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GB.273/4
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FOURTH ITEM ON THE AGENDA
Follow-up on the discussion of the Report of
the Director-General to the 85th Session (1997)
of the International Labour Conference (Part II)
Improving the standard-setting activity of the ILO
1. The Governing Body held a brief preliminary discussion on this subject at its 270th Session (November 1997). The paper prepared by the Office for that discussion is appended.(1) It highlighted the issues that emerged from the 1997 Conference discussion on what further action might be taken and which the Governing Body decided to examine more fully at the 273rd Session. These can be summarized as follows.
Procedure for the selection of subjects for standard setting
2. This issue has to be addressed in the context of the portfolio of proposals for possible standard-setting items. In the light of its examination of the first two presentations in the form of a portfolio at the 270th and the present sessions and the suggestions made in the appended paper, the Governing Body may wish to give further guidance on the manner of presenting the portfolio and the way in which it can best be used.
3. Recent experience at the Conference with controversial and complicated topics has underlined the importance of selecting a subject for standard setting only when the necessary research and preparatory work has been carried out and the subject can reasonably be considered to be "ripe" for standard setting. As pointed out in paragraph 20 of the appended extract:
The definitive inclusion of an item on the Conference agenda with a view to standard setting should be the culmination of a process leading to a clearer view of the possible content of the instrument under consideration and thus of its "added value" as a standard-setting instrument. Compiling a portfolio would improve the situation by helping, after a number of successive examinations, to define the outline of the instrument on the subject envisaged.
4. The portfolio is a tool which is still at an early stage of development. Among other things, constituents are now increasingly responding to requests for their suggestions. This will further influence the content of the portfolio and its role as a reference document in the standard-setting process. In addition to listing by subject the proposals or ideas relating to questions that could be placed on the agenda of the Conference for possible standard-setting action, the portfolio also presents these questions according to their level of preparation by the Office. Information of this kind can be found in document GB.273/2 submitted to the present session of the Governing Body. This approach should become a standard one to enable the Governing Body to determine the Conference agenda in full knowledge of all the facts.
5. More specifically, as regards the subjects under consideration for standard-setting action, this form of presentation should help the Governing Body to ascertain, at each of its November sessions, to what extent any given subject is "ripe" for standard setting. Where this is not yet the case, the question will not be included in the more detailed document submitted to the following session of the Governing Body (March) with a view to standard-setting action. If a subject is found to be suitably "ripe", on the basis of information provided by the Office concerning the results of research work or its degree of advancement, the Governing Body should indicate:
- if it is difficult to specify the objective and the scope of the standards to which the subject under consideration could give rise (situation illustrated by the question of private employment agencies), the Governing Body could request additional information concerning the constituents' level of interest in the subject as well as a more detailed report to enable it to ascertain at its March session whether, instead of being immediately selected with a view to the adoption of an instrument, this subject could, if selected, be the subject of a preliminary discussion prior to standard-setting action;
- if the subject is clearly defined and has a definite "added value" as a standard-setting instrument, the Governing Body could request the Office to prepare a preliminary draft of the proposed instrument, if this has not already been done. This would allow the Governing Body to give its views or guidance at its March session regarding the possible content of the instrument, which would prove extremely useful for the preparation of questionnaires.
6. The Governing Body will certainly wish to give its views on the above paragraphs so that the Office can take them into consideration when preparing the next version of the portfolio.
Overlapping or consolidation of instruments
7. The Office paper of November 1997 pointed out that, if a survey of existing standards in each subject-area is to be carried out in order to identify the degree of overlap, repetition or even inconsistency to make it possible to consider framing new global instruments covering specific fields, the necessary resources and technical competencies would need to be mobilized. This would accordingly be a matter to be included among the proposals for the next programme and budget if there is sufficient interest in the idea in the Governing Body.
8. Certain proposals contained in the portfolio for the agenda of the Conference in the year 2001 relate to a grouping together of instruments, for example around a "pivotal" Convention such as the Chemicals Convention, 1990 (No. 170), which could be supplemented by one or more Protocols relating to hazards or specific products. It is also likely that the work carried out by the Working Party on Policy regarding the Revision of Standards, by providing a subject-by-subject view of the situation, will help to ascertain the feasibility of a global instrument for each of these subjects.
Questions which might be referred to the Committee on
Legal Issues and International Labour Standards
9. The appended paper identified a number of suggestions which the Governing Body may wish to refer to the Committee on Legal Issues and International Labour Standards for further study if it considers they merit following up. They are summarized below:
- an increase in the number of ratifications required for a Convention to enter into force (paragraph 25);
- inclusion in the Memorandum on Submission to the Competent Authority, and in the forms for reports under article 19, paragraph 5(e) of the Constitution, of a question asking governments to indicate why they have not ratified a Convention which they supported by an affirmative vote at the Conference (paragraph 26);
- overall evaluation of the impact of instruments, initially through a pilot study on a limited number of instruments to be identified by LILS (paragraphs 32-34);
- preparation of a Code of Good Drafting Practices for the guidance both of the Office and of Conference committees, in particular their drafting committees (paragraph 30);
- reform of the questionnaire that initiates the standard-setting process (paragraph 31).
10. The first and second questions could be examined at a future session by the Committee on Legal Issues and International Labour Standards, to which the draft forms for reports under articles 19 and 22 will be submitted.
11. The third question raises a problem of resources as well as one of choice. At this stage, no resources have been allocated in the budget proposals given that there has not yet been a substantive discussion on the strengthening of the procedures to evaluate the impact of standards.
12. Although the Office of the Legal Adviser has already begun work on the fourth question which is one of certain practical interest, more time and additional resources will be necessary to complete this work and to add a trilingual glossary covering the most frequently used terms and expressions. If the necessary resources are made available, this work could be submitted to the Committee on Legal Issues and International Labour Standards at the beginning of the next biennium.
13. The fifth question could potentially give rise to the most immediate improvement in the quality of standards, a need that has once again become apparent with the standards currently under preparation. The Governing Body could decide to place this item on the agenda of the Committee on Legal Issues and International Labour Standards in November 1999 in order to leave sufficient time to carry out the relevant preparatory work and consultations.
Geneva, 29 October 1998.
Points for decision: Paragraph 6;
Paragraph 13.
Appendix
Extract from document GB.270/3/2
Follow-up on the discussion of the Report of
the Director-General to the 85th Session (1997)
of the International Labour Conference:
(b) Other aspects of follow-up on the discussion of
the Report of the Director-General
(Section II)
II. Improving the standard-setting activity of the ILO
[Report, pp. 35-64+Annex]
11. The second part of the Director-General's Report proposed possible improvements to the ILO's standard-setting activity to ensure that standards have a greater impact and better meet constituents' needs.
12. All 117 speakers who spoke on this second part acknowledged the need to target standards more effectively in order to increase their impact. Many delegates endorsed the idea of rationalizing the entire standard-setting process, from the selection of subjects through the different phases of preparatory work and the adoption procedure in the committees, to the ratification procedure. One Employers' delegate (IOE) recalled that all these adjustments should have but one purpose: that of achieving tripartite agreement which is the best guarantee that a text once adopted can be implemented and therefore effective.
13. Some of these proposals can be implemented rapidly: they require a decision by the Office which can be taken once the Office is sure of obtaining the consent of the Members. Others will require a decision by the Governing Body following on from the work carried out by the Committee on Legal Issues and International Labour Standards. Other proposals that have been widely supported will require a supplementary examination by the Committee before the Governing Body can decide whether or not to adopt them, and in some cases implementation of those proposals will require amendments to the Standing Orders of the Conference.
The content of standards
[Report, pp. 37-48]
The range and criteria of choices
[Report, pp. 38-43]
14. Standard setting needs to be more selective to ensure that standards have greater relevance and impact. Measures have already been taken in this respect and the Governing Body will be examining the content and form of a regularly updated "portfolio" of proposals for standard-setting items. This should give the Governing Body a wider overall view of possible standard-setting actions when setting the Conference agenda and allow it to make strategic choices rather than choosing a subject which is neither ready nor acceptable to anyone -- a situation bound to lead to disagreement and frustration during discussions at the Conference and disappointment at the ratification or implementation stages. However, to ensure that this portfolio is not simply an extended list of standard-setting items, we need to ensure greater involvement by all the constituents, using the technical departments and the Office's decentralized structures. Another question is whether the criteria for including subjects in the future portfolio should include (in addition to those retained in the first in-depth review on standards such as the number of workers affected, the extent to which the subject would affect workers in the lower economic stratum, and the severity of the problem) a precise evaluation in the case of each subject envisaged for standard setting of the qualitative input ("added value") which would be made by the new instrument to the existing ILO instruments and to the internal legal systems of ILO member States.
15. There were numerous references to the need for measures in this area (57 in all). Furthermore, some Employers' delegates (Japan, Malta, Peru, Spain, United States) recalled that the choice of international labour standards must respect the subordinate nature of international regulation in relation to domestic law. This concern was matched by that of a number of governments who recalled that Conventions should deal only with essentials and allow national legislators room for manoeuvre in applying them (Kuwait, IMEC).
16. The discussion of the draft portfolio at the present session of the Conference will no doubt help us to decide whether information on the added value of future standards should be included in the portfolio or made available to the Governing Body only when it comes to select the items suitable for inclusion on the agenda of a particular session of the International Labour Conference.
Overlapping or consolidation of instruments?
[Report, pp. 43-45]
17. The adoption of standards by the Conference has over time created an overlap between instruments dealing with similar subjects. Many Conventions and Recommendations have a common approach and contain identical or parallel provisions. This overlap, quite apart from the risk of differences or even contradictions, dilutes the impact of the provisions that are common to all the instruments. The process of revising standards which, following the exercises of 1977 and 1987, has been set in motion once again by the Working Party on Policy regarding the Revision of Standards, is at the stage of identifying instruments in need of revision. That process will take some time to complete. For that reason, it was proposed that for each subject area (employment, social policy, industrial relations, etc.) a preliminary survey of existing instruments should be undertaken to provide an overall view and, for example, allow differentiation between the general principles applicable to all workers or sectors and provisions specific to a particular sector or category of workers.
18. Some governments (Australia, France, Gabon, Mauritius, Mexico, Poland, Romania) and Employers' delegates (Australia, India, Kuwait) supported this idea. One Government delegate (Canada) expressed the wish for a proposal setting out precise figures. Another Government delegate (France) proposed that consideration should be given a consolidation of standards according to major areas. One Employers' delegate (Malta) interpreted the proposal as aiming to establish an International Labour Code and opposed it on the grounds that the ILO should acknowledge the sovereign right of nations to pass legislation appropriate to their own national conditions and economic development. One Government delegate (Islamic Republic of Iran) considered that any classification of standards might reduce their impact by giving greater emphasis to some standards than to others.
19. Implementation of this suggestion is above all a matter of mobilizing the resources and the technical competencies needed to carry out a preliminary overview of existing standards, possibly starting on a trial basis with one of the major standard-setting areas referred to above. The Governing Body could therefore, if there is enough interest, be asked during the discussion of the programme and budget for the next biennium to consider a proposal for a preliminary review of this kind.
Selection procedures
[Report, pp. 47-48]
20. The definitive inclusion of an item on the Conference agenda with a view to standard setting should be the culmination of a process leading to a clearer view of the possible content of the instrument under consideration and thus of its "added value" as a standard-setting instrument. Compiling a portfolio would improve the situation by helping, after a number of successive examinations, to define the outline of the instrument on the subject envisaged. Those subjects that are thought to raise complex technical or political issues should be considered in a preliminary discussion at the Conference with a view to assessing the viability of the subject intended for the new instrument and to formulating specific guidelines on the drafting of the questionnaire.
21. These proposals were supported by some governments (France, Turkey, IMEC), Employers' delegates (Iceland, United States) and Workers' delegates (France, Philippines).
22. In principle, it should not be necessary to amend the Standing Orders of the Conference in order to give effect to these ideas. The Governing Body could simply decide on a case-by-case basis, to include, first, the item under consideration for standard setting on the Conference agenda for general discussion. However, it should be made clear that this general discussion would in fact be a "targeted" preliminary standard-setting discussion aimed at providing a clear framework for the preparation of the questionnaire used for future instruments. Therefore, rather than defining a new procedure at this stage, it would be useful to test this idea in specific cases, drawing on the experience acquired from the revision of Convention No. 96. The Office could therefore propose this solution whenever the subject considered for inclusion in the portfolio appeared to lend itself to it. The Office also proposes, during the discussion regarding the inclusion of a standard-setting subject on the Conference agenda, to draw the attention of the Governing Body to those complex technical and political issues which could be considered in a preliminary discussion at the Conference.
Choosing the form of the instruments
[Report, pp. 49-58]
23. The proposals contained in this part of the Report are aimed at making more efficient use of all the standard-setting means available to the Organization in the form of Conventions and Recommendations. With regard to the Conventions, many governments agree to vote for a Convention without any serious intention of supporting its ratification before the competent authority. One possible proposal would therefore be that, pursuant to article 19(5) of the Constitution, one of the questions to which governments would be required to reply after voting for a Convention at the Conference would concern the particular measures taken to promote ratification of that Convention. At the same time, the proposal to increase the number of ratifications required for Conventions to enter into force, which has already been examined by the Committee on Legal Issues and International Labour Standards, could be re-examined. Finally, if Recommendations are to regain their rightful place, they should once again become autonomous instruments unrelated to a Convention and should be followed up on a regular basis as provided for by the Constitution to verify both their application and their relevance so that only those which meet with present-day needs are retained.
24. Overall, the proposals met with the broad approval of the Government delegates (Australia, Denmark, Germany, Lithuania, Luxembourg, Poland, Romania, Turkey, Zambia, IMEC) and Employers' delegates (Austria, Benin, Denmark, France, Iceland, India, Japan, Luxembourg, Malta, Morocco, Peru, Portugal, Spain, Switzerland, United Kingdom). The Workers' delegates (France, Germany, Netherlands, Romania, Sweden, ICFTU, WCL) expressed serious reservations regarding the idea of giving greater priority to international labour Recommendations. One Workers' delegate (Netherlands) considered that a follow-up mechanism for the implementation of Recommendations would create an unnecessary extra workload for the Committee of Experts on the Application of Conventions and Recommendations. A number of Workers' delegates (Finland, Romania, Sweden) recalled that the value of Recommendations depended on the way in which they were implemented in the member States and monitored by the competent bodies of the ILO.
25. The question whether or not to increase the number of ratifications required for a Convention to enter into force must ultimately be decided by the International Labour Conference. Nevertheless, in order to clarify the nature of the choice facing the Conference with regard to the appropriateness of raising the threshold for entry into force, the Committee on Legal Issues and International Labour Standards could be invited to reconsider the question at a future session of the Governing Body.
26. Similarly, the LILS Committee could be invited to examine whether and how additions could be made to the report forms used for reporting pursuant to article 19(5) of the Constitution to request governments, when submitting the Convention to the competent authority (article 19(5)(b) and (c)) and later when requested to do so by the Governing Body (article 19(5)(e)), to indicate why a Convention which it had supported has not been ratified.
27. With regard to the form of the instruments, implementation of the suggestion presupposes the adoption of autonomous Recommendations. The reforms referred to above should help bring this about. Nevertheless, autonomous Recommendations will have little real attraction without an appropriate follow-up mechanism. Merely referring to article 19(6)(d) of the Constitution may well not provide any adequate guarantee of this. For that reason, consideration could be given to the incorporation in the Recommendation itself of a specific follow-up clause adapted to that particular instrument (there are certain precedents for this). The model for such a clause could be studied by the LILS Committee at one of its next sessions (possibly March 1999).
The content of standards
[Report, pp. 58-60 + Annex]
28. In addition to the expected impact of the measures proposed above on the general content of standards, two aspects of the standard-setting procedure could be re-examined in greater detail with a view to improving the content and wording of the standards, namely:
- the questionnaire which serves as a basis for preparing instruments and fixes the structure and even the content of the instruments, often at a stage before the Office has enough information at its disposal; and
- the role of drafting committees in maintaining the desired degree of uniformity and consistency in the drafting of these instruments.
29. A number of governments referred to these proposals (Canada, Cyprus, France, Greece, Luxembourg, Mauritius, Saudi Arabia, Sweden, IMEC), as did a number of Employers' delegates (Australia, France, Japan, Malta, Peru, Portugal, Senegal) and Workers' delegates (Brazil, Poland, South Africa), all of whom supported the idea. One Employers' delegate (Germany) suggested that the discussion regarding the Conventions should be spread over several sessions of Conference.
30. Drawing up a "code of good drafting practices" is an undertaking which requires very meticulous preparatory work but which could be recommended to the Conference without any need for amendments to the Standing Orders of the Conference. The Committee on Legal Issues and International Labour Standards could be asked to consider at one of its future sessions (March 1999) a draft code of this kind covering such aspects as the drafting of preambles, the appropriate way of referring to other instruments, how to avoid needless repetitions between a Convention and its supplementary Recommendation, or between various instruments, the status of final clauses, etc.
31. On the other hand, the reform of the questionnaire could require amendments to the Standing Orders, all implications of which would need to be carefully examined. For this reason, the Office proposes to carry out a full survey of those implications and to submit to the LILS Committee at the 274th Session of the Governing Body (also in March 1999) a document presenting the possible options and, as appropriate, a revision of the current questionnaire procedure and the relevant provisions of the Standing Orders of the Conference.
Overall evaluation after the fact
[Report, pp. 60-64]
32. The aim of this proposal was to permit an overall evaluation of the impact of instruments in legal terms as well as in economic and social terms, with a view to measuring the progress made with respect to the objectives of the instruments and identify any indirect or adverse repercussions with respect to other ILO objectives, as provided for under articles 19(5)(e) and 19(6)(d) of the Constitution, and drawing appropriate conclusions for future standard-setting action. This overall evaluation would differ from the exercise of revising international labour Conventions undertaken for the Governing Body by the Working Party on Policy Regarding the Revision of Standards of the LILS Committee. It would also go beyond the General Surveys prepared by the Committee of Experts on the Application of Conventions and Recommendations based on the provisions referred to above and would require greater resources.
33. Many governments (Australia, Botswana, Canada, Cyprus, Egypt, Finland, Greece, Luxembourg, Mauritius, Saudi Arabia, Sweden, IMEC), Employers' delegates (Australia, Denmark, Dominican Republic, Italy, Japan, Senegal) and Workers' delegates (Chile, South Africa) endorsed these proposals without indicating the form in which they should be implemented. One government (Australia) suggested that the evaluation of instruments should be undertaken by a new standing committee of the Conference.
34. If the Governing Body confirms the interest shown in strengthening the evaluation process, the LILS Committee could be invited to identify a very limited number of instruments for a pilot study involving the decentralized multidisciplinary teams and the employers' and workers' organizations, as well as governments. Such a pilot study could subsequently provide the frame of reference for future evaluation exercises. Proposals for a pilot study could be presented to the LILS Committee at one of its future sessions.
1. GB.270/3/2, paras. 11 to 34.