International Labour Law

International Labour Law

International Labour Law by Prof. N. V alticos This book was originally published as a monograph in the International Encyclopaedia for Labour Law and Industrial Relations 1979 Springer-Science+ Business Media, B.V.

Cover design: Pieter 1. van der Sman ISBN 978-94-017-4404-1 ISBN 978-94-017-4402-7 (ebook) DOI 10.1007/978-94-017-4402-7 1979 Springer Science+Business Media Dordrecht Originally published by Kluwer, Deventer, The Netherlands in 1979 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical, photocopying, recording or otherwise, without the written permission of the publisher.

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

List of Abbreviations 15 Introduction 17 CHAPTER I. HISTORICAL AND GENERAL BACKGROUND 17 1. Definition 17 2. Historical development 17 3. The establishment of the International Labour Organization 18 4. The activity of the International Labour Organization 19 I. The International Labour Conference 19 II. The Declaration of Philadelphia 19 III. The agreements with the UN and other international organizations 19 IV. The international labour standards 20 5. The purpose of international labour standards 20 I. International competition 21 II. Contribution to the consolidation of peace 22 III. Social justice 23 IV. Social and human objectives of economic development 25 V. International movement of workers and goods 25 VI. Consolidation of national labour legislation 26 VII. Source of inspiration for national action 26 6. International labour standards and technical co-operation 26 CHAPTER II. THE INSTITUTIONAL FRAMEWORK 27 1. The membership of the ILO 27 I. States Members and rules governing membership 27 II. Withdrawal 28 2. The tripartite structure 29 I. Problems relating to workers' representatives 30 A. The problem of trade union pluralism 30 B. The problem of countries whose trade union system is not considered to be in conformity with freedom of association 31 II. Problems relating to employers' representatives 32 3. The organs of the ILO 34 I. The International Labour Conference 34 II. The Governing Body 36 5

III. The International Labour Office 37 IV. Technical committees and meetings 38 V. Regional meetings 38 4. The competence of the ILO 38 I. The question of agricultural work 39 II. The question of means of production 39 III. The question of the personal work of the employers 40 IV. The question of women holding positions of supervision 40 V. More recent evolution. The competence of the ILO as redefined by the Declaration of Philadelphia 41 5. The standard-setting activities of the ILO and other international organizations 42 CHAPTER III. THE SOURCES OF INTERNATIONAL LABOUR LAW 42 1. ILO Sources 43 I. The Constitution of the ILO 43 II. Conventions and Recommendations 43 A. Nature and characteristics 44 The International Labour Code 46 B. The procedure for the adoption of Conventions and Recommendations 46 1. The inclusion of items on the agenda of the Conference 46 2. The discussion and adoption by the Conference 47 C. Tfie problems encountered in framing Conventions and Recommendations 49 1. The diversity of national conditions 49 a. Universal or regional standards? 49 b. The level of the standards 50 c. The flexibility clauses 51 1. Options allowed to States as regards obligations undertaken 51 2. Flexibility in the formulation of the standard 52 Flexibility as regards the scope 52 Flexibility as regards the content of the obligation 52 3. Flexibility as regards the methods of application 53 d. The drafting of the standard 54 e. Results of flexibility clauses 54 2. The nature of the rights which may be the subject of international standards 54 3. The choice between a Convention and a Recommendation 55 4. The adjustment to change. The revision of Conventions and Recommendations 57 III. Less formal instruments 59 6

IV. Interpretation 60 V. Case law 61 VI. Instruments adopted by special Conferences under the auspices or with the co-operation of the ILO 62 2. United Nations instruments 63 3. Regional instruments 64 I. Council of Europe instruments 64 A. European Social Charter 64 B. The European Human Rights Convention 65 C. Social Security instruments 65 II. European Communities standards 66 Ill. Other regional instruments 66 4. Bilateral treaties 67 I. Labour treaties 67 II. Social insurance treaties 69 Ill. Conclusion 69 5. Relations between the sources 70 I. The role of the various international sources 70 II. The conflict between international sources 71 A. Preventive steps 71 B. Cases of conflict 72 CHAPTER IV. SELECTED BIBLIOGRAPHY 74 Part 1: The Content of International Labour Law 79 CHAPTER I. FREEDOM OF ASSOCIATION FOR TRADE UNION PuRPOSES 79 1. General outline 79 2. The Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) 81 I. The right to establish trade union organizations 81 II. The rights and guarantees of trade union organizations 83 Ill. The right to strike 85 3. The Right to Organize and Collective Bargaining Convention, 1949 (No. 98) 86 4. The Workers' Representatives Convention (No. 135) and Recommendation (No. 143) of 1971 87 5. The Rural Workers' Organizations Convention (No. 141) and Recommendation (No. 149) of 1975 89 6. The Labour Relations (Public Service) Convention (No. 151) and Recommendation (No. 159) of 1978 90 7. Fields in which additional studies and standards have been contemplated 91 8. Other international standards 92 I. Universal standards 92 II. European standards 93 7

9. Bilateral treaties 95 CHAPTER II. FORCED LABOUR 95 1. General outline 95 2. The Forced Labour Convention, 1930 (No. 29) 96 3. The Abolition of Forced Labour Convention, 1957 (No. 105) 97 4. Problems of application of the Forced Labour Conventions 98 I. The problems of forced labour for economic purposes 98 II. The various youth services 99 III. The problems of forced labour for political purposes 101 IV. The problems of forced labour as a means of labour discipline 101 5. Other international standards 102 CHAPTER III. DISCRIMINATION IN EMPLOYMENT 104 1. General outline 104 2. The Discrimination (Employment and Occupation) Convention and Recommendation, 1958 (No. 111) 105 I. Definition of the term 'discrimination' 106 II. Measures which are not deemed to be discrimination 107 III. Individuals and fields covered 109 IV. Action designed to eliminate discrimination 109 3. The action in the field of apartheid 111 4. Other international standards 113 CHAPTER IV. EMPLOYMENT 114 1. General outline 114 2. Employment policy 116 3. Unemployment 118 I. The Unemployment Convention, 1919 (No. 2) 118 II. The unemployment of young persons 119 III. The organization of public works 119 4. Placement 120 I. The abolition or regulation of fee-charging employment agencies 120 A. The progressive abolition of fee-charging employment agencies conducted with a view to profit and the regulation of the other employment agencies 120 B. The regulation of fee-charging employment agencies 121 C. Ratification and problems of application of Convention No. 96 121 D. The problem of temporary work agencies 122 II. The employment service 122 5. Apprenticeship, vocational guidance and training 123 6. Other international standards 124 8

CHAPTER V. WAGES 125 1. General outline 125 2. Minimum wage-fixing 126 I. Introduction 126 II. The 1928 Minimum Wage-Fixing Machinery Convention (No. 26) and Recommendation (No. 30) 127 III. The 1951 Minimum Wage-Fixing Machinery (Agriculture) Convention (No. 99) and Recommendation (No. 89) 128 IV. The 1970 Minimum Wage-Fixing Convention (No. 131) and Recommendation (No. 135) 129 V. The social policy Conventions 130 VI. Provisions concerning special categories of workers (seafarers and plantations workers) 130 3. Protection of wages 131 4. Labour clauses in public contracts 132 5. Other international standards 133 CHAPTER VI. GENERAL CONDITIONS OF WORK 134 1. Hours of work 134 I. General outline 134 II. The standard of the eight-hour day and the 48-hour week 136 A. The Hours of Work (Industry) Convention, 1919 (No. 1) 136 B. The Hours of Work (Commerce and Offices) Convention, 1930 (No. 30) 137 C. The special Conventions 138 III. The standard of the forty-hour week 138 A. The Forty-Hour Week Convention, 1935 (No. 47) 138 B. The special Conventions 139 C. The Reduction of Hours of Work Recommendation, 1962 (No. 116) 139 IV. Difficulties of ratification and application of the standards on hours of work 139 V. Other international standards 140 2. Weekly rest 140 I. General outline 140 II. Weekly rest in industry 141 III. Weekly rest in commerce and offices 141 IV. Other international standards 142 3. Paid leave 142 I. General outline 142 II. The 1936 Holidays with Pay Convention and Recommendation 143 III. The 1954 Holidays with Pay Recommendation 144 9

IV. The 1952 Standards on Holidays with Pay in Agriculture 144 V. The 1970 Revised Convention on Holidays with Pay 145 VI. Paid educational leave 146 VII. Public holidays 147 VIII. Other international standards 147 4. Industrial hygiene and safety 147 I. General outline 147 II. Standards relating to specific risks 148 A. White phosphorus 148 B. White lead 149 C. Anthrax 149 D. The hazards of poisoning arising from benzene 149 E. Occupational cancer 150 F. Radiation protection 150 G. The guarding of machinery 151 H. Maximum weight 151 I. Working environment: atmospheric pollution, noise and vibrations 152 III. Standards concerning special branches of activity 152 A. Industrial establishments 152 B. Building and construction 152 C. Bakeries 153 D. Work in offices and commerce 153 E. Dock work 153 F. Maritime work 154 G. Other activities 154 IV. Standards concerning methods and institutions for the prevention of industrial accidents and the protection of workers' health 154 A. The prevention of industrial accidents 154 B. The protection of workers' health 154 C. The occupational health services 155 V. Standards defining the occupational diseases which give rise to compensation 155 VI. Future prospects 157 VII. Other international standards 157 5. Welfare facilities, housing and spare time 158 I. Welfare facilities for workers 158 II. Housing 158 III. Workers' spare time 159 CHAPTER VII. SOCIAL PoLICY 160 10 1. General principles of social policy 160 2. Social repercussions of technical progress 161 3. Multinational enterprises and social policy 162

CHAPTER VIII. SOCIAL SECURITY 162 CHAPTER IX. INDUSTRIAL RELATIONS 164 1. General outline 164 2. Collective agreements 165 3. Voluntary conciliation and arbitration 166 4. Co-operation at the level of the undertaking 167 5. Consultation at the industrial and national levels 167 6. Termination of employment at the initiative of the employer 168 7. Communications and examination of grievances in the undertaking 170 CHAPTER X. WORK OF WOMEN 171 1. Maternity protection 172 2. Night work 173 3. The employment of women in unhealthy or dangerous occupations 175 4. Equal remuneration 176 5. Employment of women with family responsibilities 178 6. Standards relating to particular aspects of the work of women 178 7. Other international standards 179 CHAPTER XI. WoRK of CmLDREN AND YouNG PERSONS 180 1. The minimum age for admission to employment 181 I. The general standard of 14 years and its variations 181 II. The general standard of 15 years 183 III. Minimum age for certain arduous occupations 183 IV. The principle of the fixing of a minimum age as an element of social policy 184 V. The consolidated general standard of 1973 184 VI. Problems of ratification and of application of minimum age Conventions 185 2. Night work of young persons 186 3. Medical examination 187 4. Special provisions contained in Conventions of general application 189 5. Other international standards 189 CHAPTER XII. OLDER WORKERS 191 CHAPTER XIII. SPECIAL CATEGORIES OF WORKERS 191 1. Seafarers and fishermen 191 I. Seafarers 191 A. Special procedure for the framing of standards concerning employment at sea 192 11

B. The question of the applicability to seafarers of international labour Conventions of a general scope 192 C. Conditions for the entry into force of maritime Conventions 193 D. General outline of the standards relating to employment at sea 194 II. Fishermen 199 2. Workers in agriculture 200 3. Indigenous workers and workers of non-metropolitan ~rr~ri~ W1 I. Indigenous workers 202 A. Recruiting 202 B. The contracts of employment 203 C. Penal sanctions for breaches of contracts of employment 203 II. Workers in non-metropolitan territories 204 A. Social policy 204 B. Right of association 205 C. Labour inspection 205 D. Labour standards 205 III. Indigenous and tribal populations 206 4. Public employees 206 5. Nursing personnel 207 CHAPTER XIV. FOREIGN AND MIGRANT WORKERS 207 1. Conventions dealing specifically with the situation of foreign and migrant workers 2. General Conventions containing a special provision on 208 foreign workers 210 3. Conventions which do not contain any provision on foreign workers 211 4. Other international standards 212 CHAPTER XV. LABouR ADMINISTRATION 214 1. Labour inspection 215 I. General outline 215 II. Labour inspection in industry and commerce 216 A. Convention No. 81 of 1947 216 B. The 1947 Recommendations 218 C. Problems of ratification and of application of Convention No. 81 218 III. Labour inspection for seamen 219 IV. Labour inspection in agriculture 219 V. Labour inspection in non-metropolitan territories 220 VI. Other international standards 221 2. Labour administration 221 12

3. Labour statistics 221 4. Tripartite consultation relating to standards 222 CHAPTER XVI. THE REVIEW OF EXISTING STANDARDS 223 Part II: The Implementation of International Labour Standards 225 CHAPTER I. OBLIGATIONS IN RESPECT OF STANDARDS 225 1. The obligation to submit Conventions and Recommendations to competent authorities 225 2. The obligation to respect certain fundamental principles 227 3. The obligation to supply reports on unratified Conventions and on Recommendations 228 CHAPTER II. RATIFICATION OF CONVENTIONS AND ENSUING OBLIGATIONS AND EFFECT 228 1. Ratification of Conventions 228 I. The ratification: concept and procedure 228 II. Present state of ratifications 229 III. State succession 230 2. Entry into force of Conventions 230 3. Denunciation of Conventions 231 4. The obligation to implement ratified Conventions 231 I. Nature of the necessary implementing measures 231 II. International labour standards as minimum standards 232 III. Obligation in respect of non-metropolitan territories 232 IV. The effect of war, force majeure and emergency 233 V. The obligation to supply reports 233 5. The incorporation of international Conventions into national law as a result of ratification and the conflict between international and national rules 234 I. Incorporation of international Conventions into national law 234 II. The question of self-executing standards 235 III. The conflict between the incorporated international standards and ordinary laws 237 A. Conflict with earlier law 237 B. Conflict with later law 238 C. European Communities 239 D. European Social Charter 239 CHAPTER III. THE GENERAL SUPERVISORY MAcHINERY OF me ILO: (I) THE EXAMINATION OF PERIODICAL REPORTS 239 1. The Committee of Experts on the Application of Conventions and Recommendations 240 13

2. The Conference Committee on the Application of Conventions and Recommendations 242 3. Direct contracts with governments 242 4. The main difficulties encountered 243 5. The results obtained 244 CHAPTER IV. THE GENERAL SUPERVISORY MACHINERY OF THE ILO: (11) THE EXAMINATION OF COMPLAINTS 245 1. Complaints 245 2. Representations 248 CHAPTER V. THE SPECIAL MACHINERY IN THE field OF FREEDOM OF ASSOCIATION 248 1. The Committee on Freedom of Association 249 2. The Fact-Finding and Conciliation Commission 250 CHAPTER VI. SPECIAL STUDIES AND INQUIRIES, PROMOTIONAL MEASURES AND TECHNICAL CO-OPERATION 252 1. Special studies and inquiries 252 I. Freedom of association 252 II. Forced labour 254 III. Discrimination 254 2. Promotional measures: information, education and training 254 3. Technical co-operation and World Employment Programme 255 CHAPTER VII. MAIN CHARACTERISTICS OF THE SUPERVISORY SYSTEM 256 CHAPTER VIII. SUPERVISORY MACHINERY ESTABLISHED BY OTHER INTERNATIONAL ORGANIZATIONS 1. United Nations instruments 2. Council of Europe instruments I. European Social Charter II. European Social Security Code 3. The instruments of the European Communities CONCLUDING REMARKS: THE OUTLOOK FOR THE FuTURE INDEX 258 258 259 259 260 260 261 263 14

List of Abbreviations A.J.I.L. American Journal of International Law. Ann. Annuaire Fran~ais de droit international. B.Y.B.I.L. The British Year Book of International Law. Intern. Lab. Code The International Labour Code. 1 I.L.C. International Labour Conference. ILO International Labour Office. I.L.R. International Labour Review. Minutes G.B. Minutes of the Governing Body of the IL0. 2 O.B. Official Bulletin of the ILO. Rec. Cours Recueil des Cours de 1' Academie de droit international. Rec. Proc. Conf. Record of Proceedings of the ILC. 3 Rep. Conf. Com. Report of the Committee on the Application of Conventions and Recommendations of the ILC. Rep. Com. Exp. Report of the Committee of Experts on the Application Rep. D.-G. Rev. crit. 1. Reference is made to Volume I. of Conventions and Recommendations. 4 Report of the Director-General of the ILO. Revue critique de droit international prive. 2. The first number following this abbreviation refers to the session of the Governing Body. 3. The first number following this abbreviation refers to the session of the Conference. 4. Published as Report III (Part 4) submitted to each ordinary session of the International Labour Conference. 15