
Artículo 83
Se reconoce el derecho a la huelga
Ley núm. 185, Código del Trabajo
Capítulo III – De los conflictos colectivos
Sección I – De la huelga
(Artículos 244-249)
Sección II – Del paro
(Artículos 250-251)
Sección III – Disposición común a la huelga y al paro
(Artículo 252)
Artículos 389-390 – Arbitraje obligatorio
Ley núm. 641 que dicta el Código Penal
Artículo 435 – Abandono de funciones públicas
(…) Se exceptúa de esta disposición el ejercicio del derecho a huelga
de conformidad con la ley.
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119. Niger Constitution
Article 34
L’Etat reconnaît et garantit le droit syndical et le droit de grève qui s’exercent
dans les conditions prévues par les lois et règlements en vigueur.
Loi no 2012-45 du 25 septembre 2012 portant Code du travail
Articles 320-326
Ordonnance no 96-039 du 29 juin 1996 portant Code du travail
Chapitre II – Différends collectifs
Section I – Conditions de recours à la grève (articles 311-315)
Section II – Procédure d’arbitrage
Code Pénal (2003) tel qu’amendé par la loi no 2008-18
Section III – Coalition de fonctionnaires
Article 120 – Droit de grève des fonctionnaires
Arrêté no 0825 du 2 juin 2003 portant création d’un comité national
tripartite chargé de la mise en oeuvre des recommandations
des journées de réflexion sur le droit de grève et la représentativité
des organisations professionnelles
Décret no 96-092/PCSN/MFPT/T du 16 avril 1996 portant modalités
d’application de l’ordonnance no 96-09 du 21 mars 1996, fixant
les conditions d’exercice du droit de grève des agents de l’Etat
et des collectivités territoriales
Ordonnance no 96-009 du 21 mars 1996 fixant les conditions d’exercice
du droit de grève des agents de l’Etat et des collectivités territoriales
Ordonnance no 96-010 du 21 mars 1996 déterminant la liste des
services essentiels et/ou stratégiques de l’Etat
Loi no 2007-26 du 23 juillet 2007 portant statut général de la fonction
publique de l’Etat
(Reconnaît le droit de grève pour la défense des intérêts professionnels
collectifs des fonctionnaires et précise que ce droit s’exerce dans le cadre
défini par la loi.)
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120. Nigeria Trade Unions (Amendment) Act, 2005
Amends section 30 (strikes and lockouts; essential services) and section 42
(restrictions).
1973 Trade Unions Act (Chapter 437)
Section 54 – Matters to be provided for in rules of trade unions
14. A provision that no member of the union shall take part in a strike unless
a majority of the members have in a secret ballot voted in favour of the
strike.
Trade Disputes Act (Chapter 432) (No. 7 of 1976) (as amended through
1989)
Article 17 – Prerequisites; National Industrial Court; dispute settlement
Article 47 – Definition of strike
Trade Disputes (Essential Services) Act (No. 23 of 1976)
Article 9.1 – Essential services; strike prohibition
Nigerian Export Processing Zones Act, 1992
Article 18(5) – Prohibition of strikes for ten years after commencement of a
zone; mandatory dispute settlement.
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121. Norway General Civil Penal Code
Section 86(7) – Punishment for any person who in time of war or for the
purpose of war encourages, incites, is a party to deciding or takes part in
any lockout, strike or boycott which is illegal and weakens Norway’s ability to
resist.
Labour Disputes Act of 5 May 1927 (as amended on 5 June 1981)
Article 1(5) – Definition of strike
Article 1(7) – Definition of “notice to cease work”
Article 4 – Responsibility in respect of breach of collective agreement and
illegal stoppage of work
Article 5 – Stipulation of compensation for breach of collective agreement
and illegal stoppage of work
Article 6 – Obligation to observe peace
Chapter III – Conciliation
Article 28 – Notice to the mediators (in the event of a notice to cease work
being given)
Article 29 – Rules respecting stoppages of work
Article 31 – Preliminaries to mediation
Article 35 – Mediation proceedings and mediation proposals
Article 36 – Termination of mediation proceedings
…
Public Service Labour Disputes Act of 18 July 1958 (as amended)
Chapter V – Breach of agreement. Stoppage of work.
Article 20 – Rules of industrial peace
Article 21 – Definition of stoppage of work (strike)
Article 22 – Possible dismissal in the event of notification of work stoppage
being given
Article 23 – Liability for unlawful stoppage of work
122. Oman Labour Law, 2003
Part VIII – Labour disputes
Article 107(bis) – Peaceful strikes
Ministerial Decision No. 294 of 2006 on regulation of collective
bargaining, peaceful strikes and lockouts
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123. Pakistan Constitution
Article 17: “every citizen shall have the right to form associations or unions”
According to the Supreme Court in Siddique et al. 2006 p. 992, Civil Aviation
Authority, Islamabad v. Union of Civil Aviation Employees (1997), this
constitutional provision means that the right to strike cannot be derived from the
constitutional protection of freedom of association – unlike bargaining itself.
Industrial Relations Act, 2012 (Act No. X of 2012)
Article 2 – Definition of strike
Article 20 – Functions of the collective bargaining agent
Article 31 – Unfair labour practices on the part of employers
Article 32 – Unfair labour practices on the part of a workmen
Article 37 – Conciliation after notice of strike or lockout
Article 39 – Commencement and conclusion of proceedings
Chapter VII – Strikes and lockout
Article 41 – Notice of strike or lockout
Article 42 – Strike and lockout
Article 43 – Illegal strikes and lockout
Article 44 – Procedure in cases of illegal strikes or lockout
Article 45 – Strike or lockout in public utility services
Article 47 – Removal of fixed assets
Article 48 – Protection of certain persons
Article 61 – Powers of the Commission to prohibit strike, etc.
Article 67 – Unfair labour practices
Essential Services (Maintenance) Act, 1952
Article 5 – Definition of essential services; prohibition of strike action
124. Palau Division of Labour Rules and Regulations, 2002
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125. Panamá Constitución
Artículo 69
Se reconoce el derecho de huelga. La Ley reglamentará su ejercicio y podrá
someterlo a restricciones especiales en los servicios públicos que ella
determine.
Código del Trabajo, 1972 / Decreto del Gabinete núm. 252, por el cual
se aprueba el Código del Trabajo (enmendado en 1995)
Artículos 448-451 – Declaración previa de legalidad de la huelga
Artículo 452 – Arbitraje
Título IV – De la huelga
Artículos 475-519
Huelga por solidaridad
Huelga en los servicios públicos
Declaratoria y actuación de la huelga
Efectos de la huelga
Huelga ilegal
Huelga imputable al empleador
Normas especiales y sanciones
Ley núm. 68, de 26 de octubre de 2010, que modifica los artículos
del Código del Trabajo
Modifica algunas disposiciones del Código del Trabajo sobre el derecho
de huelga
Artículo 3, 2) – modifica el artículo 493 del Código del Trabajo de 1972
Decreto ejecutivo núm. 26, de 5 de junio de 2009, por el cual se
establecen los parámetros a tomar en consideración en relación
con el porcentaje de trabajadores que laborarán en los turnos
de los servicios públicos durante la huelga en éstos, de acuerdo
con lo establecido en el artículo 487 del Código del Trabajo.
126. Papua New Guinea Industrial Relations Act, 1962
Part III – Settlement of industrial disputes
Section 25 – Report of industrial disputes
127. Paraguay Constitución
Artículo 98 – Del derecho de huelga y de paro
Todos los trabajadores de los sectores públicos y privados tienen el derecho
a recurrir a la huelga en caso de conflicto de intereses. Los empleadores
gozan del derecho de paro en las mismas condiciones.
Los derechos de huelga y de paro no alcanzan a los miembros
de las Fuerzas Armadas de la Nación, ni a los de las policiales.
La ley regulará el ejercicio de estos derechos, de tal manera que no afecten
servicios públicos imprescindibles para la comunidad.
Ley núm. 213 que establece el Código del Trabajo, 1993
Título IV – De las huelgas y los paros
Artículos 352-378 – De las huelgas
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128. Perú Constitución
Artículo 28
El Estado reconoce los derechos de sindicación, negociación colectiva y
huelga. Cautela su ejercicio democrático:
1. Garantiza la libertad sindical.
2. Fomenta la negociación colectiva y promueve formas de solución pacífica
de los conflictos laborales.
La convención colectiva tiene fuerza vinculante en el ámbito de lo concertado.
Decreto supremo núm. 010-2003-TR por el que se aprueba el Texto
Único Ordenado de la Ley de Relaciones Colectivas de Trabajo
Título III – De la negociación colectiva
(Artículo 68)
Título IV – De la huelga
(Artículos 72-86)
Decreto supremo núm. 024-2007-TR por el que se sustituye el
artículo 62 del Reglamento de la Ley de Relaciones Colectivas
de Trabajo (se refiere a la decisión de declaración de huelga)
129. Philippines Constitution
Section 3
… It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law.
Labor Code (Presidential Decree No. 442 of 1974) (as amended 2002)
Title VIII – Strikes and lockouts and foreign involvement in trade union
activities
Article 212 (o, r, s) – Definition of strike, strike-breaker and strike areas
Chapter I – Strikes and lockouts
Article 263 – Strikes, picketing and lockouts
Article 264 – Prohibited activities
Article 265 – Improved offer balloting
Article 266 – Requirement for arrest and detention
Penal Code (Act No. 3815)
Article 289
130. Poland Constitution
Article 59
…
(3) Trade unions shall have the right to organize workers’ strikes or other forms
of protest subject to limitations specified by statute. For protection of the public
interest, statutes may limit or forbid the conduct of strikes by specified
categories of employees or in specific fields.
Act of 21 November 2008 on the Civil Service (text No. 1505)
Article 78 (no right to strike for civil service corps members if interference
with regular functioning of an office)
Act of 23 May 1991 on solving collective labour disputes
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131. Portugal Constitution
Article 57 Right to strike and prohibition of lockouts
1. The right to strike shall be guaranteed.
2. Workers shall be responsible for defining the scope of the interests that are
to be defended by a strike and the law shall not limit that scope.
3. The law shall define the conditions under which such services as are needed
to ensure the safety and maintenance of equipment and facilities and such
minimum services as are indispensable to the fulfilment of essential social
needs are provided during strikes.
4. …
2009 Labour Code (revised) /
Lei n.º 7/2009 de 12 de Fevereiro
Aprova a revisão do Código do Trabalho
Strikes – Articles 530–545
Decreto-ley núm. 259/2009 que reglamenta el arbitraje obligatorio, el
arbitraje necesario y el arbitraje sobre servicios mínimos durante la
huelga.
132. Qatar Qatar Labour Law, 2004
Part XII – Workers’ organizations
Article 120 – Strike requirements
133. Romania Constitution
Article 43
(1) The employees have the right to strike in the defence of their professional,
economic and social interests.
(2) The law shall regulate the conditions and limits governing the exercise of this
right, as well as the guarantees necessary to ensure the essential services
for the society.
Act No. 62 of 10 May 2011 concerning social dialogue
(Legea dialogului social)
Sections 181–207 – Strike
Sections 217–218 – Sanctions
Law No. 54 of 24 January 2003 on trade unions
Article 27
With a view to achieving the purpose for which they have been set up, the
trade union organizations shall have, inter alia, the right strike, according to
their own statutes and according to the conditions provided by the law.
Law No. 188/1999 regarding the regulations of civil servants
Article 28 – Civil servants may have the right to strike by the stipulations of
the law.
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134. Russian Federation Constitution
Article 37
Paragraph 4 – The right of individual and collective labour disputes with the use
of the methods for their resolution, which are provided for by federal law,
including the right to strike, shall be recognized.
2001 Labour Code
Article 409 – Strike right
Article 410 – Calling a strike
Article 411 – Head striking unit
Article 412 – Parties liabilities in the course of a strike
Article 413 – Unlawful strikes
Article 414 – Guarantees and legal conditions of employees in connection
with the conduct of a strike
Article 416 – Responsibility for conciliatory procedures evasion and nonperformance
of agreement reached as outcome of a conciliatory procedure
Article 417 – Responsibility of employees for unlawful strikes
Article 418 – Keeping documentation during settlement of a collective
industrial dispute
Federal Law No. 10-FZ on Trade Unions and their Rights and
Guarantees for their Activities (1996, amended 2005)
Article 14 – The right of the trade unions to take part in regulating collective
labour disputes – recognizes the right to strike
2004 Law on State Civil Service
1994 Federal Postal Service Act
Section 9
1998 Federal Municipal Services Act
Section 11(1)(10)
2003 Federal Rail Transport Act
Section 26
Decree No. 524 on means of organization and realization of meetings,
demonstrations, processions and strike pickets
Meetings, demonstrations, processions and strike pickets must not violate
rights and liberties of others, neither commend hatred or violence.
Act No. 54-FZ of 19 June 2004 on gatherings, meetings,
demonstrations, processions and strike-pickets (text No. 2485)
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Law No. 334 of 22 November 2011 to Amend the Labour Code
Regarding Improvements on the Procedure for the Consideration and
Resolution of Collective Labour Disputes
– article 410 is amended concerning announcement of strikes
– article 411 is amended concerning the head of strikes
Federal Law No. 175-FZ of 23 November 1995 on the Procedure for
Resolving Collective Labour Disputes
135. Rwanda Constitution
Article 39
Le droit de grève des travailleurs est reconnu et s’exerce dans les conditions
définies par la loi, mais l’exercice de ce droit ne peut porter atteinte à la liberté
du travail reconnue à chacun.
Loi no 13/2009 du 27 mai 2009 portant réglementation du travail / Law
regulating labour in Rwanda
Section 3 – Right to strike and lock out
Article 151 – Exercise of rights to strike and lock out
Article 152 – Decision on illegal strike or lock out
Article 153 – Consequences of illegal strike
Article 154 – Consequences of illegal lock out
Article 155 – Exercising the right to strike in indispensable services
Arrêté ministériel no 04 du 13 juillet 2010 déterminant les services
indispensables et les modalités d’exercice du droit de grève
dans ces services
Criminal Code
Article 727 (penalties for soldiers on strike)
136. Saint Kitts and Nevis Draft bill in progress
137. Saint Lucia Labour Code, 2006
Part VIII – Principles and procedures in industrial relations and industrial
disputes
Division 1 – Settlement of trade disputes
383. Freedom to engage in industrial action (including strike)
385. Effect of strike on contract of employment
392. Prohibition of lockouts, strikes and industrial action
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138. Saint Vincent and the
Grenadines
Trade Unions Act
Article 5 – Excludes minors under the age of 16 years from participating in
unions
Article 7 – Secret ballot for strike action
Article 31 – Peaceful picketing and prevention of intimidation (which includes
peacefully persuading any person to work or abstain from working)
Public Order Act
Articles 6 and 8 – Prohibitions and restrictions on public meetings
Police Act, Cap. 280
Article 72 – Excludes policemen from organizing
139. Samoa Crimes Act, 2013 (2013, No. 10)
Article 190(4) – Strike action is not, by itself, a threat of harm to people or
property
Prisons and Corrections Act, 2013 (2013, No. 11)
Article 55(i) – Prohibition of a sworn member or a non-sworn member of the
prisons and correction service from participating in a strike that affects the
proper management of a prison
140. San Marino Constitution
(Declaration of citizens’ rights and of the fundamental principles of the San
Marinese legal order, 1974)
Article 9
Each citizen shall have the right and the duty to work. The law shall guarantee
workers fair remuneration, leave, weekly rest and the right to strike.
Act for the Protection of Work and Workers (Act of 17 February 1961,
No. 7)
Section 27 – Right to strike
Decree of 2 August 2012, No. 110, on renewal of employment contract
in public employment for 2011–12
Section 8 – Right to strike, period of notice, notification, minimum services
141. Sao Tome and Principe Constitution
Article 42
All the workers have rights:
(f) To strike, under terms to be regulated by law, taking into account the
interests of the workers and of the national economy.
Ley núm. 4/2002 de requerimiento civil
Ley núm. 4/92, sobre la huelga/Law on Strikes
142. Saudi Arabia Labour Law (Royal Decree No. M/51), 2006
Articles 201–228 – Procedure for and effects of decisions on labour disputes
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143. Senegal Constitution
Article 25
[…] Le droit de grève est reconnu. Il s’exerce dans le cadre des lois
qui le régissent. Il ne peut en aucun cas ni porter atteinte à la liberté
de travail ni mettre l’entreprise en péril.
Loi no 97-17 du 1er décembre 1997 portant Code du travail
Article L70 – Suspension du contrat de travail pendant la grève
Articles L.225, L.273, L.274, L.275 et L.276 sur la grève
Code pénal de 1965
Article 392 – Pénalités
144. Serbia Constitution
Article 61
The employed shall have the right to strike in accordance with the law and
collective agreement.
The right to strike may be restricted only by the law in accordance with nature or
type of business activity.
Criminal Code
Section 166 – Violation of the right to strike
Section 167 – Abuse of the right to strike
Act of 15 November 2004 on peaceful settlement of labour disputes
145. Seychelles Constitution
Article 35 – Right to work
The State recognizes the right of every citizen to work and to just and
favourable conditions of work and with a view to ensuring the effective exercise
of these rights the State undertakes –
…
(g) Subject to such restrictions as are necessary in a democratic society, and
necessary for safeguarding public order, for the protection of health or
morals and the rights and freedoms of others, to ensure the right of workers
to organize trade unions and to guarantee the right to strike.
Industrial Relations Act, 1993 (Act No. 7 of 1993)
Section 37 – Protection against victimization by trade union
Section 50 – Compulsory award
Section 52 – Strike or lockout
Section 53 – Picketing
Section 56 – Offences relating to strike or lockout
Section 57 – No pay while on strike
146. Sierra Leone Regulation of Wages and Industrial Relations Act, 1971, No. 18
Article 1 – Exclusions of members of the armed forces of police force officers
Article 2 – Definition of strike
Article 17(1) – Requirement for conciliation
Article 17(2) – Exclusion for essential workers, advance notice for strikes
and prohibition of sympathy strikes
Article 17(3) – Definition of essential trade groups
Article 17(4) – Binding nature of award
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147. Singapore Trade Unions Act, 1941
Part IV – Rights and liabilities of trade unions
Section 27 – Strike or industrial action
Trade Disputes Act, 1941
Sections 3 and 4 – Illegal industrial action and lockout
Sections 5–8 – Penalties in relation to illegal industrial action and lockout
Industrial Relations Act (Cap. 136)
Part 5 – Arbitration
Articles 31–36
Criminal Law (Temporary Provisions) Act
Section 5 – Definition
Section 6 – Restrictions on strikes and lockouts (essential services)
Section 7 – Illegal strikes and lockouts
Section 8 – Lockout or strike consequent on illegal strike or lockout
Section 9 – Penalty for illegal strikes and lockouts
Section 10 – Penalty for instigation
Section 11 – Penalty for giving financial aid to illegal strikes or lockouts
Section 12 – Protection of persons refusing to take part in illegal strikes or
lockouts
148. Slovakia Constitution
Article 37
…
(4) The right to strike is guaranteed. The conditions shall be laid down by law.
Judges, prosecutors, members of the armed forces and armed corps, and
members and employees of the fire and rescue brigades do not have this
right.
Labour Code, 2001
Fundamental Principles
Article 10 – Employees’ right to strike
Act No. 2/1991 on Collective Bargaining
Article 16(2) – Definition
Article 16(1) – Right to strike
Article 17 – Requirements to declare a strike
Article 17(9) – Essential services
Articles 18 and 22 – Participation
Article 19 – Collaboration during strike
Articles 20 and 21 – Illegal strike
Article 23 – Liabilities
Article 26 – Termination of a strike
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149. Slovenia Constitution
Article 77 (right to strike)
Employees have the right to strike. Where required by the public interest, the
right to strike may be restricted by law, with due consideration given to the type
and nature of activity involved.
The Employment Relationships Act (Ur. l. RS, No. 42/2002, Ur. l. RS,
No. 103/2007)
Article 89 – Unfounded reasons for termination – i.e. participation in a lawful
strike
The Strike Act (OJ SFRY, No. 23/1991)
Article 1 – Definition
Article 2 – Decision to initiate a strike
Article 3 – Announcement by the strike committee
…
Article 4 – End of strike
Articles 7–9 – Right to strike of those working in activities of special social
importance
Article 11 – Right to strike for workers in communal bodies
Article 12 – Right to strike for workers in national defence or interior bodies
Article 13 – Protection against disciplinary actions
…
Articles 17–19 – Sanctions
Civil Servants Act, 2002
Chapter III – Other common issues of the civil servants system
Article 19 – Civil servants shall have the right to strike
150. Solomon Islands Trade Unions Act, 1966
Part I – Preliminary
Section 2 – Interpretation
Trade Disputes Act, 1981
Schedule
Section 1 – Glossary
Definition of strike
Article 10 – Restriction on strike
Essential Services Act (Cap. 12)
Essential Services (Amendment) Act, 2001 (No. 1 of 2001)
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151. Somalia Constitution
Article 27 – Right to strike
The right to strike is recognized and may be exercised within the limits
prescribed by law. Any act tending to discriminate against, or to restrict, the free
exercise of trade union rights shall be prohibited.
152. South Africa Constitution
Article 23
Labour relations
1. Everyone has the right to fair labour practices
2. Every worker has the right
…
c. to strike
Act No. 6, 2014: Labour Relations Amendment Act, 2014
Amends the Labour Relations Act, 1995, so as to facilitate the granting of
organizational rights to trade unions that are sufficiently representative; to
strengthen the status of picketing rules and agreements; to amend the
operation, functions and composition of the essential services committee
and to provide for minimum service determinations.
Labour Relations Act (No. 66 of 1995)
Chapter 4 – Strikes and lockouts
64. Right to strike and recourse to lockout
65. Limitations on right to strike or recourse to lockout
66. Secondary strikes
67. Strike or lockout in compliance with this Act
68. Strike or lockout not in compliance with this Act
69. Picketing
70. Essential services committee
71. Designating a service as an essential service
72. Minimum services
73. Disputes about whether a service is an essential service
74. Disputes in essential services
75. Maintenance services
76. Replacement labour
77. Protest action to promote or defend socio-economic interests of
workers
95. Right to refrain from striking
Chapter 7 – Dispute resolution
116. Governing body of Commission
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Public Service Labour Relations Act, 1993 (No. 102 of 1993)
Provides for conciliation boards to resolve disputes with the employer
regarding the rights of individual employees, and grants the right to strike to
all employees other than those engaged in essential services.
Regulations for the South African Police Service, 1995 (No. R. 1489)
Section 12 forbids strikes by employees and lockouts by employers.
Regulations Regarding the Role of Managers Prior to Strike Action,
2000 (No. 327 of 2000)
153. South Sudan 2012 Labour Bill, which addresses the right to strike, in the process of
adoption.
154. España Constitución
Artículo 28
2. Se reconoce el derecho a la huelga de los trabajadores para la defensa de
sus intereses. La ley que regule el ejercicio de este derecho establecerá las
garantías precisas para asegurar el mantenimiento de los servicios esenciales
de la comunidad.
Tribunal Constitucional, sentencia núm. 36/1993, de 8 de febrero de 1993:
Las huelgas políticas están prohibidas por ley, aunque la Corte Constitucional
ha limitado la prohibición a las huelgas que trascienden completamente los
intereses profesionales de los trabajadores
Ley orgánica núm. 11/1985, de 2 de agosto, de Libertad Sindical
Artículo 2
2. Las organizaciones sindicales en el ejercicio de la libertad sindical, tienen
derecho a: […]
d) el ejercicio de la actividad sindical en la empresa o fuera de ella, que
comprenderá, en todo caso, el derecho a la negociación colectiva, al
ejercicio del derecho de huelga, al planteamiento de conflictos individuales y
colectivos y a la presentación de candidaturas para la elección de comités
de empresa y delegados de personal, y de los correspondientes órganos de
las administraciones públicas, en los términos previstos en las normas
correspondientes. [...]
Real decreto núm. 524/2002, de 14 de junio, por el que se garantiza
la prestación de servicios esenciales en el ámbito de la seguridad
privada en situaciones de huelga
Real decreto-ley núm. 17/1977, de 4 de marzo, sobre relaciones
de trabajo
Título primero – El derecho de huelga
Capítulo primero – La huelga
(Artículos 1-10)
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Country Constitutional provisions referring to strike action Legislative measures on strike action
155. Sri Lanka Industrial Disputes Act (No. 43 of 1950) (Cap. 131) (as amended 2008)
Article 32 – Essential industries
Article 33 – General
Industrial Disputes (Amendment) Act, No. 39 of 2011
156. Sudan 1997 Labour Code
Article 106 – Voluntary conciliation
Articles 102–120 – Mandatory arbitration and binding decisions
Article 124 – Prohibition against work stoppage for workers or officials
Trade Union Act of 2010
Article 6(1) – Legitimacy of strike action
157. Suriname Constitution
Article 33
The right to strike is recognized subject to the limitations which stem from the
law
Legal status of Military Personnel Act
Articles 51–55 – Prohibitions and limitations on the exercise of the rights to
strike and protest
Code Civil
Article 1 1614, b) – “No work no pay” principle
Resolution of 22 March 2003 (SD 2003 No. 31)
High Council (NJ 1977, 55) – Distinction between types of strikes
158. Swaziland Industrial Relations (Amendment) Act, 2014 (Act No. 11 of 2014)
Industrial Relations (Amendment) Act No. 6 of 2010
Industrial Relations (Amendment) Act, 2005 (Act No. 3 of 2005)
Industrial Relations (Amendment) Act, 2000 (No. 8 of 2000)
Industrial Relations Act (No. 1 of 2000)
Police and Public Order: Act 17/1963
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159. Sweden Constitution/Instrument of Government
Article 14 – A trade union or an employer or employers’ association shall be
entitled to take industrial action unless otherwise provided in an act of law or
under an agreement.
Employment (Co-Determination in the Workplace) Act, 1976
Labour-stability obligations
Section 41 – Prohibition to participate in strike
Notice
Section 45 – Notice for industrial action (including strike)
Public Employment Act, 1994
Labour disputes
Restrictions on the right to industrial action
Section 23 – Form of industrial action (strike, lockout, etc.)
Participation in industrial action
Sections 25 and 26 – Employees’ participation
160. Switzerland Constitution
Article 28 – Liberté syndicale
1) Les travailleurs, les employeurs et leurs organisations ont le droit
de se syndiquer pour la défense de leurs intérêts, de créer des associations
et d’y adhérer ou non.
2) Les conflits sont, autant que possible, réglés par la négociation
ou la médiation.
3) La grève et le lock-out sont licites quand ils se rapportent aux relations
de travail et sont conformes aux obligations de préserver la paix du travail
ou de recourir à une conciliation.
4) La loi peut interdire le recours à la grève à certaines catégories
de personnes.
161. Syrian Arab Republic 2012 Constitution
Article 44
Citizens shall have the right to assemble, peacefully demonstrate and to strike
from work within the framework of the constitution principles, and the law shall
regulate the exercise of these rights.
Legislative Decree No. 148 of 22 June 1949 – Penal Code
Sections 330–334 – Sanctions for exercising the right to strike
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162. Tajikistan Labour Code of 15 May 1997
Article 4 – Basic labour rights and obligations of workers
The state guarantees the right of each worker to: …
(11) engage in strike action; …
Article 211 – Strike action
Article 211(2) – Decision to strike by vote
Article 211(3) – Notification of length of strike
Article 212 – Safeguards and compensation for workers exercising their right
to strike
Article 213 – Liability of the employer for non-compliance with legislation on
collective labour disputes
Article 214 – Liability of workers for unlawful strikes
Criminal Code
Article 152 – Compulsion to be on a strike or non-participation in a strike
Article 160 – Penalty
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163. Tanzania, United
Republic of
Employment and Labour Relations Act, 2004
4. Definition of strike
47. Ballot
64. Procedure for exercising organizational right
Part VII – Strikes and lockouts
75. Right to strike and lockout
76. Restrictions on the right to strike and lockout
77. Essential Services
78. Disputes of interest in essential services
79. Minimum services during a strike or lockout
80. Procedure for engaging in a lawful strike
81. Procedure for engaging in a lawful secondary strike
83. Nature of protection for a lawful strike or lockout
84. Strikes and lockouts not in compliance with this part
85. Protest action
Employment and Labour Relations (Code of Good Practice) Rules, 2007
(GN No. 42 of 2007)
Part IV – Strikes and lockouts
Public Service (Negotiating Machinery) Act, 2003 (No. 19 of 2003)
Part IV – Strikes and lockouts
26. Rights and conditions to strike and to lockout
27. Strikes and lockout not allowed
28. Incitements
29. Prohibition of acts of discrimination
164. Thailand Labour Relations Act, 1975
Section 5 – Interpretation of strike
Chapter II – Settlement of labour disputes
Section 22 – Employees recourse to strike
Chapter III – Lockout and strike
Sections 34–36 – Strike conditions
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165. The former Yugoslav
Republic of Macedonia
Constitution
Article 38
The right to strike is guaranteed. The law may restrict the conditions for the
exercise of the right to strike in the armed forces, the police and administrative
bodies.
2007 Labour Relations Law – No. 80/93-2007
Article 79 – According to law, employees are permitted to go on strike for the
purpose of attaining their economic and social rights resulting from
employment.
Act of 20 July 2000 on Civil Servants (consolidation)
Article 34
Law on Public Undertakings (Nos 38/96; 9/97)
Sections 32–36 – Strike in a public enterprise
Criminal Code
Article 156 – Violation of the right to strike
166. Timor-Leste Constitution
Section 51 (right to strike and prohibition of lockout)
1. Every worker has the right to resort to strike, the exercise of which shall be
regulated by law.
2. The law shall determine the conditions under which services are provided,
during a strike, that are necessary for the safety and maintenance of
equipment and facilities, as well as minimum services that are necessary to
meet essential social needs.
3. …
Law No. 4/2012 – Labour Code
Chapter III – Right to strike and lockouts
Article 95
1. The right to strike is protected by the State, in the terms provided for in
the Constitution
3. There is specific legislation relating to exercising the right to strike and
lockouts
Law No. 5/2012 of 29 February 2012 – Strike Law
Article 2 – Definition of strike
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167. Togo Constitution
Article 39
Le droit de grève est reconnu aux travailleurs. Il s’exerce dans le cadre
des lois qui le réglementent.
Loi no 2006-010 du 13 décembre 2006 portant Code du travail
Chapitre II – Des conflits collectifs et de l'exercice du droit de grève
Section III – De la grève et du lock-out
Article 268 – Définition
Article 269 – Droit de recourir à la grève pour la défense des intérêts
professionnels
Article 270 – Préavis
Article 271 – Négociations pendant la durée du préavis
Article 272 – Expiration du préavis
Article 273 – Services essentiels
Article 274 – Liste des entreprises qui fournissent un service essentiel
Article 275 – Déroulement de la grève
Article 276 – Suspension du contrat de travail
Article 277 – Interdiction des actes de coercition et de violence
Article 278 – Services minimums
Article 279 – Contestations relatives à l’exercice du droit de grève
Article 280 – Sanctions pour actes de violence ou d’intimidation
Article 281 – Grève illicite
Loi du 20 janvier 2013 portant statut général de la fonction publique
Article 244 – Le droit de grève est reconnu aux fonctionnaires
dans certaines limites.
Décret no 91-167 du 31 mai 1991 organisant le droit de grève
dans les services publics
168. Trinidad and Tobago Industrial Relations Act (Act No. 23 of 1972)
Part V – Disputes procedure
60. Strike or lockout action procedures
61. Referral to court
62. Strike and lockout action in conformity with this Part
63. Industrial action not in conformity with this Part
64. Application to the Court to avoid rescission of contract
65. Stop order in the national interest
66. Industrial action prohibited during hearing, etc.
67. Industrial action in essential services, prohibited
68. Offence for persons to contribute financial assistance to promote or
support industrial action
69. Persons prohibited from taking industrial action
70. Liability of officers of companies
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169. Tunisia Constitution de 2014
Article 36
Le droit syndical est garanti, y compris le droit de grève.
Ce droit ne s’applique pas à l’armée nationale.
Le droit de grève ne comprend pas les forces de sécurité intérieure
et la douane.
Code du travail (version consolidée de 2011)
Chapitre XIII – Règlement des conflits collectifs de travail
Articles 376-390
Code disciplinaire et pénal maritime, 2010
Dispositions relatives à la répression des grèves
(Articles 53-56)
170. Turkey Constitution
Article 54
Workers have the right to strike during the collective bargaining process if a
disagreement arises. The procedures and conditions governing the exercise of
this right and the employer’s recourse to a lockout, the scope of, and the
exceptions to them shall be regulated by law.
The right to strike and lockout shall not be exercised in a manner contrary to the
rules of goodwill, to the detriment of society, and in a manner damaging national
wealth.
The circumstances and workplaces in which strikes and lockouts may be
prohibited or postponed shall be regulated by law.
In cases where a strike or a lockout is prohibited or postponed, the dispute shall
be settled by the Supreme Arbitration Board at the end of the period of
postponement. The disputing parties may apply to the Supreme Arbitration
Board by mutual agreement at any stage of the dispute. The decisions of the
Supreme Arbitration Board shall be final and have the force of a collective
labour agreement.
The organization and functions of the Supreme Arbitration Board shall be
regulated by law.
Those who refuse to go on strike shall in no way be barred from working at their
workplace by strikers.
Law on Trade Unions and Collective Labour Agreements, 2012 – Law
No. 6356
Part 11 – Strike and lockout
Article 58 – Definition of a strike
Article 60 – Decision to call a lawful strike or order lawful lockout and their
implementation
Article 61 – Strike vote
Article 62 – Prohibition of strikes and lockouts
Article 63 – Postponement of strikes and lockouts
Article 64 – Execution of strike and lockout
Article 65 – Workers excluded from taking part in a lawful strike or lockout
Article 66 – Guarantee of right to strike or lockout
Article 67 – Effect of a lawful strike or lockout on contracts of employment
Article 68 – Prohibition of recruitment or other employment
Article 69 – Effect of a lawful strike or lockout on entitlement to housing
Article 70 – Consequences of an unlawful strike or lockout
Article 71 – Declaratory action
Article 72 – Abuse of the right to strike and lockout
Article 73 – Strike and lockout pickets
Article 74 – Powers of the civil authority in the event of a strike or lockout
Article 75 – Decision to end a strike or lockout
Act No. 6356 on Trade Unions and Collective Labour Agreements
Article 58 – Restrictions during collective bargaining negotiations
Article 61 – Voting
Article 62 – Essential services
Article 66 – Contracts
Article 67 – Effect of lawful strike on collective bargaining agreement
171. Turkmenistan Labour Code, 2009
Article 395 – Mandatory arbitration
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172. Tuvalu Industrial Relations Code, 1975
Section 2 – Interpretation of strike
Part IV – Adherence to agreements and awards
Section 22 – Unlawful strikes
Section 23 – Minister’s prerogatives
Sections 25 and 26 – Liabilities
Part V – Essential services
Sections 28–33 – Protection of essential services, life and property
Part VI – Strike ballots
Section 34 – Strike ballots
Schedule (section 2) – List of essential services
173. Uganda The Labour Disputes (Arbitration and Settlement) Act, 2006 (Act No. 8)
28. Unlawful industrial action
29. Unlawful organization of industrial action
30. Employee’s right to participate in industrial action
31. Picketing
32. Acts of intimidation or annoyance
33. Essential services
34. Lawful industrial action in essential services
35. Information about essential services
36. Designation of essential services
37. Prosecutions
Schedule 2 – Essential services
The Labour Unions Act, 2006
Section 2 – Interpretation – Definition of strike
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174. Ukraine Constitution
Article 44
Those who are employed shall have the right to strike in order to protect their
economic and social interests.
A procedure for exercising the right to strike shall be established by law taking
into account the necessity to ensure national security, public health protection,
and rights and freedoms of others.
No one shall be forced to participate or not to participate in a strike.
The prohibition of a strike shall be possible only on the basis of the law.
Law No. 4050-VI of 17 November 2011 on Civil Service
Article 13, paragraph 2 – No right to strike for civil servants
Criminal Code
Article 174 – Compulsion to participate in a strike or preclusion from
participation in a strike
Act No. 137/98-VR of 3 March 1998 on the procedure for settlement of
collective labour disputes
Section 17 – Strikes
Section 18 – Right to strike
Section 19 – Decision to declare a strike
Section 20 – Leading a strike
Section 21 – Conclusion of agreement on settlement of a collective labour
dispute or supervision of its fulfilment
Section 22 – Deeming strikes illegal
Section 23 – Ruling to deem a strike illegal
Section 24 – Cases in which it is forbidden to strike
Section 25 – Settlement of a collective labour dispute in circumstances
where strikes are prohibited
Section 26 – Ensuring the viability of an enterprise during a strike
Section 27 – Guarantees for workers during a strike
Section 28 – Consequences of participation by workers in a strike
Section 29 – Liability for violations of legislation on collective labour disputes
Section 30 – Liability of workers for participation in a strike ruled illegal by a
court
Section 31 – Liability for violations of labour legislation or of terms of
collective labour agreements which have led to the start of a collective
labour dispute
Section 32 – Liability for organizing a strike ruled illegal by a court or for nonfulfilment
of a ruling deeming a strike illegal
Section 33 – Liability for compelling participation in a strike or for obstructing
participation in a strike
Section 34 – Compensation for damage caused by a strike
175. United Arab Emirates
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176. United Kingdom Trade Union and Labour Relations (Consolidation) Act, 1992
(Chapter 52)
62. Right to a ballot before industrial action
65. Meaning of “unjustifiably disciplined”
180. Effect of provisions restricting right to take industrial action
Part V – Industrial action
Protection of acts in contemplation or furtherance of trade dispute
219. Protection from certain tort liabilities
220. Peaceful picketing
221. Restrictions on grant of injunctions and interdicts
Action excluded from protection
222. Action to enforce trade union membership
223. Action taken because of dismissal for taking unofficial action
224. Secondary action
225. Pressure to impose union recognition requirement
Requirement of ballot before action by trade union
226. Requirement of ballot before action by trade union
226A. Notice of ballot and sample voting paper for employers
226B. Appointment of scrutineer
226C. Exclusion for small ballots
227. Entitlement to vote in ballot
228. Separate workplace ballots
228A. Separate workplaces: single and aggregate ballots
229. Voting paper
230. Conduct of ballot
231. Information as to result of ballot
231A. Employers to be informed of ballot result
231B. Scrutineer’s report
232. Balloting of overseas members
232A. Inducement of member denied entitlement to vote
232B. Small accidental failures to be disregarded
233. Calling of industrial action with support of ballot
234. Period after which ballot ceases to be effective
Requirement on trade union to give notice of industrial action
234A. Notice to employers of industrial action
235. Construction of references to contract of employment
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Industrial action affecting supply of goods or services to an individual
235A. Industrial action affecting supply of goods or services to an individual
235B. Application for assistance for proceedings under section 235A
235C. Provisions supplementary to section 235B
No compulsion to work
236. No compulsion to work
Loss of unfair dismissal protection
237. Dismissal of those taking part in unofficial industrial action
238. Dismissals in connection with other industrial action
238(2). No selective dismissal
238A. Participation in official industrial action
238B. Conciliation and mediation: supplementary provisions
239. Supplementary provisions relating to unfair dismissal
Criminal offences
240. Breach of contract involving injury to persons or property
241. Intimidation or annoyance by violence or otherwise
…
246. Definition of strike
Employee Relations Act, 1999
Article 29 – Ballot
Article 235 – Definition of strike
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177. United States National Labor Relations Act
(Title 29, Chapter 7, subchapter II, United States Code)
Section 1 – Findings and policies
Section 7 – Rights of employees
Section 8 – Unfair labor practices
Section 9 – Representatives and elections (paragraph 3)
Section 10 – Prevention of unfair labor practices
(k) (Hearings on jurisdictional strikes)
(l) (Boycotts and strikes to force recognition of uncertified labor
organizations; injunctions; notice; service of process)
Section 13 – Limitations
(Section 163. Right to strike preserved)
Section 501(2) – Definition of strike
Title II
(Title 29, Chapter 7, subchapter III, United States Code)
Conciliation of labor disputes in industries affecting commerce;
national emergencies
Section 203 – (Section 173. Functions of service) (c) (Settlement of disputes
by other means upon failure of conciliation)
National emergencies
Section 206 – (Section 176. Appointment of board of inquiry by President;
report; contents; filing with service)
Section 208 – (Section 178. Injunctions during national emergency]
Conciliation of labor disputes in the health-care industry
Section 213 – (Section 183) (a) (Establishment of boards of inquiry;
membership)
Federal service labor management relations statute
Article 7116(b)(7) – Prohibition of strike action
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178. Uruguay Constitución
Artículo 57
La ley promoverá la organización de sindicatos gremiales, acordándoles
franquicias y dictando normas para reconocerles personería jurídica.
Promoverá, asimismo, la creación de tribunales de conciliación y arbitraje.
Declárase que la huelga es un derecho gremial. Sobre esta base
se reglamentará su ejercicio y efectividad.
Ley núm. 13720, Comisión de Productividad, Precios e Ingresos.
Se crea para la actividad privada y se determina su integración
y cometidos
Artículo 3, f) […] Ninguna medida de huelga o «lock out» será considerada
lícita si el problema que la origina y la decisión de recurrir a tales medidas
no han sido planteadas con no menos de siete días de anticipación
a la Comisión.
Artículo 4 – Servicios públicos – Interrupción de servicios esenciales
Ley núm. 12590, Licencias Anuales. Se modifica y amplia el régimen
de vacaciones remuneradas para los empleados y obreros
de actividades privadas
Artículo 8 – No se descontaran las ausencias de trabajo que tengan origen
en la huelga.
Ley núm. 19051, Falta de Pago por Parte de los Empleadores
de Incentivos, Premios, Asiduidad y/o Beneficios o Rubros
Laborales de Cualquier Tipo. Se reputa nulo y violatorio
del derecho y la actividad sindical
Artículo 1 – Todo descuento de la prima por presentismo o de otras partidas
de naturaleza salarial vinculadas a la asistencia del trabajador a su lugar de
trabajo, deberá efectuarse de manera proporcional al tiempo de ausencia
que se registrare cuando tal ausencia tuviere por causa el ejercicio del
derecho de huelga en cualquiera de sus modalidades.
Decreto núm. 165/2006, Relaciones laborales. Procedimientos
autónomos; Mediación y conciliación voluntaria; Consulta y
negociación previa; Ocupación en ejercicio del Derecho de Huelga.
30 de mayo de 2006
Artículo 3 – Consulta y negociación previa
Artículo 4 – Ocupación en ejercicio del derecho de huelga
Decreto del Poder Ejecutivo núm. 145/005, de fecha 2 de mayo de 2005
Artículo 1 – Derogación de los decretos núms. 512/966 de 19 de octubre
de 1966, y 286/000 de 4 de octubre de 2000
NB – El decreto núm. 512/66, habilitaba a los empleadores a solicitar
al Ministerio del Interior la desocupación de los locales de trabajo
ocupados por los trabajadores
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179. Uzbekistan Constitution
Article 34
Right to form, inter alia, trade unions and to participate in mass movements.
Criminal Code
Article 218 – Direction of illegal strike or impediment to operation of
enterprise, institution, or organization in emergency state.
180. Vanuatu Trade Disputes Act, 1983
Section 1 – Interpretation of strike public service
Part IV – Trade disputes affecting essential services
Section 25 – Definition of “essential service”
Section 26 – Conciliation or arbitration
Section 27 to 32 – Proclamation of emergency
Section 33 – Prohibition of strike and lockouts during emergency
Part V – Provisions with respect to strikes, lockouts, etc.
Section 33A – Notice of strike or other industrial action
Section 34 – Powers of Minister
Section 40 – Application of the Act to Government
181. Venezuela, Bolivarian
Republic of
Constitución
Artículo 97
Todos los trabajadores y trabajadoras del sector público y del privado tienen
derecho a la huelga, dentro de las condiciones que establezca la ley.
2012, decreto núm. 8938, mediante el cual se dicta el decreto
con rango, valor y fuerza de Ley Orgánica del Trabajo,
los Trabajadores y las Trabajadoras
Capítulo III – Del conflicto colectivo de trabajo
Sección Primera – De los pliegos conflictivos
(Artículos 472-482)
Sección Segunda: De los servicios mínimos indispensables y servicios
públicos esenciales
(Artículos 483-485)
Sección Tercera: De la huelga
(Artículos 486-491)
Sección Cuarta: Del arbitraje
(Artículos 493-496)
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182. Viet Nam 2012 Labour Code
Chapter XIV – Resolution of labour disputes
Section 4 – Strikes and strike resolution
Article 209 – Strikes
Article 210 – Organizing and leading strikes
Article 211 – Procedures for going on strike
Article 212 – Procedures for soliciting opinion of the worker’s collective
Article 213 – Notice of the starting time of a strike
Article 214 – Rights of parties prior to and during a strike
Article 215 – Cases where strikes are illegal
Article 216 – Notice of the decision on temporary closure of the workplace
Article 217 – Cases in which the temporary closure of the workplace is
prohibited
Article 218 – Wages and other lawful rights of employees during strikes
Article 219 – Prohibited acts before, during and after a strike
Article 220 – Cases where strikes are prohibited
Article 221 – Decisions on postponing or cancelling strikes
Article 222 – Resolution of strikes which do not follow the statutory
procedures
Section 5 – Consideration of the lawfulness of strikes by the court
Decree No. 43/2013/ND-CP of 10 May 2013, detailing Article 10 of the
Trade Union Law on trade unions’ rights and responsibilities to
represent and protect the rights and legitimate interests of employees
Article 12 – Trade unions’ rights and responsibilities to organize and lead
strikes
Decree No. 41/2013/ND-CP of 8 May 2013, detailing the implementation
of the Labour Code’s Article 220 on the list of employing units in which
strikes are prohibited and settlement of demands of employees’
collectives in these units
Decree No. 58-CP of 31 May 1997 on the wage payment and settlement
of other interests for on-strike labourers
Circular No. 12-LDTBXH/TT of 8 April 1997 guiding the petition to
adjust the list of enterprises not allowed to stage a strike
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183. Yemen Labour Code, Act No. 5 of 1995
Chapter XII – Labour disputes and legitimate strikes
Part I – Settlement of labour disputes
Part II – Legitimate strikes (Articles 144–150 and Article 156 on penalties)
Law No. 35 of 2002 on the organization of workers’ trade unions
Article 29 – Fonctions du Conseil central
Articles 40-44 – Droit de grève
184. Zambia Industrial and Labour Relations (Amendment) Act, 2008 (No. 8 of 2008)
Amending section 3 of the Act – Definition of strike
Amending section 78 of the Act
Amending section 85 of the Act
Industrial and Labour Relations (Amendment) Act, 1997 (No. 30
of 1997)
Industrial and Labour Relations Act, 1993 (No. 27 of 1993)
Section 3 – Interpretation
Section 78 – Failure to reach settlement by conciliation
Section 85 – Jurisdiction of court
Section 101 – Prohibition from participation in lockouts or strikes
Section 103 – Attendance at or near place of residence
Section 107 – Essential service certificates
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185. Zimbabwe Constitution
Article 65(3)
Except for members of the security services, every employee has the right to
participate in collective job action, including the right to strike, sit in, withdraw
their labour and to take other similar concerted action, but a law may restrict the
exercise of this right in order to maintain essential services.
Labour Act (Chapter 28:01) (Acts 16/1985) (as amended 2006)
Section 2 – Interpretation
(“collective job action” includes strike action)
Section 9 – Unfair labour practices by trade union or workers committee
(paragraph f)
Section 24 – Functions of workers’ committees (paragraphs 1. c and d)
Section 29 – Registration of trade unions and employers’ organizations and
privileges thereof (paragraph 4. g)
Section 30 – Unregistered trade unions and employers’ organizations
(paragraph 3. a)
Section 35 – Requirements of constitution of registered trade unions or
employers
Organizations (paragraph a)
Section 54 – Collection of union dues (paragraph 5)
Section 98 – Effect of reference to compulsory arbitration under Parts XI and
XII (paragraph 11)
Pare XIII – Collective job action
102. Interpretation in Part XIII
103. Appeal against declaration of essential service
104. Right to resort to collective job action
104A. Picketing
106. Show cause orders
107. Disposal orders
108. Protection of persons engaged in lawful collective action
109. Liability of persons engaged in unlawful collective action
110. Appeals
111. Cessation of collective job action
112. Offences under Part XIII
GB.323/INS/5/Appendix III
GB323-INS_5-Appendix III_[CABIN-150311-1]-En.docx 131
Appendix II
Statistical data on strike action and lockouts extracted
from the ILO statistical database
Figure 1. Average number of days not worked due to strikes and lockouts
(expressed in natural logarithm)
Note: This figure gives the annual average figure for days not worked due to strikes and lockouts over the periods 2000–07 and 2008–13,
expressed in natural logarithms. It should be noted that the average is calculated over the years for which the relevant information is available.
The various caveats about incomplete data should be borne in mind.
Source: ILO: Department of Statistics database, available at: http://www.ilo.org/ilostat.
0 5 10 15 20
Argentina
Aruba
Australia
Austria
Barbados
Belgium
Botswana
Brazil
Canada
Chile
Cyprus
Denmark
Ecuador
El Salvador
Estonia
Finland
France
Germany
Hong Kong, China
Hungary
India
Ireland
Israel
Italy
Japan
Korea, Republic of
Latvia
Lithuania
Malta
Mauritius
Mexico
Myanmar
Netherlands
New Caledonia
New Zealand
Norway
Panama
Peru
Philippines
Poland
Puerto Rico
Romania
Russian Federation
San Marino
Slovakia
South Africa
Spain
Sri Lanka
Sweden
Switzerland
Thailand
Trinidad and Tobago
Turkey
Ukraine
United Kingdom
United States
2000–07 2008–13
GB.323/INS/5/Appendix III
132 GB323-INS_5-Appendix III_[CABIN-150311-1]-En.docx
Figure 2. Average number of workers involved in strikes and lockouts
(expressed in natural logarithm)
Note: This figure gives the annual average figure for workers involved in strikes and lockouts over the periods 2000–07 and 2008–13, expressed
in natural logarithms. It should be noted that the average is calculated over the years for which the relevant information is available. The various
caveats about incomplete data should be borne in mind.
Source: ILO: Department of Statistics’ database, available at: http://www.ilo.org/ilostat.
United States
United Kingdom
Ukraine
Switzerland
Sweden
Spain
South Africa
Slovakia
San Marino
Russian Federation
Romania
Poland
Norway
New Zealand
Netherlands
Malta
Lithuania
Korea, Republic of
Japan
Italy
Israel
Ireland
Hungary
Germany
Finland
Estonia
Denmark
Cyprus
Canada
Austria
Australia
Turkey
Trinidad and Tobago
Thailand
Sri Lanka
Puerto Rico
Philippines
Peru
Panama
New Caledonia
Myanmar
Mexico
Mauritius
India
Hong Kong, China
El Salvador
Ecuador
Costa Rica
Chile
Brazil
Barbados
Botswana
Argentina
Developed countries Developing countries and territories
2000–07 2008–13
GB.323/INS/5/Appendix III
GB323-INS_5-Appendix III_[CABIN-150311-1]-En.docx 133
Figure 3. Average number of days not worked in Europe due to strikes and lockouts
per 1,000 employees (annual averages for the period 2000–07 and 2008–13)
Source: ILO: Department of Statistics database, available at: http://www.ilo.org/ilostat.
51
74
37
37
49
70
146
5
10
29
92
1
4
32
16
8
57
2
20
28
2
0
19
137
22
3
118
7
27
3
50
350
190
85
46
165
3
2
38
41
1
14
0
17
15
66
6
0
22
0
0
0
56
7
1
56
3
23
0 50 100 150 200 250 300 350
Austria
Belgium
Cyprus
Denmark
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Norway
Poland
Portugal
Romania
Russian Federation
Slovakia
Slovenia
Spain
Sweden
Switzerland
Turkey
Ukraine
United Kingdom
2000–07 2008–13
GB.323/INS/5/Appendix III
134 GB323-INS_5-Appendix III_[CABIN-150311-1]-En.docx
Explanation of data used in figure 3
This graph gives the annual average figure for working days lost due to strikes and lockout per 1,000 employees over
periods 2000–07 and 2008–13. It should be noted that the average is calculated over the years for which the relevant
information is available. The various caveats about incomplete data should be borne in mind. The figure is based on data
extracted from the ILO Statistical database: www.ilo.org/ilostat, and supplemented these with data from the European trade
union institute dataset: http://www.etui.org/Topics/Trade-union-renewal-and-mobilisation/Strikes-in-Europe-version-2.0-
December-2014#visual for a couple of countries with incomplete data in www.ilo.org/ilostat.
During the period 2008-2013 the countries that displayed the highest propensity to engage in industrial action (more than
100 days per 1000 employees) were Cyprus, Denmark and France, while Austria, Germany, Hungary, Latvia, Russia,
Slovakia, Switzerland and Ukraine had less than 5 days lost per 1000 employees.
During the period 2000–07, the countries that displayed the highest propensity to engage in industrial action (more than
100 days per 1,000 employees) were France and Spain, while Germany, Latvia, Lithuania, Poland, Russia Federation,
Slovakia and Switzerland had less than five days lost per 1,000 employees.
GB.323/INS/5/Appendix III
GB323-INS_5-Appendix III_[CABIN-150311-1]-En.docx 135
Figure 4. Number of strikes and lockouts for countries by region, 1998 and 2008
30
413
21 16
527
277
1 3 15
189
57
382
0
100
200
300
400
500
600
Botswana Central African
Republic*
Mauritius Nigeria* South Africa* Tunisia
Africa
1998 2008
40
546
379
121
9 9 17 12
273
33
3
58
8
24 34
411
187
159
9 0 11 12
177
21 7
63
11 16
0
100
200
300
400
500
600
Barbados*
Brazil
Canada
Chile
Costa Rica*
Dominican Republic
Ecuador
El Salvador
Guyana*
Mexico
Panama
Peru
Trinidad and Tobago*
United States
Americas
1998 2008
GB.323/INS/5/Appendix III
136 GB323-INS_5-Appendix III_[CABIN-150311-1]-En.docx
* Where data for 2008 is not available, the year closest to 2008 was used where possible.
Note: Countries were selected on the basis of available data.
Source: ILO: Department of Statistics database, available at: http://www.ilo.org/ilostat.
520
1 097
145
129
0 35
92
0
122
8
177
423
52
108
6 23 5 0 51 5
0
200
400
600
800
1000
1200
Australia
India
Japan
Korea, Republic of
Myanmar
New Zealand
Philippines
Singapore
Sri Lanka
Thailand*
Asia and the Pacific
1998 2008
0
20
1 258
0
98
7
34 53
1 103
8
22 36
37
227
54
10 0
632
13 7
44
687
166
0 8
335
1
92
8 12 14
621
4 21 10
99
8 4 1 0
811
5 8 15 1
144
0
200
400
600
800
1000
1200
1400
Austria
Cyprus
Denmark
Estonia
Finland
Hungary
Ireland
Israel
Italy
Malta
Netherlands
Norway
Poland
Portugal*
Romania
Russian Federation
San Marino*
Slovakia
Spain
Sweden
Switzerland
Turkey
Ukraine
United Kingdom
Europe and Central Asia
1998 2008
12 765 11 162
Document No. 109
ILC, 111th Session, 2023, Report III (Part A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, para. 33

Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2023
Report III (Part A)
International Labour Conference
111th Session, 2023
General Report
Report of the Committee of Experts on the Application of Conventions and Recommendations
General Report 49
31. The Committee also referred to its relationship with the UN Human Rights Treaty Bodies, based
on the fact labour standards served as precursors of human rights instruments since the ILO’s
creation more than 100 years ago, setting the rules for economic development so that it could go
hand in hand with social justice and global peace. When human rights were proclaimed in the
Universal Declaration of Human Rights and entrenched the UN Charter in 1945, international
labour standards became an integral part of this framework and a new era opened up. The
Committee of Experts functioned in ways which found their echo in the work of the Human Rights
Treaty Bodies with the same ultimate purpose to promote respect for international obligations.
There was much complementarity in this work and a consequent need for consistency within each
entity’s respective mandates. There were also hopes that enhanced synergies would open up
space for higher levels of consistency. The Committee of Experts had invited the Chairpersons of
the Human Rights Treaty Bodies to an exchange which was very productive and opened the way
for closer collaborations, ultimately enhancing the impact of the ILO supervisory mechanism.
32. The Committee also referred to improvements introduced in this year’s General Survey entitled
Achieving Gender Equality at Work 2 which addressed different aspects of the same policy question,
i.e., how to promote equality of opportunity and treatment between women and men at work and
the realization of the fundamental principle of gender equality. The Committee referred in
particular to the use of hyperlinks, improved visibility of conclusions and the possibility to address
all Member States through the General Survey. The Committee expressed the hope that this year’s
General Survey would draw attention to the fundamental importance of gender equality and
would meet the constituents’ expectations.
C. Mandate
33. The Committee of Experts on the Application of Conventions and Recommendations is an
independent body established by the International Labour Conference and its members are
appointed by the ILO Governing Body. It is composed of legal experts charged with
examining the application of ILO Conventions and Recommendations by ILO Member
States. The Committee of Experts undertakes an impartial and technical analysis of how the
Conventions are applied in law and practice by Member States, while cognizant of different
national realities and legal systems. In doing so, it must determine the legal scope, content
and meaning of the provisions of the Conventions. Its opinions and recommendations are
non-binding, being intended to guide the actions of national authorities. They derive their
persuasive value from the legitimacy and rationality of the Committee’s work based on its
impartiality, experience and expertise. The Committee’s technical role and moral authority
is well recognized, particularly as it has been engaged in its supervisory task for more than
90 years, by virtue of its composition, independence and its working methods built on
continuing dialogue with governments taking into account information provided by
employers’ and workers’ organizations. This has been reflected in the incorporation of the
Committee’s opinions and recommendations in national legislation, international
instruments and court decisions.
2 Report III (Part B), International Labour Conference, 111th Session, Geneva, 2023.
Document No. 110
ILO, Director-General’s Instruction No. 45, 1952,
Procedure concerning requests for interpretations of
Conventions and Recommendations

Document No. 111
ILO, Director-General’s Instruction No. 337, 1968,
Procedure concerning requests for interpretations of
Conventions and Recommendations

Document No. 112
ILO, Circular No. 40, 1987, Procedure concerning
requests for interpretations of Conventions and
Recommendations

Document No. 113
ILO, Office informal opinions on international
labour standards, IGDS Number 565 (Version 1),
2020

Notification broadcast by email. 1 / 5
office procedure
IGDS Number 565 (Version 1)
28 May 2020
Office informal opinions on international labour standards
Introduction
1. This Procedure revises and updates ILO Circular No. 40, Series 9, Procedure
concerning requests for interpretation of Conventions and Recommendations.
2. This Procedure is issued further to article 8 of the ILO Constitution which confers overall
responsibility upon the Director-General for the efficient conduct of the Office.
3. This Procedure is effective as of the date of issue.
Scope and purpose
4. The Office is regularly called upon to provide clarifications or express its views on the
scope and meaning of provisions of international labour Conventions and international
labour Recommendations. Such requests are received from governments, either when
they are considering ratification of an international labour Convention or, after
ratification, when implementing its provisions. Such requests are also received from
employers’ and workers’ organizations, whether national or international, and other
international organizations within and outside the UN system.
5. The purpose of this Procedure is to ensure that the Office has in place standard and
uniform procedures for providing sound, consistent and expeditious informal opinions
as regards the scope and meaning of international labour standards.
6. The Office, in fulfilling its general functions as set out in article 10 of the Constitution,
has developed a long-established practice of providing informal opinions concerning
the scope and meaning of provisions of international labour standards. These opinions
are primarily based on a careful analysis of the preparatory work that led to their
adoption. They play a useful role inasmuch as the Office has the technical means,
linguistic capacity and accumulated experience dealing with such requests that allows
it to provide well-researched and consistent replies.
7. Whereas in the past Office informal opinions were communicated to the Governing
Body, and some were also published in the Official Bulletin in the form of Office
Memoranda, both those practices have been discontinued. The only exception in recent
years has been the publication of numerous Office opinions concerning provisions of
the Maritime Labour Convention, 2006, as amended (MLC, 2006), and the Work in
Fishing Convention, 2007 (No. 188), in all three official languages, in the form of
anonymized Frequently Asked Questions.
2 / 5
8. The Office advice and guidance is mostly solicited with regard to specific technical
aspects of international labour standards. To avoid any confusion with the constitutional
means for obtaining an authoritative and binding interpretation of international labour
Conventions set out in article 37 of the Constitution, Office informal opinions are
provided – as a matter of long-standing practice – with the caveat that the Constitution
does not confer any special competence upon the Office to give authoritative
interpretation of Conventions and Recommendations and that any views expressed are
without prejudice to the position the ILO’s supervisory bodies may take.
9. Informal opinions are provided by the Office on the clear understanding that they are of
an administrative nature and have no authoritative legal value.
Responsibilities
10. As a key service for the furtherance of the role of international labour standards in the
realization of the Organization’s objectives, Office informal opinions call for wellcoordinated
responses, strict vetting procedures and an appropriate degree of formality.
11. The Office of the Legal Adviser (JUR) and the International Labour Standards
Departments (NORMES) take lead responsibility for preparing Office informal opinions
in a timely manner and ensuring that these opinions meet the highest standards of legal
rigour and technical excellence. Other relevant units shall be requested, as appropriate,
to provide information such as technical/statistical data or empirical evidence
concerning the specific question thereby ensuring practical relevance.
12. Requests for Office informal opinions should not be confounded with requests for
practical explanations that do not require an in-depth legal analysis of the text of
international labour instruments and of their negotiating history, nor do they call for
internal consultations or validation. Any case of doubt as to whether a specific
communication involves, in whole or in part, a request for clarification of the scope and
meaning of a provision or provisions of an international labour Convention or
Recommendation, should be submitted to NORMES which shall advise on appropriate
follow-up in consultation with JUR.
Procedure
13. Office informal opinions shall be provided only to requests made in writing or transmitted
by electronic means. No reply may be communicated, officially or unofficially, on behalf
of the Office unless it is previously cleared and approved in accordance with the
procedure set out here below.
14. All requests concerning the scope and meaning of provisions of international labour
Conventions or international labour Recommendations shall be transmitted to
NORMES for appropriate follow-up as set out in paragraphs 15–22 below.
15. In acknowledging receipt of such requests, NORMES shall give an indication of the
expected time of delivery of the Office response and shall also indicate that the informal
opinion may be made publicly available unless the author of the request does not wish
their identity or any details concerning the underlying context to be revealed.
16. NORMES shall transmit the request to the technical unit(s), if any, having the
specialized knowledge and expertise in the area covered by the question(s) raised.
17. NORMES shall undertake an initial technical analysis of the request also taking into
account any input received from the technical unit(s) and shall forward it to JUR together
3 / 5
with all supporting documents and background material within ten (10) working days
from date of receipt.
18. JUR shall prepare a draft informal opinion in accordance with the guidance given in
paragraphs 23−29 below and circulate it for comments within ten (10) working days
from date of receipt.
19. In case of politically sensitive or controversial questions, the draft informal opinion shall
be transmitted to the Office of the Director-General and the Deputy Director-General for
Policy for review and clearance.
20. The Office informal opinion shall be finalized and dispatched in the form of an official
letter signed on behalf of the ILO Director-General by the Director of NORMES.
21. Except for particularly lengthy or complex requests, the Office informal opinions shall
be provided within one month as of the date of receipt.
22. In very exceptional cases, the Office may decide that it would not be appropriate to
express any views on a specific question and may thus decline to provide an informal
opinion.
Methodology
23. In preparing Office informal opinions, and in particular in analysing the ordinary
meaning of terms and expressions used in international labour standards in the light of
their object and purpose, special consideration shall be given to the following:
(a) the preparatory work which preceded the adoption of the Convention or
Recommendation in question, in particular the various reports submitted to the
International Labour Conference and the reports of the Conference Committees;
(b) any relevant work which may have followed the adoption of the Convention or
Recommendation in question, such as code of practice, guidelines, Conference
general/recurrent discussion, Office manual, etc.;
(c) the use of identical or similar terms in other Conventions or Recommendations
and the preparatory work that led to their adoption;
(d) any relevant indications contained in the comments/conclusions/
recommendations of ILO supervisory bodies, as the case may be;
(e) any informal opinion already provided by the Office on the same or similar
question;
(f) the relevant provisions of the national legislation, the critical review of which is
requested;
(g) the extent to which the law and practice in countries other than the one making
the request may assist in clarifying the issue(s) in question;
(h) the extent to which sources such as judicial decisions and doctrinal writings may
assist in clarifying the issue(s) in question;
(i) relevant technical information, such as statistics and other empirical data,
contained in official ILO publications;
4 / 5
(j) any other sources of information which may be of relevance in the specific
circumstances.
24. Due account shall also be taken of any terminological, stylistic or syntax differences
which may be of relevance between the equally authentic English and French versions
of the international labour standards under consideration.
Form and structure
25. Office informal opinions shall follow as much as possible a standard structure which
should contain the following:
(a) a summary of the request for an informal opinion without departing from the
terminology used therein;
(b) a general caveat to read: “The following indications are subject to the customary
reservation that the Constitution of the International Labour Organisation (ILO)
confers no special competence upon the International Labour Office to provide
an authoritative interpretation of the provisions of Conventions and
Recommendations adopted by the International Labour Conference and the
opinion of the Office is without prejudice to any position that the ILO’s supervisory
bodies might take with respect to this subject”;
(c) the text of all relevant provisions of the Convention(s) and/or Recommendation(s)
concerned;
(d) a detailed account of the preparatory work which may shed light to the intention
of the tripartite drafters of the provision(s) concerned and the various interests,
concerns and compromises involved in the process;
(e) an analysis of other relevant sources of information that may corroborate or
contradict any findings or assumptions based on the preparatory work;
(f) the Office conclusions as to the scope and meaning of the provision(s) concerned
in light of the intention of the drafters as reflected in the preparatory work, and
also taking into account all other relevant sources.
26. In case of requests containing multiple questions, each question shall be analysed and
replied to separately.
27. Office informal opinions shall be mainly based on publicly available ILO sources such
as records of proceedings of the annual Conference or tripartite meetings, Office
guidelines, codes of practice or manuals, and outcome documents of supervisory
procedures.
28. Apart from “informal opinions”, the Office views may also be referred to as “indications”,
“observations” or “clarifications”. The term “interpretation” may not be used to describe
Office informal opinions.
29. To increase their user-friendliness and practicality, Office informal opinions shall
contain only limited footnotes and bibliographical references while all referenced
documents shall be either attached or made accessible through web links.
5 / 5
Publicity and dissemination
30. All Office informal opinions shall be posted on the ILO’s public web site in a dedicated
section of the NORMLEX database.
31. Office informal opinions may be reproduced or otherwise used for the purpose of
developing promotional tools and materials related to international labour standards, as
appropriate. NORMES shall advise on queries related to the reproduction or reference
to Office informal opinions, in consultation with JUR.
32. Selected Office informal opinions may be communicated to the UN Office of Legal
Affairs for publication in the United Nations Juridical Yearbook.
Further information
33. Any questions concerning this Procedure should be addressed to the Office of the Legal
Adviser ([email protected]) and/or the International Labour Standards Department
([email protected]).
Greg Vines
Deputy Director-General
for Management and Reform

Document No. 114
ILO, Office informal opinion on the Maritime Labour
Convention, 2006, as amended (MLC, 2006), dated
29 July 2016

*-
ACD 5-186
Dear Sirs,
"" r (- :.f ' - a 5G, -
Per+nanent Secretai'y
Ministry of Foreign Affairs
DWT-Bangkok
CO-Suva
JUR
SECTOR
Chrono NORMES
ACD 8-0-7-186-268
Coui'iier
Captain Thomas F. Heinan
Deputy Commissioner of Maritime Affairs
Republic of the Marshall Islands
c/o International Registries, Inc.
11495, Commerce Park Road
RESTON, V A 20191-1507
Etats-Unis d'Am6rique
Mr Allan Schwartz
General Manger - Ship Safety Division
Australian Maritime Safety Authority (AMSA)
Level3, 82 Northbourne Ave.
Braddon ACT 2612
GPO Box 2181- CANBERRA, ACT 2601
Australie
: :l . i,) : i'i
I refer to your letter dated 23 0ctober 2015 in which the Australian Maritime Safety Authority
(AMSA) and the Republic of Marshall Islands (RMI) jointly requested the views of the International
Labour Organization regarding the maximum continuous length of time that a seafarer can serve on
board without taking leave in the light of the provisions of Standards A2.4 and A2.5 of the Maritime
Labour Convention, 2006 (MLC, 2006) on annual leave with pay and repatriation.
I am pleased to provide you with the following explanations subject to the usual understanding
that the ILO Constitution confers no special competence upon the Office to give an authoritative
interpretation of an international labour Convention and that the opinions expressed are without
prejudice to any position that the ILO's supervisory bodies might take with respect to its subject
matter. It is also understood that the following information cannot give an appreciation on the
conformity of the Australian or RMI legislation with the provisions of the MLC, 2006, that mandate
being reserved for the ILO supervisory bodies.
As noted above, the relevant provisions of the MLC, 2006 are Regulation 2.4 and Standards
A2.4 and A2.5, paragraph 2(b). Both Standards are directed to flag States as the relevant responsible
regulatory/implementing entity. Those provisions read as follows:
Regulation 2.4
1. Each Member shall require that seafarers employed on ships that fly its flag are given paid annual leave under
appropriate conditions, in accordance with the provisions in the Code.
2. Seafarersshallbegrantedshoreleavetobenefittheirhealthandwell-beingandwiththeoperationalrequirements
of their positions.
StandardA2.4
1. Each Member shall adopt laws and regulations determining the minimum standards for annual leave for seafarers
serving on sbips that fly its flag, taking proper account of the special needs of seafarers with respect to such
leave.
2. Subject to any collective agreement or laws or regulations providing for an appropriate method of calculation
that takes account of the special needs of seafarers in this respect, the annual leave with pay entitlement shall be
calculated on the basis of a minimum of 2.5 calendar days per month of employment. The manner in which the
2.
length of service is calculated sliall be determined by the competent authority or throrigh the appropriate
machinery in each country. Justified absences from work sliall not be considered as annual leave.
3. Any agreement to forgo the minimum annual leave with pay prescribed in this Standard, except in cases provided
for by the competent authority, shall be prohibited.
StandardA2.5, paragraph 2(b)
Each Member shall ensure that there are appropriate provisions in its laws and regulations or other measures or in
collective bargaining agreements, prescribing: [...]
(b) the maximum duration of service periods on board following which a seafarer is entitled to repatriation -
such periods to be less than 12 months; [...]
The Convention lays down the following two separate yet interrelated normative principles:
first, seafarers are entitled be sent home at no cost to themselves at regular intervals not exceeding
one year of continuous service, and second, seafarers must be given at least 30 days of paid leave for
one year of service. Whereas the former principle is specific to maritime employment, the latter is a
well-established workers' right applicable to all economic sectors and to all workers. The interrelation
of these principles is evidenced by the fact that, under the MLC, 2006, paid annual leave is to be
taken, in principle, in the place where the seafarer has a substantial connection and/or is entitled to be
repatriated. It flows from these principles, conjointly taken, that the maximum period of shipboard
service without leave is 11 moInths.
That being said, the issues of repatriation and annual leave should be considered separately.
As provided in Regulation 2.5, paragraph 1, seafarers have a right to repatriation. However,
when the entitlement to repatriation arises, seafarers may decide for various reasons not to exercise
this entitlement. The flag State may accordinglyprovide for the lapse ofthis entitlement ifnot claimed
within a reasonable period of time to be defined by national laws or regulations or collective
agreement (see Guideline B2.5.1, paragraph 8).
The situation concerning annual leave is different. Even though aru'iual leave with pay is also
an entitlement, Standard A2.4 explicitly states that any agreement to forgo the minimum annual leave
with pay, except in cases provided for by the competent authority, shall be prohibited. As a general
rule, therefore, any agreement by which for instance the seafarers would be paid an amount of money
in lieu of aru'iual leave would not be in conformity with the Convention. This prohibition clearly aims
at guaranteeing the effective realization of the purpose of Regulation 2.4 which is to ensure that
seafarers enjoy a period of leave every year for the benefit of their health and well-being wich is
also intrinsically linked with ship safety and security. The objective of Regulation 2.4 is evidently to
prevent fatigue and all risks related thereto and therefore to encourage seafarers to take annual leave
rather than undertake back-to-back voyages.
It should be noted, in this connection that, contrary to most of the provisions of the earlier
Conventions Nos. 91 and 146 on annual leave with pay which have been included in Guideline B2.5,
the prohibition of relinquishing the right to annual leave ("opting out") appears among the binding
principles of Standard A2.4.
However, Standard A2.4(3) of the MLC, 2006 does not lay down an absolute prohibition as
exceptions may be authorized by the competent authority. While the Convention is silent about the
nature and scope ofpermissible exceptions, there are good reasons to believe that this provision needs
to be interpreted in a restrictive manner, just like the corresponding articles of Conventions Nos. 91
and 146 - that Standard A2.4(3) replaces - and which allowed for the substitution for an annual
holiday of a cash payment only in "very exceptional circumstances when the service so requires"
(article 3(7) of C. 91) or in "exceptional cases" (article 9 of C. 146). In contrast, to read in Standard
3.
A2.4(3) of tlie MLC, 2006 a broad autliorization to forgo annual leave for casli compensation or
otherwise, worild defeat the very object and prirpose of the annual leave and repatriation entitlements
and would practically void of any substance the relevant sections of the Convention. Ultimately, it
would be for the ILO supervisory bodies to assess the conformity of any exceptions to the prohibition
to forgo annual leave adopted by flag States with the letter and the spirit of the MLC, 2006.
Based on the above general considerations, the Office worild have the following comments in
response to the concrete questions asked in your letter:
1. Is II months the "defardt" maximum continuous period a seafarer can serve on board a
vesse l,or can the seafarer choose to serve continuously on board longer?
Based on the combined reading of the MLC, 2006 provisions on aru'iual leave and
repatriation, it is clear that the maximum continuous period of shipboard service without
leave is 11 months. Subject to the limited exceptions that may be authorized by national
laws or regulations, any agreement to forgo the annual leave is prohibited, and therefore,
seafarers cannot decide at their own discretion to serve continuously on board for longer
periods.
2. Choosing to serve on board for longer , cart the seafcgre rdo this by entering into an initial
SEA for a longer continuous period on board or can this orxly be done by an extended or
new SEA?
"Opting out" from annual leave with pay is, in principle, prohibited under Standard
A2.4(3) of the MLC, 2006, and therefore seafarers caru'iot choose to serve on board for
longer periods without taking leave. Moreover, an initial SEA making express provision
for longer continuous period on board would openly contravene the requirements of
Standard A2.4(2) and Standard A2.5(2)(b) and would therefore be unacceptable. SEAs
have to be in compliance with the relevant standards of the Convention, namely provide
for at least 2.5 calendar days of paid leave per month of employment and also specify a
maximum service period of less than 12 months following which a seafarer would be
entitled to be repatriated at no cost to himself/herself.
Be that as it may, the duration of the seafarer's contract of employment should not
be confounded with the protection of the rights to repatriation and annual leave inasmuch
as Standard A2.5, paragraph 2(b) of the MLC, 2006 does not regulate the maximum
contract period after which an employment contract would have to expire. Reference may
be made, in this respect, to Standard A2.1, paragraph 4(g)(i), which expressly provides
for a seafarer's employment agreement for an indefinite period. Hence, as long as the
rights to repatriation and aru'iual leave are guaranteed in accordance with the relevant
provisions of the MLC, 2006, seafarers may enter into SEAs covering periods longer than
11 months.
3. If a seafarer can choose to serve continuously on board for a longer period, is there or
should there be a limit 07? the total amount of time that the seafarer can spend on board
consecutively, taking into consideration factors offcttigue and safety?
See under questions land 2 above.
4.
4. TiVhat 'sto prevent a seafttrer (voluidarily or not) froiri repeatedly signing consecutive
SEAs and hence staying 07? boardfor an indefinite period of tiine?
Standards A2.4 and A2.5 conjointly taken, establisli an 11-month maximum
continuous period that a seafarer can serve on board witliout leave. Signing consecutive
SEAs with the same shipowner witliorit internuption for annual leave would run counter
to the ratio legis of Regulation 2.4 which is to enswe that seafarers have adequate leave.
It would also amount to a barely disguised agreement to forgo annual leave which is, in
principle, prohibited under Standard A2.4(3). Signing a SEA with another shipowner
while on annual leave (upon repatriation or not, for a different or the same vessel) is more
difficult to control although the competent authority may, in particular in regulating the
operation of recruitment and placement services, adopt specific provisions to prevent such
practice. Parenthetically, it is noted that under article 13 of the Holidays with Pay
Convention (Revised), 1970 (No. 132) which is ILO's most up-to-date instrument n this
matter, "special rules may be laid down by the competent arithority or through the
appropriate machinery in each country in respect of cases in which the employed person
engages, during the holiday, in a gainful activity conflicting with the purpose of the
holiday".
In any event, the fact that there may be need for greater clarity around the practical
application of Standard A2.4(3) does not mean that the Convention recognizes an
unlimited right to uninternipted contract extension or renewal based on the seafarer's
consent. This would void Regulations 2.4 and 2.5 of their meaning and contradict the
overall thrust of the Convention which places emphasis on measures and policies aimed
at ensuring decent working and living conditions, preventing fatigue and enhancing
occupational health and safety.
Finally, with respect to the situation alluded to in question 4 of a seafarer signing
consecutive SEAs on a non-voluntary basis (for fear for instance of not being rehired), it
is to be noted that this could qualify as a situation of forced labour witin the meaning of
the Forced Labour Convention, 1930 (No. 29) and would therefore violate seafarers'
fundamental rights as set out in Article III of the MLC, 2006.
5. Does a seafarer who has signed consecutive SEAs lose the right to repatriation, other
than through expiration or termination of this new agreemen t,of this new agreement,
because he/she has waived their rights vmder Standard A2.5.2(b)? In other words, if the
seafarer choses to extend his/her duration on board, for say 4 months, can the seafarer
ther xchose ,afier say 2 months , to withdraw that choice without penalty or must this be
through the termination provisions ofA2.5.l(b)?
As explained above, although seafarers may decide not to exercise their entitlement
to repatriation, they cannot sign consecutive SEAs exceeding the "default" 11-month
maximum service period as tis would implywaiving their right to annual leave with pay,
which is in principle prohibited under Standard A2.4(3). Seafarers cannot freely "chose
to extend their duration on board" without taking leave except as may be authorized by
the national laws and regulations determining the minimum standards for annual leave.
Whether seafarers, who under the limited conditions prescribed by national laws and
regulations may continue to serve on board the vessel without taking leave, can exercise
their right to repatriation only at the end of the new agreement or only upon terminating
5.
that agreement for justified reasons, is a matter to be determined by the flag State. In
doing so, the flag State lias to give due consideration to Griideline B2.5(8) which provides
that the entitlement to repatriation may only lapse if not exercised within a reasonable
period of time to be defined by national laws or regulations or collective agreements.
6. If the seafarer choses to extend his/her term on board beyond 12 months, at which point
arid ttpon what guidance, does the flag State apply its obligations under Regtdation 2.4
to require that seafctrers be given their paid leave?
See under questions 1 and 2 above.
7. FAQ C.2.5g clearly states the choice to not exercise the right to repatriation rests with
the seafctrer and the seafctrer alo-ne. MLC, 2006 Guideline B2.4.2.1 clearly states that the
time at which annual leave is to be taken should be determined by the shipowner (tmless
fixed by regvdations ,collective agreement, arbitration award or other means consistent
with national practice). One is a FAQ and one is a Guideline, but both seem to contradict.
Shovdd there be another FAQ, that is , "C(17 2the shipowner decide not to offer repatriation
when the entitlement arises?"
Any decision of the shipowner refusing the right to repatriation when this
entitlement arises would be contrary to Regulation 2.5 of the MLC, 2006. In addition, it
would result in the seafarer exceeding the default 1 I-month maximum continuous period
without taking leave, and would therefore be contrary to Regulation 2.4 of the
MLC, 2006.
Kindly note that the current edition of the FAQ will be reviewed in due course to ensure that it
remains updated.
I hope that these explanations will help AMSA and RMI to reach a cornrnon understanding of
the relevant provisions of the Convention and thus facilitate the harmonious and effective
implementation of the Convention.
Yours sincerely,
Corinne Vargha
Director of the International Labour
Standards Department

Document No. 115
ILO, Office informal opinion concerning the
Seafarers’ Identity Documents Convention (Revised),
2003, as amended (No. 185), dated 22 December
2020

International Labour Standards
Department
T: +41 22 799 7155
E: [email protected]
R: ACD
Ms Sofie Eistorp Jørgensen
Special Advisor
Danish Maritime Authority
Caspar Brands Plads 9
DK-4220 Korsør
DENMARK
22 December 2020
Dear Ms Jørgensen,
I have the honour to refer to your letters of 10 and 14 December 2020, by which you requested the
views of the International Labour Office principally as to whether a State party to the Seafarers'
Identity Documents Convention, 2003, as amended (No. 185) has an obligation to recognize
seafarers’ identity documents issued pursuant to the Seafarers’ Identity Documents Convention,
1958 (No. 108).
The following indications are subject to the customary reservation that the Constitution of the
International Labour Organization (ILO) confers no special competence upon the International
Labour Office to provide an authoritative interpretation of the provisions of Conventions and
Recommendations adopted by the International Labour Conference and the opinion of the Office is
without prejudice to any position that the ILO’s supervisory bodies might take with respect to this
subject matter.
Concretely, you seek clarifications as to whether a Member State that is party to Convention No. 185
is obliged to recognize the seafarers’ identity documents issued pursuant to Convention No. 108,
and also whether it makes a difference if that Member State was formerly bound by Convention
No.108.
The relevant provisions of the two instruments are article 13 of Convention No. 108 and article 10 of
Convention No. 185, which read as follows:
Article 13
1. Should the Conference adopt a new Convention revising this Convention in whole or in part, then,
unless the new Convention otherwise provides:
2.
(a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate
denunciation of this Convention , notwithstanding the provisions of Article 9 above, if and when the
new revising Convention shall have come into force;
(b) as from the date when the new revising Convention comes into force, this Convention shall cease
to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and content for those
Members which have ratified it but have not ratified the revising Convention.
Article 10
This Convention revises the Seafarers' Identity Documents Convention, 1958.
It stems from the above provisions that the ratification by a Member of Convention No. 185 --“the
new revising Convention” within the meaning of the article 13, paragraph 1, of Convention No. 108 --
involves the immediate denunciation of Convention No. 108. It follows that, upon ratification of
Convention No. 185, a Member who had previously ratified Convention No. 108 is released with
immediate effect from any obligation to continue to implement that Convention, including the
obligation to permit entry into its territory of seafarers holding seafarer's identity documents issued
pursuant to that Convention. This is consistent with the principle of pacta sunt servanda codified in
article 26 of the 1969 Vienna Convention on the Law of Treaties according to which every treaty in
force is binding only upon the parties thereto, and also article 70 of the same Convention according
to which the termination of a treaty under its provisions releases the parties from any obligations
further to perform the treaty. It is recalled, in this connection, that the revision of an international
labour Convention through the adoption of a new revising Convention has been the most
frequently used method of revision of ILO Conventions. The possibility of the ratification of a new
revising Convention and the concomitant ipso jure denunciation of the revised Convention (also
known as ‘automatic’ denunciation) is specifically foreseen in the final clauses of most ILO
Conventions.
Furthermore, it emerges from the preparatory work which preceded the adoption of Convention
No. 185 that, while the Governing Body had initially envisaged amending Convention No. 108
through the adoption of a Protocol, the majority view expressed during the consultation process
pointed to the need for a new revising Convention as the most appropriate means to achieve the
objective of improved seafarers’ identification (ILO: Improved security of seafarers’ identification,
Report VII(2B), ILC, Geneva, 91st session, 2003). In the event, Convention No. 185 was adopted in
2003 to replace Convention No. 108, which was outdated with respect to its security measures.
While the new Convention in its preamble recognized “the principles embodied in the Seafarers'
Identity Documents Convention, 1958, concerning the facilitation of entry by seafarers into the
territory of Members, for the purposes of shore leave, transit, transfer or repatriation”, it departed
considerably from the old Convention as regards the content and form of SIDs as the documents in
use under that Convention no longer corresponded to modern realities and security needs. A fasttrack
procedure was adopted by the ILO to allow for the rapid adoption and implementation of the
Convention in order to ensure an effective response to enhanced security concerns after the events
of 11 September 2001. In sum, Convention No.185 provides for a mutual obligation of recognition of
seafarers identity documents issued by the competent authorities of States parties pursuant to the
technical standards set out therein. It does not contain, however, any obligation to recognize the
documents issued in application of Convention No. 108 nor any transitional measures to that effect.
The only transitional measure set out in article 9 of the Convention, aims rather at speeding up the
transition from the old system under Convention No.108 to the technologically advanced SIDs
under the new Convention.
3.
Thus, the terms of Convention No.185 and the legislative history confirm a clear intention to release
countries as soon as possible from their obligation to recognize SIDs issued under Convention
No. 108 whose security features were regarded as seriously inadequate. The Office expressed the
same view in an informal opinion prepared in 2007 in response to a request of the Government of
Estonia (see copy attached). Therefore, apart from being legally unfounded, it would also be
inconsistent with the object and purpose of Convention No. 185, which introduced a uniform
international seafarer’s identity document with modern security and biometric features, to suggest
that States parties to Convention No. 185 should continue to recognize the much less sophisticated
and secure seafarers’ identity documents issued under Convention No. 108.
For all useful purposes, reference could be made, at this juncture, to the Resolution concerning
maritime labour issues and the COVID-19 pandemic, which was adopted by the ILO Governing Body
on 8 December 2020 (GB.340/Resolution (Rev.2)) and which urges all Members, in accordance with
applicable national laws and regulations, to “consider the acceptance of internationally recognized
documentation carried by seafarers, including seafarers’ identity documents delivered in conformity
with ILO Conventions Nos 108 and 185.” It is recalled, nonetheless, that this resolution seeks to
facilitate the transit of seafarers during the pandemic and does not create new legal obligations for
States parties to the respective Conventions.
In your communication, you also wish to know what information a State party to Convention
No. 108, which ratifies Convention No.185 provides to the Office (e.g. expected effective date of
Convention No. 185 or a statement as to whether the Member will continue to recognize seafarers’
identity documents issued pursuant to Convention No. 108). In this regard, the Office records show
that no ratification instruments have ever contained or been accompanied by a declaration whereby
a ratifying State committed or indicated its intention to continue recognizing documents issued
under Convention No. 108. Such decision would, in any event, be a matter of domestic policy and
not a legal requirement for ratifying States of Convention No. 185.
Finally, you seek clarification as to the type of information, if any, that a State party to Convention
No.185 is obliged to pass along, especially to States parties to Convention No. 108, for instance
whether the State concerned will continue to recognize seafarers’ identity documents issued
pursuant to Convention No.108. In this regard, the Office confirms that Convention No. 185 does
not set out any obligation for States parties to communicate information of any sort to those States,
which remain bound by the old Convention No. 108.
I hope the above clarifications prove useful to the Danish Maritime Authority.
Yours sincerely,
Corinne Vargha
Director

Document No. 116
ILO, Office informal opinion concerning the
Occupational Safety and Health Convention, 1981
(No. 155), dated 31 January 2022

Normes
T: +41 22 799 71 55
E: [email protected]
R: ACD 5-155/8-2-24-155
Normes T: +41 22 799 71 20
E: [email protected]
Mr Sebastian Müller
Division VIb2 “International Labour
Organisation (ILO), United Nations”
Federal Ministry of Labour and Social Affairs
Wilhelmstr. 49
D-10117 Berlin
Allemagne
Geneva, 31 January 2022
Dear Mr Müller,
Reference is made to your email message of 27 December 2021 addressed to the Office of the
Legal Adviser requesting an informal opinion concerning the scope of the Occupational Safety
and Health Convention, 1981 (No. 155).
I am pleased to provide the following indications, subject to the customary reservation that the
Constitution of the International Labour Organization confers no special competence upon the
International Labour Office to provide an authoritative interpretation of the provisions of
Conventions and Recommendations adopted by the International Labour Conference and the
opinion of the Office is without prejudice to any position that the ILO’s supervisory bodies might
take with respect to this subject.
Concretely, your Government requests the views of the Office as to whether Convention No. 155
covers measures in reaction to work-related accidents and/or whether it aims to create
corresponding entitlements vis-à-vis the insurance fund under national law, or whether the
Convention is exclusively concerned with preventative measures. Your Government also
requests, as far as possible, an informal assessment by the Office as to whether German labour
and social insurance law complies with the Convention and whether further implementation
measures would be required in case of ratification of the Convention.
At the outset, the Office understands that the question does not relate only to “work-related
accidents” stricto sensu, but to events which could generally fall within the remit of workers’
compensation schemes, such as “industrial accidents and occupational diseases” (see Preamble
and articles 7-8 of the Employment Injury Benefits Convention, 1964, No. 121),1 “accident or a
prescribed disease resulting from employment” (see article 32 of the Social Security (Minimum
Standards Convention, 1952, No. 102)2 or “accidents and injury to health arising out of, linked
with or occurring in the course of work” (see article 4(2) of Convention No. 155).
1 Ratified by Germany on 1 March 1972.
2 Ratified by Germany on 21 February 1958.
The relevant provisions of Convention No. 155 are found in its article 4, which reads as follows:
Article 4
1. Each Member shall, in the light of national conditions and practice, and in consultation
with the most representative organisations of employers and workers, formulate, implement
and periodically review a coherent national policy on occupational safety, occupational
health and the working environment.
2. The aim of the policy shall be to prevent accidents and injury to health arising out of, linked
with or occurring in the course of work, by minimising, so far as is reasonably practicable, the
causes of hazards inherent in the working environment.
The main obligation for ratifying Members arising from the Convention is thus to adopt and
effectively implement a coherent national policy on occupational safety and health aiming at
preventing workplace accidents and injuries and minimizing occupational hazards. Accordingly,
the “main spheres of action” that the national policy should take into account, listed in Article 5
of the Convention, refer to areas for preventative action and do not contain any reference to
workers’ compensation for occupational accident, injury or disease.
This is in line with how occupational safety and health (OSH) is conceived in the ILO. According
to a definition by the International Occupational Hygiene Association (IOHA) quoted by the
Committee of Experts on the Application of Conventions and Recommendations (CEACR) “OSH is
generally defined as the science of anticipation, recognition, evaluation and control of hazards
arising in or from the workplace that could impair the health and well-being of workers, taking
into account the possible impact on the surrounding communities and the general
environment”.3 Consequently, Convention No. 155 uses, in several of its articles, terms such as
“danger” or ”dangerous” (Arts. 12(a),(b), 13 and 19(f)), “risk” (Arts. 11(f) and 16(1)-(3)) and
“hazards” (Arts. 4(2), 11(a), 11(b) and 12(b)). In the ILO’s system of standards, questions
concerning compensation for occupational accidents or diseases and employment injury are
covered in instruments concerning social security, in particular Conventions Nos. 102, Part VI,
and 121, and Recommendation No. 121.4
As it is clearly stated in the CEACR’s General Survey of 2009 on ILO standards on occupational
safety and health, Convention No. 155 marks the shift of emphasis from the mere prescription
of protection measures to preventative measures. In the Committee’s words, “the central
organizing theme of Convention No. 155 and Recommendation No. 164 is thus the
implementation of a policy focused on prevention rather than a reaction to the consequences of
occupational accidents and diseases”.5
The fact that Convention No. 155 places primary emphasis on prevention is further
corroborated by a combined reading of Articles 1(a), 2(1) and 3(3) of the Promotional
Framework for Occupational Safety and Health Convention, 2006 (No. 187), which elaborates on
the notion of national policy on occupational safety and health based on the principles
specifically set out in Article 4 of Convention No. 155. Indeed, as the CEACR has confirmed,
Convention No. 187 and Recommendation No. 197 “integrated and reaffirmed the policy,
principles and processes defined in Convention No. 155 and Recommendation No. 164.”6
3 ILC, 98th Session, 2009, Report III (Part 1B), para. 4.
4 See the List of instruments by subject and status published on the ILO website.
5 ILC, 98th Session, 2009, Report III (Part 1B), para. 15.
6 ILC, 98th Session, 2009, Report III (Part 1B), para. 294.
Notwithstanding the above, Convention No. 155 contains a few provisions that expressly refer
to occupational accidents, diseases or injuries, in particular Articles 11(c),(d),(e) and 18.
As regards Article 11(c),(d),(e), it refers to functions (such as the notification of accidents, the
holding of inquiries, and the publication of information) that should be carried out to “give effect
to the policy referred to in Article 4 of this Convention”, which is – as specified in that article – the
prevention of occupational accidents and injury. More concretely, with respect to the obligation
to notify accidents and to publish relevant information, the preparatory work of the Protocol of
2002 to Convention No. 155, which builds on Article 11(c) and (e) of the Convention, confirms
that recording and notification of occupational accidents and diseases would be for purposes of
prevention. For example, it was stated in the Office’s law and practice report that the
“recognition that a disease is occupational in origin – whether wholly or in part – would
strengthen health surveillance provisions and raise awareness of appropriate preventive
activity”.7 During the first Conference discussion, one Government emphasized, in support of an
amendment that was eventually adopted, that “the aim [of these provisions] was to ensure that the
competent authority was notified of every case of disease which could be related to employment, so
as to clarify questions of occupational physio-pathology and to make both employers and workers
aware of the importance of efficient occupational safety and health measures”.8 During the same
discussion, it was stated with regard to the obligation under article 11(d) that “the holding of
inquiries in this context was to be construed in the sense of the carrying out of research into health
and safety problems coming to the notice of the competent authority or authorities”.9
It follows from the above that the obligations under Article 11 of the Convention aim at
facilitating the prevention of accidents and injury to health by building the knowledge capacity
of all stakeholders. Even if the procedures for the notification of occupational accidents and
diseases required under Article 11(c) might create administrative obligations for insurance
institutions “when appropriate”, they are not intended to create any entitlements to benefits.
As for Article 18, it deals with the immediate response to emergency and accidents and not with
workers’ compensation. In fact, it follows from a discussion that took place during the first
Conference discussion that the understanding was that this provision covered only first-aid
services. A Workers’ amendment proposed “to include in the scope of the relevant Point not
only adequate first-aid arrangements but also occupational health services” but some
Government members pointed out that “the text, if amended, would cover in the same Point
two services of an entirely different nature, first-aid services and in-plant medical services, the
latter having a much wider scope of activity”. The proposed amendment was withdrawn.10
In addition to the express references to occupational accidents, diseases or injuries highlighted
above, Article 15 of Convention No. 155 may have an effect on insurance institutions as it
requires that “Members […] shall make arrangements appropriate to national conditions and
practice to ensure the necessary co-ordination between various authorities and bodies called upon to
give effect to Parts II and III of the Convention”. As explained above, insurance institutions are
referred to in Part III, Article 11(c) of the Convention and may thus be concerned by the
coordination obligation set out in Article 15. Yet, these potential administrative requirements
are not intended to create any entitlements to benefits.
7 ILC, 90th Session, 2002, Report V(1), p. 23.
8 ILC, 67th Session, 1981, Report VI (1), p. 24, para. 101.
9 Ibid.
10 ILC, 67th Session, 1981, Report VI (1), para. 120.
In light of the preceding considerations, the Office is of the view that the focus of Convention
No. 155 is clearly on the development of a national policy for the prevention of occupational
accidents and injury to health, and that the few provisions laying down obligations with regard
to work-related accidents and injuries, or insurance institutions, do not relate, directly or
indirectly, to workers’ entitlements for compensation under domestic legislation.
In the absence of references to specific elements of the German labour and social insurance law
to review, the Office is not in a position to express an opinion on its compliance with the
obligations contained in the Convention. The Office stands ready, if required, to provide its
opinion regarding compliance of any specific elements of the German labour and social
insurance law with the obligations contained in the Convention.
I hope these explanations may help your Government and its social partners in the deliberations
concerning the possible ratification of Convention No. 155.
Yours faithfully,
For the Director-General:
Corinne Vargha
Director of the International Labour
Standards Department
Document No. 117
ILO, Office informal opinion concerning the Minimum
Wage Fixing Convention, 1970 (No. 131), dated 26 July
2023

International Labour Standards
Department
T: +41 22 799 71 55
E: [email protected]
R: ACD 5-131/8-2-337-131
Normes T: +41 22 799 71 20
E: [email protected]
The Minister of Labour and Social Protection
of Population of the Republic of Kazakhstan
Mangilik El street 8
House of the Ministries, Front door 6
010000 ASTANA
RÉPUBLIQUE DU KAZAKHSTAN
Geneva, 26 July 2023
Dear Sir,
Reference is made to your communication of 8 June 2023 by which the Government of
Kazakhstan sought legal and technical clarifications from the Office in the context of
preparatory work on the ratification of the Minimum Wage Fixing Convention, 1970 (No. 131),
concerning the meaning of the term “wages” used throughout the text of that Convention.
I am pleased to provide the following explanations, subject to the customary reservation that
the Constitution of the International Labour Organization (ILO) confers no special competence
upon the International Labour Office to provide an authoritative interpretation of the provisions
of Conventions and Recommendations adopted by the International Labour Conference and the
opinion of the Office is without prejudice to any position that the ILO’s supervisory bodies might
take with respect to this subject.
Concretely, your Government seeks clarifications on what kind of wage is implied in Convention
No. 131 given that article 104 of the Labour Code of the Republic of Kazakhstan of November
23, 2015, provides for both a minimum monthly wage and a minimum hourly wage.
The relevant provisions of the Convention read as follows:
Article 1
1. Each Member of the International Labour Organisation which ratifies this Convention
undertakes 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.
Article 4
1. Each Member which ratifies this Convention shall create and/or maintain machinery
adapted to national conditions and requirements whereby minimum wages for groups of
wage earners covered in pursuance of Article 1 thereof can be fixed and adjusted from
time to time.
At the outset, it should be noted that Convention No. 131 intentionally uses the term “wages” in
the expression “system of minimum wages” in plural and without any qualification with respect
to time as it was drafted on a principled level to be of general application and to cover diverse
national systems (ILC, 53rd Session, 1969, Report VII(1), p. 1, Meeting of experts on minimum
wage fixing, MEMW/1967/D.8, para. 128).
The preparatory work that led to the adoption of Convention No. 131 confirms the intention to
provide for a minimum wage of general coverage for all wage earners while at the same time
offering some flexibility and allowing differentiated rates of minimum wages by region or
category of workers, as may be determined by the competent authority after consultations with
employers’ and workers’ organizations concerned (ILC, 53rd Session, 1969, Report VII(1), pp.
19-28, and ILC, 53rd Session, 1969, Report VII(2), pp. 113-114). As the Reporter of the
Conference committee stated during the second Conference discussion, the first item among
those that “received the greatest attention […] was that the proposed Convention should have
as wide a coverage as possible” (ILC, 54th Session, 1970, Record of Proceedings, p. 440). Indeed,
throughout the Conference proceedings, no reference was made to the distinction between
monthly or hourly minimum wages with respect to the scope of the draft instrument (ILC, 53rd
Session, 1969, Record of Proceedings, pp. 678-685, and ILC, 54th Session, 1970, Record of
Proceedings, pp. 378-381).
It is worth noting that the same approach was adopted when drafting the earlier minimum
wage-fixing instruments, namely the Minimum Wage-Fixing Machinery Convention, 1928
(No. 26) and the Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99). For
instance, in the elaboration of Convention No. 26, Italy considered that the expression
"homework" should “include trades which are normally organised in such a way that the worker
performs, for his employer only, work paid for by the hour or at piece or job rates” (ILC, 11th
Session, 1928, Report on minimum wage fixing machinery, p. 19) while Canada/Province of
British Colombia expressed the view that minimum wage should preferably be paid at an hourly
rate (ibid., p. 45) but neither proposal was retained, and as a result, Convention No. 26 does not
define minimum wage by reference to any specific time period. Similarly, when Convention
No. 99 was under consideration, information was provided concerning diverse national
practices as regards the time period covered by the minimum wages (ILC, 33rd Session,1950,
Report VII(1), pp. 9, 19, 20) but no proposal was made to include specific provisions in the draft
Convention.
In light of the preceding observations, it may be safely concluded that there is nothing to
indicate that the intention of the drafters of Convention No. 131 was to limit the scope of the
instrument to minimum wages calculated on the basis of a specific time period (for instance,
month. day or hour).
This conclusion is further corroborated by the remarks of the ILO Committee of Experts on the
Application of Conventions and Recommendations. For instance, in 2014, the Committee of
Experts defined the concept of minimum wage “as the minimum amount of remuneration that
an employer is required to pay wage earners for the work performed during a given period,
which cannot be reduced by collective agreement or an individual contract” (ILC, 103rd Session,
2014, ILC.103/III/1B, General Survey on minimum wage systems, para. 68, emphasis added).1
The Committee’s views are in line with the approach that diverse national approaches are
meant to be covered by the Convention.
Moreover, in its comments addressed to Member States on the application of Convention No.
131, the Committee of Experts has invariably considered minimum wages fixed on a monthly
and/or hourly or weekly basis as falling within the scope of the Convention. For example, it has
taken note of minimum wages fixed on both monthly and hourly basis in France (direct request,
2007) and in the Republic of Moldova (direct request, 2007), and on a weekly basis in Malta
(direct request, 2013).
In the Office’s view, therefore, a national system of minimum wages which would prescribe both
a minimum monthly wage and a minimum hourly wage would be compatible with the
requirements of Convention No. 131.
I hope these explanations may help the Government of Kazakhstan to make progress towards
the ratification of Convention No. 131.
Yours faithfully,
For the Director-General:
Corinne Vargha
Director of the International Labour
Standards Department
1 A definition in practically identical terms is found in the General Survey of 1992 (ILC, 79th Session, 1992, Report III
(Part 4B), General Survey on minimum wages, para. 42).

Document No. 118
Constitution of the ILO, Preamble and Annex, Declaration
concerning the aims and purposes of the
International Labour Organization (Declaration of
Philadelphia)

 Constitution
of the International
Labour Organization
International Labour Office, Geneva, 2021

7
 Constitution of the International Labour
Organization
Preamble
Whereas universal and lasting peace can be established only if it is
based upon social justice;
And whereas conditions of labour exist involving such injustice,
hardship and privation to large numbers of people as to produce unrest so
great that the peace and harmony of the world are imperilled; and an
improvement of those conditions is urgently required; as, for example, by
the regulation of the hours of work including the establishment of a
maximum working day and week, the regulation of the labour supply, the
prevention of unemployment, the provision of an adequate living wage, the
protection of the worker against sickness, disease and injury arising out of
his employment, the protection of children, young persons and women,
provision for old age and injury, protection of the interests of workers when
employed in countries other than their own, recognition of the principle of
equal remuneration for work of equal value, recognition of the principle of
freedom of association, the organization of vocational and technical
education and other measures;
Editor’s notes:
(1) The original text of the Constitution, established in 1919, has been modified by the
amendment of 1922 which entered into force on 4 June 1934; the Instrument of Amendment
of 1945 which entered into force on 26 September 1946; the Instrument of Amendment of
1946 which entered into force on 20 April 1948; the Instrument of Amendment of 1953
which entered into force on 20 May 1954; the Instrument of Amendment of 1962 which
entered into force on 22 May 1963; the Instrument of Amendment of 1972 which entered
into force on 1 November 1974; and the Instrument of Amendment of 1997 which entered
into force on 8 October 2015.
(2) Equality for women and men in the world of work is a core value of the International Labour
Organization. The resolution concerning gender equality and the use of language in legal
texts of the ILO, adopted by the General Conference at its 100th Session, 2011, affirms that
gender equality should be reflected through the use of appropriate language in official legal
texts of the Organization and that, in the ILO Constitution and other legal texts of the
Organization, the use of one gender includes in its meaning a reference to the other gender
unless the context requires otherwise.
8
Whereas also 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;
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, and with a view to attaining the objectives set forth in this Preamble,
agree to the following Constitution of the International Labour Organization:
Chapter I. Organization
Article 1
Establishment and membership
1. A permanent organization is hereby established for the promotion
of the objects set forth in the Preamble to this Constitution and in the
Declaration concerning the aims and purposes of the International Labour
Organization adopted at Philadelphia on 10 May 1944, the text of which is
annexed to this Constitution.
2. The Members of the International Labour Organization shall be the
States which were Members of the Organization on 1 November 1945 and
such other States as may become Members in pursuance of the provisions
of paragraphs 3 and 4 of this article.
3. Any original member of the United Nations and any State admitted
to membership of the United Nations by a decision of the General Assembly
in accordance with the provisions of the Charter may become a Member of
the International Labour Organization by communicating to the Director-
General of the International Labour Office its formal acceptance of the
obligations of the Constitution of the International Labour Organization.
4. The General Conference of the International Labour Organization
may also admit Members to the Organization by a vote concurred in by two
thirds of the delegates attending the session, including two thirds of the
Government delegates present and voting. Such admission shall take effect
on the communication to the Director-General of the International Labour
Office by the government of the new Member of its formal acceptance of the
obligations of the Constitution of the Organization.
5. No Member of the International Labour Organization may withdraw
from the Organization without giving notice of its intention so to do to the
30
Annex
Declaration concerning the aims and purposes of the
International Labour Organization
(Declaration of Philadelphia)
The General Conference of the International Labour Organization,
meeting in its Twenty-sixth Session in Philadelphia, hereby adopts, this tenth
day of May in the year nineteen hundred and forty-four, the present
Declaration of the aims and purposes of the International Labour
Organization and of the principles which should inspire the policy of its
Members.
I
The Conference reaffirms the fundamental principles on which the
Organization is based and, in particular, that:
(a) labour is not a commodity;
(b) freedom of expression and of association are essential to sustained
progress;
(c) poverty anywhere constitutes a danger to prosperity everywhere;
(d) 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 with them in free
discussion and democratic decision with a view to the promotion of the
common welfare.
II
Believing that experience has fully demonstrated the truth of the
statement in the Constitution of the International Labour Organization that
lasting peace can be established only if it is based on social justice, the
Conference affirms that:
(a) all human beings, irrespective of race, creed or sex, have the right to
pursue both their material well-being and their spiritual development in
31
conditions of freedom and dignity, of economic security and equal
opportunity;
(b) the attainment of the conditions in which this shall be possible must
constitute the central aim of national and international policy;
(c) all national and international policies and measures, in particular those
of an economic and financial character, should be judged in this light
and accepted only in so far as they may be held to promote and not to
hinder the achievement of this fundamental objective;
(d) it is a responsibility of the International Labour Organization to examine
and consider all international economic and financial policies and
measures in the light of this fundamental objective;
(e) in discharging the tasks entrusted to it the International Labour
Organization, having considered all relevant economic and financial
factors, may include in its decisions and recommendations any
provisions which it considers appropriate.
III
The Conference recognizes the solemn obligation of the International
Labour Organization to further among the nations of the world programmes
which will achieve:
(a) full employment and the raising of standards of living;
(b) 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 wellbeing;
(c) the provision, as a means to the attainment of this end and under
adequate guarantees for all concerned, of facilities for training and the
transfer of labour, including migration for employment and settlement;
(d) policies in regard to wages and earnings, hours and other conditions of
work calculated to ensure a just share of the fruits of progress to all, and
a minimum living wage to all employed and in need of such protection;
(e) the effective recognition of the right of collective bargaining, the
cooperation of management and labour in the continuous improvement
32
of productive efficiency, and the collaboration of workers and employers
in the preparation and application of social and economic measures;
(f) the extension of social security measures to provide a basic income to
all in need of such protection and comprehensive medical care;
(g) adequate protection for the life and health of workers in all occupations;
(h) provision for child welfare and maternity protection;
(i) the provision of adequate nutrition, housing and facilities for recreation
and culture;
(j) the assurance of equality of educational and vocational opportunity.
IV
Confident that the fuller and broader utilization of the world’s
productive resources necessary for the achievement of the objectives set
forth in this Declaration can be secured by effective international and
national action, including measures to expand production and consumption,
to avoid severe economic fluctuations to promote the economic and social
advancement of the less developed regions of the world, to assure greater
stability in world prices of primary products, and to promote a high and
steady volume of international trade, the Conference pledges the full
cooperation of the International Labour Organization with such international
bodies as may be entrusted with a share of the responsibility for this great
task and for the promotion of the health, education and well-being of all
peoples.
V
The Conference affirms that the principles set forth in this Declaration
are fully applicable to all peoples everywhere and that, while the manner of
their application must be determined with due regard to the stage of social
and economic development reached by each people, their progressive
application to peoples who are still dependent, as well as to those who have
already achieved self-government, is a matter of concern to the whole
civilized world.

Document No. 119
Right of Association (Agriculture) Convention, 1921
(No. 11)

International Labour Conference
Conference internationale du Travail
CONVENTION IN
CONVENTION CONCERNINC. THE RI(,HTS OF ASSOCIATION
AND COMBINATION OF A(,RICULTURAL WORKERS,
ADOPTED BY THE Cj)NFERENCE AT ITS
THIRD SESSION, C.ENEV A, 12 NOVEMBER 1921
(as modified by the Final Articles Revision Convention, 1946)
CONVENTION IN
CONVENTION CONCERNANT LES DROITS D'ASSOCIATION
ET DE COALITION DES TRAVAILLEURS AGRICOLES,
hnop'a, PAR LA conpnhhuch A SA
rhoxsxBu:e SESSION, CENF.VE, 12 NOVEMBRE 1921
(telle qu'elle a 6t6 modifi6e par la Convention portant revision
des articles finals, 1946)
AUTHENTIC TEXT
TEXTE AUTHENTIQUE
(,onvention IN
(,ONVENTION CONCERNING THE RIGHTS OF ASSOCIATION
AND COMBINATION OF AGRICULTURAL WORKERS.
The General Conference of the Irbternational Labour Organisation,
Having been convened at Geneva by the Governing Body
of the International Labour Office, and having met in its
Third Session on 25 0ctober 1921, and
Having decided upon the adoption of certain proposals with
regard to the rights of association and combination of
agricultural workers, which is included in the fourth
item of the agenda of the Session, and
Having determined that these proposals shall take the form
of an international Convention,
adopts the following Convention, which may be cited as the
Rights of Association (Agriculture) Convention, 1921, for
ratification by'the Members of the International Labour Organisation
in accordance with the provisions of the Constitution
of the International Labour Organisation :
Article I
Each Member of the International Labour Organisation
which ratifies this Convention undertakes to secure to all those
engaged in agriculture the same rights of association and
combination as to industrial workers, and to repeal any statutory
or other provisions restricting such rights in the case of those
Bngaged in agriculture.
Ar't'vde B
The formal ratifications of this Convention, under the conditions
set forth in the Constitution of the International Labour
Organisation, shall be communicated to the Director-General
of the International Labour Office for registration.
Artjcle S
1. This Convention shall come into force at the date on
#hich the ratifications of two Members of the International
Labour Organisation have been registered by the Director-
General.
2. It shall then be binding only upon those Members whose
ratifications have been registered with the International Labour
Office.
3. Thereafter, the Convention shall come into force for
any Member at the date on which its ratification has been
registered with the International Labour Office.
CONVENTION CON(,ERNANT LES DROITS D'ASSOCIATION
ET DE (,OALITION DES TRAVAH,LEURS AGRICOLES.
La Conference generale de l'Organisation internationale du
Travail,
Convoquee A Geneve par le Conseil "d'administration du
Bureau international du Travail, et s'y 6tant reunie le
25 octobre 1921, en sa troisieme session,
Apr's avoir d5cid5 d'adopter diverses propositions relatives
aux droits d'association et de coalition des travailleurs
agricoles, q-uestion comprise dans le quatrieme point de
l'ordre du jour de,la session, et
Apr's avoir decide que ces propositions prendraient la forme
d'une convention internationale,
adopte la convention ci-apres, qui sera denommee Convention
sur le droit d'association (agriculture), 1921, A ratifier par les
Membres de l'Organisation internationale du Travail conformoment
aux dispositions de la Constitution de l'Organisation
internationale du Travail :
Art4cle i
Tout Membre de l'Organisation internationale du Travail
ratifiant la presente convention s'engage A assurer A toutes les
personnes occupies dans l'agriculture les memes droits d'association
et de coalition qu'aux travailleurs de l'industrie, et A
abroger toute disposition 15gislative ou autre ayant pour effet
de restreindre ces droits A l'egard des travailleurs agricoles.
Aracle B
Les ratifications officielles de la pr5sente convention, dans
les conditions 4tablies par la Constitution de l'Organisation internationale
du Travail, seront communiquees au Directeur general
du Bureau international du Travail et par lui enregistrees.
Aracle S
1. La pr5sente convention entrera en vigueur dos que les
ratifications de deux Membres de l'Organisation internationale
du Travail auront ete enregistr5es par le Directeur general.
2. Elle ne liera que les Membres dont la ratification aura
ete enregistree au Bureau international du Travail.
3. Par la suite, cette convention entrera en vigueur pour
chaque Mem5re A la date ou sa ratification aura ete enregistree
au Bureau international du Travail.
3
Art'vcle 4
As soon as the ratifications of two Members of the International
Labour Organisation liave been registered with the
International Labour Office, the Director-General of the International
Labour Office shall so notify all the Members of the
International Latiour Organisation. He shall likewise notify
them of the registration of ratifications which may be communicated
subsequently by other Members of the Organisation.
Artjde 5
Subject to the provisions of Artiicle 3, each Member which
ratifies this Corivention agrees to bring the provisions of
Article 1 into operation not later than 1 January 1924, and to
take such action as may be necessary to make these provisions
effective.
Article 6
Each Member of the International Labour Organisation
which ratifies this Convention engages'to apply it to its colonies,
possessions and protectorates in accordance with the provisions
of Article 35 of the Constitution of the International Labour
Organisation.
Article 7
A Member whiich has ratified th4s Corivention may denounce
it after the expiration of ten years from the date on which the
Convention first comes into force by an act communicated to
the Director-General of the International Labour Office for
registration. Such denunciation shall not take effect until one
year after the date on which it is registered with the International
Labour Office.
ArtiXe 8
At least once in ten years, the Governing Body of the International
Labour Office shall present to the General Conference
a report on the working of this Convention and shall consider
the desirability of placing on the agenda of the Conference the
question of its revision or modification.
Art4cle 9
The French and English texts of this Convention shall both
be authentic.
The foregoing is the authentic text of the Right of Association
(Agriculture) Convention, 1921, as modified by the Final
Articles Revision Convention, 1946.
The original text of the Convention was authenticated on
20 November 1921 by the signatures of Lord Burnham,
President of the Conference, and Albert Thomas, Director of
the International Labour Office.
4
Article 4
Aussit5t que les ratifications de deux Membres de l'Organisation
internationale du Travail auront ete enregistre'es au
Bureau international du Travail, le Directeur general du Bureau
international du Travail notifiera ce fait A tous les Membres de
l'Organisation internationale du Travail. Il leur notifiera 6galement
l'enregistrement des ratifications,qui lui seront ulterieurement
communiquees par tous autres Membres de l'Organisation.
Article 5
Sous reserve des dispositions de l'article 3, tout Membre qui
ratifie la presente convention s'engage A appliquer les dispositions
de l'article 1 au plus tard le 1" janvier 1924, et A prendre
telles mesures qui seront necessaires pour rendre effectives ces
dispositions.
Art4cle 6
Tout Membre de l'Organisation internationale du Travail
qui ratifie la pr5sente convention s'engage A l'appliquer A ses
'colonies, possessions et protectorats conformement aux dispositions
de l'article 35 de la Constitution de l'Organisation internationale
du Travail.
Article 7
Tout Membre ayant ratifie la presente convention peut la
denoncer A l'expiration d'une periode de dix annees apres la
date de la mise en vigueur initiale de la convention par un acte
communique au Directeur general du Bureau international du
Travail et par lui enregistre. La denonciation ne prendra effet
qu'une annee apres avoir ete enregistree au Bureau international
du Travail.
Le Conseil d'administratxon du Bureau international du Travail
devra, au moins une fois tous les dix ans, presenter A la
Conference generale un rapport sur l'application de la pr5sente
convention et decidera s'il y a lieu d'inscrire A l'ordre du jour
de la Conference la question de la revision ou de la modification
de ladite convention.
Article 9
Les textes frangais et anglais de la presente convention
feront foi l'un et l'autre.
Le texte qui precede est le texte authentique de la Convention
sur le droit d'association (agriculture), 1921, telle qu'elle a ete
modifiee par la Convention portant revision des articles finals,
1946.
Le texte original de la convention fut authentique le
20 novembre 1921 par les signatures de Lord Burnham, Pr5-
sident de la Conference, et de M. Albert Thomas, Directeur du
Bureau international du Travail.
S
The Convention first came into force on 11 May 1923.
IN FAITH WHEREOF I have, in pursuance of the provisions
of Article 6 of the Final Articles Revision Convention,
1946, authenticated with my signature this thirtieth day of
April 1948 two original copies of the text of thei Convention
as modified.
6
L'entree en vigueur initiale de la convention eut lieu le
11 mai 1923.
EN 'FOI DE QUOI j'ai authenttque par ma signature, en
application des dispositions de l'article 6 de la Convention
portant revision des articles finals, 1946, ce trentieme jour
d'avril 1948, deux exemplaires originaux du texte de la convention
telle qu'elle a ete modifi5e.
EDWARD PHELAN,
D4rector-(jeneral
of the InternatBnal Labow Office.
Djrecteur y:n@rag
d'u, Bweau'wtternatjonal au Travail.
7

Document No. 120
Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87)

International Labour Conference
Conference internationale du Travail
COAITENTION (No. 87) CONCERNING
FREED(DI OF AS!50 € IATION AND
PROTECTION OF THE RIGHT TO
ORGANISE.
The General Conference of the International
Labour Organtsation,
Having been convened at Sun Francisco
by the Governing Body of the Thternational
Labour Office, and having
met in its Thirty-first Session on
17 June 1948 ;
Having decided to adopt, in the farm
of a Convention, certain proposals concerning
freedom of association and
protection Of the right to organise,
which is the seventh item on the
agenda of the session ;
Considering that the Preamble tO the
Constihition of the International
Labour Organisation declares " recognition
of the principle of freedom
of association " to be a means of
improving conditions of labour and Of
establishing peace ;
Considering that the Declaration of
Philadelphia reaffirms that " freedom
of expression and of association are
essential to sustained progress " ;
Considering that the International
Labour Conference, at its Thirtieth
Session, unanimously adopted the
principles which should form the basis
for international regulation ;
Considering that the General ASSembl37
of the United Nations, at itsi Second
Session, endorsed these principles and
requested the International Labour
Organisation to continue every effort
in order that it may be possible to
adopt one or several international
Conventions ;
adopt this ninth day of July of the Year
one thousand nine hundred and forty-eight
the following Convention, which may be
cited as the Freedom of Association and
Protection of the Right tO Organise Convention,
1948 :
PART I. Fmnnou oy ASSOCIATION
Artide I
Each Member of the International
Labour Organisation for which this Con-
CONVENTION (No 87) COXCER.NANT
LA LIBERTn SI'NDICALE ET LA
PROTECTION DU DROIT SYXDI(,AL,
La Conference g6nerale de l'Organisation
internationale du Travail,
Convoqum A San-Francisco par le Conseil
d'administration du Bureau international
du Travail, et s'y 6tant r6unie
le 17 juin 1948, en sa trente et unieme
session,
Apres avoir deicid6 d'adopter sous forme
d'une convention diverses propositions
relatives A la libert6 syndicale et la
protection du droit syndical, question
qui constitue le septieme point A l'ordre
du jour de la session,
Considerant que le Pr6ambule de la
Constitution de l'Organisation internationale
du Travail 6nonce, parmi
les moyens susceptibles d'am61iorer la
condition des travailleurs et d'assurer
la paix, < l'affirmation du principe de
la liberty syndicale > ;
Consid6rant que la Declaration de Philadelphie
a proclame de nouveau que
< la libert6 d'expression et d'association
est une condition indispensable
d'un progris soutenu xi ;
Consideirant que la Conference internationale
du Travail, A sa trentieme
session, a adopt6 A l'unanimite les
principes qui doivent etre A la base
de la r6glementation internationale ;
Consid6rant que l'Assembl5e gen6rale
des Nations Unies, A sa deuxieme session,
a fait siens ces principes et a
invite l'Organisation internationale du
Travail A poursuivre tous ses efforts
afin qu'il soit possible d'adopter une
ou plusieurs conventions internationales
;
adopte, ce neuvieme jour de juillet mil
neuf cent quarante-huit, la convention ciapres,
qui sera d6nommm Convention sur
la libert6 s3mdicale et la protection du
droit s3mdical, 1948.
Phnrrh I. Ianxurt s'rxn+cxu.
Artir.le :L
Tout Membre de l'Organisation internationale
du Travail pour lequel la pr6-
1
vention is in force undertakes to give effect
10 the following provisions.
Article 2
Workers and employers, without distinction
whatsoever, shall have the right to
establish and, subject only to the rules of
the organisation concerned, to join organisations
of their own choosing without preyious
authorisation.
Article S
1. Workers' and employers' organisations
shall have the right to draw up their
constitutions and rules, to elect their representatives
in full freedom, to organise their
administration and activities and to formulate
their programmes,
2, The public authorities shall refrain
from any interference which would restrict
this right or impede the lawful exercise
thereof.
ArHcle 4
Workers' and employers' organisations
shall not be liable to be dissolved or
suspended by atrative authority.
Arkk 5
Workers' and employers' organisations
shall have the right to establish and join
federations and confederations and any
such organisation, federation or confederation
shall have the right to affiliate with
international organisations of workers and
employers.
Artic)!e 6
"The provisions of Articles 2, 3 and 4
hereof apply to federations and confederations
of workers' and employers' organisations.
Arkle 7
The acquisition of legal personality by
workers' and employers' organisations.
federations and confederations shall not
be made subject to conditions of such a
charader as to restrid the application of
the provisions of Articles 2, 3 and 4 hereof.
Artide 8
1. In exercising the rights provided for
in this Convention workers and employers
and their respective organisations, like
other persons or organised collectivities,
shall respect the law of the land.
2. 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.
sente convention est en vigueur s'engage
A donner effet aux dispositiors suivantes.
Artir,k 2
Les travailleurs et les employeurs, sars
distinction d'aucune sorte, ont le droit,
sans automation pr6alable, de constituer
des organisations de leur choix, ainsi que
celui de s'affilier A ces organisations, A la
seule condition de se conformer aux statuts
de ces dernieres.
Article, S
1. Les organisations de travailleurs et
d'employeurs ont le droit d'61aborer leurs
statuts et reglements administratifs, d'61ire
librement leurs repr6sentants, d'organiser
leur gestion et leur activity, et de formuler
leur programme d'action,
2. Les autorit5s publiques doivent s'abstenir
de toute intervention de nature A
limiter ce droit ou A en entraver l'exercice
16gal.
ArtLk 4
Les organisations de travaineurs et
d'employeurs ne sont pas sujettes A dissolution
ou A suspension par voie administrative.
Artick S
Les organisations de travailleurs et
d'employeurs ont le droit de constituer
des federations et deg confe'd6rations ainsi
que celui de s'y affilier, et toute organisation,
fM6ration ou confederation a le droit
de s'affilier A des organisations internationales
de travailleurs et d'employeurs.
Article 6
Les dispositions des articles 2, 3 et 4 cidessus
s'appliquent aux federations et aux
confederations des organisations de travailleurs
et d'employeurs,
Article 7
L'acquisition de la personnalit6 juridique
par les organisations de travailleurs et
d'employeurs, leurs f&6rations et confederations,
ne peut pas @tre subordonn6e A
des conditions de nature A mettre en cause
l'application des dispositions des articles 2,
3 et 4 ci-dessus.
Article 8
1, Dans l'exercice des droits qui leur
sont reconnus par la pr6sente convention,
les travailleurs, les employeurs et leurs
organisations respectiveg sont tenus, A
l'instar des autres personnes ou collectiviMs
organisms, de respecter la Mgalit6.
2. La Mgislation nationale ne devra porter
atteinte ni 5tre appliqum de maniere
A porter atteinte aux garanties prevues par
la pr6serite convention.
2
Art#le 9 Artide 9
1. The extent to which the guarantees
provided for in this Convention shall apply
to the armed forces and the police shall be
determined by national laws or regulations.
2. In accordance with the principle set
forth in paragraph 8 of Article 19 of the
Constitution of the Interanational Labour
Organisation the ratification of this Convention
by any Member shall not be
deemed to affect any existing law, award,
custom or agreement in virtue of which
members of the armed forces or the POliCe
enjoy any right guaranteed by this Convention.
jMicle 10
In this Convention the term " Organisation
" means any organisation of workers
or of employers for furthering and
defending the interests of workers or of
employers.
1. La mesure dans laquelle les garanties
pr6vues par la pr6sente convention s'appliqueront
aux forces armies et A Ia police
sera deiterminee par la 16gislation nationale.
4a,
2. Conformeiment aux principes 6tablis
par Ie paragraphe 8 de l'article 19 de la
Constihition de l'Organisation internationale
du Travail, la ratification de cette
convention par un Membre ne devra pas
5tre consid6ree comrne affectant toute loi,
toute sentence, toute coutume ou tout
accord dejA existants qui accordent aux
membres des forces armies et de la police
des garanties pr6vues par la presente convention.
Artide 10
Dans Ia presente convention, le terme
< organisation > signifie toute organisation
de travailleurs ou d'employeurs ayant pour
but de promouvoir et de defendre les int6-
rats des travailleurs ou des employeurs.
P.ixr II. PROTECTION OF arnb RIGHT
TO ORGANISE
Artide 1l
Each Member of the International
Labour Organisation for which this Convention
is in force undertakes to take all
necessary and appropiiate measures to
ensure that workers and employers may
exercise freely the right to organise.
PART III. Mxschu,xxnotvs Priovxs+ons
Artide 42
1. In respect of the territories referred
to in Article 35 of the Constitution of
the International Labour Organisation as
amended by the Constitution of the International
Labour Organisation Instnunent
of Amendment. 1946, other than the territories
referred to in paragraphs 4 and 5 of
the said Article as so amended, each Member
of the Organisation which ratifies this
Convention shall communicate to the
Director-General of the International
Labour Office with or as soon as possible
after its ratification a declaration stating-
(a) the territories in respect of which it
undertakes that the provisions of the
Convention shall be applied without
modification ;
(b) the territories in respect of which it
undertakes that the provisions of the
Convention shall be applied subject to
modifications, together ivith details of
the said modifications ;
P,ut'nh II. PROTECTION ntT nuoyr
8YNDIC1L
Article lI
Tout Membre de l'Organisation internationale
du Travail pour lequel la pr6-
sente convention est en vigueur s'engage
A prendre toutes mesures n6cessaires et
appropriees en vue d'assurer aux travailleurs
et aux employeurs le libre exercice
du droit syndical.
P.iu'rxh III. Mbsrxhs DIVER8ES
Article 12
2. En ce qui concerne les territoires
mentionnes par l'article 35 de la Constitution
de l'Organisation internationale du
Travail telle qu'elle a 6ti amendm par
l'Instrument d'amendement A la Constitution
de l'Organisation internationale du
Travail, 1946, A l'exclusion des territoires
visas par les paragraphes 4 et 5 dudit
article ainsi amende, tout Membre de l'Organisation
qui ratifie la presente convention
doit communiquer au Directeur general
du Bureau international du Travail, en
m@me temps que sa ratification, ou dans le
plus bref delai possible apres sa ratificaton,
une declaration faisant connaitre :
a) les territoires pour lesquels il s'engage
A ce que les dispositions de la convention
soient appliquees sans modification
;
b) les territoires pour lesquels tl s'engage
A ce que les dispositions de la convention
soient appliquees avec des modifications,
et en quoi consistent lesdites
modifications ;
3
(c) the territories in respect of which the
Convention is inapplicable and in such
cases the grounds on which it -is
inapplicable ;
(d) the territories in respect of which it
reserves its decision.
2. The undertakings refer to in subparagraphs
(a) and (b) of paragraph 1 of
this Article shall be deemed to be an integral
part of the ratification and shall have
the force of ratification.
3. Any Member may at any time by a
subsequent declaration cancel in whole or
in part any reservations made in its original
declaration in virtue of subparagraphs
(b), (c) or (d) of paragraph 1 of
this Article.
4. Any Member may, at any time at
which this Convention is subject to denunciation
in accordance with the provisions
of Article 16, communicate to the Director-
General a declaration modifying in any
other respect the terms of any former
declaration and stating the present position
in respect of such territories as it may
specify.
Article 13
1. SVhere the subject matter of this
Convention is within the self-governing
powers of any non-metropolitan territory,
the Member responsible for the international
relatiom of that territory may, in
agreement with the government of the
territory, communtcate to the Director-
General of the International Labour Office
a declaration accepting on behalf of the
territory the obligations of this Convention.
2. A declaration accepting the obligations
of this Convention may be communicated
to the Director-General of the International
Labour Office-
(a) by two or more Members of the
ation in respect of any territory
which is under their joint
authority ; or
(b) by any international authority responsible
for the administration of any
territory, in virtue of the Charter of
the Uited Nations or othese, in
respect of any such territory.
3. Declarations communicated to the
Director-General of the International
Labour Office in accordance with the
preceding paragraphs of this Article shall
indicate whether the provisions of the Convention
will be applied in the territory concerned
without modification or subject to
zodifiations ; when the declaration inicates
that the provisions of the Convention
ivill be applied subject to modifications it
shall give details of the said modifications.
4. The Member, Members or international
authority concerned may at any
time by a subsequent declaration renounce
c) les territoires auxquels la convention
est inapplicable et, dans ces cas, les
raisons pour lesquenes elle est inapplicable
;
d) les territoires pour lesquels il reserve
sa decision.
2. Les engagements mentionnes aux alin6as
a) et b) du premier paragraphe du
present atticle seront reputes parties int6-
g'tes de la ratification et porteront des
effets identiques.
3. Tout Membre pourra renoncer par
une nouvelle de'claration A tout ou partie
des reserves contenues dans sa deiclaration
anterieire en vertu des alin6as b), c)
Bt d) du paragraphe 1 du present article.
4. Tout Membre pourra, pendant les
p6riodes au cours desquelles la pr6sente
convention peut atre d6noncm conformement
aux dispositions de l'article 16, communiquer
au Directeur general une nouvelle
declaration modifiant A tout autre
6gard les termes de toute declaration anteyiBpyB
et faisant connaitre la situation
dans des territoires determines.
Article IS
1. Lorsque les questions traitffs par la
presente convention entrent dans le cadre
de la competence propre des autorites d'un
territoire non metropolitain, le Membre
responsable des relations internationales de
ce territoire, en accord avec le gouvernement
dudit territoire, pourra communiquer
au Directeur geneiral du Bureau international
du Travail une de'claration d'acceptation,
au nom de ce territoire, des obligations
de la pr6sente convention.
2. Une d*laration d'acceptation des
obligations de la presente convention peut
6tre communiqum au Directeur general du
Bureau international du Travail :
a) par deux ou plusieurs Membres de l'Organisation
pour un territoire plac6 sous
leur autorit6 conjointe ;
5) par toute autorite internationale responsable
de l'administration d'un territoire
en vertu des dispositions de la
(harte des Nations Unies ou de toute
autre disposition en vigueur, A l'6gard
de ce territoire.
3, Les declarations communiqums au
Directeur general du Bureau international
du Travail conformement aux dispositions
des paragraphes precedents du present
article doivent indiquer si les dispositions
de la convention seront appliqums dans le
territoire avec ou sans modification ; lorsque
la declaration indique que les dispositions
de la convention s'appliquent sous
reserave de modifications, elle doit specifier
en quoi consistent lesdites modifications.
4, Le Membre ou les Membres ou l'autorit6
internationale int6ress6s pourront renoncer
entierement ou partiellement par
4
in whole or in part the right to have recourse
to any moaication indicated in any
former declaration.
5. The Member, Members or international
authority concerned may, at any
time at which this Convention is subject
to denunciation in accordance with the
provisions of Article 16, communicate to
the Director-General of the mternational
Labour Office a declaration modifying in
any other respect the terms of any former
declaration and stating the present pOsiuon
in respect of the application of the Convention.
PART IV. FINAL PROVISION8
Article 14
The formal ratifications of this Convention
shall be communicated to the
Director-General of the International
Labour Office for registration.
Article 15
1. This Convention shall be binding
only upon those Members of the International
Labour Organisation whose ratifications
have been registered With the
Director-General.
2. It shall come into force twelve
months after the date on which the ratifications
of two Members have been
registered with the Director-General.
3. Thereafter, this Convention shall
come into force for any Member twelve
months after the date on which its ratification
has been registered.
Arttle 16
1. A Member which has ratified this
Convention may denounce it after the
expiration of ten years from the date on
which the Convention first comes into
force, by an act communicated to the
Director-General of the International
Labour Office for registration. Such
denunciation shall not take effect unti2
one year after the date on which it is
registered.
2. Each Member which has ratified this
Convention and which does not, within the
year following the expiration of the period
of ten years mentioned in the preceding
paragraph, exer6se the right of denunciation
provided for in this Article, will be
bound for another period of ten years and,
thereafter, may denounce this Conventton
at the expiration of each period of ten
years under the terms provided for in this
Article.
Article 17
1. The Director-General of the International
Labour Office shall notify all
Members of the International Labour
une d#]aration ulMrieure au droit d'invoquer
une modification indiquee dans une
d*laration anterieure.
5. Le Membre ou les Membres ou l'autorit6
internationale int6ress6s pourront, pendant
les p6rio6@s au cours desquelles la
convention peut Otre denoncee conformement
aux dispositions de l'article 16, communtquer
au Directeur general du Bureau
international du vail une nouvelle
d*laration moaiant A tout autre 6gard
les termes de toute declaration anMrieure
et faisant connaitre la situation en ce qui
concerne l'application de cette convention.
PARTIE IV. Drsposmous FINALES
Article 14
Les ratifications formelles de la pr6sente
convention seront comrnuniqu6es au Directeur
general du Bureau international du
Travail et par lui enregistrees.
Artide 15
1. La prta5ente convention ne liera que
les Membres de l'Organisation internationale
du Travail dont la ratification aura
6t5 enregistree par le Directeur general.
2. Elle entrera en vigueur douze mois
apres que les ratifications de deux Membres
auront et6 enregistrees par le Directeur
general.
3. Par la suite, cette convention entrera
en vigueur pour chaque Membre douze
mois apres la date ou sa ratification aura
6t6 enregistree.
Article 16
1. Tout Membre ayant ratifie la pr6-
sente convention peut la d5noncer A l'expiration
d'une periode de dix annees apres la
date de la mise en vigueur initiale de la
convention, par un acte communique au
Directeur general du Bureau international
du Travail et par lui enre:str6. La denonciation
ne prendra effet qu'une annee apres
avoir 5M enregistree.
2. Torit Membre ayant ratifi6 la pr6-
sente convention qui, dans le d51ai d'une
annm apres l'expiration de la periode de
dix annms mentionnee au paragraphe pr6-
cedent, ne fera pas usage de la faculte de
denonciation prevue par le present article
sera li5 pour une nouvelle periode de diy
annees et, par la suite, pourra denoncer la
presente convention A l'expiration de chaque
periode de dix annees dans les conditions
prevues au present atticle.
Article 17
1. Le Directeur general du Bureau international
du Travail notifiera A tous les
Membres de l'Organisation internationale
5
Organisation of the registration of all
ratifications, declarations and denuncialions
communicated to him by the Mem=
bers of the Organtsation.
2. When notifying the Members of the
Organisation of the registration of the
second ratification communicated to him,
the Director-General shall draw the attention
of the Members of the Organisation
to the date upon which the Convention
will come into force.
Article 18
The Director-General of the International
Labour Office shall communicate
to the Secretary-General of the United
Nations for registration in accordance with
Article 102 of the Charter of the United
Nations full particulars of all ratifications,
declarations artd acts of denunciation
registered by }iim in accordance with the
provisions of the preceding Articles.
ArticIe 19
At the expiration of each period of ten
years after the coming into force of this
Convention, the Governing Body of the
International Labour Office shall present
to the General Conference a report on the
working of this Convention and shall consider
the desirabinty of placing on the
agenda of the Cor'ference the question of
4p revision in ivhole or in part.
Artide 20
1, Should the Corference adopt a ne'.v
Convention revising this Convention in
whole or in part, then, unless the neiv Convention
otherivise provides,
(a) the ratification by a Member of the
new revising Convention shall ipso
jzgre involve the immediate denunciation
of this Convention, notwithstanding
the provisions of Article 16
above, if and when the neiv revising
Convention shall have come into
fOrCe :
(b) as from the date when the neiv revising
Convention comes into force this
Convention shall cease to be open to
ratification by the Members.
2, This Convention shall in any case
remain in force in its adual form and content
for those Members which have ratified
it but have not ratified the revising Convention.
Artircle BI
The English and French versions of the
text of this Convention are equally
authoritative.
du Travail l'enregistrement de toutes les
ratifications, dilarations et d6nonciations
qui lui seront communiqums par les Membres
de l'Organisation.
2. En notifiant aux Membres de l'Organisation
l'enregistrement de la deuxieme
ratification qui lui aura et6 communiqum,
le Directeur general appellera l'attention
des Membres de l'Organisation sur la date
A laquelle la pr6sente convention entrera
en vigueur.
Art'de 18
Le Directeur general du Bureau international
du Travail communiquera au Secretaire
general des Nations Unies aux
fins d'enregistrement, conformement A l'article
102 de la Charte des Nations Unies,
des renseignements complets au sujet de
toutes ratifications, de toutes declarations
(1 dB tous actes de d6nonciation qu'il aura
enregistres conformement aux articles pry
c&ents,
Article 19
A l'expiration de chaque periode de dix
annees A compter de l'entt# en vigueur de
la presente convention, le Conseil d'administration
du Bureau international du Travail
devra presenter A la Confi:rence ge-
H6y31( un rapport sur l'application de la
presente convention et d#idera s'il y a lieu
d'inscrire A l'ordre du jour de la Conference
13 question de sa revision totale ou partielle.
Article 20
1, Au cas off la Cor'ference adopterait
une nouvelle convention portant revision
t@tale ou partielle de la presente convention,
et A moins que la nouvene convention
ne dispose autrement :
a) la ratifiCaffOn Par un Membre de la
nouvelle convention portant revision
Bntrainerait de plein droit, nonobstant
l'article 16 ci-dessus, d6nonciation im-
B&iate de la presente convention, sous
reserve que la nouvelle convention portant
revision soit entrm en vigueur ;
b) A partir de la date de l'entree en vigueur
de la nouvelle convention portant
revision, la presente convention cesserait
d'etre ouverte A la ratification des
Membres.
2, J.I pr6sente convention demeurerait
en tout cas en vigueur dans sa forme et
teneur pour les Membres qui l'auraient
ratifi5e et qui ne ratifieraient pas la convention
portant revision.
Artde 21
Les versions franqaise et anglaise du
texte de la presente convention font 6galement
foi.
6
The foregoing is the authentic text of
the Convention duly adopted by the
General Conference of the Interanational
Labour Organisation during its Thirty-first
Session which was held at San Francisco
and declared closed the tenth day of July
1948.
IN FAITH OF we have
append eodu rsignatu rethsi sMihWul
day of httd 1948
Le texte qui precede est le texte authentique
de la convention dent adoptee par
la Conference generale de l'Organisation
internationale du Travail dans sa trente
et unieme session qui s'est tenue A San-
Francisco et qui a ete declaree close le
dix juillet 1948.
EN FOI DE QUOI ont appose leurs
signatures, ce!uddziffijour 4ed'am'z!
1948.
Tke President of the Conference,
Le Praident de la Conference,
= Ji',l J'-'jd"'i
The Director-C;eneral of the International Labour Office.
Le Directew ry'neral du Bweau international du Travail,
fJ* \ g
7

Document No. 121
Right to Organise and Collective Bargaining Convention,
1949 (No. 98)

International Labour Conference
Conference internationale du Travail
CONVENTION 98
CONVENTION CONCERNIN(, THE APPLICATION
OF THE PRINCIPLES OF THE RI(,HT TO
ORC.ANISE AND TO BARGAIN COLLECTIVELY,
ADOPTED BY THE CONFERENCE AT ITS
THIRTY-SECOND SESSION, (,ENEVA, l JULY 1949
CO?'ffENTION M
CONVENTION CONCERNANT L'APPLICATION
DES PRINCIPES DU DROIT D'ORCANISATION ET DE
Nt,(,OCIATION COLLECTIVE,
hnop'a, PAR LA conpnnnucb A SA
TRENTE-DEUXIRME SESSION, (,ENRVE, ler JUILLET 1949
AUTHENTIC TEXT
TEXTE AUTHENTIQUE
Convention 98
CONVENTION C,ONCERNING THE APPLI(,ATION OF THE
PRINCIPLES OF THE RIGHT TO ORGANISE AND TO
BARGAIN (,OLI,RCTn'ELY
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body
of the International Labour Office, and having met in
its Thirty-second Session on 8 June 1949, and
Having decided upon the adoption of certain proposals concerning
the application of the principles of the right to
organise and to bargain collectively, which is the fourth
item on the agenda of the session, and
Having determined that these proposals shall take the form
of an international Convention,
adopts this first day of July of the year one thousand nine
hundred and forty-nine the following Convention, which may
be cited as the Right to Organise and Conective Bargaining
Convention, 1949 :
Art%k 1
1. Workers shall enjoy adequate protection against acts of
anti-union discrimination in respect of their employment.
2. Such protection shall apply more particularly in respect
of acts calculated to-
(a) make the employment of a worker subject to the condition
that he shall not join a union or shall relinquish trade
union membership ;
(b) 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.
Art4cle B
1. Workers' and employers' organisations shall enjoy adequate
protection against any acts of interference by each other
or each other's agents or members in their establishment,
functioning or administration.
2. In particular, acts which are designed to promote the
establishment of workers' organisations under the domination
of employers or employers' organisations, or to support workers'
organisations by financial or other means, with the object of
placing such organisations under the control of employers or
employers' organisations, shall be deemed to constitute acts
of interference within the meaning of this Article.
Artic7s S
Machinery appropriate to national conditions shall be established,
where necessary, for the purpose of ensuring respect
for the right to organise as defined in the preceding articles.
2
Convention %
CONVENTION (,ONCERNANT L'APPLICATION DES PRIN(,IPE8
DU DROIT n'ongamsario:s ET DE :dcociarion (,OLLECTIVE.
La Conference g6n6rale de l'Organisation internationale du
Travail,
Convoqum A Geneve par le Conseil d'administration du
Bureau international du Travail, et s'y 5tant reunie le
8 juin 1949, en sa trente-deuxieme session,
Apres avoir decid6 d'adopter diverses propositions relatives
A l'application des principes du droit d'organisation et de
negociation conective, question qui constitue le quatrieme
point A l'ordre du jour de la session,
Apres avoir d#idtS que ces propositions prendraient la forme
d'une convention internationale,
adopte, ce premier jour de juillet mil neuf cent quarante-neuf,
la convention ci-apres, qui sera denommm Convention sur le
droit d'organisation et de n6gociation collective, 1949 :
Artir,k I
1. Les travailleurs doivent beneficier d'une protection ad6-
quate contre tous actes de discrimination tendant A porter
atteinte A la libert6 syndicale en matiere d'emploi.
2. Une telle protection doit notamment s'appliquer en ce qui
concerne les actes ayant pour but de :
a) subordonner l'emploi d'un travailleur A la condition qu'il
ne s'affilie pas A un s3mdicat ou cesse de faire partie d'un
syndicat ;
b) cong6dier un travailleur ou lui porter prejudice par tous
autres moyens, en raison de son affiliation syndicale ou de
sa participation A des activitys syndicales en dehors des
heures de travail ou, avec le consentement de l'employeur,
durant les heures de travail.
Artick B
1. Les organisations de travailleurs et d'employeurs doivent
ben6ficier d'une protection adequate contre tous actes d'ing6-
rence des unes A l'6gard des autres, soit directement, soit par
leurs agents ou membres, dans leur formation, leur fonctionnement
et leur administration.
2. Sont notamment assimilms A des actes d'ing6rence au sens
du present aiticle des mesures tendant A provoquer la creation
d'organisations de travailleurs dominms par un employeur ou
une organisation d'employeurs, ou A soutenir des organisations
de travailleurs par des moyens financiers ou autrement, dans
le dessein de placer ces organisations sous le contr61e d'un employeur
ou d'une organisation d'employeurs.
Arttk 8
Des organismes appropri6s aux conditions nationales doivent,
si n#essaire, @tre institu6s pour assurer le respect du droit d'organisation
dgiru par les articles precments.
3
Arttle 4
Measures appropriate to national conditions shall be taken,
where necessary, to encourage and promote the full development
and utilisation of machinery for voluntary negotiation between
employers or employers' organisations and workers' organisations,
with a view to the regulation of terms and conditions of
employment by means of collective agreements.
Art4cle 5
1. The extent to which the guarantees provided for in this
Convention shall apply to the armed forces and the police shall
be determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8
of Article 19 of the Constitution of the International Labour
Organisation the ratification of this Convention by any Member
shall not be deemed to affect any existing law, award, custom or
agreement in virtue of which members of the armed forces or
the police enjoy any right guaranteed by this Convention.
Artda 6
This Convention does not deal with the position of public
servants engaged in the administration of the State, nor shall
it be construed as prejudicing their rights or status m any way.
Artir,ls 7
The formal ratifications of this Convention shall be communicated
to the Director-(Aneral of the International Labour
Office for registration.
Artick 8
1. This Convention shan be binding only upon those
Members of the International Labour Organisation whose
ratifications have been registered with the Director-General.
2. It shall come into force twelve months after the date
on which the ratifications of two Members have been registered
with the Director-General.
3. Thereafter, this Convention shall come into force for any
Member twelve months after the date on which its ratification
has been registered.
Artir,ls 9
1. Declarations communicated to the Director-General of
the International Labour Office in accordance with paragraph
2 of Article 35 of the Constitution of the International Labour
Organisation shall indicate-
(a) the territories in respect of which the Member concerned
undertakes that the provisions of the Convention shall be
applied without modification ;
(b) the territories in respect of which it undertakes that the
provisions of the Convention shall be applied subject to
modifications, together with details of the said modifications
;
4
Art4cXe 4
Des mesures approprims aux conditions nationales doivent,
si necessaire, etre prises pour encourager et promouvoir le
developpement et l'utilisation les plus larges de procmures de
negociation volontaire de conventions collectives entre les employeurs
et les organisations d'employeurs d'une part, et les
organisations de travailleurs d'autre part, en vue de r5gler par
ce moyen les conditions d'emploi.
Articls 5
1. La mesure dans laquelle les garanties pr6vues par la pr5-
sente convention s'appliqueront aux forces armms ou A la police
sera determinm par la 16gislation nationale.
2. Conformement aux principes 6tablis par le paragraphe 8
de l'article 19 de la Constitution de l'Organisation internationale
du Travail, la ratification de cette convention par un Membre
ne devra pas @tre considerm comme affectant toute loi, toute
sentence, toute coutume ou tout accord d6jA existants qui accordent
aux membres des forces armies et de la police des garanties
prevues par la presente convention.
Artic7e 6
La presente convention ne traite pas de la situation des fonctionnaires
publics et ne pourra, en aucune maniere, etre interpr*
hSe comme portant prejudice A leurs droits ou A leur statut.
Artkla 7
Les ratifications formelles de la pr5sente convention seront
communiqums au Directeur general du Bureau international
du Travail et par lui enregistrees.
Art'de 8
1, La pr6sente convention ne liera que les Membres de l'Organisation
internationale du Travail dont la ratification aura
ete enregistree par le Directeur general.
2. Elle entrera en vigueur douze mois apres que les ratifications
de deux Membres auront 5t6 enregistrms par le Directeur
gens'ral.
3. Par la suite, cette convention entrera en vigueur pour
chaque Membre douze mois apres la date ou sa ratification
aura 6t6 enregistrm.
Art'da 9
1. Les declarations qui seront communiquees au Directeur
general du Bureau international du Travail, conformement au
paragraphe 2 de l'article 35 de la Constitution de l'Organisation
internationale du Travail, devront faire connaitre :
a) les territoires pour lesquels le Membre int6ress6 s'engage A
ce que les dispositions de la convention soient appliqums
sans modification ;
b) les territoires pour lesquels il s'engage A ce que les dispositions
de la convention soient appliqums avec des modifications,
et en quoi consistent lesdites modifications ;
5
(c) the territories in respect of which the Convention is inapplicable
and in such cases the grounds on which it is
inapplicable ;
(d) the territories in respect of which it reserves its decision
pending further consideration of the position.
2. The undertakings referred to in subparagraphs (a) and
(b) of paragraph I of this Article shall be deemed to be an
integral part of the ratification and shall have the force of
ratification.
3. Any Member may at any time by a subsequent declaration
cancel in whole or in part any reservation made in its original
declaration in virtue of subparagraph (b), (c) or (d) of
paragraph 1 of this Article.
4. Any Member may, at any time at which the Convention
is subject to denunciation in accordance with the provisions of
Article 11, communicate to the Director-General a declaration
modifying in any other respect the terms of any former declaration
and stating the present position m respect of such
territories as it may specify.
Arttle 10
1. Declarations communicated to the Director-General of
the International Labour Office in accordance with paragraphs
4 or 5 of Article 35 of the Constitution of the International
Labour Organisation shall indicate whether the provisions of
the Convention will be applied in the territory concerned
without modijication or subject to modifications ; when the
declaration indicates that the provisions of the Convention will
be applied subject to modifications, it shall give details of the
said modifications.
2. The Member, Members or international authority
concerned may at any time by a subsequent declaration
renounce in whole or m part the right to have recourse to any
modification indicated in any former declaration.
3. The Member, Members or international authority.concerned
may, at any time at which this Convention is subject to
denunciation in accordance with the provisions of Article 11,
communicate to the Direct6r-General a declaration modifying
in any other respect the terms of any former declaration and
stating the present position in respect of the application of the
Convention.
Art4da Il
1. A Member which has ratified this Convention may
denounce it after the expiration of ten years from the date on
which the Convention first comes into force, by an act communicated
to the Director-General of the International Labour
Office for registration. Such denunciation shall not take effect
until one year after the date on which it is registered.
2. Each Member which has ratified this Convention and
which does not, within the year following the expiration of the
period of ten years mentioned in the preceding paragraph,
exercise the right of denunciation provided for in this Article,
will be bound for another period of ten years and, thereafter,
6
c) les territoires auxquels la convention est inapplicable et,
dans ces cas, les raisons pour lesquelles ene est inapplicable ;
a) les territoires pour lesquels il reserve sa decision en attendant
un examen plus approfondi de la situation A l'egard
desdits territoires.
2. Les engagements mentionn6s aux alin5as a) et b) du
premier paragraphe du present article seront reputes parties
int6grantes de la ratification et porteront des effets identiques.
3. Tout Membre pourra renoncer par une nouvelle d5claration
A tout ou partie des reserves contenues dans sa declaration
ant6rieure en vertu des alin6as b), c) et a) du premier paragraphe
du present article.
4. Tout Membre pourra, pendant les periodes au cours
desquelles la presente convention peut etre denoncm conformement
aux dispositions de l'article 11, communiquer au Directeur
general une nouvelle declaration modifiant A tout autre 6gard
les termes de toute declaration ant6rieure et faisant connaitre
la situation dans des territoires determines.
ArH&, 10
1. Les declarations communiquees au Directeur general du
Bureau international du Travail conformement aux paragraphes
4 et 5 de l'article 35 de la Constitution de l'Organisation internationale
du Travail doivent indiquer si les dispositions de la
convention seront appliqums dans le territoire avec ou sans
modifications ; lorsque la d*laration indique que les dispositions
de la convention s'appliquent sous reseme de modifications,
elle doit sp*ifier en quoi consistent lesdites modifications.
2. Le Membre ou les Membres ou l'autoriM internationale
interess6s pourront renoncer entierement ou partiellement, par
une declaration ulterieure, au droit d'invoquer une modificafion
indiqum dans une declaration ant6rieure.
3. Le Membre ou les Membres ou l'autorite internationale
interess5s pourront, pendant les periodes au cours desquelles la
convention peut etre d6noncm conformement aux dispositions
de l'article 11, communiquer au Directeur general une nouvelle
declaration moaiant A tout autre 6gard les termes d'une d*laration
anterieure et faisant connaitre la situation en ce qui
concerne l'application de cette convention.
Art4cle ll
1. Tout Membre ayant ratifi6 la presente convention peut
la d5noncer A l'expiration d'une p5riode de dix annms apres
la date de la mise en vigueur initiale de la convention, par
un acte communiqu6 au Directeur general du Bureau international
du Travail et par lui enregistre. La d6nonciation ne
prendra effet qu'une annm apres avoir 5t6 enregistree.
2. Tout Membre ayant ratifie la presente convention qui,
dans le d61ai d'une annm apres l'expiration de la periode de
dix ann#s mentionnm au paragraphe precedent, ne fera pas
usage de la facult6 de d6nonciation prevue par le present article
sera li5 pour une nouvelle periode de dix annms et, par la
7
may denounce this Convention at the expiration of each period
of ten years under the terms provided for in this Article.
Artda IB
1. The Director-General of the International Labour Office
shall notify all Members of the International Labour Organisation
of the registration of all ratifications, declarations and
denunciations communicated to him by the Members of the
Organisation.
2. When notifying the Members of the Organisation of
the registration of the second ratification communicated to him,
the Director-General shall draw the attention of the Members
of the Organisation to the date upon which the Convention will
come into force.
Article 18
The Director-General of the International Labour Office
shall communicate to the Secretary-General of the United
Nations for registration in accordance with Article 102 of the
Charter of the United Nations full particulars of all
ratifications, declarations and acts of denunciation registered
by him in accordance with the provisions of the preceding
articles.
ArtLle 14
At the expiration of each period of ten years after the
coming into force of this Convention, the Governing Body of
the International Labour Office shall present to the General
Corderence a report on the working of this Convention and
shall consider the desirability of placing on the agenda of the
Conference the question of its revision in whole or in part.
Aartt'Le 15
1. Should the Conference adopt a new Convention revising
this Convention in whole or in part, then, unless the new
Convention otherwise provides-
(a) the ratification by a Member of the new revising Convention
shall 4pso %re involve the immediate denunciation of
this Convention, notwithstanding the provisions of Article
11 above, if and when the new revising Convention shall
have come into force ;
(b) as from the date when the new revising Convention comes
into force this Convention shall cease to be open to ratification
by the Members.
2. This Convention shall in any case remain in force in its
actual form and content for those Members which have ratified
it but have not ratified the revising Convention.
Article 16
The English and French versions of the text of this
Convention are equally authoritative.
8
suite, pourra d5noncer la presente convention A l'expiration
de chaque periode de dix annms dans les conditions prevues au
present article.
Article 18
1. Le Directeur general du Bureau international du Travail
notifiera A tous les Membres de l'Organisation internationale du
Travail l'enregistrement de toutes les ratifications, declarations
et denonciations qui lui seront communiquees par les Membres
de l'Organisation.
2. En notifiant aux Membres de l'Organisation l'enregistrement
de la deuxieme ratification qui lui aura ete communiqu%,
le Directeur general appellera l'attention des Membres
de l'Organisation sur la date A laquelle la presente convention
entrera en vigueur.
Art4de IS
Lie Directeur general du Bureau international du Travail
communiquera au Secr6taire general des Nations Unies aux fins
d'enregistrement, conform5ment A l'article 102 de la Charte des
Nations Unies, des renseignements complets au sujet de toutes
ratifications, de toutes dmlarations et de tous actes de denonciation
qu'il aura enregistr6s conformement aux articles prtScedents.
Art'de 14
A l'expiration de chaque periode de dix annms A compter de
l'entr# en vigueur de la pr6sente convention, le Conseil d'administration
du Bureau international du Travail devra presenter
A la Conference gSn6rale un rapport sur l'application de la
presente convention et decidera s'il y a lieu d'inscrire A l'ordre
du jour de la Conference la question de sa revision totale ou
partielle.
Artick 15
1. Au cas ou la Conference adopterait une nouvene convention
portant revision totale ou partiene de la pr5sente
convention, et A moins que la nouvelle convention ne dispose
autrement :
a) la ratification par un Membre de la nouvelle convention
portant revision entrainerait de plein droit, nonobstant l'article
14 ci-dessus, denonciation immfflate de la presente
convention, sous reserve que la nouvene convention portant
revision soit entrm en vigueur ;
b) A partir de la date de l'entrm en vigueur de la nouvelle convention
portant revision, la presente convention cesserait
d'etre ouverte A la ratification des Membres.
2. La pr5sente convention demeurerait en tout cas en vigueur
dans sa forme et teneur pour les Membres qui l'auraient ratifim
et qui ne ratifieraient pas la convention portant revision.
Md8 16
Lies versions frangaise et anglaise du texte de la presente
convention font 6galement foi.
9
The foregoing is the authentic text of the Convention duly
adopted by the General Conference of the International Labour
Organisation during its Thirty-second Session which was held
at Geneva and declared closed the second day of July 1949.
IN FAITH WHEREOF we have appended our signatures
this eighteenth day of August 1949.
10
Le texte qui precede est le texte authef>tique de la convention
dent adoptm par la Conference generale de l'Organisation
internationale du Travail dans sa trente-deuxieme session qui
s'est tenue A Geneve et qui a ete declarm close le 2 juillet 1949.
EN FOI DE QUOI ont appose leurs signatures, ce dixhuitieme
jour d'aofit 1949 :
TM Pres%aent of the Conference,
Le Pr6s4aent ae )! a Conftrence,
Gun,DHAUME MYRDDIN-EVANS.
TAe Director-General of the Internat4nnal Labour Office,
Le D4recteuir genial du Bureau internat4onal d'u, Travaa,
DAVID A. MORSE.
11

Document No. 122
Abolition of Forced Labour Convention, 1957 (No. 105)

International Labour Conference
Conference internationale du Travail
CONVENTION 105
CONVENTION CONCERNING THE ABOLITION
OF FORCED LABOUR,
ADOPTED BY THE CONFERENCE
AT ITS FORTIETH SESSION,
(,ENEVA, 25 JUNE 1957
CONVENTION 105
CONVENTION CONCERNANT L'ABOLITION
DU TRAVAIL pohcn,
hnop'rt,'b PAR LA conpnnbncb
A SA QUARANTIBME SESSION.
(,ENEVE, 25 JUIN 1957
AUTHENTIC TEXT
TEXTE AUTHENTIQUE
(ionvention 105
Uuhvnst'lUj!l UUht;ffl!St(* t'HE ABOIJflON OF FOBCED
IABOUB.
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its Fortieth Session on
5 June 1957, and
Having considered the question of forced labour, which is the fourth
item on the agenda of the session, and
Having noted the provisions of the Forced Labour Convention, 1930,
and
Having noted that the Slavery Convention, 1926, provides that all
necessary measures shall be taken to prevent compulsory or forced
labour from developing into conditions analogous to slavery and
that the Supplementary Convention on the Abolition of Slavery,
the Slave Trade and Institutions and Practices Similar to Slavery,
1956, provides for the complete abolition of debt bondage and
serfdom, and
Having noted that the Protection of Wages Convention, 1949, provides
that wages shall be paid regularly and prohibits methods of payment
which deprive the worker of a genuine possibility of terminating
his employment, and
Having decided upon the adoption of further proposals with regard
to the abolition of certain forms of forced or compulsory labour
constituting a violation of the rights of man referred to in the
Charter of the United Nations and enunciated by the Universal
Declaration of Human Rights, and
Having determined that these proposals shall take the form of an
international Convention,
adopts this twenty-fifth day of June of the year one thousand nine hundred
and fifty-seven the following Convention, which may be cited as the
Abolition of Forced Labour Convention, 1957 :
Article I
Each Member of the International Labour Organisation which ratifies
this Convention undertakes to suppress and not to make use of any form
of forced or compulsory labour-
(a) as a means of political coercion or education or as a punishment for
holding or expressing political views or views ideologically opposed
to the established political, social or economic system ;
(b) as a method of mobilising and using labour for purposes of economic
development ;
2
Convention 105
CONVENTION €!ONOERNANr L'.[OT ITTnN TITJ IRAVAn, FOR(J!:
La Conference generale de l'Organisation internationale du Travail,
Convoquee A Geneve par le Conseil d'administration du Bureau international
du Travail, et s'y 6tant reunie le 5 juin 1957, en sa quarantieme
session ;
Apr's avoir examine la question du travail force, qui constitue le
quatrieme point A l'ordre du jour de la session ;
Apres avoir pris note des dispositions de la convention sur le travail
force, 1930 ;
Apres avoir not6 que la convention de 1926 relative A l'esclavage prevoit
que des mesures utiles doivent etre prises pour 5viter que le travail
force ou obligatoire n'amene des conditions analogues A l'esclavage
et que la convention supplementaire de 1956 relative A l'abolition
de l'esclavage, de la traite des esclaves et des institutions et pratiques
analogues A l'esclavage vise A obtenir l'abolition complete de la
servitude pour dettes et du servage ;
Apres avoir not5 que la convention sur la protection du salaire, 1949,
6nonce que le salaire sera pa% A intervalles reguliers et interdit les
modes de paiement qui privent le travaineur de toute possibiliteo
reelle de quitter son emploi ;
Apr's avoir decide d'adopter d'autres propositions relatives A l'abolition
de certaines formes de travail force ou obligatoire constituant une
violation des droits de l'homme tels qu'ils sont visas par la Charte
des Nations Unies et enonces dans la Declaration universelle des
droits de l'homme ;
Apr's avoir decide que ces propositions prendraient la forme d'une
convention internationale,
adopte, ce vingt-cinquieme jour de juin mil neuf cent cinquante-sept, la
convention ci-apris, qui sera denomm% Convention sur l'abolition du
travail force, 1957 ;
Art4r,le I
Tout Membre de l'Organisation internationale du Travail qui ratifie la
presente convention s'engage A supprimer le travail force ou obligatoire
et A n'y recourir sous aucune forme :
a) en taut que mesure de coercition ou d'eoducation politique ou en tant que
sanction A l'egard de personnes qui ont ou expriment certaines opinions
politiques ou manifestent leur opposition ideologique A l'ordre politique,
social ou 6conomique 5tabli ;
b) en tant que methode de mobilisation et d'utilisation de la main-d'a=uvre
A des fins de d6veloppement 6conomique ;
s
(c) as a means of labour discipline
(a) as a punishment for having participated in strikes ;
(e) as a means of racial, social, national or religious discrimination.
Artjcle 9
Each Member of the International Labour Organisation which ratifies
this Convention undertakes to take effective measures to secure the
immediate and complete abolition of forced or compulsory labour as
specified in Article I of this Convention.
Article S
The formal ratifications of this Convention shall be communicated to
the Director-General of the International Labour Office for registration.
Article 4
1. This Convention shall be binding only upon those Members of the
International Labour Organisation whose ratifications have been registered
with the Director-General.
2. It shall come into force twelve months after the date on which
the ratifications of two Members have been registered with the Director-
General.
3. Thereafter, this Convention shall come into force for any Member
twelve months after the date on which its ratification has been registered.
Article 5
1. A Member which has ratified this Convention may denoiu'ice it
after the expiration of ten years from the date on which the Convention
first comes into force, by an act communicated to the Director-General
of the International Labour Office for registration. Such denunciation
shall not take effect until one year after the date on which it is registered.
2. Each Member which has ratified this Convention and which does
not, within the year following the expiration of the period of ten years
mentioned in the preceding paragraph, exercise the right of denunciation
provided for in this Article, will be bound for another period of ten years
and, thereafter, may denounce this Convention at the expiration of each
period of ten years under the terms provided for in this Article.
Article 6
1. The Director-General of the International Labour Office shall
notify all Members of the International Labour Organisation of the registration
of all ratifications and denunciations communicated to him by
the Members of the Organisation.
2. When notifying the Members of the Organisation of the registration
of the second ratification eommunicated to him, the Director-General
shall draw the attention of the Members of the Organisation to the date
upon which the Convention will come into force.
Article 7
The Director-General of the International Labour Office shall communicate
to the Secretary-General of the United Nations for registration in
4
c) en tant que mesure de discipline du travail ;
a) en tant que punition pour avoir participe A des graves ;
e) en tant que mesure de discrimination racia]e, sociale, nationale ou
religieuse.
Article [3
Tout Membre de l'Organisation internationale du Travail qui ratifie la
presente convention s'engage A prendre des mesures efficaces en vue de
l'abolition immediate et complete du travail force ou obligatoire tel qu'il est
decrit A l'article I de la pre'sente convention.
Article S
Les ratifications formelles de la presente coxivention seront communiqu5es
au Directeur general du Bureau international du Travail et par
lui enregistrees.
Article 4
1. La presente convention ne liera que les Membres de l'Organisation
internationale du Travail dont la ratification aura ete enregistree par le
Directeur general.
2. Elle entrera en vigueur douze mois apres que les ratifications de deux
Membres auront 5te enregistr5es par le Directeur general.
3. Par la suite, cette convention entrera en vigueur pour chaque
Membre douze mois apr@s la date off sa ratification aura ete enregistree.
ArtLla 5
1. Tout Membre ayant ratifie la presente convention peut la d5noncer
A l'expiration d'une p5riode de dix ann5es apres la date de la mise en
vigueur initiale de la convention, par un acte communique au Dlrecteur
general du Bureau international du Travail et par lui enregistre. La d5nonciation
ne prendra effet qu'une ann6e apres avoir 5te enregistree.
2. Tout Membre ayant ratifie la presente convention qui, dans le
delai d'une annee apres l'expiration de la periode de dix annees mentionnee
au paragraphe precedent, ne fera pas usage de la faculte de denonciation
prevue par le present article sera lid pour une nouvelle p5riode de dix
annees et, par la suite, pourra denoncer la presente convention A l'expiration
de chaque p5riode de dix annees dans les conditions prevues au
present article.
Article 6
1. Le Directeur general du Bureau international du Travail notifiera
A tous les Membres de l'Organisation internationale du Travail l'enregistrement
de toutes les ratifications et denonciations qui lui seront communiquees
par les Membres de l'Organisation.
2. En notifiant aux Membres de l'Organisation l'enregistrement de la
deuxieme ratification qui lui aura et5 communiqu5e, le Directeur general
appellera l'attention des Membres de l'Organisation sur la date A laquelle
la presente convention entrera en vigueur.
Arkle 7
Le Directeur general du Bureau international du Travail communiquera
au Secretaire general des Nations Unies, aux fins d'enregistrement, confor-
5
accordance with article 102 of the Charter of the United Nations full
particulars of all ratifications and acts of denunciation registered by him
in accordance with the provisions of the preceding Articles.
Article 8
At such times as it may consider necessary the Governing Body of
the International Labour Office shall present to the General Conference
a report on the working of this Convention and shall examine the desirabfflty
of placing on the agenda of the Conference the question of its
revision in whole or in part.
Artide 9
1. Should the Conference adopt a new Convention revising this
Convention in whole or in part, then, unless the new Convention otherwise
provides-
(a) the ratification by a Member of the new revising Convention shall
4pso jure involve the immediate denunciation of this Convention,
notwithstanding the provisions of Article 5 above, if and when the
new revising Convention shall have come into force ;
(b) as from the date when the new revising Convention comes into
force this Convention shall cease to be open to ratification by the
Members.
2. This Convention shall in any case remain in force in its actual
form and content for those Members which have ratified it but have not
ratified the revising Convention.
Article 10
The English and French versions of the text of this Convention are
equally authoritative.
The foregoing is the authentic text of the Convention duly adopted by
the General Conference of the International Labour Organisation during its
Fortieth Session which was held at Geneva and declared closed the twentyseventh
day of June 1957.
IN FAffH WHEREOF we have appended our signatures this fourth
day of July 1957.
6
moment A l'article 102 de la Charte des Nations Unies, des renseignements
complets au sujet de toutes ratifications et de tous actes de denonciation
qu'il aura enregistres conformement aux articles precedents.
Article 8
Chaque fois qu'il le jugera necessaire, le Conseil d'administration du
Bureau international du Travail presentera 'a . la Conference g5nerale un
rapport sur l'application de la pr5sente convention et examinera s'il y a
lieu d'inscrire A l'ordre du jour de la Conference la question de sa revision
totale ou partiene.
Article 9
1. Au cas ou la Conference adopterait une nouvelle convention portant
revision totale ou partielle de la pr5sente convention, et 'a moins que la
nouvelle convention ne dispose autrement :
a) la ratification par un Membre de la nouvene convention portant
revision entrainerait de plein droit, nonobstant l'article 5 ci-dessus,
denonciation immediate de la pr5sente convention, sous reserve que la
nouvelle convention portant revision soit entree en vigueur ;
b) A partir de la date de l'entree en vigueur de la nouvelle convention
portant revision, la presente convention cesserait d'5tre ouverte A la
ratification des Membres.
2. La presente convention demeurerait en tout cas en vigueur dans sa
forme et teneur pour les Membres qui l'auraient ratifiee et qui ne ratifieraient
pas la convention portant revision.
ATtiC,le 10
Les versions frangaise et anglaise du texte de la presente convention
font 6galement foi.
Le texte qui precede est le texte authentique de la convention dent
adoptee par la Conference generale de l'Organisation internationale dti
Travail dans sa quarantieme session, qui s'est tenue A Geneve et qui a 5te
declaree close le 27 juin 1957.
EN FOI DE QUOI ont appos5 leurs signatures, ce quatrieme jour
de juillet 1957 :
The PreMerbt of The Cionference,
Le Pres%der gt de )! a Cionf6rence,
HAROLD HOLT.
The Director-General of ate International Itabour Office,
Le rarecteur y:n#al au Bweau jnterrrgatjonal du Trava41,
DAVID A. MORSE.
7

Document No. 123
Rural Workers’ Organisations Convention, 1975 (No. 141)

International Labour Conference
Conference internationale du Travail
CONVENTION 141
CONVENTION CONCERNING ORGANISATIONS
OF RURAL WORKERS AND THEIR ROLE IN ECONOMIC
AND SOCIAL DEVELOPMENT,
ADOPTED BY THE CONFERENCE AT ITS SIXTIETH SESSION,
GENEVA, 23 JUNE 1975
CONVENTION 141
CONVENTION CONCERNANT LES ORGANISATIONS
DE TRAVAILLEURS RURAUX ET LEUR R0LE DANS
LE DEVELOPPEMENT ECONOMIQUE ET SOCIAL,
ADOPTEE PAR LA CONFE,RENCE A SA SOIXANTnEME SESSION,
GENEVE, 23 JUIN 1975
AUTHENTIC TEXT
TEXTE AUTHENTIQUE
Convention 141
CONVENTION CONCERNING ORGANISATIONS OF RURAL WORKERS
AND THEIR ROLE IN ECONOMIC AND SOCIAL DEVELOPMENT.
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the mternational
Labour Office, and having met in its Sixtieth Session on 4 June 1975, and
Recognising that the importance of rural workers in the world makes it urgent
to associate them with economic and social development action if their conditions
of work and life are to be permanently and effectively improved, and
Noting that in many countries of the world and particularly in developing countries
there is massive under-utilisation of land and labour and that this makes it
imperative for rural workers to be given every encouragement to develop free
and viable organisations capable of protecting and furthering the interests of
their members and ensuring their effective contribution to economic and social
development, and
Considering that such organisations can and should contribute to the alleviation
of the persistent scarcity of food products in various regions of the world, and
Recognising that land reform is in many developing countries an essential factor
in the improvement of the conditions of work and life of rural workers and that
organisations of such workers should accordingly co-operate and participate
actively in the implementation of such reform, and
Recalling the terms of existing international labour Conventions and Recommendations-
in particular the Right of Association (Agriculture) Convention,
1921, the Freedom of Association and Protection of the Right to Organise
Convention, 1948, and the Right to Organise and Collective Bargaining Convention,
1949-which affirm the right of all workers, including rural workers,
to establish free and independent organisations, and the provisions of numerous
international labour Conventions and Recommendations applicable to
rural workers which call for the participation, inter alia, of workers' organisations
in their implementation, and
Noting the joint concern of the United Nations and the specialised agencies, in
particular the International Labour Organisation and the Food and Agriculture
Organisation of the United Nations, with land reform and rural
development, and
Noting that the following standards have been framed in co-operation with the
Food and Agriculture Organisation of the United Nations and that, with a
view to avoiding duplication, there will be continuing co-operation with that
Organisation and with the United Nations in promoting and securing the
application of these standards, and
Having decided upon the adoption of certain proposals with regard to organisations
of rural workers and their role in economic and social development,
which is the fourth item on the agenda of the session, and
Having determined that these proposals shall take the form of an international
Convention,
adopts tis twenty-third day of June of the year one thousand nine hundred and
seventy-five the following Convention, which may be cited as the Rural Workers'
Organisations Convention, 1975:
2
Convention 141
CONVENTION CONCERNANT LES ORGANISATIONS DE TRAVAILLEURS
RURAUX ET LEUR R0LE DANS LE DEVELOPPEMENT ECONOMIQ[JE
ET SOCIAL.
La Conf6rence g6n6rale de l'Organisation internationale du Travail,
Convoqu6e A Geneve par le Conseil d'administration du Bureau international
du Travail, et s'y 6tant r6unie le 4 juin 1975, en sa soixantieme session :
Reconnaissant qu'en raison de leur importance dans le monde il est urgent
d'associer les travailleurs ruraux aux fflches du d6veloppement 6conomique
et social pour am61iorer de fagon durable et efficace leurs conditions de
travail et de vie ;
Notant que, dans de nombreux pays du monde et tout particulierement dans
ceux en voie de d6veloppement, la terre est utilis6e de maniere tres insuffisante
et la main-d'xuvre tres largement sous-employ6e, et que ces faits
exigent que les travailleurs ruraux soient encourag6s A d6velopper des organisations
libres, viables et capables de prot6ger et d6fendre les int6rets de
leurs membres et d'assurer leur contribution effective au d6veloppement
6conomique et social ;
Consid6rant que l'existence de telles organisations peut et doit contribuer A
att6nuer la p6nurie persistante de denr6es alimentaires dans plusieurs parties
du monde ;
Reconnaissant que la r6forme agraire est, dans un grand nombre de pays en
voie de d6veloppement, un facteur essentiel A l'am61ioration des conditions
de travail et de vic des travailleurs ruraux et qu'en cons6quence les organisations
de ces travailleurs dewaient coop6rer et participer activement au
processus de cette r6forme ;
Rappelant les termes des conventions et recommandations internationales du
travail existantes - en particulier la convention sur le droit d'association
(agriculture) 1921, la convention sur la libert6 syndicale et la protection du
droit syndical, 1948, et la convention sur le droit d'orga+tisation et de n6gociation
collective, 1949 - qui affirment le droit de tous les travailleurs,
y compris les travailleurs ruraux, d'6tablir des organisations libres et ind6-
pendantes, ainsi que les dispositions de nombreuses conventions et recommandations
internationales du travail applicables aux travailleurs ruraux
qui demandent notamment que les organisations de travailleurs participent
El leur application ;
Notant que les Nations Unies et les iiistitutions sp6cialis6es, en particulier
rOrganisation internationale du Travail et l'Organisation des Nations Unies
pour l'alirnentation et l'agriculture, portent toutes un int6ret A la r6forme
agraire et au d6veloppement rural ;
Notant que les normes suivantes ont 6t6 61abor6es en coop6ration avec l'Organisation
des Nations Unies pour l'alimentation et l'agriculture et que, pour
6viter les doubles emplois, la coop6ration avec cette organisation et les
Nations Unies se poursuivra en vue de promouvoir et d'assurer l'application
de ces normes ;
Apr's avoir d6cid6 d'adopter diverses propositions relatives aux organisations
de travailleurs ruraux et A leur role dans le d6veloppement 6conomique et
social, question qui constitue le quatrieme point A l'ordre du jour de la
SeSSlOn ;
Apr's avoir d6cid6 que ces propositions prendraient la forme d'une convention
internationale,
adopte, ce vingt-troisieme jour de juin mil neuf cenf soixante-quinze, la convention
ci-apres, qui sera d6nomm6e Convention sur les organisations de travailleurs
ruraux, 1975 :
3
Artide I
This Convention applies to all types of organisations of rural workers, including
organisations not restricted to but representative of rural workers.
Article 2
1. For the purposes of tlffs Convention, tlie term " rural workers " means any
person engaged in agriculture, handicrafts or a related occupation in a rural area,
whether as a wage earner or, subject to the provisions of paragraph 2 of this Article,
as a self-employed person such as a tenant, sharecropper or small owner-occupier.
2. This Convention applies only to those tenants, sharecroppers or small owneroccupiers
who derive their main income from agriculture, who work the land themselves,
with the help only of tlieir family or with tlie help of occasional outside labour
and who do not-
((/) permanently employ workers; or
( b ) employ a substantial nun'iber of seasonal workers ; or
( c ) liave any land cultivated by sharecroppers or tenants.
Artide 3
1. All categories of rural workers, whether they are wage earners or self-employed,
shall have tlie right to establish and, subject only to the rules of tlie organisation
concerned, to join organisations of their ovm choosing withoutprevious authorisation.
2. The principles of freedom of association shall be fully respected; rural workers'
organisations shall be independent and voluntary in character and shall remain free
from all interference, coercion or repression.
3. The acquisition of legal personality by organisations of rural workers shall
not be made subject to conditions of such a character as to restrict the application
of tlie provisions of the preceding paragraphs of this Article.
4. In exercising the rights provided for in this Article rural workers and their
respective organisations, like other persons or organised collectivities, shall respect
the law of the land.
5. 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 Article.
Article 4
It shall be an objective of national policy concerning rural development to
facilitate the establisliment and growth, on a voluntary basis, of strong and independent
organisations of rural workers as an effective means of ensuring the participation
of rural workers, withorit discrimination as defined in the Discrimination
(Employment and Occupation) Convention, 1958, in economic and social development
and in tlie benefits resulting therefrom.
Artide 5
1. In order to enable organisations of rural workers to play their role in economic
and social development, each Member which ratifies this Conventioi shall adopt and
carry out a policy of active encouragement to these organisations, particularly with
a view to eliminating obstacles to their establishment, their growth and tlie pursuit of
their lawful activities, as well as such legislative and administrative discrimination
against rural workers' orgariisations and their members as may exist.
2. Each Member whicli ratifies this Convention shall ensure that national laws or
regulations do not, given the special circumstances of the rural sector, inhibit the
establishment and growth of rural workers' organisations.
4
Article I
La pr6sente conyention s'applique A tous les types d'organisations de travailleurs
ruraux, y compris les organisatioris qui ne se limitent pas A ces travailleurs
mais qui les repr6sentent.
Article 2
1. Aux fins de la pr6sente convention, les termes < (travailleurs ruraux )>
d6signent toutes personnes exert,a.nt, dans les r6gions rurales, une occupation
agricole, artisanale ou autre, assimil6e ou connexe, qu'il s'agisse de salari6s ou,
sous r6serve du paragraphe 2 du pr6sent article, de personnes travaillant A ieur
propre compte, par exemple les fermi'ers, m6tayers et petits propri6taires exploitants.
2. La pr6sente convention ne s'applique qu!a ceux des fermiers, m6tayers ou
petits propri6taires exploitants dont la principale source de revenu est 'l'agriculture
et qui travail[lent la terre eux-m6mes avec la seude aide de leur famMle ou en recourant
A des tiers El titre purement occasionnel et qui :
a) n'emploient pas de facon permanente de ila main-d'oeuvre, ou
b) n'emploient pas une main-d'oeuvre saisonniere nombreuse, ou
c) ne font pas cultiver ieurs terres par des m6tayers ou des fermiers.
Artide 3
1. Toutes les cat6gories de travailleurs ruraux, qu'jl s'agisse de sailari6s ou de
personnes travaffllant A leur propre compte, ont le droit, sans autorisation pr6:'lable,
de constituer des organisa.tions de leur choix ainsi que celui de s'affjlier A ces
organisations, A la settle condition de se conformer aux statuts de ces dernieres.
2. Les principes de la libert6 syndicale devront 8tre respect6s pleinement ; les
organisations de travaiiHeurs ruraux 'devront 8tre ind6pendantes et 6tablies sur une
base volontaire et ne devront 6tre soumises A aucune ing6rence, contrainte ou
mesure r6pressive.
3. L'acquisition de Ja personnalit6 juridique par 4es organisations de travajlleurs
ruraux ne peut 8tre subordonn6e El des conditions de nature A mettre en cause
rapplication des dispositions des paragraphes I et 2 du pr6sent artidle.
4. Dans l'exercice des droits qui 'leur sont reconnus par le pr6sent article, les
travailJeurs ruraux et leurs organisations respectives sont tenus, A i'instar des
autres personnes ou collectivit6s organis6es, de respecter la 16galit6.
5. La 16gislation nationale ne devra porter atteinte ni etre appliqu6e de maniere
A porter atteinte aux garanties pr6vues par le pr6sent artiole.
Artide 4
L'un des objectifs de da politique nationale de d6veloppem'ent rural devra 6tre
de facffliter la constitution et le d6veloppement, sur une base volontaire, d'organisations
de travailleurs ruraux, fortes et ind6pendantes, comine moyen efficace d'assurer
que ces trava}lleurs, sans discrimination - au sens de la convention concernant
la discrimination (emploi et profession), 1958 -, participent au d6veloppement
6conomique et social et b6n6ficient des avantages qui en d6coulent.
Artide 5
1. Pour permettre aux organisations de travaiueurs ruraux de jouer leur role
dans le d6veloppement 6conomique et social, tout Membre qui ratifie la pr6sente
convention devra adopter et appliquer une politique visant A encourager ces organisations,
notamment en vue d'61iminer les obstadles qui s'opposent A leur constitution,
A leur d6veloppement et A l'exercice de leurs activit6s iicites, ainsi que les
discriminations d'ordre 16gislatif et administratif dont les organisations de travailleurs
ruraux et leurs membres pourraient faire d'objet.
2. Tout Membre qui ratifie la pr6sente convention devra s'assurer que la 16gislation
nationale ne fait pas obstade, compte tenu des conditions propres au secteur
rural, A la constitution et au &6veloppement d'organisations de travailleurs ruraux.
5
Artide 6
Steps shall be taken to promote the widest possible understanding of the need to
further the development of rural workers' organisations and of the contribution they
can make to improving employment opportunities and general conditions of work
and life in rural areas as well as to increasing the national income and achieving a
better distribution thereof.
Article 7
The formal ratifications of this Convention shall be communicated to the Director-
General of the International Labour Office for registration.
Article 8
1. This Convention shall be binding only upon those Members of the International
Labour Organisation whose ratifications have been registered with the
Director-General.
2. It shall come into force twelve months after the date on which the ratifications
of two Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Artide 9
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into force,
by an act communicated to the Director-General of the International Labour Office
for registration. Such denunciation shall not take effect until one year after the date
on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided for in this Article, will be
bound for another period of ten years and, thereafter, may denounce this Convention
at the expiration of each period of ten years under the terms provided for in this
Article.
Artide 10
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all ratifications
and denunciations communicated to him by the Members of the Organisation.
2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the attention
of the Members of the Organisation to the date upon which the Convention will
come into force.
Artide 12
The Director-General of the International Labour Office sliall communicate to
the Secretary-General of the United Nations for registration in accordance with
Article 102 of the Charter of the 'United Nations full particulars of all ratifications and
acts of denunciation registered by him in accordance with the provisions of the
preceding Articles.
Artide 12
At sucli times as it may consider necessary the Governing Body of the International
Labour Office shall present to the General Conference a report on the
working of this Convention and shall examine the desirability of placing on the
agenda of the Conference the question of its revision in whole or in part.
6
Artide 6
Des mesures devront 8tre prises afin de promouvoir la plus darge compr6hension
possible de la n6cessit6 ae d6velopper les organisations de travailleurs ruraux
et da contribution qu'elles peuvent apporter A une am61ioration des possibilit6s
d'emploi et des conditions g6n6rales de travail et de vie dans les r6gions rurales
ainsi qu'A i'accroissement et A une meil!leure r6partition du revenu national.
Artide 7
I,es ratifications formelles de la pr6sente convention seront cornrnuntquees au
Directeur g6n6ral du Bureau international du Travail et par lui enregistr6es.
Artide 8
1. La pr6sente convention ne liera que les Membres de l'Organisation internationale
du Travail dont la ratification aura 6t6 enregistr6e par 4e Directeur g6n6ral.
2. Elle entt'era en vigueur douze mois apres que les ratifications de deux Membres
auront 6t6 enregistr6es par le Directeur g6n6ral.
3. Par la suite, cette convention entrera en vigueur pour chaque membre douze
mois apres 'la date on sa ratification aura 6t6 enregistr6e.
Artide 9
1. Tout Membre ayant ratifi6 da pr6sente convention peut la d6noncer A l'expiration
d'une p6riode de dix ann6es apres la date de Ja mise en vigueur initiale de
la convention, par un acte communiqu6 au Directeur g6n6ral du Bureau international
du Travail et par lui enregistr6. La d6nonciation ne prendra effet qu'une
ann6e apres avoir 6t6 enregistr6e.
2. Tout M'embre ayant ratifi6 la pr6sente convention qui, dans le d61ai d'une
arui6e apres l'expiration de la p6riode de dix ann6es mentionn6e au paragraphe
pr6c6dent, Ine fera pas usage de la facult6 ae d6nonciation pr6vue par 4e pr6sent
article sera lli6 pour une nouvelle p6riode de dix ann6es et, par la suite, pourra
d6noncer la pr6scnte convention A l'expiration de chaque p6riode de dix ann6es
dans les conditions pr6vues au pr6sent article.
Artide 10
1. Le Directeur g6n6ral du Bureau international du Travail notifiera A tous les
Membres de l'Organisation internationale du Travail l'enregistrement de toutes les
ratifications et d6nonciations qui 4ui seront communiqu6es par les Membt'es de
l'Organisation.
2. En notifiant aux Membres de l'Organisation l'enregistrement de la deuxieme
ratification qui lui aura 6t6 communiqu6e, le Directeur g6n6ral appellera l'attention
des Membres de l'Organisation sur la date El laquelle da pr6spnte convention entrera
en vigueur.
Artide II
Le Directeur g6n6ral du Bureau international du Travail communiquera au
Secr6taire g6n6ral des Nations Unies, aux fins d'enregistrement, conform6ment A
l'article 102 de la Charte de Nations Unies, d'es renseignements complets au sujet
de toutes ratifications et de tous actes de d6nonoiation qu'il aura enregistr6s conform6ment
aux articles pr6c6dents.
Artide 12
Chaque fois qu'il le jugera n6cessaire, le Conseil d'administration du Bureau
international du Travail pr6sentera A la Conf6rence g6n6ral!e un rapport sur l'application
de la pr6sente convention et examinera s'il y a lieu d'inscrire E l l'ordre du
jour de la Conf6rence la question de sa r6vision totale ou partielle.
7
Artide 13
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides -
(a) the ratification by a Member of the new revising Convention shall ipso jure
involve the immediate denunciation of this Convention, notwithstanding the
provisions of Article 9 above, if and when the new revising Convention shall have
come into force ;
(b ) as from the date when the new revising Convention comes into force this Convention
shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and
content for those Members which have ratified it but have not ratified the revising
Convention.
Artide 14
The English and French versions of the text of this Convention are equally
authoritative.
The foregoing is the authentic text of the Convention duly adopted by the General
Conference of the International Labour Organisation during its Sixtieth Session
which was held at Geneva and declared closed the twenty-fifth day of June 1975.
IN FAITH WHEREOF we have appended our signatures this twenty-sixth day
of June 1975.
8
Artide 13
1. Au cas on la Conf6rence adopterait une nouvelle convention portant r6vision
totale ou partieHe de la pr6sente convention, et A moins que la nouveile convention
ne dispose autrement :
a) la ratification par un Membre de la nouvelle convention portant r6vision entrainerait
dp plein droit, nonobstant l'article 9 ci-dessus, d6nonciation imm6diate
de la pr6sente convention, sous r6serve que la nouvelle convention portant r6vision
soit entr6e en vigueur ;
b) A partir de la date de l'entr6e en vigueur de la nouvelle convention portant r6vision,
la pr6sente convention cesserait d!:tre ouverte A la ratification des Membres.
2. La pr6sente convention demeurerait en tout cas en vigueur dans sa forme
et teneur pour les Membres qui l'auraient ratifi6e et qui ne ratifieraient pas la
convention portant r6vision.
Artide 14
Les versions frangais'e et anglaise du texte de la pr6sente convention font 6galement
foi.
Le texte qui pr6cede est le texte authentique de la convention dfiment adopt6e
par la Conf6rence g6n6rale de l'Organisation internationale du Travail dans sa
soixantieme session qui s'est tenue A Geneve et qui a 6t6 d6clar6e close le vingtcinquieme
jour de juin 1975.
EN FOI DE QUOI ont appos6 leurs signatures, ce vingt-sixi6me jour de juin 1975 :
The President of the Conference,
Le President de 7a Conference,
BLAS F. OPLE
The Director-General of the International Labour Office,
Le Directeur g6ru:ral du Bureau international du Travail,
FRANCIS BLANCHARD
9

Document No. 124
Labour Relations (Public Service) Convention, 1978
(No. 151)

International Labour Conference
Conference internationale du Travail
CONVENTION 151
CONVENTION CONCERNING PROTECTION OF THE
RIGHT TO ORGANISE AND PROCEDURES FOR DETERMINING
CONDITIONS OF EMPLOYMENT IN THE PUBLIC SERVICE,
ADOPTED BY THE CONFERENCE AT ITS SIXTY-FOURTH SESSION,
GENEV A, 27 JUNE 1978
CONVENTION 151
CONVENTION CONCERNANT LA PROTECTION DU DROIT
D'ORGANISATION ET LES PROCEDURES DE DETERMINATION
DES CONDITTONS D'EMPLOI DANS LA FONCTION PUBLIQUE,
ADOPTEE PAR LA CONFERENCE A SA SOIXANTE-QUATRIEME SESSION,
GENEVE, 27 JUIN 1978
AUTHENTIC TEXT
TEXTE AUTHENTIQUE
Convention 151
CONVENTION CONCERNING PROTECTION OF THE RIGHT TO ORGANISE
AND PROCEDURES FOR DETERMINING CONDITIONS OF EMPLOYMENT
IN THE PUBLIC SERVICE
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Govetning Body of the International
Labour Office, and having met in its Sixty-fourth Session on 7 June 1978, and
Noting the terms of the Freedom of Association and Protection of the Right to
Organise Convention, 1948, the Right to Organise and Collective Bargaining
Convention, 1949, and the Workers' Representatives Convention and Recommendation,
1971, and
Recalling that the Right to Organise and Collective Bargaining Convention, 1949,
does not cover certain categories of public employees and that the Workers'
Representatives Convention and Recommendation, 1971, apply to workers'
representatives in the undertaking, and
Noting the considerable expansion of public-service activities in many countries
and the need for sound labour relations between public authorities and public
employees' organisations, and
Having regard to the great diversity of political, social and economic systems
among member States and the differences in practice among them (e.g. as to
the respective functions of central and local government, of federal, state and
provincial authorities, and of state-owned undertakings and various types of
autonomous or semi-autonomous public bodies, as well as to the nature of
employment relationships), and
Taking into account the particular problems arising as to the scope of, and
definitions for the purpose of, any international instrument, owing to the
differences in many countries between private and public employment, as well
as the difficulties of interpretation which have arisen in respect of the application
of relevant provisions of the Right to Organise and Collective Bargaining
Convention, 1949, to public servants, and the observations of the supervisory
bodies of the ILO on a number of occasions that some governments have
applied these provisions in a manner which excludes large groups of public
employees from coverage by that Convention, and
Having decided upon the adoption of certain proposals with regard to freedom of
association and procedures for determining conditions of employment in the
public service, which is the fifth item on the agenda of the session, and
Having determined that these proposals shall take the form of an international
Convention,
adopts this twenty-seventh day of June of the year one thousand nine hundred and
seventy-eight the following Convention, which may be cited as the Labour Relations
(Public Service) Convention, 1978:
PART I. SCOPE AND DEFINITIONS
Artide I
1. This Convention applies to all persons employed by public authorities, to the
extent that more favourable provisions in other international labour Conventions
are not applicable to them.
2. The extent to which the guarantees provided for in this Convention shall apply
to high-level employees whose functions are normally considered as policy-making or
2
Convention 151
CONVENTION CONCERNANT LA PROTECTION DU DROIT D'ORGANISATION
ET LES PROCEDURES DE Dt,TERMINATION DES CONDITIONS
D'EMPLOI DANS LA FONCTION PUBLIQUE
La Conf6rence g6n6rale de l'Organisation internationale du Travail,
Convoqu6e A Geneve par le Conseil d'administration du Bureau international
du Travail, et s'y 6tant r6unie le 7 juin 1978, en sa soixante-quatrieme
SeSSlOn ;
Notant les dispositions de la convention sur la libert6 syndicale et la protection
du droit syndical, 1948, de la convention sur le droit d'organisation et de
n6gociation collective, 1949, et de la convention et de la recommandation
concernant les repr6sentants des travailleurs, 1971 ;
Rappelant que la convention sur le droit d'organisation et de n6gociation collective,
1949, ne vise pas certaines cat6gories d'agents publics et que la
convention et la recommandation concernant les repr6sentants des travailleurs,
1971, s'appliquent aux repr6sentants des travailleurs dans l'entreprise ;
Notant l'expansion corisid6rable des activit6s de la fonction publique dans
beaucoup de pays et le besoin de relations de travail saines entre les autorit6s
publiques et les organisations d'agents publics ;
Constatant la grande diversit6 des systemes politiques, sociaux et 6conomiques
des Etats Membres ainsi que celle de leurs pratiques (par exemple en ce
qui concerne les fonctions respectives des autorit6s centrales et locales, celles
des autorit6s f6d6rales, des Etats f6d6r6s et des provinces, et celles des
entreprises qui sont propri6t6 publique et des diff6rents types d'organismes
publics autonomes ou semi-autonomes, ou en ce qui concerne la nature des
relations d'emploi) ;
Tenant compte des problemes particuliers que posent la d61imitation du champ
d'application d'un instrument international et l'adoption de d6finitions aux
fins de cet instrument, en raison des diff6rences existant dans de nombreux
pays entre l'emploi dans le secteur public et le secteur priv6, ainsi que des
difficult6s d'interpr6tation qui ont surgi A propos de l'application aux fonctionnaires
publics da dispositions pertinentes de la convention sur le droit
d'organisation et de n6gociation collective, 1949, et des observations par
lesquelles les organes de contr61e de I'OIT ont fait remarquer A diverses
reprises que certains gouvernements ont appliqu6 ces dispositions d'une
faqon qui exclut de larges groupes d'agents publics du champ d'application
de cette convention ;
Apres avoir d6cid6 d'adopter diverses propositions relatives El la libert6 syndicale
et aux proc6dures de d6termination des conditions d'emploi dans la
fonction publique, question qui constitue le cinquieme point A rordre du
jour de la session ;
Apres avoir d6cid6 que ces propositions prendraient la forme d'une convention
irbternationale,
adopte, ce vingt-septiame jour de juin 1978, ]a convention ci-apres, qui sera
d6nomm6e Convention sur les relations de travail dans la fonction publique, 1978.
PARTIE I. CHAMP D'APPLICATION ET nffipmt'rtoss
Artide I
1. La pr6sente convention s'applique A toutes les personnes employ6es par les
autorit6s publiques, dans la mesure on des dispositions plus favorables d'autres
conventions internationales du travail ne leur sont pas applicables.
2. La mesure dans laquelle les garanties pr6vues par la pr6sente convention
s'appliqueront aux agents de niveau 61ev6 dont les fonctions sont normalement
3
managerial, or to employees whose duties are of a highly confidential nature, shall
be determined by national laws or regulations.
3. The extent to which the guarantees provided for in this Convention shall apply
to the armed forces and the police shall be determined by national laws or regulations.
Article 2
For the purpose of this Convention, the term " public employee " means any
person covered by the Convention in accordance with Article l thereof.
Article 3
For the purpose of this Convention, the term " public employees' organisation "
means any organisation, however composed, the purpose of which is to further and
defend the interests of public employees.
PART II. PROTECTION OF THE RIGHT TO ORGANISE
Article 4
1. Public employees shall enjoy adequate protection against acts of anti-union
discrimination in respect of their employment.
2. 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' organisation
;
( b ) cause the dismissal of or otherwise prejudice a public employee by reason of membership
of a public employees' organisation or because of participation in the
normal activities of such an organisation.
Article 5
1. Public employees' organisations shall enjoy complete independence from public
authorities.
2. Public employees' organisations shall enjoy adequate protection against any
acts of interference by a public authority in their establishment, functioning or
administration.
3. In particular, acts which are designed to promote the establishment of public
employees' organisations under the domination of a public authority, or to support
public employees' organisations by financial or other means, with the object of placing
such organisations under the control of a public authority, shall be deemed to constitute
acts of interference within the meaning of this Article.
PART III. FACILITIES 'ro BE AFFORDED 'ro PUBLIC EMPLOYEES' Ogchnish'rions
Article 6
1. Such facilities shall be afforded to the representatives of recognised public
employees' organisations as may be appropriate in order to enable them to carry out
their functions promptly and efficiently, both during and outside their hours of work.
2. The granting of such facilities shall not impair the efficient operation of the
administration or service concerned.
4
consid6r6es comme ayant trait A la formulation des politiques A suivre ou A des
taches de direction ou aux agents dont les responsabilit6s ont un caractere hautement
confidentiel sera d6termin6e par la 16gislation nationale.
3. La mesure dans laquelle les garanties pr6vues par la pr6sente convention
s'appliqueront aux forces arm6es et A la police sera d6termin6e par la 16gislation
nationale.
Artide 2
Aux fins de la pr6sente convention, l'expression < (agent public ) > d6signe toute
personne E l laquelle s'applique cette convention conform6ment A son article 1.
Artide 3
Aux fins de la pr6sente convention, l'expression < (organisation d'agents publics )>
d6signe toute organisation, quelle que soit sa composition, ayant pour but de promouvoir
et de d6fendre les int6rets des agents publics.
PARTIE n. PROTECTION DU DROIT D'ORGANISATION
Artide 4
1. Les agents publics doivent b6n6ficier d'une protection ad6quate contre tous
actes de discrimination tendant A porter atteinte A la libert6 syndicate en matiere
d'emploi.
2. Une telle protection doit notamment s'appliquer en ce qui concerne les actes
ayant pour but de :
a) subordonner l'emploi d'un agent public A la condition qu'il ne s'affilie pas A
une organisation d'agents publics ou cesse de faire partie d'une telle organisation
;
b) cong6dier un agent public ou lui porter pr6judice par tous autres moyens, en
raison de son affiliation A une organisation d'agents publics ou de sa participation
aux activit6s normales d'une telle organisation.
Artide 5
1. Les organisations d'agents publics doivent jouir d'une complete ind6pendance
A l'6gard des autoritt5s publiques.
2. Les organisations d'agents publics doivent b6n6ficier d'une protection ad6-
quate contre tous actes d'ing6rence des autorit6s publiques dans leur formation,
leur fonctionnement et leur administration.
3. Sont notamment assimil6es aux actes d'ing6rence, au sens du pr6sent article,
des mesures tendant A promouvoir la cr6ation d'organisatio'ns d'agents publics
domin6es par une autorit6 publique, ou A soutenir des organisations d'agents publics
par des moyens financiers ou autrement, dans le dessein de placer ces organisations
sous le contr61e d'une autorit6 publique.
PARTIE III. Faciurns A ACCORDER AUX ORGA?%TISATIONS D'AGENTS PUBLICS
Artide 6
1. Des facilit6s doivent etre accord6es aux repr6sentants des organisations
d'agents publics reconnues, de maniere A leur permettre de remplir rapidement et
efficacement leurs fonctions aussi bien pendant leurs heures de travail qu'en dehors
de celles-ci.
2. L'octroi de telles facilit6s ne doit pas entraver le fonctionnement efficace de
l'administration ou du service int6ress6.
5
3. The nature and scope of these facilities shall be determined in accordance with
the methods referred to in Article 7 of this Convention, or by other appropriate
means.
PART IV. PROCEDURES FOR DETERMINING TERMS AND CONDITIONS op EMPLOYMENT
Article 7
Measures appropriate to national conditions shall be taken, where necessary,
to encourage and promote the full development and utilisation of machinery for
negotiation of terms and conditions of employment between the public authorities
concerned and public employees' organisations, or of such other methods as will
allow representatives of public employees to participate in the determination of these
matters.
PART V. SETTLEMENT OF DJSPUTES
Artide 8
The settlement of disputes arising in connection with the determination of terms
and conditions of employment shall be sought, as may be appropriate to national
conditions, 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.
PART VI. Cmi AND Pouncar RIGHTS
Artide 9
Public employees shall haye, 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.
P ART VIL FINAL PROVISIONS
Artide 10
The formal ratifications of this Convention shall be communicated to the Director-
General of the International Labour Office for registration.
Article II
1. This Convention shall be binding only upon those Members of the International
Labour Organisation whose ratifications have been registered with the
Director-General.
2. It shall come into force twelve months after the date on which the ratifications
of two Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Artide 12
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Ditector-General of the International Labour
6
3. La rbature et l'6tendue de ces facilit6s doivent etrc d6termin6es conform6ment
aux m6thodes mentionn6es dans l'article 7 de la pr6sente convention ou par tous
autres moyer+s appropri6s.
Php.artp IV. Paocffiouups DE nh'tp.aumharion DES CONDITIONS D'EMPLOI
Artide 7
Des mesures appropri6es aux conditions nationales doivent, si n6cessaire, etre
prises pour encourager et promouvoir le d6veloppement et l'uti!lisation les plus
larges de proc6dures permettant la n6gociation des condiitions d'emploi entre les
autorit6s publiques inti6ress6es et les organisations d'agents publios, ou de toute
autre m6thode permettant aux repr6sentants des agenits publics de participer A la
d6termination desdites conditions.
Putanp: V. R*cx.pmhn'r DES otppffiahsns
Article 8
Le reglement des diff6rends survetant A propos de la d6termination des conditions
d'emploi sera recherch6, d'une maniere 'appropri6e aux conditions niationailes,
par voie de n6gociation entre les parties ou par une procedure donnant des garanties
d'ind6pendance et d'impartialit6, telle que %a tm5dNation, la conciliatiori ou l'arbitrage,
institu6e de teMe sorte qu'elle iinspire la confiance des parties int6ress6es.
PARTIE VI. DROITS CmLS ET POLITIQUES
Article 9
Les agettts publics doivent b6n6ficier, comme les autres travailleurs, des droits
civils et po4itiques qui sont essentiels A l'exercice normal de ia libert6 syndjcale,
sous la seule r6serve des ot'ligatioins tenant A leur statut et A (a nature des fonctions
qu'ils exercent.
PARTIE VII. DISPOSITIONS FINALES
Artide 10
Les ratifications formelles de la pr6sente convention seront communiqu6es au
Directeur g6n6ral du Bureau international du Travail et par lui enregistr6es.
Artide 12
1. La pr6sente convention ne liera que les Membres de l'Organisation internationale
du Travail dont la ratification aura 6t6 enregistr6e par le Directeur
g6n6ral.
2. Elle entrera en vigueur douze mois apres que les ratifications de deux
Membres auront 6t6 enregistr6es par le Directeur g6n6ral.
3. Par la suite, cette convention entrera en vigueur pour chaque membre douze
mois apres la date on sa ratification aura 6t6 enregistr6e.
Artide 12
1. Tout Membre ayant ratifi6 la pr6sente convention peut la d6noncer A l'expiration
d'une p6riode de dix ann6es apres la date de la mise en vigueur initiale de
la convention, par un acte communiqu6 au Directeur g6n6ral du Bureau inter-
7
Office for registration. Such denunciation shall not take effect until one year after
the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiiation of the period of ten years mentioned in the preceding
paragraph, exercise the right of denunciation provided for in this Article, will be
bound for another period of ten years and, thereafter, may denounce this Convention
at the expiration of each period of ten years under the terms provided for in this
Aiticle.
Article 13
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all ratifications
and denunciations communicated to him by the Members of the Organisation.
2, When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the
attention of the Members of the Organisation to the date upon which the Convention
will come into force.
Article 14
The Director-Genetal of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance with
Article 102 of the Charter of the United Nations full particulars of all ratifications
and acts of denunciation registered by him in accordance with the provisions of the
preceding Articles.
Artide 15
At such times as it may consider necessary the Governing Body of the International
Labour Office shall present to the General Conference a report on the
working of this Convention and shall examine the desirability of placing on the
agenda of the Conference the question of its revision in whole or in part.
Article 16
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides-
(a) the ratification by a Member of the new revising Convention shall ipso jure
involve the immediate denunciation of this Convention, notwithstanding the
provisions of Article 12 above, if and when the new revising Convention shall
have come into force ;
(b ) as from the date when the new revising Convention comes into force this Convention
shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and
content foi those Members which have ratified it but have not ratified the revising
Convention.
Articlel7
The English and French versions of the text of this Convention are equally
authoritative.
8
national du Travail et par lui enregistr6. La d6nonciation ne prendra effet qu'une
ann6e apres avoir 6t6 enregistr6e.
2. Tout Membre ayant ratifi6 la pr6sente convention qui, dans le d61ai d'une
ann6e apres l'expiration de la p6riode de dix ann6es mentionn6e au paragraphe
pr6c6dent, ne fera pas usage de la facult6 de d6nonciation pr6vue par le pr6sent
article sera li6 pour une nouvelle p6riode de dix ann6es et, par la suite, pourra
d6noncer la pr6sente convention A l'expiration de chaque p6riode de dix ann6es
dans les conditions pr6vues au pr6sent article.
Artide 13
1. Le Directeur g6n6ral du Bureau international du Travail notifiera A tous les
Membres de rOrganisation internationale du Travail l'enregistrement de toutes les
ratifications et d6nonciations qui lui seront communiqu6es par les Membres de
l'Organisation.
2. En notifiant aux Membres de l'Organisation l'enregistrement de la deuxieme
ratification qui lui aura 6t6 communiqu6e, le Directeur g6n6ral appellera l'attention
des Membres de l'Organisation sur la date A laquelle la pr6sente convention entrera
en vigueur.
Artide 14
Le Directeur g6n6ral du Bureau international du Travail communiquera au
Secr6taire g6n6ral des Nations Unies, aux fins d'enregistrement, conform6ment A
l'article 102 de la Charte des Nations Unies, des renseignements complets au sujet
de toutes ratifications et da tous actes de d6nonciation qu'il aura enregistr6s conform6ment
aux articles pr6c6dents.
Artide 15
Chaque fois qu'il le jugera n6cessaire, le Conseil d'administration du Bureau
international du Travail pr6sentera A la Conf6rence g6n6rale un rapport sur l'application
de la pr6sente convention et examinera s'il y a lieu d'inscrire E l l'ordre du
jour de la Conf6rence la question de sa r6vision totale ou partielle.
Artide 16
1. Au cas on la Conf6rence adopterait une nouvelle convention portant r6vision
totale ou partielle de la pr6sente convention, et A moins que la nouvelle convention
ne dispose autrement :
a) la ratification par un Membre de la nouvelle convention portant r6vision emrainerait
de plein droit, nonobstant l'article 12 ci-dessus, d6nonciation imm6diate
de la pr6sente convention, sous r6serve que la nouvelle convention portant r6vision
soit entr6e en vigueur ;
b) A partir de la date de l'entr6e en vigueur de la nouvelle convention portant r6vision,
la pr6sente convention cesserait d!:tre ouverte A la ratification des
Membres.
2. La pr6sente convention demeurerait en tout cas en vigueur dans sa forme et
teneur pour les Membres qui l'auraient ratifi6e et qui ne ratifieraient pas la convention
portant r6vision.
Artide 17
Les versions frangaise et anglaise du texte de la pr6sente conyention font 6galement
foi.
9
The foregoing is the authentic text of the Convention duly adopted by the General
Conference of the International Labour Organisation during its Sixty-fourth Session
which was held at Geneva and declared closed the twenty-eighth day of June 1978.
IN FAITH WHEREOF we have appended our signatures this twenty-seventh
day or J une 1978.
10
Le texte qui pr6cede est le texte authentique de la convention dfiment adopt6e
par la Conf6rence g6n6rale de l'Organisation internationale du Travail dans sa
soixante-quatrieme session qui s'est tenue A Gen6ve et qui a 6t6 d6clar6e close le
28 juin 1978.
EN FOI DE QUOI ont appos6 leurs signatures, ce vingt-septieme jour de juin
1978:
The President of the Conference,
Le President de la Conftrence,
PEDRO OJBDA PAULLADA
The Director-General of the International Labour Office,
Le Directeur g6ru:ral du Bureau international du Travail,
FRANCIS BLANCHARD
11

Document No. 125
Collective Bargaining Convention, 1981 (No. 154)

International Labour Conference
Coufereiice internationale du Travail
CONVENTION 154
CONVENTION CONCERNING THE PROMOTION
OF COLLECTIVE BARGAINING,
ADOPTED BY THE CONFERENCE AT ITS SIXTY-SEVENTH SESSION,
GENEV A, 19 JUNE 1981
CONVENTION 154
CONVENTION CONCERNAN LA PROMOTION
DE LA NEGOCIATION COLLECTIVE,
ADOPTtE PAR LA CORENCE A SA SOI-SEPTIEME SESSION,
GENEVE, 19 JUIN 1981
AUTHENTIC TEXT
TEXTE AUTHENTIQUE
Convention 154
CONVENTION CONCERNING THE PROMOTION
OF COLLECTTVE BARGAINING
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its Sixty-seventh Session on 3 June 1981,
and
Reaffirming the provision of the Declaration of Philadelphia recognising "the
solemn obligation of the International Labour Organisation to further
among the nations of the world programmes which will achieve... the
effective recognition of the right of collective bargaining", and noting that
this principle is "fully applicable to all people everywhere", and
Having regard to the key importance of existing international standards
contained in the Freedom of Association and Protection of the Right to
Organise Convention, 1948, the Right to Organise and Collective Bargaining
Convention, 1949, the Collective Agreements Recommendation, 1951,
the Voluntary Conciliation and Arbitration Recommendation, 1951, the
Labour Relations (Public Service) Convention and Recommendation, 1978,
and the Labour Administration Convention and Recommendation, 1978,
and
Considering that it is desirable to make greater efforts to achieve the objectives
of these standards and, particularly, the general principles set out in
Article 4 of the Right to Organise and Collective Bargaining Convention,
1949, and in Paragraph 1 of the Collective Agreements Recommendation,
1951, and
Considering accordingly that these standards should be complemented by
appropriate measures based on them and aimed at promoting free and
voluntary collective bargaining, and
Having decided upon the adoption of certain proposals with regard to the
promotion of collective bargaining, which is the fourth item on the agenda of
the session, and
Having determined that these proposals shall take the form of an international
Convention,
adopts this nineteenth day of June of the year one thousand nine hundred and
eighty-one the following Convention, which may be cited as the Collective
Bargaining Convention, 1981 :
PART I. SCOPE AND DEFINITIONS
Artide I
1. This Convention applies to all branches of economic activity.
2. The extent to which the guarantees provided for in this Convention apply to
the armed forces and the police may be determined by national laws or regulations
or national practice.
3. As regards the public service, special modalities of application of this
Convention may be fixed by national laws or regulations or national practice.
Artide 2
For the purpose of this Convention the term "collective bargaining" extends to
all negotiations which take place between an employer, a group of employers or
one or more employers' organisations, on the one hand, and one or more workers'
organisations, on the other, for-
2
Convention 154
CONVENTION CONCERNANT LA PROMuiiuis
DE LA Nt,GOCIATION COLLECIX'E
La Conf6rence g6n6rale de rOrganisation internationale du Travail,
Convoqu6e A Geneve par le Conseil d'adrninistration du Bureau international
du Travail, et s'y 6tant r6unie le 3 juin 1981, en sa soixante-septieme
session ;
R6affirmant le passage de la D6claration de Philadelphie, qui reconnait
<<l'obligation solennelle pour l'Organisation internationale du Travail de
seconder la mise en oeuvre, parmi les diff6rentes nations du monde, de
programmes propres A r6aliser... la reconnaissance effective du droit de
n6gociation collective >>, et notant que ce principe est << pleinement applicable
A tous les peuples du monde >> ;
Tenant compte de rimportance capitale des normes internationales contenues
dans la convention sur la libert6 syndicale et la protection du droit syndical,
1948 ; la convention sur le droit d'organisation et de n6gociation collective,
1949 ; la recommandation sur les conventions collectives, 1951 ; la recommandation
sur la conciliation et rarbitrage volontaires, 1951 ; la convention
et le recommandation sur les relations de travail dans la fonction publique,
1978 ; ainsi que la convention et la recommandation sur l'adrninistration du
travail, 1978 ;
Consid6rant qu'il est souhaitable de faire de plus grands efforts pour r6aliser les
buts de ces normes et particuliarement les principes g6n6raux contenus dans
rarticle 4 de la convention sur le droit d'organisation et de n6gociation
collective, 1949, et le paragraphe 1 de la recommandation sur les conventions
collectives, 1951 ;
Consid6rant par cons6quent que ces normes devraient 8tre compl6t6es par des
mesures appropri6es fond6es sur lesdites normes et destin6es A promouvoir
la n6gociation collective libre et volontaire ;
Apres avoir d6cid6 d'adopter diverses propositions relatives A la promotion de
la n6gociation collective, question qui constitue le quatrieme point A l'ordre
du jour de la session ;
Apr's avoir d6cid6 que ces propositions prendraient la forme d'une convention
internationale,
adopte, ce dix-neuviame jour de juin mil neuf cent quatre-vingt-un, la convention
ci-apres, qui sera d6nomm6e Convention sur la n6gociation collective, 1981 :
PARTIE I. CHAMP oa,ypuch'r+on ET onp+manoss
Artide I
1. La pr6sente convention s'applique A toutes les branches d'activit6 6conomique.
2. La mesure dans laquelle les garanties pr6vues par la pr6sente convention
s'appliquent aux forces arm6es et A la police peut 8tre d6termin6e par la 16gislation
ou la pratique nationales.
3. Pour ce qui concerne la fonction publique, des modalit6s particulieres
d'application de la pr6sente convention peuvent 8tre fix6es par la 16gislation ou la
pratique nationales.
Artide 2
Aux fins de la pr6sente convention, le terme <<n6gociation collective>>
s'applique A toutes les n6gociations qui ont lieu entre un employeur, un groupe
d'employeurs ou une ou plusieurs organisations d'employeurs, d'une part, et une
ou plusieurs organisations de travailleurs, d'autre part, en vue de :
3
(a) determining working conditions and terms of employment ; and/or
(b) regulating relations between employers and workers ; and/or
(c) regulating relations between employers or their organisations and a workers'
organisation or workers' organisations.
Artide 3
1. Where national law or practice recognises the existence of workers'
representatives as defined in Article 3, subparagraph (b), of the Workers'
Representatives Convention, 1971, national law or practice may determine the
extent to which the term " collective bargaining " shall also extend, for the purpose
of this Convention, to negotiations with these representatives.
2. Where, in pursuance of paragraph 1 of this Article, the term "collective
bargaining" also includes negotiations with the workers' representatives referred
to in that paragraph, appropriate measures shall be taken, wherever necessary, to
ensure that the existence of these representatives is not used to undermine the
position of the workers' organisations concerned.
PART II. METHODS OF APPLICATION
Artide 4
The provisions of this Convention shall, in so far as they are not otherwise made
effective by means of collective agreements, arbitration awards or in such other
manner as may be consistent with national practice, be given effect by national laws
or regulations.
PART III. PROMOTION OF COLLECTIVE BARGAINING
Artide 5
collective bargaining should be made possible for all employers and all groups
of workers in the branches of activity covered by this Convention ;
1. Measures adapted to national conditions shall be taken to promote
collective,bargaining.
2. The aims of the measures referred to in paragraph 1 of this Article shall be
the following :
(a)
(b) collective bargaining should be progressively extended to all matters covered
by subparagraphs (a), (b) and (c) of Article 2 of this Convention ;
(c) the establishment of rules of procedure agreed between employers' and
workers' organisations should be encouraged ;
(d) collective bargaining should not be hampered by the absence of rules
governing the procedure to be used or by the inadequacy or inappropriateness
of such rules ;
(e) bodies and procedures for the settlement of labour disputes should be so
conceived as to contribute to the promotion of collective bargaining.
Arade 6
The provisions of this Convention do not preclude the operation of industrial
relations systems in which collective bargaining takes place within the framework
of conciliation and/or arbitration machinery or institutions, in which machinery or
institutions the parties to the collective bargaining process voluntarily participate.
Artide 7
Measures taken by public authorities to encourage and promote the development
of collective bargaining shall be the subject of prior consultation and,
4
a) fixer les conditions de travail et d'emploi, et/ou
b) r6gler les relations entre les employeurs et les travailleurs, et/ou
c) r6gler les relations entre les employeurs ou leurs organisations et une ou
plusieurs organisations de travailleurs.
Artide 3
1. Pour autant que la loi ou la pratique nationales reconnaissent l'existence de
repr6sentants des travailleurs tels qu'ils sont d6finis A l'article 3, alin6a b), de la
convention concernant les repr6sentants des travailleurs, 1971, la loi ou la pratique
nationales peuvent d6terminer dans quelle mesure le terme << n6gociation collective
>> devra 6galement englober, aux fins de la pr6sente convention, les n6gociations
avec ces repr6sentants.
2. Lorsque, en application du paragraphe 1 ci-dessus, le terme <<n6gociation
collective >> englobe 6galement les n6gociations avec les repr6sentants des travailleurs
vis6s dans ce paragraphe, des mesures appropri6es devront 8tre prises,
chaque fois qu'il y a lieu, pour garantir que la pr6sence de ces repr6sentants ne
puisse servir A affaiblir la situation des organisations de travailleurs int6ress6es.
PARTIE II. A4nmoopst',yphic,xnou
Artide 4
Pour autant que l'application de la pr6sente convention n'est pas assur6e par
voie de conventions collectives, par voie de sentences arbitrales ou de toute autre
maniere conforme El la pratique nationale, elle devra l'8tre par voie de 16gislation
nationale.
PARTIE III. PROMOTION DE LA uncoc+h'riou COLLECTIVE
Artide 5
1. Des mesures adapt6es aux circonstances nationales devront 8tre prises en
vue de promouvoir la n6gociation collective.
2. Les mesures vis6es au paragraphe 1 ci-dessus devront avoir les objectifs
suivants :
a) que la n6gociation collective soit rendue possible pour tous les employeurs et
pour toutes les cat6gories de travailleurs des branches d'activit6 vis6es par la
pr6sente convention ;
b) que la n6gociation collective soit progressivement 6tendue A toutes les matieres
couvertes par les alin6as a), b) et c) de rarticle 2 de la pr6sente convention ;
c) que le d6veloppement de regles de proc6dure convenues entre les organisations
d'employeurs et les organisations de travailleurs soit encourag6 ;
d) que la n6gociation collective ne soit pas entrav6e par suite de l'inexistence de
regles r6gissant son d6roulement ou de rinsuffisance ou du caractare inappropri6e
de ces regles ;
e) que les organes et les proc6dures de reglement des conflits du travail soient
congus de telle maniare qu'ils contribuent A promouvoir la n6gociation
collective.
Artide 6
Les dispositions de cette convention ne font pas obstacle au fonctionnement de
systemes de relations professionnelles dans lesquels la n6gociation collective a lieu
dans le cadre de m6canismes ou d'institutions de conciliation et/ou d'arbitrage
auxquels les parties A la n6gociation collective participent volontairement.
Artide 7
Les mesures prises par les autorit6s publiques pour encourager et promouvoir
le d6veloppement de la n6gociation collective feront l'objet de consultations
5
whenever possible, agreement between public authorities and employers' and
workers' organisations.
Artide 8
The measures taken with a view to promoting collective bargaining shall not be
so conceived or applied as to hamper the freedom of collective bargaining.
PART IV. FINAL PROVISIONS
Artide 9
This Convention does not revise any existing Convention or Recommendation.
ArtidelO
The formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Artidell
1. This Convention shall be binding only upon those Members of the
International Labour Organisation whose ratifications have been registered with
the Director-General.
2. It shall come into force twelve months after the date on which the
ratifications of two Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Artide 12
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-General of the International Labour
Office for registration. Such denunciation shall not take effect until one year after
the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this Article,
will be bound for another period of ten years and, thereafter, may denounce this
Convention at the expiration of each period of ten years under the terms provided
for in this Article.
Artide 13
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organisation of the registration of all
ratifications and denunciations communicated to him by the Members of the
Organisation.
2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the
attention of the Members of the Organisation to the date upon which the
Convention will come into force.
Artide 14
The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance with
Article 102 of the Charter of the United Nations full particulars of all ratifications
and acts of denunciation registered by him in accordance with the provisions of the
preceding Articles.
6
pr6alables et, chaque fois qu'il est possible, d'accords entre les pouvoirs publics et
les organisations d'employeurs et de travailleurs.
Artide 8
Les mesures prises en vue de promouvoir la n6gociation collective ne pourront
8tre congues ou appliqu6es de maniare qu'elles entravent la libert6 de n6gociation
collective.
PARTIE IV. DISPOSITIONS FINALES
Artide 9
La pr6sente convention ne porte r6vision d'aucune convention ou recomtnandation
existantes.
Artide 10
Les ratifications formelles de la pr6sente convention seront communiquees au
Directeur g6n6ral du Bureau international du Travail et par lui enregistr6es.
Artidell
1. La pr6sente convention ne iiera que les Membres de l'Organisation
internationale du Travail dont la ratification aura 6t6 enregistr6e par le Directeur
g6n6ral.
2. Elle entrera en vigueur douze mois apres que les ratifications de deux
Membres auront 6t6 enregistr6es par le Directeur g6n6ral.
3. Par la suite, cette convention entrera en vigueur pour chaque Membre
douze mois apres la date ou sa ratification aura 6t6 enregistr6e.
Artide 12
1. Tout Membre ayant ratifi6 la pr6sente convention peut la d6noncer A
l'expiration d'une p6riode de dix ann6es apres la date de la mise en vigueur initiale
de la convention, par un acte communiqu6 au Directeur g6n6ral du Bureau
international du Travail et par lui enregistr6. La d6nonciation ne prendra effet
qu'une ann6e apres avoir 6t6 enregistr6e.
2. Tout Membre ayant ratifi6 la pr6sente convention qui, dans le d61ai d'une
ann6e apres l'expiration de la p6riode de dix ann6es mentionn6e au paragraphe
pr6c6dent, ne fera pas usage de la facult6 de d6nonciation pr6vue par le pr6sent
article sera li6 pour une nouvelle p6riode de dix ann6es et, par la suite, pourra
d6noncer la pr6sente convention A rexpiration de chaque p6riode de dix ann6es
dans les conditions pr6vues au pr6sent article.
Artide 13
1. Le Directeur g6n6ral du Bureau international du Travail notifiera A tous les
Membres de l'Organisation internationale du Travail l'enregistrement de toutes les
ratifications et d6nonciations qui lui seront communiqu6es par les Membres de
l'Organisation.
2. En notifiant aux Membres de rOrganisation renregistrement de la
deuxieme ratification qui lui aura 6t6 communiqu6e, le Directeur g6n6ral appellera
rattention des Membres de rOrganisation sur la date A laquelle la pr6sente
convention entrera en vigueur.
Artidel4
Le Directeur g6n6ral du Bureau international du Travail communiquera au
Secr6taire g6n6ral des Nations Unies, aux fins d'enregistrement, conform6ment A
rarticle 102 de la Charte des Nations Unies, des renseignements complets au sujet
de toutes ratifications et de tous actes de d6nonciation qu'il aura enregistr6s
conform6ment aux articles pr6c6dents.
7
Artide 15
At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report on
the working of this Convention and shall examine the desirability of placing on the
agenda of the Conference the question of its revision in whole or in part.
Artide 16
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides-
(a) the ratification by a Member of the new revising Convention shall ipso jure
involve the immediate denunciation of this Convention, notwithstanding the
provisions of Article 12 above, if and when the new revising Convention shall
have come into force a
(b) as from the date when the new revising Convention comes into force this
Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and
content for those Members which have ratified it but have not ratified the revising
Convention.
Artide 17
The English and French versions of the text of this Convention are equally
authoritative.
8
Artide 15
Chaque fois qu'il le jugera n6cessaire, le Conseil d'administration d'u Bureau
international du Travail pr6sentera A la Conf6rence g6n6rale un rapport sur
l'application de la pr6sente convention et exarninera s'il y a lieu d'inscrire A l'ordre
du jour de la Conf6rence la question de sa r6vision totale ou partielle.
Artide 16
1. Au cas on la Conf6rence adopterait une nouvelle convention portant
r6vision totale ou partielle de la pr6sente convention, et A moins que la nouvelle
convention ne dispose autrement :
a) la ratification par un Membre de la nouvelle convention portant r6vision
entrainerait de plein droit, nonobstant l'article 12 ci-dessus, d6nonciation
imm6diate de la pr6sente convention, sous r6serve que la nouvelle convention
portant r6vision soit entr6e en vigueur ;
b) A partir de la date de l'entr6e en vigueur de la nouvelle convention portant
r6vision, la pr6sente convention cesserait d'8tre ouverte 'a la ratification des
Membres.
2. La pr6sente convention demeurerait en tout cas en vigueur dans sa forme et
teneur pour les Membres qui l'auraient ratifi6e et qui ne ratifieraient pas la
convention portant r6vision.
Artide 1 7
Les versions frangaise et anglaise du texte de la pr6sente convention font
6galement foi.
9
The foregoing is the authentic text of the Convention duly adopted by the
General Conference of the International Labour Organisation during its Sixtyseventh
Session wich was held at Geneva and declared closed the twenty-fourth
day of June 1981.
IN FAITH WHEREOF we have appended our signatures this twenty-fifth day
of June 1981.
10
Le texte qui pr6cede est le texte authentique de la convention dfiment adopt6e
par la Conf6rence g6n6rale de l'Organisation internationale du Travail dans sa
soixante-septiame session qui s'est tenue A Geneve et qui a 6t6 d6clar6e close le
vingt-quatre juin 1981.
EN FOI DE QUOI ont appos6 leurs signatures, ce vingt-cinquieme jour de
juin 1981 :
The President of the Conference,
Le Prisident de la Confirence,
AI,IO{JNE DIAGNE
The Director-General of the International Labour Office,
Le Directeur g6niral du Bureau intermtioml du Travail,
FRANCIS BLANCHAJID
11

Document No. 126
Voluntary Conciliation and Arbitration Recommendation,
1951 (No. 92)

International Labour Conference
Conference internationale du Travail
RE €,OhnllENDATlON 92
RECOMMENDATION CONCERNIN(, VOLUNTARY
CONCILIATION AND ARBITRATION,
ADOPTED BY THE CONFERENCE AT ITS
THIRTY-FOURTH SESSION, (,ENEVA, 29 ,JUNE 1951
RECOMMANDATION 92
RECOMMANDATION CONCERNANT LA CONCILIATION
ET L'ARBITRAC,E VOLONTAIRES,
hnop't,u PAR LA conynn:gnc:e A SA
TRENTE-QUATRIBME SESSION, CENBVE, 29 JUIN 1951
AUTHENTIC TEXT
TEXTE AUTHENTIQUE
The General Organ-
Having been convened at Geneva by the Governing Body of
the International Labour Office, and having met in its
Thirty-fourth Session on 6 June 1951, and
Having decided upon the adoption of certain proposals with
regard to voluntary conciliation and arbitration, which
is included in the fifth item on the agenda of the session,
and
Having determined that these proposals shall take the form
of a Recommendation designed to be implemented by the
parties concerned or by the public authorities as may be
appropriate under national conditions,
adopts this twenty-ninth day of June of the year one thousand
nine hundred and fifty-one the following Recommendation,
which may be cited as the Voluntary Conciliation and Arbitration
Recommendation, 1951.
I. Votn:sxh:a'y 00NOILIAIION
1. Voluntary conciliation machinery, appropriate to national
conditions, should be made available to aSsist in the prevention
and settlement of industrial disputes between employers
and workers.
2. Where voluntary conciliation machinery is constituted
on a joint basis, it should include equal representation of
employers and workers.
3. (1) The procedure should be free of charge and
expeditious ; such time limits for the proceedings as may be
prescribed by national laws or regulations should be fixed in
advance and kept to a minimum.
(2) Provision should be made to enable the procedure to be
set in motion, either on the initiative of any of the parties to the
dispute or eay offic4o by the voluntary conciliation authority.
4. If a dispute has been submitted to conciliation procedure
with the consent of all the parties concerned, the latter should
be encouraged to abstain from strikes and lockouts while
conciliation is in progress,
5. All agreements which the parties may reach during
conciliation procedure or as a result thereof should be drawn up
in writing and be regarded as equivalent to agreements concluded
in the usual manner,
2
Reeommandation 92
RE(,OMMANDATION €,ONCERNANT
T.' ARBI'R AGE VOLONTAIRES.
LA CONCILIATION ET
La Conference ge'n5rale de l'Organisation internationale du
Travail,
Convoqu5e A Geneve par le Conseil d'administrahon du
Bureau international du Travail, et s'y 6tant reunie le
6 juin 1951, en sa trente-quatrieme session,
Apr's avoir decide d'adopter diverses propositions relatives
A la conciliation et l'arbitrage volontaires, question qui
est comprise dans le cinquieme point A l'ordre du jour
de la session,
Apres avoir decid5 que ces propositions prendraient la forme
d'une recommandation dont la mise en oeuvre serait
assuree par les parties int5ress5es ou par les autorit5s
publiques, suivant la m5thode qui correspond aux conditions
nationales,
adopte, ce vingt-neuvieme jour de juin mil neuf cent cinquante
et un, la recommandation ci-apres, qui sera denommee Recommandation
sur la conciliation et l'arbitrage volontaires, 1951.
I. OONOILIA'l'ION VOLONTAIEE
1. Des organismes de conciliation volontaire adaptes aux
conditions nationales devraient @tre 5tablis en vue de contribuer
A la prevention et au reglement des conflits de travail entre
employeurs et travailleurs.
2. Tout organisme de conciliation volontaire 6tabli sur une
base mixte devrait comprendre une representation 6gale des
employeurs et des travailleurs.
3. (1) La procedure devrait @tre gratuite et exp5ditive : tout
delai qui serait prescrit par la 15gislation nationale devrait
etre fixe d'avance et r5duit A un minimum.
(2) Des dispositions devraient @tre prises pour que la proc5-
dure puisse etre engag5e, soit sur l'initiative de l'une des parties
au conflit, soit d'office par l'organisme de conciliation volontaire.
4. Si un conflit a ete soumis A une procedure de conciliation
avec le consentement de toutes les parties int5ress6es, celles-ci
devraient @tre encouragees A s'abstenir de graves et de lock-outs
pendant que la conciliation est en cours.
5. Tous accords auxquels aboutissent les parties, soit au cours
de la procedure, soit au terme de celle-ci, devraient Otre redig5s
par 6crit et assimil5s A des conventions normalement conclues.
3
II. Vo:bmirhxy Amxr:aht:to:s
6. If a dispute has been submitted to arbitration for final
settlement with the consent of all parties concerned, the latter
should be encouraged to abstain from strikes and lockouts while
the arbitration is in prOgI'eSiS and to accept the arbitration
award.
III. G:z:sn:
7. No provision of this Recommendation may be interpreted
as limiting, in any way whatsoever, the right to strike.
The foregoing is the authentic text of the Recommendation
duly adopted by the General Conference of the International
Labour Organisation during its Thirty-fourth Session which
was held at Geneva and declared closed the twenty-ninth day
of June 1951.
IN FAITH WHEREOF we have appended our signatures
this second day of August 1951.
4
II. Amzhen VOLON'J'AnJ
6. Si un conflit a ete soumis pour reglement final A l'arbitrage
avec le consentement de toutes les parties int6ress6es,
celles-ci devraient, tant que la proce.dure d'arbitrage est en
cours, etre encouragms A s'abstenir de graves et de lock-outs et
A accepter la decision arbitrale.
III. DISPOSITION aThmThxhtb
7. Aucune disposition de la presente recommandation ne
pourra etre interpretm comme limitant d'une maniere quelconque
le droit de grave.
Le texte qui precede est le texte authentique de la recommandation
dtunent adoptee par la Conference g6nerale de
l'Organisation internationale du Travail dans sa trente-quatrieme
session qui s'est tenue A Geneve et qui a 6t6 d6clar6e close
le 29 juin 1951.
EN FOI DE QUOI out appose leurs signatures, ce
deuxieme jour d'aoOt 1951.
The President of the Conference,
Le Prds4dent de la Conference,
RAPPARD.
TM D4rector-CreneraX of t'tue Intemat4onal Labow Office,
Le D4recteur gendral du Biireau 4nternatinnal du Trava4X,
DAVID A. MORSE.
5

Document No. 127
Private Employment Agencies Recommendation, 1997
(No. 188)

International Labour Conference
Conference internationale du Travail
RECOMMENDATION 188
RECOMMENDATION CONCERNING PRIVATE EMPLOYMENT AGENCIES
ADOPTED BY THE CONFERENCE AT ITS
EIGHTY-FIFTH SESSION, GENEVA, 19 JUNE 1997
RECOMMANDATION 188
RECOMMANDATION CONCERNANT LES AGENCES D'EMPLOI PRIVEES
ADOPTtE PAR LA CONFERENCE A SA
QUATRE-VINGT-CINQUIEME SESSION, GENEVE, 19 JUIN 1997
AUTHENTIC TEXT
TEXTE AUTHENTIQUE
Recommendation 188
RECOMMENDATION CONCERNING PRIVATE
EMPLOYMENT AGENCIES
The General Conference of the International Labour Organization,
Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its Eighty-fifth Session on 3 June 1997, and
Having decided upon the adoption of certain proposals with regard to the revision
of the Fee-Charging Employment Agencies Convention (Revised),
1949, which is the fourth item on the agenda of the session, and
Having determined that these proposals shall take the form of a Recommendation
supplementing the Private Employment Agencies Convention, 1997;
adopts, this nineteenth day of June of the year one thousand nine hundred and
ninety-seven, the following Recommendation, which may be cited as tlie Private
Employment Agencies Recommendation, 1997:
I. GENERAL PROVISIONS
1. The provisions of this Recommendation supplement those of the Private
Employment Agencies Convention, 1997, (referred to as "the Convention") and
should be applied in conjunction with tliem.
2. (1) Tripartite bodies or organizations of employers and workers should be
involved as far as possible in the formulation and implementation of provisions to
give effect to the Convention.
(2) Where appropriate, national laws and regulations applicable to private employment
agencies should be supplemented by technical standards, guidelines,
codes of ethics, self-regulatory mechanisms or other means consistent with national
praCtlCe0
3. Members should, as may be appropriate and practicable, exchange information
and experiences on the contributions of private employment agencies to the
functioning of the labour market and communicate this to the International Labour
Office.
II. PROTECTION OF WORKERS
4. Members should adopt all necessary and appropriate measures to prevent
and to eliminate unethical practices by private employment agencies. These measures
may include laws or regulations which provide for penalties, including prohibition
of private employment agencies engaging in unethical practices.
5. Workers employed by private employment agencies as defined in Article
1.1(b) of the Convention should, where appropriate, have a written contract of employment
specifying their terms and conditions of employment. As a minimum requirement,
these workers should be informed of their conditions of employment
before the effective beginning of their assignment.
6. Private employment agencies should not make workers available to a user
enterprise to replace workers of that enterprise who are on strike.
7. The competent authority should combat unfair advertising practices and misleading
advertisements, including advertisements for non-existent jobs.
8. Private employment agencies should:
(a) not knowingly recruit, place or employ workers for jobs involving unacceptable
hazards or risks or where they may be subjected to abuse or discriminatory treatment
of any kind;
2
Recommandation 188
RECOMMANDATION CONCERNANT
LES AGENCES D'EMPLOI PRIVEES
La Conf6rence g6n6rale de l'Organisation internationale du Travail,
Convoqu6e A Geneve par le Conseil d'administration du Bureau international
du Travail, et s'y 6tant r6unie le 3 juin 1997, en sa quatre-vingt-cinquieme
SeSSlOn:
Apr's avoir d6cid6 d'adopter diverses propositions relatives A la te:vision de la
convention sur les bureaux de placement payants (r6vis6e), 1949, question
qui constitue le quatrieme point A l'ordre du jour de la session;
Apr's avoir d6cid6 que ces propositions prendraient la forme d'une recommandation
compMtant la convention sur les agences d'emploi priv6es, 1997,
adopte, ce dix-neuvieme jour de juin mil neuf cent quatre-vingt-dix-sept, la recommandation
ci-apres, qui sera d6nomm6e Recommandation sur les agences d'emploi
priv6es, 1997:
I. DISPOSITIONS cnnngat.ps
1. Les dispositions de la pt6sente recommandation completent celles de la convention
sur les agences d'emploi priv6es, 1997 (ci-apres d6nomm6e <<la convention>>)
et devraient s'appliquer conjointement avec celles-ci.
2. (1) Des organes tripartites ou des organisations d'employeurs et de travailleurs
devraient etre associ6s, autant que possible, lors de l'61aboration et de l'application
des dispositions visant A donner effet a la convention.
(2) Le cas 6ch6ant, la 16gislation nationale applicable aux agences d'emploi privies
devrait etre compl6t6e par des normes techniques, des directives, des codes de
d6ontologie, des proc6dures d'autodiscipline ou d'autres moyens conformes A la
pratique nationale.
3. Les Etats Membres devraient, lorsque cela est appropri6 et praticable, 6changer
les informations et partager l'exp6rience acquise au sujet des contributions des
agences d'emploi priv6es au fonctionnement du march6 du travail et en faire part au
Bureau international du Travail.
II. PROTECTION DES TRAVAILLEURS
4. Les Membres devraient adopter les mesures n6cessaires et appropri6es pour
pr6venir et pour 61iminer les pratiques non conformes A la d6ontologie de la part des
agences d'emploi priv6es. Ces mesures peuvent comprendre l'adoption de lois ou
r6glementations pr6voyant des sanctions, y compris l'interdiction des agences d'emploi
priv6es se livrant a des pratiques non conformes A la d6ontologie.
5. Les travailleurs employ6s par les agences d'emploi priv6es vis6es au paragraphe
1 b) de l'article 1 de la convention devraient, le cas 6ch6ant, avoir un contrat de
travail 6crit pr6cisant leurs conditions d'emploi. Au minimum, ces travailleurs devraient
8tre inform6s de leurs conditions d'emploi avant le d6but effectif de leur
mlSSlOn.
6 . Les agences d'emploi priv6es ne devraient pas mettre F l la disposition d'une
entreprise utilisatrice des travailleurs aux fins de remplacer ceux de cette entreprise
qui sont en grave.
7. Lautorit6 comp6tente devrait t6primer les pratiques d61oyales en matiere
d'annonces ainsi que les annonces mensongeres, y compris celles qui offrent des
emplois inexistants.
8. Les agences d'emploi priv6es:
a) ne devraient pas sciemment recruter, placer ou employer des travailleurs A des
emplois qui comportent des dangers et des risques inacceptables ou lorsqu'ils
peuvent etre victimes d'abus ou de traitements discriminatoires de toute sorte;
3
(b) inform migrant workers, as far as possible in their own language or in a language
with which they are familiar, of the nature of the position offered and the applicable
terms and conditions of employment.
9. Private employment agencies should be prohibited, or by other means prevented,
from drawing up and publishing vacancy notices or offers of employment in
ways that directly or indirectly result in discrimination on grounds such as race,
colour, sex, age, religion, political opinion, national extraction, social origin, ethnic
origin, disability, marital or family status, sexual orientation or membership of a
workers' organization.
10. Private employment agencies should be encouraged to promote equality in
employment through affirmative action programmes.
11. Private employment agencies should be prohibited from recording, in files
or registers, personal data which are not required for judging the aptitude of applicants
for jobs for which they are being or could be considered.
12. (1) Privateemploymentagenciesshouldstorethepersonaldataofaworker
only for so long as it is justified by the specific purposes for which they have been
collected, or so long as the worker wishes to remain on a list of potential job candidates.
(2) Measures should be taken to ensure that workers have access to all their
personal data as processed by automated or electronic systems, or kept in a manual
file. These measures should include the right of workers to obtain and examine a
copy of any such data and the right to demand that incorrect or incomplete data be
deleted or corrected.
(3) Unless directly relevant to the requirements of a particular occupation and
with the express permission of the worker concerned, private employment agencies
should not require, maintain or use information on the medical status of a worker, or
use such information to determine the suitability of a worker for employment.
13. Private employment agencies and the competent authority should take
measures to promote the utilization of proper, fair and efficient selection methods.
14. Private employment agencies should have properly qualified and trained
staff.
15. Having due regard to the rights and duties laid down in national law concerning
termination of contracts of employment, private employment agencies providing
the services referred to in paragraph 1(b) of Article 1 of the Convention
should not:
(a) prevent the user enterprise from hiring an employee of the agency assigned to it;
(b) restrict the occupational mobility of an employee;
(c) impose penalties on an employee accepting employment in another enterprise.
III. RELATIONSHIP BETWEEN THE PUBLIC EMPLOYMENT SERVICE
AND PRIVATE EMPLOYMENT AGENCIES
16. Cooperation between the public employment service and private employment
agencies in relation to the implementation of a national policy on organizing
the labour market should be encouraged; for this purpose, bodies may be established
that include representatives of the public employment service and private
employment agencies, as well as of the most representative organizations of employers
and workers.
17. Measures to promote cooperation between the public employment service
and private employment agencies could include:
4
b) devraient informer les travailleurs migrants, autant que possible dans leur propre
langue ou dans une langue qui leur soit familiere, de la nature de l'emploi
offert et des conditions d'emploi qui sont applicables.
9. Les agences d'emploi priv6es devraient se voir interdire, ou empecher par
d'autres moyens, de formuler ou de publier des annonces de vacances de postes ou
des offres d'emploi qui auraient pour r6sultat, direct ou indirect, une discrimination
fond6e sur des motifs tels que la race, la couleur, le sexe, l'age, la religion, l'opinion
politique, l'ascendance nationale, l'origine sociale, l'origine ethnique, le handicap,
le statut matrimonial ou familial, la pr6f6rence sexuelle ou l'appartenance A une
organisation de travailleurs.
10. Les agences d'emploi priv6es devraient 8tre encourag6es A promouvotr
l'6galit6 dans l'emploi par le moyen de programmes d'action positive.
11. Interdiction devrait 8tre faite aux agences d'emploi priv6es de consigner,
dans des fichiers ou des registres, des donn6es personnelles qui ne soient pas n6cessaires
A l'6valuation de l'aptitude des candidats pour les emplois pour lesquels ils
sont ou pourraient etre consid6t6s.
12. (1) Les agences d'emploi priv6es ne devraient pas conserver les donn6es
personnelles d'un travailleur plus longtemps qu'il n'est justifi6 par le but pr6cis de
leur collecte, ou au-dela de la p6riode durant laquelle le travailleur souhaite figurer
sur une liste de candidats.
(2) Des mesures devraient e:tre prises pour garantir que les travailleurs puissent
consulter toutes les donn6es personnelles les concernant, qu'elles soient trait6es
automatiquement, par voie informatique ou manuellement. Ces mesures devraient
comprendre le droit, pour le travailleur, d'obtenir et d'examiner une copie de toutes
ces donn6es, ainsi que celui d'exiger que les donn6es incorrectes ou incompletes
soient supprim6es ou rectifi6es.
(3) A moins que ces donn6es ne soient directement li6es aux conditions requises
par l'exercice d'une profession donn6e et que le travailleur int6ress6 ne l'autorise
express6ment, les agences d'emploi priv6es ne devraient pas demander, conserver
ou utiliser des informations sur l'6tat de sant6 d'un travailleur, ou utiliser ces informations
pour d6cider de son aptitude A l'emploi.
13. Les agences d'emploi priv6es et l'autorit6 comp6tente devraient prendre
des mesures pour promouvoir le recours F l des m6thodes de s61ection appropri6es,
6quitables et efficaces.
14. Les agences d'emploi priv6es devraient disposer d'un personnel suffisamment
qualifi6 et form6.
15. En tenant dfiment compte des droits et obligations pt6vus par la 16gislation
nationale, en ce qui concerne la cessation des contrats de travail, les agences d'emploi
priv6es fournissant les services visas au paragraphe 1 b) de l'article 1 de la convention
ne devraient pas:
a) empecher l'entreprise utilisatrice de recruter le salari6 mis A sa disposition;
b) limiter la mobilit6 professionnelle du salari6;
c) infliger des sanctions A un salari6 qui accepte de travailler pour une autre entreprlSe0
III. RELATIONS ENTRE LE SERVICE PUBLIC DE L'EMPLOI
ET LES AGENCES D'EMPLOI PRIVtES
16. La cooperation entre le service public de l'emploi et les agences d'emploi
priv6es en vue de la mise en oeuvre d'une politique nationale sur l'organisation du
marcM du travail devrait etre encourag6e; A cet effet, des organes comprenant des
rept6sentants du service public de l'emploi et des agences d'emploi priv6es ainsi que
des organisations d'employeurs et de travailleurs les plus rept6sentatives pourraient
etre mis en place.
17. Les mesures tendant A 6tablir une cooperation entre le service public de
l'emploi et les agences d'emploi priv6es pourraient inclure:
5
(a) pooling of information and use of common terminology so as to improve transparency
of labour market functioning;
(b) exchanging vacancy notices;
(c) launching of joint projects, for example in training;
(d) concluding agreements between the public employment service and private employment
agencies regarding the execution of certain activities, such as projects
for the integration of the long-term unemployed;
(e) training of staff;
(f) consulting regularly with a view to improving professional practices.
6
a) la mise en commun d'informations et l'utilisation d'une terminologie commune
pour am61iorer la transparence du fonctionnement du march6 du travail;
b) des 6changes d'avis de vacances de poste;
c) le lancement de projets communs, par exemple dans le domaine de la formation;
d) la conclusion de conventions entre le service public de l'emploi et les agences
d'emploi priv6es, relatives A l'ex6cution de certaines activit6s telles que des projets
pour l'insertion des ch6meurs de longue dur6e;
e) la formation du personnel;
7) des consultations r6gulieres visant A am61iorer les pratiques professionnelles.
7
The foregoing is the authentic text of the Recommendation duly adopted by
the General Conference of the International Labour Organization during its
Eiglity-fifth Session which was held at Geneva and declared closed the
19 June 1997.
IN FAITH WHEREOF we have appended our signatures this twentieth day
of June 1997.
8
Le texte qui pr6cede est le texte authentique de la recommandation dfiment
adopt6e par la Conf6rence ge:n6rale de l'Organisation internationale du Travail
dans sa quatre-vingt-cinquieme session qui s'est tenue A Geneve et qui a 6t6
d6clar6e close le 19 juin 1997.
EN FOI DE QUOI ont appos6 leurs signatures, ce vingtieme jour
de juin 1997:
The President of the Coi4erence,
La Presidente de la Conference,
OLGA KELTOSOVA
The Director-General of the International Labour Office,
Le Directeur (pneral du Bureau international du Travail,
MICHEL HANSENNE
9

Document No. 128
Declaration on Fundamental Principles and Rights at
Work (1998), as amended in 2022

8
ILO Declaration on Fundamental
Principles and Rights at Work
Whereas the ILO was founded in the conviction that social justice is essen-
tial to universal and lasting peace;
Whereas economic growth is essential but not sufficient to ensure equity,
social progress and the eradication of poverty, confirming the need
for the ILO to promote strong social policies, justice and democratic
institutions;
Whereas the ILO should, now more than ever, draw upon all its standardsetting,
technical cooperation and research resources in all its areas
of competence, in particular employment, vocational training and
working conditions,
to ensure that, in the context of a global strategy
for economic and social development, economic and social policies
are mutually reinforcing components in order to create broad-based
sustainable development;
Whereas the ILO should give special attention to the problems of persons
with special social needs, particularly the unemployed and migrant
workers, and mobilize and encourage international, regional and
national efforts aimed at resolving their problems, and promote
effective policies aimed at job creation;
Whereas, in seeking to maintain the link between social progress and economic
growth, the guarantee of fundamental
principles and rights
at work is of particular significance in that it enables the persons
concerned
to claim freely and on the basis of equality of opportunity
their fair share of the wealth which they have helped to generate,
and to achieve fully their human potential;
Whereas the ILO is the constitutionally mandated international
organization
and the competent body to set and deal with international labour
standards, and enjoys universal support and acknowledgement in
promoting fundamental rights at work as the expression of its constitutional
principles;
9
Whereas it is urgent, in a situation of growing economic interdependence,
to reaffirm the immutable nature of the fundamental
principles
and rights embodied in the Constitution of the Organization and to
promote their universal application;
The International Labour Conference,
1. Recalls:
(a) that in freely joining the ILO, all Members have endorsed
the principles and rights set out in its Constitution and in the
Declaration of Philadelphia,
and have undertaken to work
towards attaining the overall
objectives of the Organization
to
the best of their resources and fully in line with their specific
circumstances;
(b) that these principles and rights have been expressed
and
developed in the form of specific rights and obligations in
Conventions recognized as fundamental both inside and
outside the Organization.
2. Declares that all Members, even if they have not ratified
the
Conventions in question, have an obligation, arising from the very
fact of membership in the Organization, to respect, to promote and
to realize, in good faith and in accordance with the Constitution, the
principles concerning the fundamental rights which are the sub-
ject of those Conventions, namely:
(a) freedom of association and the effective recognition of the right
to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour;
(d) the elimination of discrimination in respect of employment and
occupation; and
(e) a safe and healthy working environment.
3. Recognizes the obligation on the Organization to assist its Members,
in response to their established and expressed needs, in order to
10
attain these objectives by making full use of its constitutional, operational
and budgetary resources, including by the mobilization of
external resources and support, as well as by encouraging other
international organizations with which the ILO has established
relations, pursuant to article 12 of its Constitution, to support these
efforts:
(a) by offering technical cooperation and advisory services to promote
the ratification and implementation
of the fundamental
Conventions;
(b) by assisting those Members not yet in a position to ratify some
or all of these Conventions in their efforts to respect, to promote
and to realize the principles concerning fundamental rights
which are the subject of those Conventions; and
(c) by helping the Members in their efforts to create a climate for
economic and social development.
4. Decides that, to give full effect to this Declaration, a promotional
follow-up, which is meaningful and effective,
shall be implemented
in accordance with the measures specified in the annex hereto,
which shall be considered as an integral part of this Declaration.
5. Stresses that labour standards should not be used for protectionist
trade purposes, and that nothing in this Declaration and its follow-up
shall be invoked or otherwise used for such purposes; in addition,
the comparative advantage of any country should in no way be
called into question by this Declaration and its follow-up.
11
Annex (Revised)
Follow-up to the Declaration1
I. Overall purpose
1. The aim of the follow-up described below is to encourage
the efforts made by the Members of the Organization to promote the
fundamental principles and rights enshrined in the Constitution of the ILO
and the Declaration of Philadelphia and reaffirmed in this Declaration.
2. In line with this objective, which is of a strictly promotional nature,
this follow‑up will allow the identification of areas in which the assistance
of the Organization through its technical cooperation activities may
prove useful to its Members to help them implement these fundamental
principles and rights. It is not a substitute for the established supervisory
mechanisms, nor shall it impede their functioning; consequently, specific
situations within the purview of those mechanisms shall not be exam-
ined or re-examined within the framework of this follow-up.
3. The two aspects of this follow-up, described below, are based
on existing procedures: the annual follow-up concerning non-ratified fundamental
Conventions will entail merely some adaptation of the present
modalities of application
of article 19, paragraph 5(e), of the Constitution;
and the Global Report on the effect given to the promotion of the fundamental
principles and rights at work that will serve to inform the recurrent
discussion at the Conference on the needs of the Members, the ILO action
undertaken, and the results achieved in the promotion of the fundamental
principles and rights at work.
1 Ed. note: The original text of the Follow-up to the Declaration, as established by the
International Labour Conference in 1998, was superseded by the revised text of the annex
adopted by the International Labour Conference in 2010.
12
II. Annual follow-up concerning non-ratified
fundamental Conventions
A. Purpose and scope
1. The purpose is to provide an opportunity to review each year, by
means of simplified procedures, the efforts made in accordance with the
Declaration by Members which have not yet ratified all the fundamental
Conventions.
2. The follow-up will cover the five categories of fundamental
principles and rights specified in the Declaration.
B. Modalities
1. The follow-up will be based on reports requested from Members
under article 19, paragraph 5(e), of the Constitution. The report forms will
be drawn up so as to obtain information from governments which have
not ratified one or more of the fundamental Conventions, on any changes
which may have taken place in their law and practice, taking due account
of article 23 of the Constitution and established practice.
2. These reports, as compiled by the Office, will be reviewed by the
Governing Body.
3. Adjustments to the Governing Body’s existing procedures should
be examined to allow Members which are not represented on the Governing
Body to provide, in the most appropriate way, clarifications which might
prove necessary or useful during Governing Body discussions to supplement
the information contained in their reports.
13
III. Global Report on fundamental principles
and rights at work
A. Purpose and scope
1. The purpose of the Global Report is to provide a dynamic global
picture relating to the five categories of fundamental principles and rights
at work noted during the preceding period, and to serve as a basis for
assessing the effectiveness of the assistance provided by the Organization,
and for determining priorities for the following period, including in the form
of action plans for technical cooperation designed in particular to mobilize
the internal and external resources necessary to carry them out.
B. Modalities
1. The report will be drawn up under the responsibility of the
Director-General on the basis of official information, or information gathered
and assessed in accordance with established procedures. In the case of
States which have not ratified the fundamental Conventions, it will be based
in particular on the findings of the aforementioned annual follow-up. In the
case of Members which have ratified the Conventions concerned, the report
will be based in particular on reports as dealt with pursuant to article 22 of
the Constitution. It will also refer to the experience gained from technical
cooperation and other relevant activities of the ILO.
2. This report will be submitted to the Conference for a recurrent
discussion on the strategic objective of fundamental principles and rights at
work based on the modalities agreed by the Governing Body. It will then be
for the Conference to draw conclusions from this discussion on all available
ILO means of action, including the priorities and plans of action for technical
cooperation to be implemented for the following period, and to guide the
Governing Body and the Office in their responsibilities.
14
IV. It is understood that:
1. The Conference shall, in due course, review the operation of this
follow-up in the light of the experience acquired to assess whether it has
adequately fulfilled the overall purpose articulated in Part I.

Document No. 129
Declaration on Social Justice for a Fair Globalization
(2008), as amended in 2022

 ILO Declaration on Social Justice
for a Fair Globalization
The International Labour Conference, meeting in Geneva on the
occasion of its Ninety-seventh Session,
Considering that the present context of globalization, characterized by
the diffusion of new technologies, the flow of ideas, the exchange of goods
and services, the increase in capital and financial flows, the
internationalization of business and business processes and dialogue as well
as the movement of persons, especially working women and men, is
reshaping the world of work in profound ways:
– on the one hand, the process of economic cooperation and integration
has helped a number of countries to benefit from high rates of
economic growth and employment creation, to absorb many of the rural
poor into the modern urban economy, to advance their developmental
goals, and to foster innovation in product development and the
circulation of ideas;
– on the other hand, global economic integration has caused many
countries and sectors to face major challenges of income inequality,
continuing high levels of unemployment and poverty, vulnerability of
economies to external shocks, and the growth of both unprotected work
and the informal economy, which impact on the employment
relationship and the protections it can offer;
Recognizing that achieving an improved and fair outcome for all has
become even more necessary in these circumstances to meet the universal
aspiration for social justice, to reach full employment, to ensure the
sustainability of open societies and the global economy, to achieve social
cohesion and to combat poverty and rising inequalities;
Convinced that the International Labour Organization has a key role to
play in helping to promote and achieve progress and social justice in a
constantly changing environment:
– based on the mandate contained in the ILO Constitution, including the
Declaration of Philadelphia (1944), which continues to be fully relevant
in the twenty-first century and should inspire the policy of its Members
and which, among other aims, purposes and principles:
• affirms that labour is not a commodity and that poverty anywhere
constitutes a danger to prosperity everywhere;
• recognizes that the ILO has the solemn obligation to further among
the nations of the world programmes which will achieve the
objectives of full employment and the raising of standards of living,
a minimum living wage and the extension of social security
measures to provide a basic income to all in need, along with all the
other objectives set out in the Declaration of Philadelphia;
• provides the ILO with the responsibility to examine and consider all
international economic and financial policies in the light of the
fundamental objective of social justice; and
– drawing on and reaffirming the ILO Declaration on Fundamental
Principles and Rights at Work (1998), as amended in 2022, in which
Members recognized, in the discharge of the Organization’s mandate,
the particular significance of the fundamental rights, namely: freedom
of association and the effective recognition of the right to collective
bargaining, the elimination of all forms of forced or compulsory labour,
the effective abolition of child labour, and the elimination of
discrimination in respect of employment and occupation, and a safe and
healthy working environment;
Encouraged by the international community’s recognition of Decent
Work as an effective response to the challenges of globalization, having
regard to:
– the outcomes of the 1995 World Summit for Social Development in
Copenhagen;
– the wide support, repeatedly expressed at global and regional levels, for
the decent work concept developed by the ILO; and
– the endorsement by Heads of State and Government at the 2005 World
Summit of the United Nations of fair globalization and the goals of full
and productive employment and decent work for all, as central
objectives of their relevant national and international policies;
Convinced that in a world of growing interdependence and complexity
and the internationalization of production:
– the fundamental values of freedom, human dignity, social justice,
security and non-discrimination are essential for sustainable economic
and social development and efficiency;
– social dialogue and the practice of tripartism between governments and
the representative organizations of workers and employers within and
across borders are now more relevant to achieving solutions and to
building up social cohesion and the rule of law through, among other
means, international labour standards;
– the importance of the employment relationship should be recognized
as a means of providing legal protection to workers;
– productive, profitable and sustainable enterprises, together with a
strong social economy and a viable public sector, are critical to
sustainable economic development and employment opportunities;
and
– the Tripartite Declaration of Principles concerning Multinational
Enterprises and Social Policy (1977), as revised, which addresses the
growing role of such actors in the realization of the Organization’s
objectives, has particular relevance; and
Recognizing that the present challenges call for the Organization to
intensify its efforts and to mobilize all its means of action to promote its
constitutional objectives, and that, to make these efforts effective and
strengthen the ILO’s capacity to assist its Members’ efforts to reach the ILO’s
objectives in the context of globalization, the Organization must:
– ensure coherence and collaboration in its approach to advancing its
development of a global and integrated approach, in line with the
Decent Work Agenda and the four strategic objectives of the ILO,
drawing upon the synergies among them;
– adapt its institutional practices and governance to improve
effectiveness and efficiency while fully respecting the existing
constitutional framework and procedures;
assist constituents to meet the needs they have expressed at country
level based on full tripartite discussion, through the provision of high-quality
information, advice and technical programmes that help them meet those
needs in the context of the ILO’s constitutional objectives; and
– promote the ILO’s standard-setting policy as a cornerstone of ILO
activities by enhancing its relevance to the world of work, and ensure
the role of standards as a useful means of achieving the constitutional
objectives of the Organization;
Therefore adopts this tenth day of June of the year two thousand and
eight the present Declaration.
I. Scope and principles
The Conference recognizes and declares that:
A. In the context of accelerating change, the commitments and efforts of
Members and the Organization to implement the ILO’s constitutional
mandate, including through international labour standards, and to
place full and productive employment and decent work at the centre of
economic and social policies, should be based on the four equally
important strategic objectives of the ILO, through which the Decent
Work Agenda is expressed and which can be summarized as follows:
(i) promoting employment by creating a sustainable institutional and
economic environment in which:
— individuals can develop and update the necessary capacities and
skills they need to enable them to be productively occupied for
their personal fulfilment and the common well-being;
— all enterprises, public or private, are sustainable to enable growth
and the generation of greater employment and income
opportunities and prospects for all; and
— societies can achieve their goals of economic development, good
living standards and social progress;
(ii) developing and enhancing measures of social protection – social
security and labour protection – which are sustainable and
adapted to national circumstances, including:
— the extension of social security to all, including measures to
provide basic income to all in need of such protection, and
adapting its scope and coverage to meet the new needs and
uncertainties generated by the rapidity of technological,
societal, demographic and economic changes;
— healthy and safe working conditions; and
— policies in regard to wages and earnings, hours and other
conditions of work, designed to ensure a just share of the
fruits of progress to all and a minimum living wage to all
employed and in need of such protection *;
(iii) promoting social dialogue and tripartism as the most appropriate
methods for:
— adapting the implementation of the strategic objectives to the
needs and circumstances of each country;
— translating economic development into social progress, and
social progress into economic development; translating
economic development into social progress, and social
progress into economic development;
— facilitating consensus building on relevant national and
international policies that impact on employment and decent
work strategies and programmes; and
— making labour law and institutions effective, including in
respect of the recognition of the employment relationship, the
promotion of good industrial relations and the building of
effective labour inspection systems; and
(iv) respecting, promoting and realizing the fundamental principles
and rights at work, which are of particular significance, as both
rights and enabling conditions that are necessary for the full
realization of all of the strategic objectives, noting:
— that freedom of association and the effective recognition of
the right to collective bargaining are particularly important to
enable the attainment of the four strategic objectives; and
— that the violation of fundamental principles and rights at work
cannot be invoked or otherwise used as a legitimate
comparative advantage and that labour standards should not
be used for protectionist trade purposes.
B. The four strategic objectives are inseparable, interrelated and mutually
supportive. The failure to promote any one of them would harm
* Ed. note: In drafting this text, priority was given in each language to concordance with the
corresponding official version of article III(d) of the Declaration of Philadelphia adopted by
the International Labour Conference in 1944.
progress towards the others. To optimize their impact, efforts to
promote them should be part of an ILO global and integrated strategy
for decent work. Gender equality and non-discrimination must be
considered to be cross-cutting issues in the abovementioned strategic
objectives.
C. How Members achieve the strategic objectives is a question that must
be determined by each Member subject to its existing international
obligations and the fundamental principles and rights at work with due
regard, among others, to:
(i) the national conditions and circumstances, and needs as well as
priorities expressed by representative organizations of employers
and workers;
(ii) the interdependence, solidarity and cooperation among all
Members of the ILO that are more pertinent than ever in the
context of a global economy; and
(iii) the principles and provisions of international labour standards.
II. Method of implementation
The Conference further recognizes that, in a globalized economy:
A. The implementation of Part I of this Declaration requires that the ILO
effectively assist its Members in their efforts. To that end, the
Organization should review and adapt its institutional practices to
enhance governance and capacity building in order to make the best
use of its human and financial resources and of the unique advantage
of its tripartite structure and standards system, with a view to:
(i) better understanding its Members’ needs, with respect to each of
the strategic objectives, as well as past ILO action to meet them in
the framework of a recurring item on the agenda of the
Conference, so as to:
— determine how the ILO can more efficiently address these
needs through coordinated use of all its means of action;
— determine the necessary resources to address these needs
and, if appropriate, to attract additional resources; and
— guide the Governing Body and the Office in their
responsibilities;
(ii) strengthening and streamlining its technical cooperation and
expert advice in order to:
— support and assist efforts by individual Members to make
progress on a tripartite basis towards all the strategic
objectives, through country programmes for decent work,
where appropriate, and within the framework of the United
Nations system; and
— help, wherever necessary, the institutional capacity of
member States, as well as representative organizations of
employers and workers, to facilitate meaningful and
coherent social policy and sustainable development;
(iii) promoting shared knowledge and understanding of the synergies
between the strategic objectives through empirical analysis and
tripartite discussion of concrete experiences, with the voluntary
cooperation of countries concerned, and with a view to informing
Members’ decision-making in relation to the opportunities and
challenges of globalization;
(iv) upon request, providing assistance to Members who wish to
promote strategic objectives jointly within the framework of
bilateral or multilateral agreements, subject to their compatibility
with ILO obligations; and
(v) developing new partnerships with non-state entities and economic
actors, such as multinational enterprises and trade unions
operating at the global sectoral level in order to enhance the
effectiveness of ILO operational programmes and activities, enlist
their support in any appropriate way, and otherwise promote the
ILO strategic objectives. This will be done in consultation with
representative national and international organizations of workers
and employers.
B. At the same time, Members have a key responsibility to contribute,
through their social and economic policy, to the realization of a global
and integrated strategy for the implementation of the strategic
objectives, which encompass the Decent Work Agenda outlined in Part I
of this Declaration. Implementation of the Decent Work Agenda at
national level will depend on national needs and priorities and it will be
for member States, in consultation with the representative
organizations of workers and employers, to determine how to discharge
that responsibility. To that end, they may consider, among other steps:
(i) the adoption of a national or regional strategy for decent work, or
both, targeting a set of priorities for the integrated pursuit of the
strategic objectives;
(ii) the establishment of appropriate indicators or statistics, if
necessary with the assistance of the ILO, to monitor and evaluate
the progress made;
(iii) the review of their situation as regards the ratification or
implementation of ILO instruments with a view to achieving a
progressively increasing coverage of each of the strategic
objectives, with special emphasis on the instruments classified as
core labour standards as well as those regarded as most
significant from the viewpoint of governance covering tripartism,
employment policy and labour inspection;
(iv) the taking of appropriate steps for an adequate coordination
between positions taken on behalf of the member State concerned
in relevant international forums and any steps they may take
under the present Declaration;
(v) the promotion of sustainable enterprises;
(vi) where appropriate, sharing national and regional good practice
gained from the successful implementation of national or regional
initiatives with a decent work element; and
(vii) the provision on a bilateral, regional or multilateral basis, in so far
as their resources permit, of appropriate support to other
Members’ efforts to give effect to the principles and objectives
referred to in this Declaration.
C. Other international and regional organizations with mandates in closely
related fields can have an important contribution to make to the
implementation of the integrated approach. The ILO should invite them
to promote decent work, bearing in mind that each agency will have full
control of its mandate. As trade and financial market policy both affect
employment, it is the ILO’s role to evaluate those employment effects to
achieve its aim of placing employment at the heart of economic policies.
III. Final provisions
A. The Director-General of the International Labour Office will ensure that
the present Declaration is communicated to all Members and, through
them, to representative organizations of employers and workers, to
international organizations with competence in related fields at the
international and regional levels, and to such other entities as the
Governing Body may identify. Governments, as well as employers’ and
workers’ organizations at the national level, shall make the Declaration
known in all relevant forums where they may participate or be
represented, or otherwise disseminate it to any other entities that may be
concerned.
B. The Governing Body and the Director-General of the International
Labour Office will have the responsibility for establishing appropriate
modalities for the expeditious implementation of Part II of this
Declaration.
C. At such time(s) as the Governing Body may find appropriate, and in
accordance with modalities to be established, the impact of the present
Declaration, and in particular the steps taken to promote its
implementation, will be the object of a review by the International
Labour Conference with a view to assessing what action might be
appropriate.

Annex
Follow-up to the Declaration
I. Overall purpose and scope
A. The aim of this follow-up is to address the means by which the
Organization will assist the efforts of its Members to give effect to their
commitment to pursue the four strategic objectives important for
implementing the constitutional mandate of the Organization.
B. This follow-up seeks to make the fullest possible use of all the means of
action provided under the Constitution of the ILO to fulfil its mandate.
Some of the measures to assist the Members may entail some
adaptation of existing modalities of application of article 19, paragraphs
5(e) and 6(d), of the ILO Constitution, without increasing the reporting
obligations of member States.
II. Action by the Organization to assist its Members
Administration, resources and external relations
A. The Director-General will take all necessary steps, including making
proposals to the Governing Body as appropriate, to ensure the means
by which the Organization will assist the Members in their efforts under
this Declaration. Such steps will include reviewing and adapting the
ILO’s institutional practices and governance as set out in the Declaration
and should take into account the need to ensure:
(i) coherence, coordination and collaboration within the
International Labour Office for its efficient conduct;
(ii) building and maintaining policy and operational capacity;
(iii) efficient and effective resource use, management processes and
institutional structures;
(iv) adequate competencies and knowledge base, and effective
governance structures;
(v) the promotion of effective partnerships within the United Nations
and the multilateral system to strengthen ILO operational
programmes and activities or otherwise promote ILO objectives;
and
(vi) the identification, updating and promotion of the list of standards
that are the most significant from the viewpoint of governance. †
Understanding and responding to Members’ realities and needs
B. The Organization will introduce a scheme of recurrent discussions by
the International Labour Conference based on modalities agreed by the
Governing Body, without duplicating the ILO’s supervisory mechanisms,
so as to:
(i) understand better the diverse realities and needs of its Members
with respect to each of the strategic objectives, respond more
effectively to them, using all the means of action at its disposal,
including standards related action, technical cooperation, and the
technical and research capacity of the Office, and adjust its
priorities and programmes of action accordingly; and
(ii) assess the results of the ILO’s activities with a view to informing
programme, budget and other governance decisions.
Technical assistance and advisory services
C. The Organization will provide, upon request of governments and
representative organizations of workers and employers, all appropriate
assistance within its mandate to support Members’ efforts to make
progress towards the strategic objectives through an integrated and
coherent national or regional strategy, including by:
(i) strengthening and streamlining its technical cooperation activities
within the framework of country programmes for decent work and
that of the United Nations system;
ii) providing general expertise and assistance which each Member
may request for the purpose of adopting a national strategy and
exploring innovative partnerships for implementation;
(iii) developing appropriate tools for effectively evaluating the
progress made and assessing the impact that other factors and
policies may have on the Members’ efforts; and
† The Labour Inspection Convention, 1947 (No. 81), the Employment Policy Convention, 1964
(No. 122), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), and the Tripartite
Consultation (International Labour Standards) Convention, 1976 (No. 144), and those
standards identified on subsequently updated lists.
(iv) addressing the special needs and capacities of developing
countries and of the representative organizations of workers and
employers, including by seeking resource mobilization.
Research, information collection and sharing
D. The Organization will take appropriate steps to strengthen its research
capacity, empirical knowledge and understanding of how the strategic
objectives interact with each other and contribute to social progress,
sustainable enterprises, sustainable development and the eradication
of poverty in the global economy. These steps may include the tripartite
sharing of experiences and good practices at the international, regional
and national levels in the framework of:
(i) studies conducted on an ad hoc basis with the voluntary
cooperation of the governments and representative organizations
of employers and workers in the countries concerned; or
(ii) any common schemes such as peer reviews which interested
Members may wish to establish or join on a voluntary basis.
III. Evaluation by the Conference
A. The impact of the Declaration, in particular the extent to which it has
contributed to promoting, among Members, the aims and purposes of
the Organization through the integrated pursuit of the strategic
objectives, will be the subject of evaluation by the Conference, which
may be repeated from time to time, within the framework of an item
placed on its agenda.
B. The Office will prepare a report to the Conference for evaluation of the
impact of the Declaration, which will contain information on:
(i) actions or steps taken as a result of the present Declaration, which
may be provided by tripartite constituents through the services of
the ILO, notably in the regions, and by any other reliable source;
(ii) steps taken by the Governing Body and the Office to follow up on
relevant governance, capacity and knowledge-base issues relating
to the pursuit of the strategic objectives, including programmes
and activities of the ILO and their impact; and
iii) the possible impact of the Declaration in relation to other
interested international organizations.
C. Interested multilateral organizations will be given the opportunity to
participate in the evaluation of the impact and in the discussion. Other
interested entities may attend and participate in the discussion at the
invitation of the Governing Body.
D. In the light of its evaluation, the Conference will draw conclusions
regarding the desirability of further evaluations or the opportunity of
engaging in any appropriate course of action.
Document No. 130
ILC, 30th Session, 1947, Resolution concerning Freedom
of Association and Protection of the Right to Organise
and to Bargain Collectively

Resolutions Adopted by the
International Labour Conference
at its 30th Session
I
Resolution concerning Freedom of Association and Protection
of the Bight to Organise and to Bargain Collectively .
(Adopted on 11 July 19^7)
Whereas the Preamble to the Constitution of the International
Labour Organisation expressly declares " recognition of
the principle of freedom of association " to be a means of
improving conditions of labour and of establishing peace ; and
Whereas the Declaration of Philadelphia reaffirms that
" freedom of expression and of association are essential to sustained
progress" and recognises the solemn obligation of the
International Labour Organisation to further among the
nations of the world programmes which will achieve, among
other things : " 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 " ; and
Whereas it also affirms that " the principles set forth in this
Declaration are fully applicable to all peoples everywhere and
that, while the manner of their application must be determined
with due regard to the stage of social and economic development
reached by each people, their progressive application to peoples
who are still dependent, as well as to those who have already
achieved self-government, is a matter of concern to the whole
civilised world " ; and
Whereas standards of living, normal functioning of national
economy and social and economic stability depend to a considerable
degree on a properly organised system of industrial relations
founded on the recognition of freedom of association ; and
Whereas, moreover, in many countries, employers' and
workers' organisations have been associated with the preparation
and application of economic and social measures ; and
— 2 —
Whereas the International Labour Conference, the regional
conferences of the American States Members of the International
Labour Organisation and the various industrial committees
have, in numerous Resolutions, called the attention of
the States Members of the International Labour Organisation
to the need for establishing an appropriate system of industrial
relations founded on the guarantee of the principle of freedom
of association ;
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body
of the International Labour Office, and having met in its
Thirtieth Session on 19 June 1947,
adopts this eleventh day of July of the year one thousand nine
hundred and forty-seven the following Resolution :
I. FREEDOM OF ASSOCIATION
1. Employers and workers, without distinction whatsoever,
should have the inviolable right to establish or join organisations
of their own choosing without previous authorisation.
2. Employers' and workers' organisations should have the
right to draw up their constitutions and rules, to organise their
administration and activities and to formulate their programmes
; there should be no interference on the part of the
public authorities which would restrict this right or impede the
organisations in the lawful exercise of this right.
3. Employers' and workers' organisations should not be
liable to be dissolved or have their activities suspended by
administrative authority.
4. Employers' and workers' organisations should have the
right to establish federations and confederations as well as the
right of affiliation with international organisations of employers
and workers.
5. The guarantees defined in paragraphs 1, 2 and 3 herein
with regard to the establishment, functioning, dissolution and
suspension of employers' and workers' organisations should
apply to federations and confederations of such organisations.
6. The acquisition of legal personality by employers' and
workers' organisations should not be made subject to conditions
of such a character as to restrict freedom of association as
hereinbefore defined.
7. The acquisition and exercise of the rights as outlined in
this part should not exempt the employers' and workers' organisations
from their full share of responsibilities and obligations.
-3-
II. PROTECTION OF THE RIGHT TO ORGANISE
AND TO BARGAIN COLLECTIVELY
8. There should be agreement between organised employers
and workers mutually to respect the exercise of the right
of association.
9. (1) Where full and effective protection is not already
afforded, appropriate measures should be taken to enable
guarantees to be provided for :
(a) the exercise of the right of freedom of association
without fear of intimidation, coercion or restraint from any
source with the object of:
(i) making the employment of the worker conditional on his
not joining a trade union or on his withdrawing from a
trade union of which he is a member ;
(ii) prejudicing a worker because he is a member or agent
or official of a trade union ;
(iii) dismissing a worker because he is a member or agent or
official of a trade union.
(b) the exercise of the right of 􀃌sociation by workers'
organisations in such a way as to prevent any acts on the part
of the employer or employers' organisations or their agents with
the object of:
(i) furthering the establishment of trade unions under the
domination of employers ;
(ii) interfering with the formation or administration of a trade
union or contributing financial or other support to it ;
(iii) refusing to give practical effect to the principles of trade
union recognition and collective bargaining.
(2) It should be understood, however, that a provision in
a freely concluded collective agreement making membership of
a certain trade union a condition precedent to employment or
a condition of continued employment does not fall within the
tenns of this Resolution.
10. Appropriate agencies should be established, if necessary,
for the purpose of ensuring the protection of the right of association
as defined in paragraph 9 herein.

Document No. 131
ILC, 30th Session, 1947, Resolution concerning
International Machinery for Safeguarding Freedom of
Association

Resolutions Adopted by the
International Labour Conference
at its 30th Session
-5-
m
Resolution concerning International Machinery
for Safeguarding Freedom of Association
( Adopted on 11 July 1947)
The Conference,
(1) Recalling the references to freedom of association in
the Declaration of Philadelphia and the Constitution of the
International Labour Organisation, reaffirms belief in and
attachment to the principle of freedom of association in all
countries as an essential element in those wider personal freedoms
which are the foundation of peace, prosperity and hap.
piness;
(2) Is concerned at the widespread reports that conditions
may exist prejudicial to freedom of association in many
countries;
(3) Feels that steps should be taken to encourage, expand
and universally establish freedom of association both by reminding
Governments of all States, whether Members of the I.L.O.
or not, of their obligations in this respect under the Constitution
of the I.L.O. and/or the Charter of the United Nations, and by
other practicable means ;
( 4) In this connection has noted with interest the proposals
made by the W.F.T.U. and the A.F. of L. for the establishment
of international machinery for safeguarding freedom of association
and feels that these proposals deserve· close and carefu􀁶
examination ;
(5) Recognises that the proposals raise issues of great
complexity and difficulty including, for example,
(i) questions involving the sovereignty of States ;
(ii) the relationship of any such machinery to the proposals
under examination by the United Nations for giving effect
to a Bill of Rights and establishing machinery for supervising
the exercise of other fundamental freedoms, including
freedom of speech, of information and of lawful
assembly;
-6-
(iil) the composition, scope, powers (including powers of
enquiry and investigation) and procedure of the proposed
machinery;
(iv) the authority under which the proposed machinery would
act;
(6) Considers it essential to give to such questions, which
may • involve changes in the inter-relationship of States, the
detailed examination and careful preparation which they merit•
and without which any international action would be bound
to fail and likely to leave the situation worse than it is at
present;
(7) Recognises however that the establishment in consultation
with the United Nations of permanent international
machinery may be an indispensable condition for the full observance
of freedom of association throughout the world and that
any such machinery should, if established, operate under the
guarantees provided by the tripartite Constitution of the International
Labour Organisation;
_ (8) Accordingly requests the Governing Body to examine
this question in all its aspects and to report back to the Conference
at the 31st Session in 1948.

Document No. 132
ILC, 38th Session, 1955, Resolution concerning the
Protection of Trade Union Rights

Resolutions
Adopted by the International Labour Conference
at its 38th Session
(Geneva, 1955)
3
1 Adopted unanimously on 9 June 1955.
8
V
Resolution concerning the Protection of Trade Union Rights 1
The International Labour Conference-
Considering the fundamental importance of real respect for the trade
union rights of the workers ; the serious violations of these rights in certain
countries ; and the need in some countries for appropriate laws and regulations
to safeguard the normal exercise of these rights,
Considering that the International Labour Conference adopted, in 1948,
the Freedom of Association and Protection of the Right to Organise Convention
(No. 87) and, in 1949, the Right to Organise and Collective
Bargaining Convention (No. 98), which define the fundamental rights both
of employers and workers and of their respective organisations,
Considering that the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87), has so far been ratified by
18 countries and the Right to Organise and Collective Bargaining Convention,
1949 (No. 98), by 19 countries,
Considering that, despite the outstanding achievements of the Governing
Body Committee on Freedom of Association, the efforts of the International
Labour Organisation to ensure adequate protection for the rights of workers
to organise freely cannot be fully effective until those countries, which have
hitherto refused to do so, agree to co-operate with the Governing Body
and to permit the Fact-Finding and Conciliation Commission on Freedom
of Association to carry out investigations on the spot ;
1. Addresses an urgent appeal to governments which have not yet
ratified the above-mentioned Conventions and requests them to consider
the possibility of doing so at as early a date as possible;
2. Reaffirms the importance which it attaches to the· fundamental
rights both of employers and workers in their respective organisations, and
in particular the rights of freedom and independence ;
3. Notes that the Governing Body has approved unanimous reports
by the Committee on Freedom of Association on 108 cases and unanimous
interim reports on five further cases, and invites the Governing Body to
pursue expeditiously the examination of the cases still pending;
4. Invites the Governing Body to keep under constant review the
question of improving the procedure of its Committee on Freedom of
Association and to give earnest consideration to any recommendations
which may from time to time be made by the Committee to that end,
including any recommendations relating to the question of hearings of all
the parties concerned ;
1 Adopted on 22 June 1955 by 173 votes to 0, with 30 abstentions.
9
5. Requests the Governing Body-
( a) to study, on the occasion of the examination of the report of the
independent committee on freedom of employers' and workers'
organisations from government domination or control, whether out
of this report certain points arise which would justify a revision in
whole or in part of the existing Conventions dealing with freedom
of association and industrial relations ;
(b) to take into account other points not arising from the report of the
independent committee which may affect the existing Conventions
or give rise to the need for a new Convention ;
( c) to report on the matter as a whole to an early session of the
Conference.

Document No. 133
ILC, 40th Session, 1957, Resolution concerning the
Abolition of Anti-Trade Union Legislation in the States
Members of the International Labour Organisation

Resolutions Adopted by the International
Labour Conference at Its 40th Session
( Geneva, 1957)
I
Resolution concerning the Abolition of Anti-Trade Union Legislation in the
States Members of the International Labour Organisation 1
The General Conference of the International Labour Organisation,
Considering that the freedom of trade union activity is one of the
conditions of economic and social progress,
Considering that the right of workers to form trade unions and to
conclude collective agreements is confirmed by the Freedom of Association
and Protection of the Right to Organise Convention, 1948, and the
Right to Organise and Collective Bargaining Convention, 1949,
Considering that the work of the Committee on Freedom of Employers'
and Workers' Organisations (1955-56) and also the discussion of the
Committee's report at the International Labour Conference and in
the Governing Body revealed the existence in many States Members of
the International Labour Organisation of laws violating basic trade union
rights;
1. Notes that the existence of such anti-trade union legislation
hampers the improvement of the working and living conditions of the
workers and is in contradiction with the fundamental purposes of the
International Labour Organisation ;
2. Calls upon the governments of the States Members of the International
Labour Organisation to take measures to abolish within the
shortest possible time all laws and administrative regulations hampering
or restricting the free exercise of trade union rights, to adopt laws, where
this had not as yet been done, ensuring the effective and unrestricted
exercise of trade union rights, including the right to strike, by the workers,
and to guarantee the application of these laws in practice.
1 Adopted on 26 June 1957 by 89 votes to 56, with 26 abstentions.

Document No. 134
ILC, 45th Session, 1961, Resolution concerning Freedom
of Association and the Protection of the Right to
Organise, Including the Protection of Representatives of
Trade Unions at All Levels

-3-
Resolutions Adopted
by the International Labour Conference
at Its 45th Session
(Geneva 1961)
9 . .
VI
Resolution concerning Freedom of Association and the Protection of the
Right to Organise, lncJuding the Protection of Representatives of Trade
Unions at All Levels 1
The General Conference of the International Labour Organisation,
Recognising that the Freedom of Association and Protection of the
Right to Organise Convention, 1948, and the Right to Organise and Collect􀃌
ive Bargaining Convention, 1949, represent an advance in international
labour standards in the field of trade union rights,
Considering that for the workers' and trade union organisations freedom
of association entails the free and effective exercise of their functions by
the representatives freely chosen by the workers through the trade union
organisations, at every level, including the level of the workplace,
Emphasising that remuneration, hours of work, occupational hea!Jth. and
safety, and other conditions of employment may fall within the scope of the
activities of· such representatives at a:11 levels, including the level of the
workplace,
Noting that in some countries restrictions are placed on the right of
workers to establish and maintain organisaiions of their own choosing arid
that in other countries the representatives freely chosen by the workers
through their trade union organisations are prevented from freely exercising
their functions and are on occasion the· subject of special measures by
employers, governments, or both, against their rights as workers' representatives,
Concerned, in particular, that the Committee of Experts on the Application
of Conventions and Recommendations has repeatedly directed the
attention of the International Labour Conference to the fact that in some
countries, including countries which have ratified the aforementioned
Conventions, the free exercise of collective bargaining on behaJlf of the
workers by representatives freely chosen by them is restricted by legislation
and constitutional provisions which-
( a) require governmental approval of the establishment of trade union
organisations without which such organisations cannot legally exist;
1 Adopted on 29 June 1961 by 147 votes to 35, with 10 abstentions.

Document No. 135
ILC, 48th Session, 1964, Resolution concerning Freedom
of Association

Resolutions Adopted by the International Labour Conference
at Its 48th Session
(Geneva, 1964)
5
rv
Resolution concerning Freedom of Association1
The General Conference of the International Labour Organisation,
Considering the principle of freedom of association, an essential constituent
of human rights, enshrined in the Constitution of the International Labour Organisation
(Preamble),
Considering that it constitutes one of the fundamental principles on which
the Organisation is based, and that the Declaration of Philadelphia, an integral
part of the Constitution, proclaims that " freedom of expression and of association
are essential to sustained progress ",
Considering that the International Labour Organisation has unmistakably laid
down the minimum standards of freedom of association in international labour
Conventions Nos. 87 (Freedom of Association and Protection of the Right to
Organise Convention, 1948), and 98 (Right to Organise and Collective Bargaining
Convention, 1949),
Considering the resolution concerning the independence of the trade union
movement, adopted by the Conference on 26 June 1952, and the resolution on
freedom of association and the protection of the right to organise, including the
protection of representatives of trade unions at all levels, adopted by the Conference
on 29 June 1961,
Considering that the standards so defined have not yet found full expression
in the Constitution and Standing Orders of the International Labour Organisation,
Considering that several member States have not yet ratified the abovementioned
Conventions,
Considering that in various member States the principle and the standards
of freedom of association established by the International Labour Organisation
are violated in defiance of democracy and to the detriment of the harmonious
development of those countries,
Considering that the machinery for the protection of freedom of association
as at present established by the International Labour Organisation is still inadequate
for achieving full efficiency and should be strengthened ;
1. Invites the Governing Body of the International Labour Office—
(a) to strengthen its efforts to induce all the States Members of the International
Labour Organisation to ratify and apply Conventions Nos. 87 and 98, reminding
them that fundamental principles of the Organisation are involved ;
(b) to study the possibility of including in the Constitution of the International
Labour Organisation certain essential principles contained in these Conventions ;
(c) to consider likewise how the machinery of the International Labour Organisation
for the protection of freedom of association may best be strengthened ;
(d) in the light of findings resulting from the action recommended in (b) and (c)
above, to consider including the whole question in the agenda of an early
session of the Conference ;
2. Urges all governments to co-operate fully in strengthening the activities of
the International Labour Organisation in the field of freedom of association.
» Adopted on 9 July 1964.
Document No. 136
ILC, 54th Session, 1970, Resolution concerning Trade
Union Rights and Their Relation to Civil Liberties

Resolutions Adopted
by the International Labour Conference
at Its 54th Session
( Geneva, 1970)
VIII
Resolution concerning Trade Union Rights and Their Relation to Civil Liberties 1
The General Conference of the International Labour Organisation,
Considering that the preamble to the Constitution of the International Labour
Organisation proclaims recognition of the principle of freedom of association as
one of the objectives of the Organisation,
Considering that the Declaration of Philadelphia, an integral part of the Constitution,
proclaims that freedom of expression and of association are essential to
sustained progress and refers to other fundamental human rights inherent in human
dignity,
Considering that the International Labour Organisation has laid down basic
standards of freedom of association for trade union purposes in the Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87),
and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98),
Considering that without national independence and political liberty full and
genuine trade unions rights could not exist,
Considering that trade unions, provided they enjoy their full rights, are an essential
factor for the attainment of the objective of economic, social and cultural progress
stated in the Constitution of the ILO,
Considering that the rights of workers' and employers' organisations and of
human beings in general :flourish in a climate of social and economic progress,
Considering that the advancement of the rights of workers' and employers'
organisations is linked both to national social and economic development and to
national, regional and international legislation,
Considering that, according to Article 8 of the Freedom of Association and
Protection of the Right to Organise Convention, 1948, workers, employers and
their organisations should respect the law of the land in exercising the rights provided
' Adopted without opposition on 25 June 1970.
6
for in that Convention, but the law of the land should not be such as to impair,
nor should it be so applied as to impair, the guarantees provided for in the Convention,
and that this principle should also be respected when trade unions assume
responsibility in the interests of the common welfare,
Recalling earlier calls by the Conference for reinforcing the action and machinery
of the International Labour Organisation for the protection of trade union rights,
more particularly the resolution concerning freedom of association, adopted on
9 July 1964, and the resolution concerning action by the International Labour
Organisation in the field of human rights and in particular with respect to freedom
of association, adopted on 24 June 1968,
Considering the evolution which has taken place in various fields and the fact
that the present session of the Conference has dealt with the question of protection
and facilities afforded to workers' representatives,
Regretting that forty-five Members of the International Labour Organisation
have not yet ratified the Freedom of Association and Protection of the Right to
Organise Convention, 1948, and that thirty-two Members have not yet ratified the
Right to Organise and Collective Bargaining Convention, 1949, and deploring
that some of these States violate and infringe the principles laid down in these instruments,
Deploring also that amongst the member States which have ratified these Conventions
some do not yet apply them fully and others violate them,
Considering that the supervisory machinery of the ILO, and particularly the
Governing Body Committee on Freedom of Association, on the basis of existing
standards, has taken supplementary decisions concerning infringements of trade
union rights which refer also to specific civil liberties,
Considering that the possibilities of protecting trade union rights would be
strengthened if the ILO gave the widest publicity to these decisions,
Considering that the question of the protection of civil liberties as such comes
within the purview of the United Nations on the basis of the Universal Declaration
of Human Rights and the International Covenants on Civil and Political Rights and
on Economic, Social and Cultural Rights, and that the speedy ratification and
application of these Covenants is of the utmost importance as a means of reinforcing
the protection of trade union rights,
Considering that there exist firmly established, universally recognised principles
defining the basic guarantees of civil liberties which should constitute a common
standard of achievement for all peoples and all nations, enunciated in particular
in the Universal Declaration of Human Rights and the International Covenants on
Human Rights, but that the observance of the standards embodied in the Covenants
will become a binding obligation for States only when the Covenants are ratified and
enter into force,
Considering that war, colonial or neo-colonial domination and racial discrimination
are major obstacles to the welfare of workers and a flagrant impediment to the
work of the International Labour Organisation,
Considering that international measures to provide more effective protection for
specific civil liberties by the United Nations would reinforce the action of the International
Labour Organisation for the protection of trade union rights;
1. Recognises that the rights conferred upon workers' and employers' organisations
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 International
7
Covenants on Civil and Political Rights and that the absence of these civil liberties
removes all meaning from the concept of trade union rights.
2. Places special emphasis on the following civil liberties, as defined in the
Universal Declaration of Human Rights, which are essential for the normal exercise
of trade union rights:
(a) the right to freedom and security of person and freedom from arbitrary arrest
and detention;
(b) freedom of opinion and expression and in particular 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 organisations.
3. Reaffirms the ILO's specific competence—within the United Nations system—
in the field of freedom of association and trade union rights (principles, standards,
supervisory machinery) and of related civil liberties.
4. Emphasises the responsibility of the United Nations for protecting and promoting
human rights in general political freedoms and civil liberties throughout the
world.
5. Expresses its deep concern about and condemns the repeated violations of
trade union rights and other human rights.
6. Calls upon all member States which have not done so to ratify and apply the
United Nations Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights, and invites the United Nations also to seek this.
7. Invites the Governing Body to pursue energetically the efforts of the ILO with
a view to total decolonisation along the lines of the Declaration adopted on this
subject by the United Nations.
8. Invites the Governing Body to extend and expand its efforts to eliminate the
discriminatory practices on the basis of race, colour, sex, religion, nationality, political
and trade union opinion which still exist in several countries, including countries
and territories under a colonial régime or foreign domination in any form.
9. Reaffirms its belief in the principles which inspired the Freedom of Association
and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right
to Organise and Collective Bargaining Convention, 1949 (No. 98), and strongly
urges that all member States which have not already done so to ratify these Conventions
and, pending ratification, that they ensure that the principles embodied in
these Conventions are observed and that they respect the principles enshrined in
these Conventions in the enactment of their national legislation.
10. Invites the Governing Body of the ILO to take as soon as possible the necessary
steps, pursuant to the resolution of 1964, with a view to including in the Constitution
of the ILO the essential principles contained in these Conventions concerning
trade union freedom.
11. Invites the Governing Body to instruct the Director-General to publish and
distribute widely in a concise form the supplementary decisions taken by the Committee
on Freedom of Association.
8
12. Invites the Governing Body to ensure wider knowledge of ILO principles and
standards concerning trade union rights, using to this end, in particular, regional
conferences, seminars, programmes for workers' and management education, etc.
13. Invites the Director-General of the ILO to express the support of the ILO
for the action of the United Nations in the field of human rights and to draw the
attention of the appropriate United Nations bodies to the relationship which exists
between trade union rights and civil liberties.
14. Invites the Governing Body to undertake all efforts with a view to strengthening
the ILO machinery for securing the observance by member States of ILO principles
concerning freedom of association and trade union rights.
15. Invites the Governing Body to instruct the Director-General to undertake
further comprehensive studies and to prepare reports on law and practice in matters
concerning freedom of association and trade union rights and related civil liberties
falling within the competence of the ILO, with a view to considering further action
to ensure full and universal respect for trade union rights in their broadest sense;
For this purpose particular attention should be given to the following questions:
- right of trade unions to exercise their activities in the undertaking and other
workplaces;
- 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 premises as well as of correspondence and
telephonic conversations;
- right to protection of trade union funds and assets against intervention by the
public authorities;
- right of trade unions to have access to media of mass communication;
- right to protection against any discrimination in matters of affiliation and trade
union activities;
- right of access to voluntary conciliation and arbitration procedures;
- right to workers' education and further training.
16. Invites the Governing Body, taking into account the studies and reports
prepared by the ILO, to place on the agenda of a forthcoming session of the International
Labour Conference one or more questions which could be the subject of
new instruments with a view to enlarging trade union rights, taking into account
those civil liberties which are a prerequisite for their exercise.
9

Document No. 137
ILC, 57th Session, 1972, Resolution concerning the Policy
of Colonial Oppression, Racial Discrimination and
Violation of Trade Union Rights Pursued by Portugal in
Angola, Mozambique and Guinea (Bissau)

Resolutions Adopted
by the International Labour Conference
at Its 57th Session
(Geneva, 1972)
VI
Resolution concerning the Policy of Colonial Oppression, Racial
Discrimination and Violation of Trade Union Rights Pursued by Portugal
in Angola, Mozambique and Guinea (Bissau) 1
The General Conference of the International Labour Organisation,
Recalling the many resolutions of the General Assembly of the United Nations,
and in particular Resolution 2795 (XXVI) of 10. December 1971, which reaffirms
the right to self-determination of the peoples of Angola, Mozambique and Guinea
(Bissau), calls upon Portugal to cease its acts of military repression against the peoples
of these territories and invites all States, particularly the Members of the North
Atlantic Treaty Organisation, to refrain from lending Portugal any form of aid in
pursuing its colonial war,
Considering that colonialism and apartheid have been frequently condemned by
the United Nations and its specialised agencies,
1 Adopted on 27 June 1972 by 211 votes in favour, 0 against, with 84 abstentions.
7
Recalling the resolution concerning trade union rights and their relation to civil
liberties, adopted by the International Labour Conference at its 54th (1970) Session,
which states that " without national independence and political liberty full and genuine
trade union rights could not exist ",
Considering that the basic principles of the ILO are being utterly disregarded in
the African countries under Portuguese domination,
Recalling the resolution concerning apartheid and the contribution of the International
Labour Organisation to the International Year for Action to Combat
Racism and Racial Discrimination, adopted by the Conference at its 56th (1971)
Session, which " condemns the continued suppression of fundamental human and
trade union rights in several countries, including countries and territories under a
colonial régime or foreign domination in any form ",
Considering that the situation created by Portugal in its colonies poses an extremely
grave threat to international peace and security in Africa and so hampers
the achievement of the ILO's aims of peace and social progress in that region,
Noting that in the areas of Angola, Mozambique and Guinea (Bissau) still under
its rule the Government of Portugal is applying Portuguese trade union legislation
which is in open and flagrant contradiction with the letter and spirit of ILO standards,
in particular the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87), and the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98),
Considering that the workers of Angola, Mozambique and Guinea (Bissau)
are thereby denied basic trade union rights including, above all, the right to set up
free and democratic trade unions and to join them, the right of assembly, the right
to elect their officers freely and the right to strike,
Considering that the Government of Portugal is systematically driving African
workers off fertile land and replacing them with white settlers and that discriminatory
measures are being taken against African workers with regard to taxation, employment,
vocational training, social security and housing,
Considering that in the territories improperly administered by it Portugal is
pursuing a policy which, like that of South Africa, consists of oppression by a racial
minority of a majority of the population and that such oppression brings about
death, shame, humiliation and the denial of basic human rights and the destruction
of the cultural environment which form an essential part of human life;
1. Pledges the entire support and the effective action of the International Labour
Organisation to the lawful struggle of the peoples of Angola, Mozambique and
Guinea (Bissau) for self-determination and civil and trade union liberties.
2. Condemns the constant violation by the Government of Portugal of human
rights, civil liberties and trade union rights in the areas still under its rule, and in
particular of the Universal Declaration of Human Rights and international labour
Conventions Nos. 87, 98 and 105.
3. Notes with satisfaction the decision taken by the General Assembly of the
United Nations at its 26th Session approving the representation of Angola, Mozambique
and Guinea (Bissau) as associate members of the Economic Commission for
Africa.
4. Urges member States and employers' and workers' organisations to intensify
their efforts to give effective aid to the peoples of Angola, Mozambique and Guinea
8
(Bissau) in their just struggle and to cease to lend any form of human or material
aid to the Government of Portugal.
5. Invites the Governing Body of the International Labour Office to instruct the
Director-General-
( a) to ensure the widest possible dissemination, in the areas of Angola, Mozambique
and Guinea (Bissau) still under Portuguese rule, of infortij.ation and documentation
on the exercise of civil liberties and trade union rights;
(b) to submit at a forthcoming session of the Conference proposals concerning a
programme of ILO assistance in various fields to the peoples of Angola, Mozambique
and Guinea (Bissau).
6. Invites the Governing Body of the International Labour Office to examine
at its 188th Session the most appropriate ways of enabling representatives of
Angola, Mozambique and Guinea (Bissau), which are associate members of the
Economic Commission for Africa, to participate in ILO meetings and in particular
in ILO African regional conferences.
9
Document No. 138
ILC, 63rd Session, 1977, Resolution concerning the
Promotion, Protection and Strengthening of Freedom of
Association, Trade Union and Other Human Rights

Resolutions Adopted
by the International Labour Conference
at Its 63rd Session
(Geneva, June 1977)
1
V
Resolution concerning the Promotion, Protection and Strengthening of Freedom of
Association, Trade Union and Other Human Rights 1
The General Conference of the International Labour Organisation,
Considering that full exercise of trade union rights and freedom of association are
priority objectives of the International Labour Organisation and constitute essential
elements of human rights,
Noting with concern that many member States have not yet ratified the Freedom
of Association and Protection of the Right to Organise Convention, 1948 (No. 87),
the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the
Workers' Representatives Convention, 1971 (No. 135), which lay down the minimum
standards of freedom of association,
Believing that one of the fundamental bases of democracy in all its forms is the
existence of trade union freedoms as expressed in ILO standards and that the rights
accorded to trade unions should reflect these freedoms,
Welcoming the adoption by the International Labour Conference at its 56th
(1971) Session of the resolution concerning the strengthening of tripartism in the
over-all activities of the ILO and at its 61st (1976) Session of Convention No. 144
concerning tripartite consultations to promote the implementation of international
labour standards and of Recommendation No. 152 concerning tripartite consultations
to promote the implementation of international labour standards and national
action relating to the activities of the ILO,
Convinced that the tripartite consultations envisaged in the said instruments
would be meaningless unless within member States conditions exist which ensure that
employer and worker participants are free to act effectively in accordance with the
• Adopted on 21 June 1977.
5
provisions of the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87),
Considering that, in the context of national economic and social development of
member States, the ILO, in view of its tripartite structure, should be able to promote
conditions of work and life capable of exercising a dynamic and lasting influence in
ensuring social progress,
Noting that over the years the constitutional supervisory bodies and other reporting
procedures, including the special investigations and inquiries, carried out in a
limited number of countries so far, have proved their effectiveness in varying degrees
of success,
Considering that over the years special machinery for examining allegations of
violation of human and trade union rights and other ad hoc methods to study specific
questions have been evolved and have been useful in preparing the way for satisfactory
solutions, while guaranteeing impartial treatment to the countries involved,
Considering the systematic violation in certain countries of the basic principles
relating to universally recognised human rights and, in particular, freedom of association,
and trade union and other human rights ;
1. Invites the Governing Body of the International Labour Office to request the
Director-General :
(a) strongly to urge member States to ratify and apply the Freedom of Association
and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to
Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers'
Representatives Convention, 1971 (No. 135), and, pending ratification, to
ensure strict observance of the basic principles in these Conventions ;
(b) to urge the governments of member States :
(i) to ratify, as soon as possible, Convention No. 144 concerning tripartite consultations
to promote the implementation of international labour standards
and to give full effect thereto as well as to Recommendation No. 152 concerning
tripartite consultations to promote the implementation of international
labour standards and national action relating to the activities of the
ILO—both of which instruments were adopted by the International Labour
Conference at its 61st (1976) Session—and to the resolution concerning the
strengthening of tripartism in the over-all activities of the ILO, adopted by the
International Labour Conference at its 56th (1971) Session;
(ii) to undertake to co-operate actively to ensure sound operation of the system
for supervising the application of international labour standards, particularly
in the field of human rights such as freedom of association and trade union
freedoms, including in the rural sector, the elimination of discrimination in
employment, remuneration and occupation and the abolition of forced
labour, it being understood that such systems of control will be implemented
with strict impartiality and with full regard for due process and the rights of
Members involved in inquiries concerned with the application of those
standards;
(c) to improve the operation of existing machinery and procedures for establishing
facts relating to the application of standards, in order to ensure their full effectiveness,
particularly by speeding up the consideration of complaints and representations
relating thereto;
(d) to provide that such machinery and procedures guarantee, without reprisals to
interested parties at the level among others of member States, full opportunities
6
to present such information and comments as may be necessary to reach objective
and impartial conclusions.
2. Further requests the Governing Body of the International Labour Office:
(a) to remind member States that freedom of association and non-discrimination are
basic principles of the ILO's Constitution and their furtherance constitutes a
constitutional obligation for all member States;
(b) to study ways of establishing or strengthening procedures for supervision of this
constitutional obligation;
( c) to consider whether improvements might be made in the functioning of the
credentials procedure with a view to increasing its effectiveness.
3. Further requests the Governing Body of the International Labour Office:
(a) to instruct the Director-General to undertake direct contacts, wherever possible
on a tripartite basis, whenever this promises to be useful;
(b) to improve the application of the existing procedures so as to ensure speedy and
effective action in cases in which freedom of association is impaired, particularly
when human life is in jeo·pardy;
( c) to invite the member States of the ILO and the employers' and workers' organisations
to encourage and promote-in all instances where they possess the right
to intervene-fullest co-operation with the established ILO complaints and
supervisory machinery so as to ensure respect for trade union rights and freedom
of association.
7
Document No. 139
ILC, 73rd Session, 1987, Resolution concerning the 40th
anniversary of the adoption of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87)

IV
Resolution concerning the 40th anniversary of the adoption of the Freedom of
Association and Protection of the Right to Organise Convention,
1948 (No. 87) 1
The General Conference of the International Labour Organisation,
Considering that, in accordance with the Constitution of the International
Labour Organisation, freedom of association constitutes a fundamental principle
on which the Organisation is based and that the Declaration of Philadelphia, which
is an integral part of the Constitution, affirms that "freedom of expression and of
association are essential to sustained progress",
1 Adopted on 23 June 1987.
3
Considering that the principles of freedom of association must be universally
applied irrespective of the social and economic systems existing in the different
countries,
Considering that the principles of freedom of association have been codified in
a number of ILO instruments, in particular in the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87),
Considering that, according to Convention No. 87, "workers and employers,
without distinction whatsoever, shall have the right to establish and, subject only
to the rules of the organisation concerned, to join organisations of their own
choosing without previous authorisation",
Noting with concern that not all member States have ratified Convention
No. 87 and that in the past years the International Labour Office has received
many complaints concerning violations of the principles of freedom of association
in several countries,
Recognising that the supervisory procedures of the International Labour
Organisation in the field of freedom of association, including the sending of ILO
missions on the spot, have contributed to the improvement of the situation in a
number of countries as regards respect for the principles of freedom of association,
Reaffirming the necessity for strict implementation of the principles of freedom
of association in law as well as in practice and the obligation for all governments
to co-operate fully with the supervisory bodies of the International Labour
Organisation,
Recalling that in 1988 it will be 40 years since Convention No. 87 was adopted
by the International Labour Conference;
1. Urges the governments of all those member States which have not yet
ratified the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), to do their utmost to ratify that Convention in the
course of 1988.
2. Calls upon the governments of all member States to take all necessary steps
for the full implementation of Convention No. 87, in particular by bringing their
legislation into conformity with the principles enunciated in the Convention, and
to seek as rapidly as possible the assistance of the International Labour Office
when problems relating to the implementation of the principles of freedom of
association are experienced or anticipated, with a view to resolving such problems.
3. Invites the Governing Body of the International Labour Office to instruct
the Director-General to seize the occasion of the 40th anniversary of the adoption
of Convention No. 87 to strengthen the ILO's efforts in favour of the ratification
and full implementation of Convention No. 87 by all member States.
4
Document No. 140
Ratification status of Convention No. 87, as at
7 December 2023

NORMLEX Information System on International Labour Standards Search User guide Glossary
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the Right to Organise Convention, 1948 (No. 87)
Date of entry into force: 04 Jul 1950
158 ratifications
▪ Denounced: 0
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Albania 03 Jun 1957 In Force
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Australia 28 Feb 1973 In Force
Austria 18 Oct 1950 In Force
Azerbaijan 19 May 1992 In Force
Bahamas 14 Jun 2001 In Force
Bangladesh 22 Jun 1972 In Force
Barbados 08 May 1967 In Force
Belarus 06 Nov 1956 In Force
Belgium 23 Oct 1951 In Force
Belize 15 Dec 1983 In Force
Benin 12 Dec 1960 In Force
Bolivia (Plurinational State of) 04 Jan 1965 In Force
Bosnia and Herzegovina 02 Jun 1993 In Force
Botswana 22 Dec 1997 In Force
Bulgaria 08 Jun 1959 In Force
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Burundi 25 Jun 1993 In Force
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Congo 10 Nov 1960 In Force
Costa Rica 02 Jun 1960 In Force
Croatia 08 Oct 1991 In Force
Cuba 25 Jun 1952 In Force
Cyprus 24 May 1966 In Force
Czechia 01 Jan 1993 In Force
Côte d'Ivoire 21 Nov 1960 In Force
Democratic Republic of the Congo 20 Jun 2001 In Force
Denmark 13 Jun 1951 In Force
Djibouti 03 Aug 1978 In Force
Dominica 28 Feb 1983 In Force
Dominican Republic 05 Dec 1956 In Force
Ecuador 29 May 1967 In Force
Egypt 06 Nov 1957 In Force
El Salvador 06 Sep 2006 In Force
Equatorial Guinea 13 Aug 2001 In Force
Eritrea 22 Feb 2000 In Force
Estonia 22 Mar 1994 In Force
Eswatini 26 Apr 1978 In Force
Ethiopia 04 Jun 1963 In Force
Fiji 17 Apr 2002 In Force
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France 28 Jun 1951 In Force
Gabon 14 Oct 1960 In Force
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Germany 20 Mar 1957 In Force
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Jun 2024.
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Haiti 05 Jun 1979 In Force
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Indonesia 09 Jun 1998 In Force
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Ireland 04 Jun 1955 In Force
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Italy 13 May 1958 In Force
Jamaica 26 Dec 1962 In Force
Japan 14 Jun 1965 In Force
Kazakhstan 13 Dec 2000 In Force
Kiribati 03 Feb 2000 In Force
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Kyrgyzstan 31 Mar 1992 In Force
Latvia 27 Jan 1992 In Force
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Mozambique 23 Dec 1996 In Force
Myanmar 04 Mar 1955 In Force
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Norway 04 Jul 1949 In Force
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Rwanda 08 Nov 1988 In Force
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Samoa 30 Jun 2008 In Force
San Marino 19 Dec 1986 In Force
Sao Tome and Principe 17 Jun 1992 In Force
Senegal 04 Nov 1960 In Force
Serbia 24 Nov 2000 In Force
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Sierra Leone 15 Jun 1961 In Force
Slovakia 01 Jan 1993 In Force
Slovenia 29 May 1992 In Force
Solomon Islands 13 Apr 2012 In Force
Somalia 20 Mar 2014 In Force
South Africa 19 Feb 1996 In Force
Spain 20 Apr 1977 In Force
Sri Lanka 15 Sep 1995 In Force
Sudan 17 Mar 2021 In Force
Suriname 15 Jun 1976 In Force
Sweden 25 Nov 1949 In Force
Switzerland 25 Mar 1975 In Force
Syrian Arab Republic 26 Jul 1960 In Force
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Timor-Leste 16 Jun 2009 In Force
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Turkmenistan 15 May 1997 In Force
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Uganda 02 Jun 2005 In Force
Ukraine 14 Sep 1956 In Force
United Kingdom of Great Britain and Northern Ireland 27 Jun 1949 In Force
United Republic of Tanzania 18 Apr 2000 In Force
Uruguay 18 Mar 1954 In Force
Uzbekistan 12 Dec 2016 In Force
Vanuatu 28 Aug 2006 In Force
Venezuela (Bolivarian Republic of) 20 Sep 1982 In Force
Yemen 29 Jul 1976 In Force
Zambia 02 Sep 1996 In Force
Zimbabwe 09 Apr 2003 In Force

Document No. 141
Draft Resolution submitted by the World Federation of
Trade Unions to the Economic and Social Council on
Guarantees for the Exercise and Development of Trade
Union Rights, 1947

138 FREEDOM OF ASSOCIATION AND INDUSTRIAL RELATIONS
10. Attention should be drawn to the work undertaken by the
W.F.T.U. after the Second World War, in order to assist trade union
organization in liberated or defeated countries, an action which constitutes
one of the most important factors in the spread of democracy
in the political, social and economic domain, and of which the beneficial
effect has been recognized by all the Governments concerned.
II. After the Second World War, the evolution which we have
demonstrated, both on the national and international level, became
more pronounced. Already relations of confidence have been established
between the Economic and Social Council and the World Federation
of Trade Unions.
12. Besides, according to Article I (3) of their Charter, the United
Nations propose as one of their aims, the realization of international
co-operation in solving international problems of an economic, social,
intellectual or humanitarian nature, by developing and encouraging
respect for the rights of man and the fundamental liberties for all without
distinction of race, sex, language or religion. The same idea is to be
found in Articles 55 c. and 62 of the Charter. The attainment of this
objective presupposes the general expansion and consolidation of trade
unionism on the national and international level.
13. Effective co-operation in economic and social matters is only
feasible with the help of the masses of the peoples, who must be assured
of an ever-increasing standard of comfort, and whose most responsible
elements are organized within trade unions.
The recognition of trade union rights and the unrestricted and uncontested
use of those rights should allow the full development of the
trade union activities. These activities may lead the trade union organizations
in each country to co-operation in establishing and implementing
social legislation. The outcome of this progressive social legislation,
setting out the constructive possibilities of trade unionism, can be a
new right enabling the trade unions to determine the economic and social
policies in each country.
14. Unorganized, spontaneous anarchic movements can be a danger
to the internal peace of every country. If effective international cooperation
is to be established, there must be pacification and consolidation
of the democratic regime within each State.
15. Effective respect for trade union rights, apart from guarantees
proper to every country, demands a safeguard of an international character
whenever the use of these rights results in developments which
might affect the international life. From national and international
practice there can be established, for trade union rights, a real common
international law, for which respect in all States should be assured by
the Economic and Social Council.
*
* *
On the basis of the preceding considerations, the W.F.T.U. submits
to the Economic and Social Council, the following Resolutions ;
I . Trade union rights are recognized as an inviolable prerogative
enjoyed by salaried workers for the protection of their professional
and social interests.
2. Trade union organizations should be able to administer their own
affairs, to deliberate and freely decide on all questions falling within
APPENDICES 139
their competence, in conformity with the law and with their constitution,
without interference in their duties from governmental or
administrative bodies.
3. There should be no obstacle to the federation of trade union organizations
on the occupational or inter-occupational level, whether
locally, regionally or internationally.
4. All legislation which places restrictions on the above-mentioned
principles is contrary to the economic and social collaboration
laid down by the Charter of the United Nations.
5. The Economic and Social Council decides to set up a Committee for
Trade Union Rights which will safeguard, in a permanent fashion,
respect for trade union rights. On every occasion on which the aforementioned
principles are violated, the Committee will make the
neoessary enquiries and will submit recommendations to the Economic
and Social Council as to the measures to be adopted.
10
Document No. 142
Memorandum and Draft Resolution submitted by the
American Federation of Labor to the Economic and Social
Council on the Guarantees for the Exercise and
Development of Trade Union Rights, 1947

APPENDICES 139
II. Memorandum and Draft Resolution submitted by the American
Federation of Labor to the Economic and Social Council on the
Guarantees for the Exercise and Development of Trade Union
Rights.
I. On 28 February 1947, a document E/C.2/28 was circulated to
the members of the Economic and Social Council on behalf of the World
Federation of Trade Unions. This document contains a draft of the
proposed Resolution regarding the guarantees for the exercise and deve•
lopment of trade unions' rights.
2. In the document E/CT.2/2 circulated to members of the Council
as of 20 August 1946, the American Federation of Labor, in its draft
of a proposed " International Bill of Rights " covered, among other
questions, the basic points raised by the World Federation of Trade
Unions.
Specifically, the American Federation of Labor draft urged the adop•
tion of the following provisions as a part of the " International Bill
of Rights " :
IV
BASIC HUMAN RIGHTS
Without freedom from fear of tyranny by absolutist bureaucrats
or dictators and without freedom from want, there can be no political
or industrial democracy within nations or just relations and enduring
peace between nations.
Only by removing the political, economic and social ills and maladjustments
afflicting humanity will mankind be able to reach that long
hoped-for stage of civilization in which peace and plenty shall truly
prevail.
In this spirit, the American Federation of Labor proposes to the
Economic and Social Council of the United Nations that it draft an
10
140 FREEDOM OF ASSOCIATION AND INDUSTRIAL RELATIONS
International Bill of Rights which shall be part of the general Peace
Treaty and be binding on all its signatories. We propose that this
International Bill of Rights shall include the following provisions :
1. Every human being - irrespective of race, colour, creed, sex
or national origin - has the right to pursue his or her work and spiritual
development in conditions of freedom and dignity.
2. Freedom of expression and association is vital to the preservation
of the basic liberties and the enhancement of the spiritual and material
progress of the human race. These rights must be inviolate for those
who oppose, no less than for those who support, a ruling party or a
regime at any specific moment.
Genuine freedom means the right of association and organization
into various - into differing - educational, religious, economic, political
and trade union organizations, without fear of direct or indirect
control and compulsion by governmental or any other agencies.
3. The right to organize and work for a constantly more equitable
distribution of the national income and wealth and the right to strive
for the enhancement of the moral and material well-being of the people
- for better health and security against the ravages of unemployment,
accidents, sickness and old age - are to be considered inalienable. The
conditions of work under modern large scale industry make it especially
necessary for the working people to have an effective system of social
legislation which will provide minimum wages and maximum working
hours ; guarantee against the employment of child labour ; set up adequate
medical care ; provide accident, unemployment and old-age
insurance and other such vital measures making for effective social
security of the population.
4. Raise labour standards throughout the world. There is no more
effective way of stimulating the revival of production and the international
expansion of markets than by increasing the purchasing power
of the great mass of people in every country.
5. Freedom of religion and right to religious worship are indispensable
to a truly democratic society.
6. The right of asylum is to be guaranteed by all nations. No human
being who is a refugee from any political regime he disapproves of is
to be forced to return to a territory under the sovereignty of that regime.
7. The right to migrate or leave temporarily or permanently a
country in which a citizen does not want to remain must be assured,
limited only by the laws of immigration of the country which he may
wish to visit.
8. There must be freedom of opinion and expression and full access
to the opinions of others.
9. The more full and complete knowledge of the world is extended
and realized by the peoples of all nations, the less will be the distance
and misunderstandings between nations and peoples. Therefore, the
right of free access to and exchange of information - scientific, economic,
social, religious and political - the promotion of knowledge and of
cultural relations, the full and free dissemination of news by radio
and press must be assured.
10. Involuntary servitude in any shape, manner or form or under
any guise shall be outlawed and discontinued by all nations and all
peoples.
APPENDICES 141
l l. Freedom from arbitrary arrest, detention, search and seizure;
proper judicial determination of arrest and charges; a fair public trial
by jury or competent and unprejudiced court constituted in accordance
with normal judicial procedure ; right of habeas corpus and freedom
from arbitrary imposition of penalties.
12. The key to the entire approach of human rights must be the
placing of respect for human personality and welfare above all else. In
this spirit, the foregoing rights can have tangible meaning and practical
application only if:
(a) All human beings have real security and are free from discrimination
on account of race, colour, creed or difference of political
belief from the Government in control or the party in power.
( b) There is to be no peacetime conscription or militarization of
workers protesting or striking against conditions of labour which they
consider unfair or unsatisfactory.
( c) All economic or political discrimination and punishment for
differences of political opinion or religious belief and practices are to
be eliminated. The threat of being sent to concentration or labour camps
as a punishment for difference of opinion with any government authority
or dominant political party must be completely removed.
(d) Freedom from censorship of books, press, radio and art, having
due regard to the requirements of morals and decency.
(e) Freedom from the terror of secret police surveillance, arrest or
torture. This can be assured only through the abolition of all political
police and concentration camps in every country.
3. Basically, the protection of rights of trade union members and
of their organizations is encompassed by the above proposals of the
American Federation of Labor. These proposals were referred to the
Human Rights Commission of the Economic and Social Council, were
considered by that Commission and were referred by it to the Drafting
Committee empowered to draft an International Bill of Rights.
4. There is no doubt that numerous problems which affect workers
generally, or labour and trade union organizations more specifically,
are outside the framework of reference set forth for the Human Rights
Commission. The United Nations, under the terms of its Agreement
with the International Labour Organization (document A/72), Article I,
recognized the latter organization as " a specialized agency responsible
for taking such action as may be appropriate under its basic instrument
. for the accomplishment of the purposes set forth therein ''. The terms of
reference of the International Labour Organization are indicated in its
Constitution, Article 10 and Articles 19, 20, 21, 35 (Constitution and
Rules, Montreal, 1946).
5. It is therefore quite proper for the Economic and Social Council
to request the International Labour Organization to make a survey of
labour conditions in the various countries, Members of the United Nations,
in order to secure information on the treatment received by the
individual workers in the exercise of their rights to form, join or belong
142 FREEDOM OF ASSOCIATION AND INDUSTRIAL RELATIONS
to trade union organizations without interference or coercion by the
governmental authorities ; on the extent, if any, of government domination
or interference with trade union organizations ; and regarding
any coercive acts directed against individual workers insofar as their
relations to their trade union organizations are concerned. On the
basis of such inquiries, the International Labour Organization should be
requested to• undertake the necessary steps for the elimination of such
practices which deny basic individual rights to workers or collective
rights to their organizations.
6. The American Federation of Labor, after examining in detail
the proposals submitted to the Economic and Social Council by the
World Federation of Trade Unions, suggests that these proposals be
amended to read as follows :
DRAFT RESOLUTION
I. The Economic and Social Council recommends, in accordance
with the Agreement between the United Nations and the International
Labour Organization, that the International Labour Organization
take into early consideration the problem of trade union rights with
reference to questions as follows :
(A) To what extent have workers the right to form, join or belong to
labour or trade union organizations of their own choice without
interference or coercion by the Government 1
(B) To what extent are trade unions free to operate in accordance with
the decisions of their own members, whether on a local, regional
or national basis, without interference by governmental authorities ?
(C) To what extent are workers free to select, elect or appoint officers
of their own trade unions ?
(D) To what extent are unions free to raise their own funds and dispose
of them by decisions of their own memberships or in accordance
therewith, under their own rules and regulations, without governmental
interference ?
(E) To what extent are workers or their organizations free to communicate
with other workers or organizations, either within the confines
of the same country or outside the country ?
(F) To what extent are local, regional or national trade union members
free to join international organizations, without fear and free from
governmental interference ?
(G) To what extent are labour or trade union organizations free to
deal with the employers of workers they represent and conclude
collective agreements and participate in their formulation ?
(H) To what extent is the right of workers and of their organizations
to resort to strikes recognized and protected ?
(I) To what extent are workers and their trade unions free to resort
to voluntary arbitration, free from government domination and
interference, in order to settle their differences with their employers ?
APPENDIOES 143
(J) To what extent have workers and their organizations the right
to press for governmental action for the purpose of securing legislative
or administrative action on their behalf 1
(K) To what extent are workers free to move from one part of the
country to another, within the confines of the national borders,
and to what extent are they free to migrate outside the national
boundaries 1
(L) To what extent are workers free to accept employment, to stay
on the job or to abandon it, in accordance with their own decision,
without governmental coercion or interference 1
(M) To what extent, if any, does forced or slave labour exist and how
are individuals of whatever nationality, race, sex, language or
religion, protected against compulsory, or forced, labour 1
(N) To what extent are working conditions and workers' welfare protected
by legislative standards and what is the nature and character
of such protection 1
II. The Economic and Social Council further recommends to the
International Labour Organization that it drafts on the basis of the
survey recommended above, for the purpose of ultimate submission to
the various states, proposals for:
(a) incorporating the rights universally recognized ;
(b) protecting the workers and their organizations against the violation
of basic labour or trade unions' rights; and
( c) providing proper measures for the enforcement of such rights.

Document No. 143
Economic and Social Council, 4th Session,
1947, Official Records, Discussion of the resolution
submitted by the World Federation of Trade Unions
on guarantees for the exercise and development of
trade union rights and memorandum submitted by
the American Federation of Labor

'• ECONOMIC I AND SOCIAL
'
COUNCIL.
OFFI·C I At.· RECORDS
'
SECOND YEAR FOURTH SESSION
' CONSEIJL
.~CONOMIQUE ET SOCIA~
PROCES-VERBAUX OFFICIELS
DEUXIEME ANNEE : QUATRIEME SESSION
. From the fifty~firist meeting
, (28 -February 194n
to the eighty-fou·rth meeting
(29 March 1947)
De Ia cinqua'nte et l:lnieme seance .. ·
. · (28 fevr~er 1947) ,
a Ia' quatre-vingt-quatrieme seance·
(29 mars 1947)
: Lake· Success, New York
. 1947
delegation appeared to indicate that it had merit
and deserved further consideration. He agreed
with the Chinese representative that the Gregorian
calendar required modification, and stated
that study by the Council of the proposed plan
did not mean that that particular plan would
have to be adopted.
Mr. MoE (Norway) pointed out that since,
in the opinion of the United States Naval Observatory,
failure by the General Assembly to
take a decision with respect to a world calendar
in 194 7 would result in the postponement of the
plan until 1956, the delay proposed by the
United States representatiye was equivalent to
a decision on the substance of the matter.
Mr. MoRozov (Union of Soviet Socialist Republics)
agreed with the United States representative
that the matter should be postponed
until the next session of the Council. The subject
had not been placed on the agenda sufficiently
early to permit study; discussions which had
taken place in the League of Nations did not
constitute a basis for decision by the Council;
moreover, a substantial expense to the Secretariat
was involved.
Mr. BORIS (France) supported the views of
the representatives of the United States and of
the Union of Soviet Socialist Republics.
· The PRESIDENT then proposed that the matter
might be postponed until the next session of the
Council, but that in the meantime the Secretariat
should be asked to assemble and prepare
all the readily available material. He accepted
the suggestion of Mr. AReA PARRO (Peru) that
the Secretary-General should be requested to
circulate the Peruvian resolution to Member
States between sessions of the Council. The ad
hoc committee could be appointed at the beginning
of the next session, and could report to
the Council before the session ended.
Decision: The President's proposal was
adopted.
55. Election of two members to the
Agenda Committee ·
Decision: The matier was referred to· the
Committee of the Whole.
f
56. Discussion of the resolution submitted
by the World Federation of Trad~
Unions on guarantees for the exercise
and development of trade union
rights and- memorandum submitted
by the American Federation of Laber
(documents E/C.2/281 and E/C.2/322
)
Mr. MAYHEW (United Kingdom) suggested
that the Council should not discuss the substance
1 See Annex 31.
2 See Annex 32.
gation peruvienne semble indiquer que celui-ci
a quelque valeur et merite plus ample examen.
M. Area Parr6 pense, comme le representant de
la Chine, que le calendrier gregorien demande
a etre modifie, et precise que ce n'est pas parce
que le projet Soumis sera etudie par le Conseil
que celui-ci sera tenu de l'adopter.
M. MoE (Norvege) fait remarquer que puisque,
d'apres l'United States Naval Observatory,
si 1' Assemblee generale ne prend pas en 194 7
une decision quant a Ia question du calendrier
universe!, le projet devra etre rernis a 1956,
l'ajol.!-rnement propose par le representant des
Etats-Unis equivaut a une decision sur le fond
de la question.
M. MoRozov (Union des .Republiques socialistes
sovietiques) demande, avec le representant
des Etats-Unis, que l'affaire soit renvoyee
a Ia prochaine session du Conseil. La question
n'a pas ete inscrite a l'ordre du jour assez tot
pour qu'on ait pu l'etudier; les deliberations qui
se sont reroulees a Ia Societe des Nations ne
constituent pas une base pour une decision du
Conseil; d'autre part, Ia question entrainerait
des frais assez importants pour le Secretariat.
M. BoRIS (France) se range a I' avis des representants
des Etats-Unis et de l'Union des RCpubliques
sociali'stes sovietiques.
Le PRESIDENT propose alors de renvoyer Ia
question a la prochaine session du Conseil, mais
de demander dans l'intervalle au Secretariat de
rassembler et de preparer tous les documents qui
peuvent etre facilement obtenus. II adopte la
suggestion de M. AReA PARRO (Perou) qui demaude
que le Secretaire general soit invite a
faire distribuer Ia resolution du Perou aux Etats
Membres dans l'intervalle entre les sessions du
Conseil. Le comite special pourrait 'etre nomme
au debut de la prochaine session et pourrait faire
rapport au Conseil avant la cloture de celle-d.
Decision: La proposition du President est
adoptee.
55. Election de deux membres du Comite
de l'ordre du iour
Decision: La question est renvoyee a~ Comiti
pUnier du Conseil.
56. Discussion sur Ia resolution presentee
par Ia Federation syndicale mondiale
concernant les garanties d'exercice et
de developpement des droits syndicaux
et sur le memorandum presente
par I' American Federation of Labor
(documents E/C.2/281 et E/c;:;2/322
)
M. MAYHEW (Royaume-Uni) est d'avis que
le Conseil ne devrait pas discuter pour le mo-
1 Voir l'annexe 31.
2 Voir l'annexe 32.
191
-of the WFTU draft resolution at the present
time. It raised important issues, which required.
prolonged study by the V<!-rious Governments;
moreover, the subject fell clearly into the field
of the International Labour Organization, one
of the primary purposes of which was the promotion
of freedom of association. Since the ILO
had concluded an Agreement with the United
. Nations and had been recognized by the latter
as a specialized agency competent in the field
of labour, Mr. Mayhew proposed that the
WFTU draft resolution should be referred for
consideration to the ILO. The Council might
also wish to refer certain points of the resolution
to the Commission on Human Rights.
Mr. BoRIS (France) pointed out that it was
undesirable to enter upon a disc~ssion of the
WFTU draft resolution in the absence of the
WITU representative. Since, in his opinion, to
refer the resolution to the ILO would be equivalent
to prejudging the· question, he suggested
that the subject might be postponed until ~e
following session of the Council.
Mr. MoRozov (Union of Soviet Socialist Republics)
recalled that, in accordance with a
resolution 'of the General Assembly, the WFTU
had been granted the right to propose items for
the Council's agenda.1 He agreed with Mr. Boris
that, in the absence of the WFTU representative,
the Council could not discuss the substance
of the matter, and should, therefore, postpone
it until the next session.
ShoUld there be a discussion of the substance,
he reserved the right to reply to the United
Kingdom representative.
Mr. WINSLOW (United States of America)
stated that his Government, which believed in
free trade unionism and the right of association,
viewed with alarm any threat to those principles.
He agreed with the United Kingdom
representative that the matter fell within the
scope of the ILO. The Council· had to guard
itself against duplicating the work of the spe-/
cialized agencies. He felt that referring the matter
to the ILO for consideration and for· a report
containing recommendations as to measures that
might be taken would in no way mean prejudging
the case. He suggested that the WFTU
draft resolution should at the same time be
transmitted to the Commission on Human
Rights, to be used by that Commission in its
work of drafting the international bill of rights.
The memorandum of the American Federation
of Labor should be dealt with in the same
manner.
Mr. MoE (Norway) said that the Norwegian
delegation considered it most important that the
item proposed by the WFTU should receive the
thorough consideration of the Council. In Norway,
the righ~ and duties of trade unions were
. 1 See Resolutions adopted by the General Assembly
during the second' part of its first session, resolution
49 (I), page 77.
ment sur le fond du pro jet de. resoh,Ition etabli.
par la FSM. II souleve d'importantes questions
qui exigent un examen approfondi de Ia part des
divers Gouvernements; en outre, la question est
nettemerit du ressort de !'Organisation internationale
du Travail, dont l'un des buts essentiels
est de favoriser la liberte d'association. Puisque
l'OIT a conclu un Accord avec !'Organisation
des Nations Unies qui l'a reconnue comme insti-.
tution specialisee competente dans le domaine du
travail, M. Mayhew propose que le projet de
resolution de la FSM soit transmis pour examen
a l'OIT. Le Conseil pourrait egalement desirer
renvoyer certains points de la resolution a Ia
Commission des droits de l'homme.
M. BoRIS (France) fait remarquer qu'il serait
inopportun d'entamer une discussion relative au
projet de resolution de la FSM en !'absence du
representant de cette organisation. D'apres lui,
envoyer la resoh:~tion a l'OIT reviendrait a prejuger
la question; il propose en consequence de
remettre !'affaire a la prochaine session du
Conseil.
M. MoRozov (Union des Republiques socialistes
sovietiques) rappelle que, conformement a
une resolution de 1' Assemblee generale, la FSM
a re~u le droit de proposer !'inscription de points
a l'ordre du jour du Conseil1
• II pense avec ~Boris
qu'en !'absence du representant de ·la
FSM, le Conseil ne peut discuter la question au
fond et doit done en remettre la di.c;;cussion a sa
prochaine session. - I
Si une discussion au fond doit avoir lieu, il
se reserve de repondre au representant du
Royaume-Uni.
M. WINsLow (Etats-Unis d'Amerique) fait
savoir que son Gouvernement, qui croit au syndicalisme
libre et au droit d'association, s'alarmerait
de voir ces principes menaces. n convient
avec le representant du Royaume-Uni que Ia
question est du ressort de l'OIT. Le Conseil doit
eviter que son activite ne fasse double emploi
avec celle des institutions specialiseN:. A son avis,
renvoyer la question a l'OIT pour examen en lui
demandant un rapport comportant des recommandations
quant aux mesures a prendre, ne
reviendrai.t nullement a prejuger Ia question: II
propose que le pro jet. de resolution de la FSM
soit transmis simultanement ala Commission des
droits de l'homme pour que celle-d !'utilise pour
la redaction de la declaration internationale des
· droits. II conviendrait de proceder de meme a
l'egard du memorandum de !'American Federation
of Labor.
M. MoE (Norve'ge) declare que la delegation
norvegienne estime de la plus haute importance
que le point propose par la FSM fasse l'objet
d'un examen approfondi de la part du Conseil.
En · Norvege, les droits et les devoirs des syndi-
1 Voir les Resolutions adoptees par l'AssembUe gtlnlrale
pendant la seconde partie de sa premiere session, r&olution
49 (I), page 77.
192
recognized both by public opinion and by law,
and were an established part of the social machinery.
:Jk>th labour and the general economic
and social development of the country were
benefited thereby. He believed that it would be
useful to refer the WFTU draft resolution both
to the ILO ~d to the Commission on Human
RightS. The memorandum of the. American
Federation of Labor also contained valuable
suggestions, but could not be used in its entirety,
. ·since it was based largely on conditions prevalent
in the United States of America.
In view of the fact that the WFTU draft resolution
had been presented at a late date and
that the WFTU representative was absent, Mr.
Moe supported the French suggestion that the
whole matter should be postponed until the next
session of the Council.
Mr. PAPANEK (Czechoslovakia) ·was also in
favour of postponement. He pointed ou~ that
there had been a request from the WFTU to
that effect. He felt, however, that the Council
should foJilffi its own opinion of the matter before
referring it to the ILO.
Mr. SMLTH (Canada) agreed with the representative
of the Union of the Soviet Socialist
Republics that the substance of the matter
should not be discussed at the present time. Of
the two alternatives which had been proposed,
he preferred referring the question at once to
the ILO and to the Commission on Human
Rights. Such a course of action could not be
construed as prejudging the issue; it would
merely be in conformity with the Agreement
concluded with the ILO. The Council would be
in no way bound by the results of the ILO
study, but it was wise practic~ to obtain competent
advice before attempting to reach a
conclusion.
Mr. VAN KLEFFENS (Netherlands) and Mr.
TuRHAN (Turkey) agreed that the. question
should be referred at once to the ILO and the
Commission on Human ·Rig!tts.
Mr. KAMINSKY (Byelorussian Soviet So.cialist
Republic) :WruJ in favour of granting the WFTU
request for postponement.
Mr. REID (New Zealand) felt that the question
of the rights of ·trade unions was one of the
most important before the Council. In view of
the WFTU request, consideration of the ques:-tion
should be postponed; however, because of
its urgency, it would be well to refer it as well
as the memorandum of the American Federation
of Labor to 'the ILO and the Commission
on Human Rights at once.
Speaking as the representative of a country
which was a leader in the field of trade union
rights, Mr .. Reid remarked that, in his opinion,
both documents lacked breadth and depth, and
cats ont ete reconnus tant par le public que par
Ia loi, et constituent un element bien etabli du
systeme social. Les travailleurs et le progres
economique et social du pays en ont tous deux
beneficie. II estime qu'il y aurait ·interet a renvoyer
le projet de resolution de Ia FSM, et a
l'OIT, eta Ia Commission des droits de l'homme.
Le memorandum de I' American Federation of
Labor contient egalement des idees iriteressantes,
mais ne peut etr1e entierement utilise car il se
fonde en grande partie sur Ia situation existant
aux Etats-Unis d' Amerique.
Le projet de resolution de Ia FSM ayant ete
soumiS tardivement et le representant de cette
organisation etant absent, M. Moe appuie Ia
proposition de Ia France qui demande que !'ensemble
de Ia question soit renvoye a Ia prochaine
session du Conseil.
M .. PAPANEK (Tchecoslovaquie) est egalement
partisan de l'aj~urnement. II signale que Ia
FSM a presente une demande a cet effet. Le
Conseil, estime-t-il cependant, doit se faire une
opinion sur Ia question avant de Ia renvoyer a
l'OIT.
M. SMITH ( Can;tda) pense, comme le n~presentant
de l'Union des Republiques socialistes
sovi~tiques qu'il ne convient pas de discuter du
fond de Ia question pour le moment. Quant a
!'alternative qui a ete prop~e, il prefere voir
renvoyer immediatement Ia question a l'OIT et
a la Commission des droits de l'homme. On ne
saurait en conclure que cette methode revienne a
prejuger Ia question; elle serait simplement conforme
a !'Accord passe avec l'OIT. Le Conseil
ne serait en aucune maniere lie par les conclusions
de l'OIT, mais il est sage de s'entourer
d'avis competents avant d'essayer d'arriver a tine
decision.
M. VAN KLEFFENS (Pays-Bas), et M. TuRHAN
(Turquie) s'accordent a declarer qu'il faudrait
renvoyer immediatement Ia question a l'OIT et
a Ia Commission des droits de l'homme.
M. KAMINSKY (Republique socialiste sovtetique
de Bielorussie) est d'avis d'acceder a la
demande de Ia FSM et de reporter Ia question a
une date ulterieure.
D'apres M. REm (Nouvelle-lelande), Ia question
des droits des syndicats est l'une des plus
irnportantes parmi celles dont le Conseil a ete
saisi. En raison de la demande de la FSM, il
conviendrait de differer l'examen de Ia question;
cependant, ~tant donne son caract'ere d'urgence,
il serait opportun de la renvoyer sans tarder, ainsi
que le memorandum de !'American Federation
of Labor, a l~OIT et a Ia Commission des droits
de l'homme.
Parlant a titre de representant d'un pays ·qui
compte parmi les plus avances en matiere de
droits syndicaux, M. Reid fait observer qu'a son
avis les deux documents manquent d'e~vergure
193
should have gone considerably further in 'their
.proposals.
Mr. MoRozov (Union of Soviet Socialist Republics)
said that a simple question was becoming
confused. The request of the WFTU should
be granted, and the matter should be postponed,
without being referred to any other organization.
Mr. MAYHEW (United Kingdom) pointed
out that there was general agreement as regards
the competence of the ILO in the matter. The
ILO was to hold a conference in June, and it
·was desirable that the question should be referred
to it at once, so that it might be discussed
at that conference. The proposal for simple postponement
was contrary to the United Nations'
agreement with the ILO.
Mr. PEREZ CISNEROS (Cuba) said that, in
view of the WFTU request that the 'discussion
of the question by the Council should be postponed
until the next session, it would be advisable
in the meantime to obtain the advice of
the ILO.
Mr. BoRIS (France) felt that the question was
so important that it deserved the full consideration
of the Council during the next session. The
Council could decide at that time to what commission
the subject might be referred. He agreed
with the Cuban representative that it might be
desirable to obtain the advice of the ILO in
time for the next session of the Council.
Mr. WINSLOW (United States of America)
observed that the Council had taken a considerable
amount of trouble and had revised
its rules of procedure in such a manner that the
WFTU draft resolution could be placed on the
agenda. He was not aware that the WFTU representative
had indicated his desire to be present
during the discussion of the present question.
The PRESIDENT replied that the WFTU representative
had, in fact, indicated that desire
upon a previous occasion.
Mr. MoRozov (Union of Soviet Socialist Re-
. publics) felt that there was an attempt to give
the ILO a monopoly in the labour field, and to
enlarge its prerogatives at the expense of those
of other organizations. It would be a mistake,
he thought, to require the WFTU to address
itself to the specialized agencies rather than to
the Council direct. The WFTU represented
many millions of people, and had the right to
communicate direct with the , Council. He believed
that the decision to refer the WFTU
draft resolution to a specialized agency would
affect adversely the prestige of the Council.
After a brief discussion concerning procedure,
the PRESIDENT proposed that, as there was general
agreement that the Council should deal
'with the WFTU draft resolution at the next
et de profondeur, et que leurs propositions auraient
dO. avoir une portee beaucoup plus ample.
M. MoRozov (Union des Republiques socialistes
sovietiques) fait observer qu'on est en train
d'embrouiller uric question fort simple. II faut
acceder a Ia demande de Ia FSM et ajourner
l'examen de la question ~ans Ia renvoyer a
aucune autre organisation.
M. MAYHEW (Royaume-Uni) fait observer
qu'il y a accord, en general, pour reconnaitre la
competence de l'OIT en Ia matiere. Cette Orgap.
isation doit se reunir en juin, et il conviendrait
de lui renvoyer immediatement la question,
pour que celle-ci puisse venir en discussion lors
de la conference. La proposition tendant a un
simple ajournement est contraire aux clauses de
!'Accord de !'Organisation des Nations Unies
avec l'OIT.
M. PEREZ CISNEROS (Cuba) declare que,
etant donne la demande de Ia FSM tendant a ce
que la discussion de Ia question pa~ le Conseil
soit remise a la prochaine session, il conviendrait,
dans l'intervalle, de recueillir !'opinion de l'OIT.
M. BoRis (France) estime que la question
presente une importance telle qu'elle merite
l'examen approfondi du Conseil lors de sa prochaine
session. A cette epoque, le Conseil pourra
decider a quelle commission Ia question pourra
.etre renvoyee. II pense, avec le representant de
Cuba, qu'il serait bon de recueillir !'opinion de
l'OIT avant Ia prochaine session du Conseil.
M. WINSLOW (Etats-Unis d'Amerique) fait
observer que le Conseil a pris grand soin de reviser
son reglement interieur pour que le projet
de resolution de la FSM puisse etre inscrit a son
ordre du jour. A sa connaissance, l'e representant
de cette organisation n'a pas manifeste le desir
d'assister a Ia discussion de Ia question.
Le President repond que le representant de la
FSM avait en fait exprime ce desir lors d'une
occasion anterieure.
M. MoRozov (Union des Republiques socialistes
,sovietiques) a It; sentiment qu'on s'efforce
d'accorder a l'OIT le monopole dans le domaine
du travail, et d'etendre les prerogatives de cet
organisme aux depens de celles d'autres organisations.
A son avis, ce serait une erreur que d'amener
Ia FSM a s'adresser aux institutions specia- ·
lisees plutot que directement au Conseil. La FSM
represente des millions de personnes, et a le droit
de communiquer directement avec le Conseil. A
son avis, Ia decision de renvoyer le projet de resolution
de Ia FSM a une institution specialisee
nuirait au prestige du Conseil.
Apres une breve discussion concernant la procedure
a adopter, le President propose que, la
majorite des membres estimant que le Conseil
doit discutet Ia question du projet de resolution
194
session, whether or not the resolution was in the
meantime referred to the ILO, the question of
referring the resolution to the ILO should be
put to the vote first.
Mr. RicHES (International Labour Office)
stated that, ,while the agen~a for the coming
ILO conference was\ already established, any
delegate to the conference could introduce a new
question for discussion by proposing a resolution
to that effect. He felt sure that, should the
Council decide to refer the WFTU draft resolution
to the ILO, the ILO would be able to give
it full consideration and would report upon it
to the next session of the Council, at which time
the regular ILO report to the Council would
be made.
Decision: The United Kingdom proposal that
the draft resolution of the World Federation of
Trade Unions and the memorandum of the
American Federation of Labor should be referred
for consideration to the International
Labour Organization and considered by the
Council at its next session was adopted.
The United States proposal that the two documents
should be referred to the Commission on
Human Rights for consideration of those aspects
which might appropriately form part of the international
bill of rights, was adopted.
57. Discussion of the request by UNRRA
for transfer to United Nations of
UNRRA responsibilities in regard to
utilization by receiving countries of
loc~l currency proceeds derived from
sale of UNRRA supplies (document
E/315Y
The PRESIDENT said that the Council would
have to decide whether or not the item concerning
UNRRA should be placed upon the agenda.
Mr. Mo~ozov (Union of Soviet Socialist Republics)
felt that it was poor practice to introduce
new subjects for discussion when the session
was nearing its end. He recalled that at the first
meeting of the present session a number of representatives
had complained that their Government
had not had sufficient time to study the
various items on the agenda.
'Mr. OwEN (Assistant Secretary-General) said
that the Secretary-General asked the indulgence
of the Council with respect to the present item.
Document E/315 had been in circulation since
5 March; the delay in circulation was the fault,
not of UNRRA, but of the Secretariat. Exceptional
circumstances were involved, since
UNRRA would have ceased to exist before the
t-See Annex 33.
de la FSM lors de sa prochaine ~ession (que cette
resolution ait ete ou non renvoyee dans !'intervalle
a l'OIT), il y a lieu de mettre aux voix en
premier lieu la question du renvoi de la resolution
a l'OIT.
M. RicHES (Organisation internationale du
Travail) declare que, l'ordre du jour de la prochaine
conference de l'OIT ayant deja ete·arrete,
tout delegue a la conference peut proposer la
discussion d'une nouvelle question en soumettant
une resolution a cet effet. II est convaincu que, si
le Conseil decidait de renvoyer le projet de resolution
de la FSM a l'OIT, cette derniere pourrait
l'etudier a fond et faire un rapport a ce
sujet lors de la session suivante du Conseil,
epoque a laquelle sera presente au Conseil le
rapport annuel de l'OIT.
Decision: Ld proposition du Royaume-Uni
demandant que le projet de resolution de la
Federation syndicate mondiale et le memorandum
de l' American Federation of Labor soient
renvoyes pour examen a !'Organisation internationale
du Travail et examines par le Conseillors
de sa prochaine session, est adoptee.
La proposition des Etats-Unis demandant que
les deux documents soient renvoyes ala CommissiO'Ii
des droits 'de l' hom me pour que celle-ci examine
quelles parties pourraient etre incorporees
a la declaration internationale des droits, est
adoptee.
57. Discussion de Ia demande presentee
par I'UNRRA relative au transfert a
!'Organisation des Nations Unies des
fonctions de I'UNRRA concernant !'utilisation
par les pays beneficiaires des
recettes en monnaie locale prov~nant
de Ia vente des fournitures de
I'UNRRA (document E/315Y ,
Le PRESIDENT annonce que le Conseil devra
se prononcer sur l'opportunite d'inscrire a l'ordre
du jour le p9int concernant l'UNRRA.
M. MoRozov (Union des Republiques socia~
listes sovietiques) estime que c'est !a une mauvaise
methode que d'introduire de nouveaux
sujets de discussion au moment ou la session
touche a sa fin. II rappelle qu'a la fin de la
premiere seance de la session en cours, un certain
nombre de representants se sont plaints de ce
que leurs Gouvernements n'avaient pas dispose
d'assez de temps pour examiner les differents
points de l'ordre du jour.
M. OwEN ( Secretaire general adjoint) fait
savoir que le Secretaire general a demande !'indulgence
du Conseil en ce qui concerne le point
dont il s'agit. Le document E/315 a ete distribue
des le 5 mars; le retard apporte dans sa distribution
est imputable, non a l'UNRRA, mais au
Secretariat. Les circonstances etaient exceptionnelles,
puisque l'UNRRA devait cesser d'exister
1 Voir l'annexe 33.
195
Document No. 144
Economic and Social Council, 4th Session, 1947,
Resolution 52 (IV) on Guarantees for the exercise and
development of trade unions

Document No. 145
Agreement between the United Nations and the
International Labour Organization, 1946, article III

385
Agreement between the United Nations and the
International Labour Organization
Article 57 of the Charter of the United Nations provides that
specialized agencies established by intergovernmental agreement and
having wide international responsibilities as defined in their basic
instruments in economic, social, cultural, educational, health and related
fields shall be brought into relationship with the United Nations.
The International Labour Conference, meeting in its twentyseventh
session in Paris on 3 November 1945, adopted a
confirming the desire of the International Labour Organization to
enter into relationship with the United Nations on terms to be
determined by agreement.
Therefore, the United Nations and the International Labour
Organization agree as follows:
ARTICLE I
The United Nations recognizes the International Labour Organization
as a specialized agency responsible for taking such action as
may be appropriate under its basic instrument for the accomplishment
of the purposes set forth therein.
ARTICLE II
Reciprocal representation
1. Representatives of the United Nations shall be invited to
attend the meetings of the International Labour Conference (hereinafter
called the Conference) and its committees, the Governing
Body and its committees, and such general, regional or other special
meetings as the International Labour Organization may convene,
and to participate, without vote, in the deliberations of these bodies.
2. Representatives of the International Labour Organization
shall be invited to attend meetings of the Economic and Social Council
of the United Nations (hereinafter called the Council) and of its
commissions and committees and to participate, without vote, in the
deliberations of these bodies with respect to items on their agenda
in which the International Labour Organization has indicated that
it has an interest.
3. Representatives of the International Labour Organization
shall be invited to attend, in a consultative capacity, meetings of the
General Assembly and shall be afforded full opportunity for presenting
to the General Assembly the views of the International
Labour Organization on questions within the scope of its activities.
386
4. Representatives of the International Labour Organization
shall be invited to attend meetings of the main committees of the
General Assembly in which the International Labour Organization
has an interest and to participate, without vote, in the deliberations
thereof.
5. Representatives of the International Labour Organization
shall be invited to attend the meetings of the Trusteeship Council
and to participate, without vote, in the deliberations thereof with
respect to items on the agenda in which the International Labour
Organization has indicated that it has an interest.
6. Written statements of the Organization shall be distributed
by the Secretariat of the United Nations to all Members of the
General Assembly, the Council and its commissions and the Trusteeship
Council as appropriate.
ARTICLE III
Proposal of agenda items
Subject to such preliminary consultation as may be necessary,
the International Labour Organization shall include on the agenda
of the Governing Body items proposed to it by the United Nations.
Similarly, the Council and its commissions and the Trusteeship
Council shall include on their agenda items proposed by the International
Labour Organization.
ARTICLE IV
Recommendations of the General Assembly and of the Council
1. The International Labour Organization, having regard to the
obligation of the United Nations to promote the objectives set forth
in Article 55 of the Charter and the function and power of the
Council, under Article 62 of the Charter, to make or initiate studies
and reports with respect to international economic, social, cultural,
educational, health and related matters and to make recommendations
concerning these matters to the specialized agencies concerned,
and having regard also to the responsibility of the United Nations,
under Articles 58 and 63 of the Charter, to make recommendations
for the co-ordination of the policies and activities of such specialized
agencies, agrees to arrange for the submission, as soon as possible,
to the Governing Body, the Conference or such other organ of the
International Labour Organization, as may be appropriate, of all
formal recommendations which the General Assembly or the Council
may make to it.
Document No. 146
Minutes of the 102nd Session of the Governing
Body, June-July 1947, Appendix III, Relations with
Other International Organisations

INTERNATIONAL LABOUR OFFICE
MINUTES
OF THE
102ND SESSION
OF
THE GOVERNING BODY
£ 4 S ..TtT'fl 4 fl •WtT 4 fl A — i.CiiNr,Vft—13 JUINIi-IU
IHLIhIiiifluiiiUii
170
APPENDIX III
THIRD ITEM ON THE AGENDA
RELATIONS WITH OTHER INTERNATIONAL ORGANISATIONS
I. UNITED NATIONS
Fourth Session of the Economic and Social Council
INTRODUCTION
i. The Fourth Session of the Economic and Social Council met at the headquarters of the
United Nations at Lake Success from 28 February to 29 March 1947. The Council had before
it, among other questions, the reports of the work of the first sessions of the following Commissions
of the Council, which had met before the Council and at all of which the International Labour
Organisation was represented:
Economic and Employment Commission;
Statistical Commission;
Transport Commission;
Population Commission;
Social Commission;
Commission on Human Rights;
Commission on the Status of Women;
Working Group for Asia and the Far East of the Temporary Sub-Commission on Economic
Reconstruction of Devastated Areas.
2. During consideration of the proposal to establish an Economic Commission for Europe,
a representative of the International Labour Organisation participated in the debates of the
Council for the first time and made the following statement:
This is the first occasion, Mr. President, on which a representative of the International
Labour Organisation has participated in the proceedings of the Economic and Social Council.
The Director-General of the International Labour Office has therefore asked me to
convey to the Council, on behalf of the Chairman of the Governing Body and on his own
behalf, their keen regret that it has not been possible to arrange for the attendance of either
a delegation of the Governing Body or the Director-General, at a session of the Council which
represents an important stage in the development of the relations between the two organisations.
The Governing Body of the International Labour Office is about to hold its 101st Session
in Geneva, and in these circumstances neither Sir Guildhaume Myrddin-Evans and his
colleagues, the representatives of the Employers' and Workers' groups of the Governing
Body, nor Mr. Phelan, have been able to come to New York on this occasion. Every endeavour
will be made in the future to avoid holding major I.L.O. meetings simultaneously with
sessions of the Council, but our experience has been that it is impossible to do our work
efficiently unless the dates of our meetings are settled well in advance. As soon as a fixed
schedule has been agreed upon for the meetings of the General Assembly and the Economic
and Social Council, the I.L.O. will endeavour so to arrange its future meetings as to eliminate
avoidable overlapping, but it will necessarily be some time before such arrangements can
take effect. Meanwhile, we shall do our best to co-operate fully with the Council and with
its Commissions and Committees.'
GUARANTEES FOR THE EXERCISE AND DEVELOPMENT OF TRADE UNION RIGHTS
3. The Council adopted a resolution concerning the question of guarantees for the exercise
and development of trade union rights.
1 E/P.V.54. pp. 41-46.
'7'
4. The Secretary-General of the United Nations communicated this resolution to the
Director-General by the following letter dated z8 April 1947:
Sir,
I have the honour to transmit to you the following resolution which was adopted by the
Economic and Social Council on 24 March 1947 (Document E/372):
The Economic and Social Council,
Having taken note of the item regarding trade union rights placed on its agenda at the request of the World
Federation of Trade Unions, and the memoranda submitted by the World Federation of Trade Unions and the
American Federation of Labor,
Resolves to transmit these documents to the International Labour Organisation with a request that it may
be placed upon its agenda and considered at the forthcoming Session of the International Labour Organisation,
and that a report be sent to the Economic and Social Council for its consideration at the next meeting of the Council.
The Economic and Social Council
Further resolves to transmit the documents to the Commission on Human Rights in order that it may
consider those aspects of the subject which might appropriately form part of the Bill or Declaration on Human
Rights.
The agenda item referred to in this resolution concerned guarantees for the exercise and
development of trade union rights. I am enclosing copies of the documents relating to this
item which were before the Council, together with copies of the relevant verbatim records,
as follows:
E/C2/27 Letter to the Secretary-General from the World Federation of Trade Unions.
E/C2/28 Letter to the Secretary-General from the World Federation of Trade Unions
incorporating a memorandum on the subject of guarantees for the exercise and
development of trade union rights.
E/C2/32 Letter to the Secretary-General from the American Federation of Labor incorporating
a memorandum on basic human rights.
E/372 Resolution adopted by the Economic and Social Council on 24 March 1947.
E/372 Proposal of the Delegation of the Union of Soviet Socialist Republics concerning
Add. i. the guarantees for the exercise and development of trade unions.
Verbatim Records of the twenty-ninth, thirty-third and thirty-fourth plenary meetings of
the Fourth Session of the Council:
EJPV/79 (see pp. 31 et seq.).
E/PV/83 (see pp. i et seq.).
E/PV/84 (see pp. 67 et seq.).
I should be grateful if in pursuance of this resolution you would arrange for the requests
of the Economic and Social Council to be dealt with at the next session of the International
Labour Organisation.
I have the honour to be, etc.,
(Signed) Trygve LIE,
Secretary- General.
5. On 19 April 1947, the Governing Body was consulted by telegram as follows:
Economic and Social Council had before it at Fourth Session proposals from WFTU
and AFL concerning trade union rights. Council decided by majority request matter be
placed agenda forthcoming session ILO Conference and also referred question to its Human
Rights Commission for consideration aspects appropriate Bill Human Rights. Council
further decided request report from ILO for consideration its next session. Since question
freedom of association is basic element in ILO Constitution matter unquestionably within
ILO's competence and since in view agreement with United Nations Govbody will certainly
wish give effect Council's request suggest in agreement with Chairman that brief report on
freedom of association and industrial relations be laid before forthcoming conference and
that Governments be informed so that they may include in delegations qualified persons.
As constitutional four months' notice cannot be given Convention or Recommendation
cannot be adopted but Conference could hold general discussion and consider future action
by ILO. Immediate decision desirable in order that Governments may have longest possible
notice and would therefore appreciate telegraphic reply.
(Signed) Edward PHELAN,
Director- General,
International Labour Office.
6. Thirty replies have been received. The members of the Governing Body who replied
agreed unanimously, subject to certain reservations on the part of one member, to include the
item Freedom of Association and Industrial Relations" in the agenda of the forthcoming
30th Session of the International Labour Conference.
7. Qn May the Body was further consulted by telegram as follows:
Reference telegraphic consultation concerning submission Conference report Freedom
of Association and Industrial Relations twentyeight affirmative replies received. Governments
informed. Assume that Governments may be informed they are entitled nominate
additional advisers in respect this item in accordance terms Constitution. Please cable
reply.
Edward PHELAN.
8. Twenty-three replies have been received. The members of the Governing Body who
replied agreed unanimously that Governments may be informed that they are entitled to nominate
additional advisers in respect of this item in accordance with the terms of the Constitution.
g. The report on the question was published in French on 12 June 1947. The English and
editions will be circulated before the Conference.
io. The Director-General has sent the following letter to the Secretary-General indicating
the action which has been taken on the request made by the Economic and Social Council:
13 june 1947.
Sir,
I have the honour to acknowledge your letter of i8 April 1947 by which you transmitted
to me, in accordance with Article 3 of the Agreement between the United Nations and the
International Labour Organisation, the resolution which was adopted by the Economic and
Social Council at its Fourth Session concerning guarantees for the exercise and development
of trade union rights, and requested me to arrange for this matter to be dealt with at the next
session of the International Labour Organisation.
The Governing Body of the International Labour Office has been consulted in regard to
this matter and, has decided to include in the agenda of the forthcoming 30th Session of the
International Labour Conference the item "Freedom of Association and Industrial Relations".
I enclose herewith for your information a copy in French of the report on this subject which
will be submitted to the Conference. I shall forward to you copies of the report in English
and Spanish as soon as they are available.
The decisions concerning this matter taken at the forthcoming session of International
Labour Conference will be communicated to you for the information of the Economic
and Social Council as soon as they are available.
I have the honour to be, etc.,
Edward PHELAN,
General.
EcoNoMIc COMMISSION FOR EUROPE
ii. The Council, in pursuance of a recommendation made by the General Assembly, established:
an Economic Commission for Europe with terms of reference as follows:
(i) The Economic Commission for Europe, acting within the framework of the policies of
the United Nations and subject to the general supervision of the Council shall, provided that the
takes no action in' respect to any country without the agreement of the Government
'of that . , ' ' '
(a) initiate and participate in measures for facilitating concerted action for the economic
reconstruction of Europe for raising the level of European economic activity and for
maintaining and strengthening thç relations of the European countries both
among themselves and other countries of the world;
or sponspr and of economic and technological problems
cf within member countries of the Commission and Europe
as the deems appropriate;
(c) •uiidertake or sponsor the collection, evaluation and dissemination of such economic, technological
and statistical n rmation as the commission deems appropriate.
(2) The Commission shall give prior consideration, during its initial stages, to measures to
facilitate the economic reconstruction of devastated countries of Europe which are -Members of
the United Nations. . , .. ' '
ImniediateJy upon its establishment, the Commission shall consult with the Member
Governments of Economic Committee for Europe, the European Coal Organisation
and the European Central Inland Transport Organisation with a view to the prompt termination
the first, the absorption or termination of the activities of the second and third, while
ensuring that the essential work performed by each of the three is fully maintained.
The commission is empowered to recommendations on any matter withip its
competence directly to its Member Governments, a cppsitative
Document No. 147
ILC, 30th Session, 1947, Report VII, Freedom of
Association and Industrial Relations