Saturday, 29 October 2016

International Labor Standards : Rights Of Workmen Irrespective Of Borders

International Labor Standards : Rights Of Workmen Irrespective Of Borders

According to International Training Center, the training arm of International Labor Organisation

"Globalization - the interlinking of national economies - has been intensifying in the last few decades and affecting almost everybody in the world.  While it has provided opportunities for some regions it has also led to increased inequality within many countries and a growing gap between the world's richest and poorest nations. If this pattern continues even more poverty, social instability and conflict will develop. Consequently there is growing recognition in the international community that to ensure fair treatment and increased prosperity for everybody basic global rules are needed."

This has been a growing concern amongst all. The International Labour Organization (ILO) is the global body concerned with all matters connected to work in the world. It is a specialized agency of the United Nations. Since 1919 it has been setting rules about employment in order to ensure that social justice, prosperity and peace for all develop along with economic progress.

These rules - called international labour standards - are legal instruments which define basic minimum standards in the world of work. They are drawn up by representatives of governments, employers and workers in a tripartite fashion and so represent the work-related principles of the major actors in the global economy. As instruments of law which can be ratified  by governments the standards are part of the legal framework the international community is developing as it confronts the effects of globalization. But they also serve as guide posts for organizations, companies and individuals concerned with basic principles and rights at work.

There are two types of Standard CONVENTIONS & RECOMMENDATIONS. Conventions are mandatory applied on all ILO Member. Recommendations are non-binding suggested guidelines.

The ILO's Fundamental Conventions

(A) Freedom of association and the effective recognition of the right to collective bargaining 
  1. No. 87: Freedom of Association and Protection of the Right to Organize, 1948.
  1. No. 98: Right to Organize and Collective Bargaining, 1949

The right to organise and bargaining collectively are basic rights for  all working people and employers, with the only exception of armed forces and police. Yet all over the world the application of these fundamental principles continues to be challenged. In many countries certain categories of workers (such as public employees, seafarers and workers in export processing zones) are denied the right to form a union.  Other countries illegally suspend or interfere with labour organizations. Some even encourage or systematically ignore the killing of unionists.  Meanwhile, there are countries which deny the rights of association to employers so that effective tripartite social dialogue of all the major actors - governments, employers and workers - is inhibited.
 The ILO works towards guaranteeing freedom of association, effective collective bargaining and social dialogue. Convention No. 87 (Freedom of Association and Protection of the Right to Organize) sets forth the rights of  workers and employers. These include establishing and joining organizations of their own choosing without previous authorization, organize their administration and activities, formulate their programmes, and affiliate with national or international organizations.

Convention No 98 (Right to Organize and Collective Bargaining) provides that workers will be protected against acts of anti-union discrimination, including dismissal because of union membership or participation in union activities and free from requirements that a worker not join a union or relinquish union membership for employment. It also guarantees adequate protection against any acts of interference from employers’ organizations and enshrines the right to collective bargaining so workers and employers can freely negotiate wages, benefits, working conditions and other employment issues.

There are other ILO conventions relevant to freedom of association and collective bargaining. For example, Convention No. 135 (Workers' Representatives) provides facilities for workers’ representatives and protection  from being dismissed or otherwise punished based on their status, union membership or activities related to their unions. Convention No. 141 (Rural Workers' Organization) describes the freedom of association and bargaining rights of rural workers whether they are wage earners or self-employed. It also describes the obligation for governments to facilitate the establishment and growth of labour organizations.

The right to form unions and bargain collectively is not only a question of workers' rights. It is also related to the sustainable development of countries. It has been recognized that countries with highly coordinated collective bargaining systems tend to have less inequality in wages, lower and less persistent unemployment, and fewer and shorter strikes than countries where collective bargaining is less established.

(B) The elimination of all forms of forced or compulsory labour.
  1. No. 29: Forced Labour, 1930 
  2. No. 105: Abolition of Forced Labour, 1957.
            The ILO estimates that currently at least 12.3 million women, men and children across the world are victims of forced labour. They are trapped in exploitative work which they are unable to leave and are suffering at the hands of unscrupulous employers, labour contractors or agents. They may be victims of trafficking into commercial sexual exploitation but, more often, they are working in economic sectors like agriculture, construction or informal manufacturing, frequently labouring under the burden of a debt which they can never repay. Many, especially women and girls, are trapped in forced domestic service in private households, well beyond the reach of the protections afforded by labour law. Irregular migrant workers are highly vulnerable to forced labour exploitation, living and working in constant fear of being turned over to the authorities in their host country. Indigenous peoples are also among the most vulnerable, for whom forced labour is another facet of the discrimination they face in all aspects of their lives. A minority – but still a significant number of people – suffer forced labour imposed directly by the state or by its representatives. Everywhere, in rich and poor countries alike, forced labour affects the poorest and the most socially marginalized groups in the population.

            Forced labour, wherever it occurs, represents a brake on social and economic development and a violation of human rights. The ILO’s clear message is that it can be and must be stopped. The numbers of people affected are large, but not so large that abolition appears an unattainable goal.         

            The Forced Labour Convention (No. 29) demands suppression of  the use of forced or compulsory labour in all its forms within the shortest possible period. Forced labour is defined as any work or service which is exacted from any person under the menace of any penalty and for which the person has not offered him or herself voluntarily. However, work or services exacted in virtue of compulsory military service laws, as a consequence of a conviction in a court of law , in cases of emergency, which forms part of normal civic obligations, and minor community services are not considered forced labour. The Abolition of Forced Labour Convention, 1957 (No. 105), that supplements Convention No 29, asks to suppress and not to make use of any form of forced or compulsory labour as a means of political coercion, education or punishment. It also prohibits using forced labour as a method of mobilising and using labour for purposes of economic development, as a means of labour discipline, or as a penalty for having participated in strikes, or still as a means of racial, social, national, or religious discrimination.

            Forced or compulsory labour is also covered by the ILO's Convention on the worst forms of child labour, 1999 (No. 182).

(C) The effective abolition of child labour
  1. No. 138: Minimum Age, 1973.
  2. No 182: Worst Forms of Child Labour, 1999.

            According to ILO estimates  there are some 317.4 million children aged 5 to 17 engaged in some form of economic activity in the world (2004), including 190.7 million in the age group from 5 to 14 years. “Economic activity” encompasses most productive activities of children: it includes both work that is permissible under the ILO Child Labour Conventions and work that is not permissible. “Child labour”, however, is a narrower concept: it excludes the activities of children 12 years and older who are working only a few hours a week in permitted light work and those of children 15 years and above whose work is not classified as “hazardous”. ILO action targets the elimination of child labour as defined in the ILO Minimum Age Convention, 1973 (No. 138) and the ILO Worst Forms of Child Labour Convention, 1999 (No. 182) and not all economic activities of children. The ILO research mentioned above also identified an estimated 217.7 million children in child labour aged 5 to 17 years (of which 165.8 million were below the age of 15), 107.6 million below the age of 12, and 126.3 million child labourers working in hazardous situations or conditions (of which 74.3 million children were below 15 years of age).  
            Child labour is a violation of fundamental human rights. It has been shown to perpetuate poverty across generations as children grow up without access to education or decent health care.

            ILO standards on child labour are primary international tools for addressing the problem. The Minimum Age Convention, 1973 (No. 138) sets a general minimum age for admission to employment or work that shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years, 13 years for light labour. For hazardous work the minimum age is 18 (or 16 under strict conditions). The Worst Forms of Child Labour Convention (No. 182) was adopted by the ILO in 1999, and supplements Convention No. 138. It requires member states of the ILO to eliminate all forms of slavery or practices similar to slavery (such as the sale and trafficking of children, debt bondage and serfdom, forced or compulsory labour, and the forced or compulsory recruitment of children for use in armed conflict); the use, procuring or offering of children for prostitution and pornography; the use, procuring or offering or children for illicit activities such as the production and trafficking of drugs; and work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

            The convention requires ratifying states to provide the means to remove children from the worst forms of child labour and for their rehabilitation and social integration. It also requires states to ensure access to free basic education and, wherever possible or appropriate, provide vocational training for children removed from the worst forms of child labour.             

(d) The elimination of discrimination related to employment and occupation.
  1. No. 100: Equal Remuneration, 1951
  2. No. 111:  Discrimination (Employment and Occupation), 1958
Millions of men and women around the world are denied access to jobs and training, receive low wages, or are restricted to certain occupations simply on the basis of their sex, skin colour, ethnicity or beliefs without regard for their skills and capabilities.

            Freedom from discrimination is a fundamental human right which is essential for workers and job seekers to choose their employment freely, to develop their potential to the full, and reap economic rewards on the basis of merit.

            One of the ILO's fundamental conventions is No. 100 on Equal Remuneration between men and women. The convention requires countries that have ratified it to ensure the application of the principle of equal remuneration for men and women workers for work of equal value. The term "remuneration" is broadly defined to include the ordinary, basic or minimum wage or salary and any other compensation payable directly or indirectly, whether in cash or kind, by the employer to the worker and arising out of the workers' employment.  The term equal value means that men and women who  have different positions should be paid equally if the content of their job is objectively of equal value. According to this concept, Convention No. 100 requires member states to evaluate the respective value of different jobs in order to end the under evaluation of jobs mostly performed by women.

            The second fundamental convention related to equality is No. 111: Discrimination (Employment and Occupation).  It defines discrimination as any distinction, exclusion or preference  made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. The convention requires countries which ratify it to implement policies designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in employment and occupation with a view to eliminating any discrimination in this area. As a first step, the state is expected to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy. It is important to notice that prohibition of discrimination should cover not only the conditions of employment but also recruitment and access to vocational training and guidance.

            A related convention is No. 156: Workers with Family Responsibilities. This convention requires states to make it a national goal to enable people with family responsibilities who are engaged, or wish to engage, in employment to exercise their right without discrimination.

(E) Payment of Respectable Wages

According to Protection of Wages Convention, 1949. The objective of Convention No. 95 is to guarantee the payment of wages in full and in a timely manner.

Wages: remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by mutual agreement or by national laws or regulations, which are payable in virtue of a written or unwritten contract of employment by an employer to an employed person for work done or to be done or for services rendered or to be rendered.

The Convention applies to all persons to whom wages are paid or payable. Although the competent national authority may, after consultation with the organizations of employers and employed persons, exclude from the application of all or any of the provisions of the Convention, categories of persons whose circumstances and conditions of employment are such that the application to them of all or any of the said provisions would be inappropriate and who are:
  1. not employed in manual labour; or 
  2. are employed in domestic service.

 Workers have to be informed of the conditions in respect of wages under which they are employed and the particulars of their wages in so far as they may be subject to change.

 Wages payable in money have to be paid only in legal tender. However, the competent authority may permit their payment by cheque in certain circumstances. Furthermore, the payment of wages when made in cash has to be on working days only and in principle at or near the workplace, but never in taverns. 

The partial payment of wages in the form of allowances in kind may be authorized under the following conditions:
  • it is customary or desirable in the industry or occupation concerned; 
  • they are in no case paid in the form of liquor of high alcoholic content or of noxious drugs;     
  • they are appropriate for the personal use and benefit of the worker and her or his family; 
  • they are reasonable wages
Wages have to be paid regularly. Upon the termination of a contract of employment, a final settlement of all wages due has to be made within a reasonable period of time.

Wages normally have to be paid directly to the worker, and employers may not limit in any manner the freedom of the workers to dispose of their wages.

Deductions from wages may be permitted only under conditions and to the extent prescribed by national laws or regulations, or fixed by collective agreement or arbitration award, and must not be made for the purpose of obtaining or retaining employment.

Applying and promoting International Labour Standards : ILO supervisory system

International labour standards are backed by a supervisory system that is unique at the international level and that helps to ensure that countries implement the conventions they ratify. The ILO regularly examines the application of standards in member states and points out areas where they could be better applied. If there are any problems in the application of standards, the ILO seeks to assist countries through social dialogue and technical assistance.

The ILO has developed various means of supervising the application of Conventions and Recommendations in law and practice following their adoption by the International Labour Conference and their ratification by States. There are two kinds of supervisory mechanism:

The regular system of supervision: examination of periodic reports submitted by Member States on the measures they have taken to implement the provisions of the ratified Conventions

Special procedures: a representations procedure and a complaints procedure of general application, together with a special procedure for freedom of association 

The regular system of supervision is based on the examination by two ILO bodies of reports on the application in law and practice sent by member States and on observations in this regard sent by workers’ organizations and employers’ organizations.

The Committee of Experts on the Application of Conventions and Recommendations
The International Labour Conference’s Tripartite Committee on the Application of Conventions and Recommendations

Unlike the regular system of supervision in Special Procedure, the three procedures listed below are based on the submission of a representation or a complaint:

  1. Procedure for representations  on the application of ratified Conventions.
  2. Procedure for complaints  over the application of ratified Conventions.
  3. Special procedure for complaints regarding freedom of association through the Freedom of Association Committee 

International labour standards are universal instruments adopted by the international community and reflecting common values and principles on work-related issues. While member States can choose whether or not to ratify any conventions, the ILO considers it important to keep track of developments in all countries, whether or not they have ratified them. Under article 19 of the ILO Constitution , member States are required to report at regular intervals on measures they have taken to give effect to any provision of certain conventions or recommendations, and to indicate any obstacles which have prevented or delayed the ratification of a particular convention.

The Committee of Experts publishes an in-depth annual General Survey on member States' national law and practice, on a subject chosen by the Governing Body. These surveys  are established mainly on the basis of reports received from member states and information transmitted by employers' and workers' organizations. They 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.

Article 22 of the ILO Constitution: Obligation to report on ratified Conventions

"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."

Article 19 (5e): Obligation to report on unratified Conventions

"If the Member does not obtain the consent of the authority or authorities within whose competence the matter lies, no further obligation shall rest upon the Member except that it shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention."

Article 19 (6d): Obligation to report on Recommendations

"Apart from bringing the Recommendation before the said competent authority or authorities, no further obligation shall rest upon the Members, except that they shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of the law and practice in their country in regard to the matters dealt with in the Recommendation, showing the extent to which effect has been given or is proposed to be given, to the provisions of the Recommendation and such modifications of these provisions as it has been found or may be found necessary to make in adopting or applying them."

Article 23: Ratified Conventions, unratified Conventions and Recommendations

"The Director-General shall lay before the next meeting of the Conference a summary of the information and reports communicated to him by Members in pursuance of articles 19 and 22."
"Each Member shall communicate to the representative organizations […] copies of the information and reports communicated to the Director-General in pursuance of articles 19 and 22."

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