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86th Session
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Report of the Committee on Contract Labour |
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1. At its first sitting on 2 June 1998, the International Labour Conference constituted the Committee on Contract Labour. The Committee was originally composed of 194 members (83 Government members, 49 Employer members and 62 Worker members). To achieve equality of voting strength, each Government member entitled to vote was allotted 1,519 votes, each Employer member 2,542 votes and each Worker member 2,009 votes. The composition of the Committee was modified nine times during the session and the number of votes attributed to each member adjusted accordingly.(1)
2. The Committee elected its Officers as follows:
Chairperson: Mr. L. Mishra (Government member, India) at its first sitting;
Vice-Chairpersons: Mr. B. Noakes (Employer member, Australia); and Mr. J.-C. Parrot (Worker member, Canada) at its first sitting;
Reporter: Mr. J. Saloheimo (Government member, Finland) at its 11th sitting.
3. At its 11th sitting, the Committee appointed a Drafting Committee composed of the following members: Mr. D. Sweeney (Government member, United States), Mr. B. Noakes (Employer member, Australia), Mr. J.-C. Parrot (Worker member, Canada), and the Reporter of the Committee, Mr. J. Saloheimo (Government member, Finland).
4. The Committee held 18 sittings.
5. The Committee had before it a number of reports that had been prepared by the Office, namely Reports V(1), V(2A) and V(2B), entitled "Contract labour", as well as Report V(2B) Addendum. Each of these documents had been referred by the Conference to the Committee in order to assist it in its work.
Introduction
6. The Chairperson thanked the members of the Committee for the confidence it had placed in him and noted that in carrying out his task, he would continue to seek their cooperation and support. Then, the representative of the Secretary-General of the Conference recalled that the previous year, at its 85th Session, the Conference had adopted conclusions with a view to a Convention and Recommendation on contract labour, along with a resolution calling for a second discussion regarding the proposed adoption of such texts. As background to the reports prepared by the Office since the first Conference discussion on contract labour, he noted that the Office had submitted the text of the proposed Convention and Recommendation to the Governments in the form of Report V(1), inviting them to forward amendments or comments thereon, after consulting with the most representative organizations of workers and employers. He explained that the replies received contained a diversity of observations, some endorsing the texts as a basis for a second discussion, while others criticized them on fundamental points and many called upon the Office to provide further clarification on a number of issues.
7. The representative of the Secretary-General then introduced Report V(2A), containing the comments and amendments suggested by governments and workers' and employers' organizations on the proposed Convention and Recommendation. He noted that these replies indicated that a number of important issues of a substantive nature are understood and interpreted differently by ILO constituents, including the very basic points of the definition of "contract labour", the scope of the proposed instruments and the terminology used. Report V(2B) sets out a proposed Convention and Recommendation based on the conclusions adopted by the Conference at its 85th Session, with only minor changes of a drafting nature. He explained that, in order to take into account the concerns raised in the plenary session of the 85th Session of the Conference and the observations set out in Report V(2A), and after consultation with the Workers' group and Employers' group, the Office had drawn up the Addendum to Report V(2B). This document is the working document referred to in the introductions to Reports V(2A) and V(2B).
8. The Addendum to Report V(2B) contains an introductory section and an annex indicating possible changes, intended to facilitate the Committee's discussions, that could be considered as a basis for a Convention and Recommendation on contract labour, as a possible alternative to the proposed texts in Report V(2B). Pursuant to the Addendum, "contract labour" would encompass situations where the conditions of dependency on or subordination to the enterprise using contract labour are similar to those that characterize an employment relationship between the user enterprise and its employees. Both independent contractors who are truly self-employed and workers who are employees of the user enterprise would be outside the definition of contract labour. The representative of the Secretary-General noted that whether the texts set out in Reports V(2B) or those in V(2B) Add. were to be used as the basis of the Committee's second discussion was a decision to be taken by the members of the Committee. Either would, of course, be open to amendment. He also indicated that, should the Committee decide, after examining the texts before it, that its deliberations could not be concluded in a satisfactory manner at the present session of the Conference, it could adopt a resolution asking to have the item placed on the agenda of a future Conference.
9. While acknowledging the difficulties that the Committee had had in dealing with the subject of contract labour, the representative of the Secretary-General recalled that there were some broad areas of agreement. In particular, everyone seemed to agree that greater efforts need to be made to combat abuses related to disguised employment relationships, and to ensure that rights or obligations under labour or social security laws or regulations are not denied or avoided when contract labour is used. He also underlined that there is widespread concern about particular situations involving contract labour that call for redress, and noted that many constituents have taken the position that certain basic guarantees should be enjoyed by all contract workers.
General discussion
10. By way of preliminary remarks on behalf of the Employer members, the Employer Vice-Chairperson stated that the Committee was faced with an extraordinary and unprecedented situation which required careful consideration. He recalled that the first discussion on contract labour had been characterized by difficulties in coming to grips with the conceptual, definitional and linguistic complexities of the subject. There were also difficulties arising from the texts with which the Committee was working. He recalled that, throughout the first Conference discussion, the Employer members had expressed their implacable opposition to the adoption of any instruments on the subject of contract labour. However, they had noted the Worker members' concerns regarding the problem of disguised employment, and had voiced their opposition to fraudulent or illegal arrangements.
11. The Employer Vice-Chairperson noted that, at the end of the Committee's first discussion and during the plenary session of the Conference, the Employers' group had set out in detail the difficulties posed by the texts as adopted the previous year. In the intervening period since the first discussion, these texts had continued to be criticized and to give rise to misgivings on the part of employers and a large number of governments. He then referred to the proposition of the Office in the introduction to Report V(2B) to submit "a working document in advance of the Conference for possible use by the constituents", which had then been submitted as Report V(2B) Add. While noting that this document had been in the hands of the constituents for only a brief period, he expressed the appreciation of his group for the efforts that had been made by the Office in drafting the Addendum to come to grips with the problems that in their view had not been resolved by the first discussion. He remarked that what was being proposed in the Addendum as far as the Convention was concerned was a totally new text, based on a totally different approach and raising new concepts and new options. In their view, the texts set out in the Addendum deserved serious consideration.
12. The Employer Vice-Chairperson also pointed out another unprecedented matter raised by the Office in the explanatory comments in the Addendum to Report V(2B), pointing out the possibility of proposing "a resolution for adoption by the Conference which could request the Governing Body to place the question on the agenda of a future International Labour Conference." In the view of the Employer members, the Office was clearly saying that the Committee was dealing with an extremely difficult subject, that the text adopted the previous year was totally unsuitable and that a totally new approach was needed which could require further discussion.
13. As a final matter, the Employer members noted that, although the position of their group during the first discussion had been one of implacable opposition to the adoption of any instrument on contract labour whatsoever, they did recognize the problem of disguised employment. Having reviewed their stance since the first discussion, the Employer members were prepared to take the initiative to propose that the Committee adopt a Recommendation providing guidelines and setting out procedures for dealing with disguised employment. They urged that the Committee give the proposition serious consideration particularly in the light of the extraordinary situation with which it was faced.
14. The Worker Vice-Chairperson, speaking on behalf of the Worker members, began by pointing out that "contract labour" can mean different things. For many, it means subcontracting or outsourcing. In the public sector, the term may suggest the contracting out of public services or privatization. Subcontracting could be through job contracting or labour-only contracting, with the latter often referred to as "contract labour". The term is also applied with respect to "contracting in" which involves the use of temporary work agencies, staff leasing agencies, dispatching agencies and other enterprises supplying contingent workers. "Contract labour" can also refer to the means by which work is organized in the informal sector through informal agreements arranged by intermediaries, which is particularly prevalent in the agricultural sector. Furthermore, the term could apply to migrant workers, systems of piece-work manufacturing, certain kinds of home work and various types of atypical work, including temporary employment and work similar to self-employment.
15. It could be said, in the view of the Worker members, that contract labour encompasses some of the newest forms of work, combined with some of the oldest forms. The changing forms of work are a reflection of the changes being brought about by new technology and globalization. While new forms of business organization and information technology could be considered key factors in producing wealth, the use of contract labour which might ensue could also give rise to an old form of exploitation, particularly where difficult, dirty or dangerous work, such as in the agricultural sector, are involved. The Worker members stressed that those performing old and new types of work need to be protected, regardless of their recognized employment status. Referring to the fact that in many countries the employment relationship is treated as a special category of contract, they asserted that the justification for such treatment, and indeed the justification for most labour legislation, was founded on the unequal power relationship between workers and employers. Other important reasons for this special treatment include the recognition that labour cannot be treated as a commodity and that market forces alone are incapable of taking all of the interests of civil society into account. The recognition of the employment relationship involves placing obligations on the employer to protect workers, thus ensuring a measure of social justice. The changing nature of work and of business organization has resulted in many workers not being covered by labour legislation because they are not considered "employees", or because they are placed in co-employment or triangular relationships where they are considered to be employees of another enterprise that does not, is not required to or cannot assume all the obligations of an employment relationship. As more workers lose the protection of the employment relationship, the Worker Vice-Chairperson continued, the unequal power relationship persists, requiring governments to rediscover the values and benefits to society that the employment relationship provides.
16. The Worker members went on to stress that contract labour not only gives rise to legal dilemmas: it relates to actual situations affecting millions of workers. They characterized the legal aspect as, in part, one of distinguishing between commercial and labour law, as well as a matter of updating labour law to take into account new forms of work and to address triangular relationships. They asserted that there were two means of addressing the grey area between commercial law and labour law: (i) to make the division between commercial law and labour law more distinct; and (ii) to recognize the different shades of grey and extend some of the protection of labour law to workers, depending on the degree of their subordination or dependency. They submitted that the first approach, being simpler and more predictable, would be favoured by employers who would benefit since it would in practice be difficult to apply labour law to work performed in the grey area. However, in the view of the Worker members, the first approach was unsatisfactory, holding little hope for solving a problem that is likely to grow; the second approach, which is reflected in the draft Convention, would be preferable and more likely to succeed since it is founded upon the principles that originally justified distinguishing employment relationships from commercial relationships. The contribution of an ILO Convention on this subject and at this time is to reaffirm this underlying principle, taking into account the actual situation of these workers. In conclusion, the Workers' group was in favour of a Convention that (i) acknowledges the problem; (ii) obliges governments to take measures preventing recourse to contract labour for the sole purpose of avoiding labour laws; and (iii) encourages governments to extend the specific protection accorded to regular employees to contract workers performing work in similar circumstances.
17. The Government member of Cyprus, noting that contract labour was not common in her country, stated that, as a result of the first Conference discussion on this issue, her Government was aware of the concerns regarding contract workers in other countries. She indicated that her Government supported the view that contract workers should enjoy at least the minimum level of protection enjoyed by employees, keeping in mind the importance of flexibility in the labour market, though not at the cost of basic rights. She suggested that the starting point for the Committee's deliberations should be to determine the scope and definition of contract labour. With respect to the possibility of having a third discussion on the topic, her Government was of the view that such a measure should be resorted to only if found to be necessary after the Committee had made every effort to discuss the issue fully, beginning with the elaboration of a sound definition.
18. Expressing her Government's appreciation of the work represented in Report V(2B) Add., the Government member of Trinidad and Tobago stated that the instruments proposed therein were acceptable and ratifiable, and would provide a sound basis for discussion. Regarding the definition of "contract labour", the Addendum provided a definition that was uncluttered and clear. She stated further that the concern voiced by several countries that contract labour was an evolving phenomenon, making standard setting difficult, was also acknowledged and addressed in the Addendum, particularly by the addition of a Paragraph in the Recommendation, providing for the review of national law and practice to determine whether there are situations involving the use of contract labour calling for the adoption of new measures. She stressed that measures must be taken now to address the ills and abuses manifested by the use of contract labour, which is becoming more prevalent in the changing world of work. She suggested that it is not inconceivable that, one day soon, an instrument on contract labour would be considered as being among the fundamental Conventions. She informed the Committee that her country along with others in the CARICOM region had thoroughly discussed the issues associated with contract labour, and that preliminary surveys had been carried out to determine the extent of the use of contract labour in Barbados, Jamaica, Saint Lucia and Trinidad and Tobago. In Trinidad and Tobago, the Government was in the process of drafting provisions to provide minimum standards for all workers, including contract workers, in much the same way as that proposed in the Office text. She concluded by affirming her Government's commitment to developing an instrument to provide protection to contract workers.
19. The Government member of the United Kingdom, speaking on behalf of the Governments of the Member States of the European Union which were members of the Committee (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom, hereafter referred to as "the Governments of the Member States of the European Union"), noted that they had had only a short time to consider the revised text in the Addendum to Report V(2B). Despite this constraint, the Governments on behalf of whom he spoke were in favour of proceeding with the discussions on the basis of that text. He cautioned that this support did not imply that they necessarily endorsed all the provisions set out in the revised document, and stated that there may be a need to revisit some of the useful discussions held the previous year.
20. Recalling the first discussion held on this subject and the Government responses to the proposed instruments that arose out of that discussion, the Government member of Italy noted that many fundamental concerns had been raised. In particular, she pointed to the problems of definition and scope which had already been raised during the first discussion, stressing the complexity of defining the boundaries between dependency or subordination and truly independent work. She indicated that, given the diverse ways in which this subject had been addressed in different countries, and in spite of difficulties in formulating a legal definition in an international instrument, it is still necessary to take de facto subordination into account and to strive to ensure the provision of a minimum level of protection for these workers. Referring to the proposal of the Employer members to limit the international standard setting in this area to the adoption of a Recommendation, she asserted that this would give rise to the risk that many of these workers would not have any protection. She expressed her Government's appreciation of the attempt made in Report V(2B) Add. to provide a clearer and more flexible text, with a more flexible definition and scope. Her Government was committed to ensuring that the Convention provides for minimum guarantees that could be considered to have become "acquired rights". While agreeing to base the discussions on the proposed instruments set out in Report V(2B) Add., the Government member of Italy suggested that it would be useful to keep in mind the philosophy that had inspired the previous year's discussions and the texts that resulted therefrom. She stressed the need, even if it proved impossible in the course of the second discussion, to adopt a Convention to guarantee the minimum rights of contract workers, that would be sufficiently clear and flexible to attract broad consensus and ratification.
21. The Government member of the United States also suggested that the Addendum to Report V(2B) could provide an alternative approach that would assist to clarify many of the questions and concerns that had remained at the conclusion of the first discussion. He reiterated the four objectives of his Government regarding the work of the Committee, and noted that the first two of these were of particular importance. First, any instrument should attract wide tripartite consensus to enhance the possibility of ratification. In this context, flexibility would be needed due to the different circumstances existing in different countries. Second, his Government would work toward supporting an instrument to the extent that it was consistent with the federal and state law and practice of the United States. Third, the instrument should promote, rather than decrease, job opportunities. Finally, the instrument should not unduly restrict the right of parties to reach voluntary agreements on matters that had, in accordance with national law and practice, been subject to collective agreements. He called on the Committee to consider the possible relationship between existing general international instruments and the instruments under consideration concerning contract labour. He queried whether this group would merit particular attention in a Convention, or whether a Recommendation would be sufficient. Another important issue to be considered was the definition of "contract labour" and the scope of the instrument. Whatever the form of the instrument resulting from the Committee's deliberations, his Government was of the view that it must be sufficiently flexible to be capable of ratification by a large number of member States.
22. The Government member of Norway recalled that, during the previous year's discussion, her Government had expressed concerns regarding the adoption of an international instrument on contract labour. Her Government's primary concern had been that the instrument would create a new category of workers provided with fewer rights than ordinary employees. Despite this reservation, her Government supported the adoption of instruments protecting workers who, in the absence of a recognized contract of employment, perform work under actual conditions of subordination or dependency. She expressed her Government's support for using the Addendum to Report V(2B) as the basis of the Committee's discussions, while noting that several difficulties with the revised texts remain. On the issue of a third discussion, she cautioned that this would establish a new practice in dealing with instruments and would render the Committee's work less efficient. She suggested that the question of whether or not to propose a third discussion be considered at the end of the Committee's work, if found to be necessary at that time.
23. The Government member of Canada recalled the reservations expressed by his Government, along with other member States, during the previous year's discussion, concerning the shortcomings in the definition and scope of the instruments, as well as the linguistic problems. He then outlined the Canadian approach to this issue, stressing that no distinct category of contract labour exists in that jurisdiction. He expressed his Government's view that the term used in French, "travailleur employé en sous-traitance", was erroneous. He noted that in Canada, a worker in a situation of dependency, in the sense in which the term was understood by the Committee, is considered to be a "dependent contractor". The Canadian experience illustrated that, over time, working arrangements have emerged that no longer fit within the traditional parameters of employee-employer or master-servant relationships. The Canadian response to this phenomenon has been essentially to treat these new relationships as employment relationships where there exists a situation of dependency comparable to that of a traditional employee. These workers are, therefore, provided with comparable legal protection, particularly with respect to collective relations, minimum employment standards, occupational safety and health, unemployment insurance, workers' compensation, occupational injuries and fundamental rights. Such an approach, he asserted, could apply equally with respect to bilateral and triangular relationships.
24. The Government member of Canada continued by urging the Committee, if it was committed to not creating a third category of worker between employees and independent contractors, to consider seriously the best way to address the reality that should be reflected in any instrument. His country, recognizing that the place of the dependent contractor in labour law is problematic, accepted that these workers could be the subject of an international instrument where, based on certain objective criteria, they could be assimilated to employees. He cautioned, however, that if such assimilation is not accepted, the scope may encroach upon commercial relationships, a third category may be created, and the protection may be weakened. His Government was favourable to basing the discussions on the proposed instruments found in the Addendum to Report V(2B) if that could facilitate the Committee's work, but insisted on the need to limit the coverage to dependent contractors who would be treated as employees.
25. The Government member of India explained that legislation has existed in his country since 1970 to protect contract workers; it goes beyond the protection afforded in the draft instruments, and legislation and jurisprudence have evolved to strengthen this protection. However, he noted, enforcement remains a considerable problem. He emphasized that, in India, contract labour constitutes one of the most exploited categories of workers. Concerning the proposed instruments found in the Addendum to Report V(2B), his Government was of the view that although they diluted the protections provided in the texts which had come out of the previous year's discussions, his Government would, in the light of the lack of consensus on those texts, consider supporting a discussion based on the alternative proposed texts.
26. Having had the benefit of hearing a number of Government members express their views, the Employer Vice-Chairperson elaborated upon some of the key issues. He reaffirmed the basic position of the Employer members that contract labour is inherently an unsuitable subject for standard setting. In this context, he pointed to the difficulty of finding an acceptable definition and of coming to terms with the diversity of national law and practice arising from different historical, economic and development situations. The Employer members were not prepared to accept the position of the Worker members linking subcontracting, outsourcing and contracting out to contract labour in an attempt to restrict the use of contract labour. However, they did endorse the Worker members' view concerning the need to provide protection in the case of disguised employment. The Employer members defined disguised employment as the engagement and treatment of a worker as a contract worker when, according to the tests deemed appropriate in a particular country, that person should be treated as an employee. In their view, the Office approach to contract labour gave rise to definitional and practical difficulties in providing that if a contract worker has some of the characteristics of an employee without having any contract of employment or being in any formal sense an employee, that person, who is neither an independent contractor nor an employee, is to be protected. This characterization, they believed, would lead to the establishment of a third category of worker, about which many governments had expressed concern. The Employer Vice-Chairperson noted that while in many countries certain protections apply to all workers regardless of their status, for example regarding occupational health and safety matters, on other matters there was such a diversity of approaches that it would be impossible, at least at this time, to rationalize them.
27. Referring to the triangular relationship whereby an employee of one enterprise carries out work for another enterprise, the Employer members objected to the Office's approach of making it possible for these workers to be treated as employees of the second enterprise. They recalled their position that a worker is either an employee or is not an employee, to be determined on the basis of the tests that normally apply in determining if a contract of employment exists; where it is found to exist, the person should be regarded as an employee and be endowed with all the concomitant rights. The Employer Vice-Chairperson submitted that, if a worker is an employee of one enterprise, it would only lead to confusion to treat that person as an employee of another enterprise. He reiterated that the Employer members were willing to propose the adoption of a Recommendation to address the key issue of disguised employment, an approach which they believed could attract widespread support. In their view, the definitional problems could be solved in the Recommendation by providing that a worker was either an employee or was not an employee. It would also encourage the adoption of measures to ensure that workers who are entitled to be treated as employees, are so treated. The Recommendation would foresee procedures based on clear and objective criteria, which would be expeditious, accessible and affordable. Educational measures would also be provided for to ensure that workers and employers are aware of the existence of the procedures and the criteria involved. Finally, in cases where the law is deliberately avoided or flouted, it would provide that penalties should be applied.
28. The Government member of the United States explained that the Government members had held a meeting the previous day, attended by 57 delegates from 43 countries. The majority of the delegates at that meeting had expressed their interest in completing the work of the Committee at the present session. Furthermore, he reported that, in an informal vote, 30 of the delegates had acknowledged that they were pleased with the Addendum to Report V(2B) as a basis for discussion, though some concerns had been raised.
29. The Government member of the Syrian Arab Republic commented that, although a year had passed since the first discussion on contract labour, the subject was still giving rise to confusion. He asserted that, in his country, contract labour does not exist, with the exception of subcontracting arrangements found in the agricultural sector: a worker having a contract with a farmer contracts out the work to another worker, but the farmer can rescind that contract. Noting that, pursuant to the proposed instruments in Report V(2B) Add., contract labour encompasses direct and indirect relationships, he questioned how in the case of a direct or bilateral relationship national legislation could characterize such a relationship as anything other than an employment relationship and why such workers could be left without protection. In the view of his Government, the issue of disguised employment does not relate to contract labour, and should be addressed generally through private law and not by way of an international instrument. He suggested that Article 5(a), providing protection in relation to the right to organize and the right to bargain collectively, was not necessary in the light of 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), the provisions of which apply to all workers. Despite these concerns, his Government was in favour of basing the discussions on Report V(2B) Add.
30. The Government member of Australia began by expressing his Government's support for the general comments made by the Government member of Norway. Although his Government continued to have reservations regarding the appropriateness of standard setting on contract labour, the proposed instruments set out in the Addendum to Report V(2B) would provide the preferred basis for the Committee's discussions. While not perfect, they did allay some of the fears arising out of the previous year's discussion. In particular, the revised texts avoided the confusion created the previous year due to the inclusion of definitions of subcontractors and intermediaries. On the question of whether a third discussion should be proposed, he suggested that the matter be revisited later in the deliberations, and, if deemed to be appropriate at that time, then the Committee should be prepared to take such an initiative.
31. The Government member of Japan also expressed his Government's willingness to support a third discussion on contract labour, if found to be necessary, particularly given that an additional document (Report V(2B) Add.) had been submitted to the delegates for their consideration immediately prior to the Conference, and the complexity of the issues before the Committee. A number of Government members, however, including those from Algeria, China, Peru, South Africa and Switzerland, expressed the view that the Committee's work should be concluded at the present session. The Government member of South Africa stated that to extend the Committee's work to a third year was not desirable due to the precedent it would set and the financial implications involved, since the resources for this could be put to better use. The Government member of Switzerland shared this opinion; in addition he stated that a third discussion could jeopardize the image and credibility of the International Labour Organization.
32. The Government member of South Africa raised the issue of whether there actually was a problem concerning contract labour and, if so, the magnitude of that problem. She remarked that those Government members who had denied the existence of contract labour in their countries may not have examined the actual situation closely enough. She noted some examples of where contract labour could be found in South Africa, including in the transport sector, involving in particular taxi drivers. The situation of labour tenants, sharecroppers and homeworkers was also cited in this context. She asserted that many of these workers could be considered dependent contractors. On the issue of the extent of the problem, she stressed that contract labour was a significant problem, going well beyond disguised employment. She stated that the Committee should formulate a ratifiable Convention that would address the core issues in a manner acceptable to the majority of delegates. She also stated that an effort should be made to ensure that a Convention on contract labour would be consistent with existing ILO instruments, in particular the Private Employment Agencies Convention, 1997 (No. 181).
33. The Government member of Peru, referring to the extensive discussions that had taken place the previous year, noted that each country seemed to have a different definition of contract labour. He stressed the importance of the Committee finding a common approach in order to avoid confusion. There was in the view of his Government a problem caused by the grey area of a third category of worker but this should not prevent the Committee from fulfilling its task. He suggested that some of the confusion in this area was caused by the attempts to transfer commercial relationships to employment relationships, which are distinct. Despite such concerns, his Government was committed to ensuring protection for contract workers.
34. The Government member of Algeria noted the complexity of the subject before the Committee and the difficult task it faced of reaching consensus given the important differences between the various countries. Outlining the situation in his country, he stated that contract labour does not exist, except in the form of the dispatching of workers, a practice which is prohibited by law. However, his Government accepted that contract labour could be a problem in the future due to the pressures of structural adjustment and globalization. His Government did not object to considering the adoption of a Convention and a Recommendation on the subject; however, such instruments needed to be flexible, and to ensure that there would be no discrimination between contract workers and employees. In this context, contract workers should be guaranteed all fundamental rights, including freedom of association, the right to engage in collective bargaining, and social protection.
35. Recalling the views expressed on behalf of the Worker members to the effect that contract labour can mean different things, the Government member of Zimbabwe remarked that in his country it includes workers in enterprises who are not considered employees, despite the fact that they undertake the same work as regular employees. He explained that the contracts of these workers were fixed for specific periods and then perpetually renewed. The employer benefited by the arrangement in avoiding the costs of social benefits, such as in relation to social security and maternity. In closing, he argued that it would be difficult to formulate one definition of contract labour that would be universally acceptable; therefore, his Government was in favour of the adoption of a Recommendation only. For similar reasons, the Government member of Uruguay also supported the adoption of a Recommendation only.
36. The Government member of Argentina supported the statements made by the Government members of Peru and Algeria. He cautioned the Committee that it should avoid creating a new category of worker whose rights would be inferior to those enjoyed in a classical relationship of dependency. He acknowledged that it would be difficult to formulate a definition that would not diminish these rights; therefore, he proposed extending the discussion on the subject.
37. The Government member of China affirmed his Government's support for the adoption of international instruments on contract labour, which should be the product of tripartite discussion and consensus. He commented that the adoption of a Recommendation could be considered if a lack of consensus persists. Regarding the scope of instruments on this topic, he stated that they should cover only those persons not already protected by law, namely, persons who are not in a formal employment relationship. He stressed the importance of ensuring that any instrument adopted would in no way diminish the protection and rights already enjoyed by workers under national law.
38. The Government member of Chile noted that the Committee continued to face numerous difficulties in coming to terms with the subject at issue. She reminded the Committee that contract labour did not encompass all relationships falling outside the classical employment relationship. It was important in the view of her Government that any instrument proposed by the Committee exclude workers who are already protected by existing Conventions. In this context, she cited the Private Employment Agencies Convention, 1997 (No. 181), covering workers supplied by intermediaries. She stated that the aim of the Committee should be to develop a ratifiable Convention. The subcontracting of goods and services was, according to her Government, different from the subcontracting of persons. She suggested that the Committee needed to discuss what type of protection should be provided to workers in triangular relationships. In situations where goods or services are subcontracted to a user enterprise, she raised the issue of how such workers should be protected, noting that in her country protection was provided through the concept of "subsidiary responsibility" (vicarious liability).
39. The Government member of Japan commended the Office on its efforts to facilitate the discussion of the Committee in providing the Addendum to Report V(2B), although it regretted the late dispatch by the Office. The Government supported it being used as the basis of the Committee's discussions. Acknowledging the confusion surrounding the topic of contract labour, he stated that this resulted from the existence of two different approaches to the issue. One approach is to examine the formal contract and determine if there is an employment relationship. The other approach looks at the actual conditions of dependency, in which case full protection may be granted. He stressed that the dependency or subordination of the worker to the user enterprise is the key issue. In defining contract labour, he called on the Committee to specify clearly what type of relationship was to be covered. He expressed concern that the Committee might introduce a third category of workers. Above all, his Government did not want to diminish in any way the extensive protection that workers in some countries already enjoyed.
40. The Government member of Switzerland recalled that, along with the Government members of Canada, Japan and the United States, his Government had expressed reservations concerning the proposed instruments on contract labour arising out of the first discussion on this subject. He remarked that while the Addendum to Report V(2B) proposed a simpler and clearer text and thus was a considerable improvement, his Government remained sceptical. He noted that in his country a person is either an employee or an independent contractor, the former category benefiting from all the statutory rights and advantages. No other type of worker is recognized in Switzerland. He asserted that the Office text attempts to create a third category, thereby decreasing the rights of workers already protected in his country. His Government was in agreement with the Government member of Canada that the term "travail en sous-traitance" was unsatisfactory, and suggested it be replaced by "travail sous contrat autre qu'un contrat de travail". He stressed that the Committee should work toward providing increased protection to contract workers and should in no way decrease the existing protection. In the view of his Government, contract workers should benefit from the same protection provided to employees, and the highest degree of protection provided for in the various relevant Conventions should serve as a reference. He ended by saying that his country would support the adoption of a Recommendation that calls on States to combat the most abusive forms of recourse to contract labour and promotes the assimilation of contract workers to employees.
41. The Employer Vice-Chairperson noted that although a large majority of the Government members had spoken in favour of accepting the Addendum to Report V(2B) as a basis for the discussion, a number of them did so with some reservations. The Employer members were of the view that the new text addressed some, though not all the problems they had raised concerning the text adopted the previous year. They were prepared to support the view expressed by the majority of the Government members to use the Addendum to Report V(2B) as the basis for discussion.
42. The Worker Vice-Chairperson stated that the Addendum had advantages and disadvantages. The advantages included the elimination of the definitions of subcontractor and intermediary, and the clarification that the instrument does not apply where the worker is an employee of the user enterprise, but can apply to employees of other enterprises. The disadvantages resulted, in the view of the Worker members, from the fact that it would be possible for States to ratify only one part of the Convention; the protections were fewer; and insufficient guidance was provided. While preferring the text that arose out of the previous year's discussion, the Worker members were prepared to work with the revised text. However, since the issue of whether a State should be able to exclude certain provisions of the instrument depended upon the substance of the text that would ultimately be agreed upon, the Worker members requested that Article 2(4) of the Convention as proposed in the Addendum be discussed after the rest of the text. The Employer members were not prepared to accept the change in the sequence of the discussion, stating that a clear majority of the Government members had supported, without qualification, the use of the revised text, and noting that a proposal for deferment could be made when the Committee addressed Article 2.
43. The Government members of Uruguay and Spain added their voices in support of using the proposed instruments set out in the Addendum to Report V(2B) as the basis for discussion. As the members of the Committee had unanimously supported this text as a basis for discussion, the Chairperson declared that the instruments proposed therein would be the texts to be considered by the Committee during the remainder of its deliberations.
44. The Worker Vice-Chairperson declared that the Employer members' proposition to limit the Committee's work to the consideration of disguised employment did not address the problems faced by the millions of workers in contract labour situations. Such an approach would merely avoid one subject by addressing another. He recalled that a number of the Governments had already stressed the need for an instrument that goes beyond the situation of disguised or fraudulent employment.
45. The Employer Vice-Chairperson asserted that his group was not trying to substitute one problem for another. The Employer members saw no difficulty in the Committee dealing with disguised employment, particularly since some of the Government members had voiced support for this approach, and certainly many had expressed reservations concerning the creation of a third category of workers and the adoption of a Convention. The Employer Vice-Chairperson stated that very few practical illustrations had been raised by the Government members, and that the Committee should not be concerned with formulating instruments to address the specific problems of taxi drivers, agricultural workers or truck drivers; if any instrument were to be adopted, it should be general in scope. Recalling the statement of the Government member of Zimbabwe, in particular with reference to workers engaged for fixed periods of time, the Employer Vice-Chairperson stated that, in the view of his group, these persons appeared to be employees rather than contract workers, but should be treated as employees. He went on to address a comment that had been made concerning occupational safety and health protection, pointing out that the provision of such protection does not depend on the category into which a worker falls; rather, it is a responsibility resting on the enterprise where the work is being performed.
46. Embarking on a discussion of the particular texts before the Committee, the Government member of Peru commented on the different forms of employment covered by the different parts of the Convention. The first part of the Convention, she stated, deals with specific contracts: contracts of employment, but also those encroaching on the commercial sphere. The second part refers to triangular relationships. She stressed that the Committee needed to be clear in setting out what it wished to regulate, and urged the Committee to look to existing Conventions for guidance.
47. The Government member of Cyprus asked the secretariat to indicate what relationships were not included within the scope of the proposed instruments. She also called for more discussion concerning disguised employment and commercial relationships. In response to the first question, the representative of the Secretary-General acknowledged that one of the elements provoking confusion is the concept of "employee". He explained that there were countries where employee status is identified with the existence of an employment contract. Other countries, however, distinguish between employees with a contract of employment and those workers who do not have a contract of employment but, due to conditions of dependency or subordination, are regarded as being in an employment relationship. The second category would fall under the definition of contract labour in the definition provided. The question is then whether this group is to be entitled to full protection as employees or to specific protection. With regard to the workers who would be excluded, he mentioned independent contractors whose relationship was not characterized by a sufficient degree of dependency or subordination; thus they would be regarded as being truly independent. He stated that a more detailed elaboration of the jobs that could be excluded would be a matter for national law and practice.
48. The Government member of the Syrian Arab Republic stated that his Government understood that Part I of the proposed Convention applies to workers in a direct bilateral relationship or in a triangular relationship. In an indirect triangular relationship the worker would enjoy protection under Part I and in addition, under Part II, responsibility would be apportioned between the original employer and the user enterprise. He queried whether, in an indirect triangular relationship, a worker would enjoy the full protection provided for in the Convention, as well as the protection afforded to employees pursuant to labour law. The Government member of the Netherlands also requested clarification on the relationship between Parts I and II. In addition, he queried whether the exclusion of employees of private employment agencies in Article 2 implied that the proposed Convention fully covered other workers made available by a private employment agency to a user enterprise.
49. The representative of the Secretary-General clarified that Article 1, which is the definition applicable to the entire proposed Convention, focuses on the relationship between the worker and the user enterprise, and addresses both bilateral and triangular relationships. Part II, however, deals specifically with employees of another enterprise and concerns the allocation of responsibility between the two enterprises, which is only one manifestation of a triangular relationship. He confirmed that workers in a triangular arrangement would benefit from the same protection as contract workers in general. He also confirmed that workers made available to a user enterprise by a private employment agency, and who were not employees of the agency, were within the scope of the proposed Convention.
50. In an attempt to achieve a common understanding, the Government member of Japan asked whether the term "employee" as used in the proposed Convention applied only to workers with a formal contract of employment. The representative of the Secretary-General responded that "employee" did indeed mean a worker with a contract of employment, though some countries recognize employee status in the absence of a contract of employment.
51. The Employer Vice-Chairperson asked for information as to the consequences of providing workers with the formal status of an employee regardless of the existence of an employment contract. He queried whether it would be appropriate to give all workers who had the characteristics of an employee the status of an employee. The representative of the Secretary-General pointed out that in some countries, particularly in some European countries, the same protection is given to both categories of workers.
52. The Government member of Canada pointed to the need for clarification of the definition and the scope of the proposed Convention. He suggested that the Committee address three preliminary questions. Firstly, in seeking a definition of contract labour, the Committee must ask whether, pursuant to national legislation, there is a category of workers that has a relationship with an employer that is not recognized as an employment relationship, but which is characterized by a degree of dependency or subordination similar to that of an employment relationship. If the answer to this question is no, then the sole purpose of the discussion, in the view of his Government, would be for ILO Members to assure themselves that any protection that already exists is effectively applied. If, however, the answer is yes, the second question becomes relevant, that is whether the Committee wants to afford protection to this group. If the response is affirmative, then the Committee must decide if it wishes to treat them differently than those in a recognized employment relationship. If yes, a third category would be created. If no, then the task of the Committee would be to find ways to assimilate these workers to employees.
53. The Government member of Spain stated that the category of people needing protection should be clearly defined. In the view of her country, focus should be placed on the bilateral relationship, since triangular relationships give rise to fewer problems. Two types of bilateral situations were mentioned, namely where a relationship appears to be commercial in nature but is in fact an employment relationship, and where the relationship falls between that of an independent contractor and an employee. She characterized the approach taken in the proposed texts as encroaching on the scope of independent contractors, since they were clearly not involved in an employment relationship.
54. The Government member of South Africa responded to the questions posed by the Government member of Canada by saying that yes, such workers did exist and indeed needed protection. She posed an additional question concerning the existing law and practice in countries that already protected these workers. In South Africa, she noted, formalistic tests exist to determine whether there is an employment relationship. She emphasized the need for substantive tests based on the concept of dependency and subordination. She expressed her Government's concern regarding the concept of assimilation, cautioning that it might be appropriate and possible in some, but not in other, situations. She suggested that this concern could be addressed through the introduction of the notion of equity.
55. The Government member of the United States sought to clarify the scope of the definition of contract labour through the process of elimination. He stated his understanding that independent contractors, employees of the user enterprise and fraudulent employment relationships were not within the scope of the proposed Convention. The secretariat confirmed this view. He asked the secretariat to clarify what the situation would be if a company hired workers from another company to expand their computer system. Would those employees be considered to be contract labour, and would this depend on who was paying them or the length of time they were working with the second company? The representative of the Secretary-General replied that it would depend on the degree of dependency or subordination. If the computer company sent workers just to install the equipment, there would not be a sufficient degree of dependency or subordination. However, if a long period was involved or a permanent servicing of the system, the situation could be different. He stressed the importance of the degree of dependency or subordination in determining whether contract labour could be considered to be involved or not.
56. The Government member of Chile pointed out, firstly, that in countries such as hers reference is made not to a contract of employment, but rather to an employment relationship, which is based on dependency and subordination. Where there is an employment relationship, there is deemed to be an employment contract, regardless of the formal arrangements. Secondly, she stated that the concepts of dependency and subordination needed to be clarified, in particular she raised concerns regarding situations of semi-dependency and semi-subordination, and queried whether such concepts should be included in the instruments. She stressed that any international standard on this subject should be of a general nature and flexible enough to reflect the various national situations.
57. The Government member of Argentina was concerned that the Committee was entering into a grey area that confused employment contracts and commercial arrangements. As these areas were already addressed in many countries through national legislation and the Constitution, consideration needed to be given to clarifying the role that an international instrument could play. In the view of his country, the proposed Convention was attempting to establish a new category of worker, which would give rise to confusion concerning the responsibilities involved and the varying level of guarantees. His country was of the view that a person either was or was not an employee.
58. A member of the secretariat responded to the concern raised by a number of Government members to the effect that the provisions of any Convention ultimately adopted on contract labour could diminish protections already existing pursuant to national law. She referred to article 19(8) of the ILO Constitution which makes it clear that the adoption or ratification of a Convention would not affect any law, custom or agreement which provides more favourable conditions to the workers concerned.
59. The Government member of Mexico commented that the scope of the instrument needed to be more clearly defined, and the objective of the instrument should be to guarantee a minimum level of protection to all contract workers. The scope should be defined, in the opinion of his Government, to address the problem of the triangular relationship since in such a situation it is often not clear who bears responsibility for the worker. He explained that, in his country, three criteria need to be met in order for an employment relationship to be found to exist: (i) performance of work by the worker himself or herself; (ii) a relationship of subordination; and (iii) the worker receives wages for the work performed. The instrument, he asserted, should clearly define the function and scope of the protections, and should not confuse situations, such as where services are provided exclusively to one enterprise, and where they are provided to many. The apportionment or sharing of responsibilities where two enterprises are involved, he stated, needed to be addressed.
60. The Employer Vice-Chairperson recalled the comment of the representative of the Secretary-General that there are several countries where workers are considered as being in an employment relationship due to the conditions of dependency and subordination under which they work, and are, despite the absence of a contract of employment, entitled to full protection as employees. He questioned how prevalent this approach was, and remarked that there are also many countries where these workers are provided with only partial protection. He reiterated the Employer members' view that where such workers have the characteristics of employees, they should be entitled to the formal status of employees, with all the legal protection such status involves. He also recalled that the problem perceived by his group is that there is often an absence of a clear means of dealing with fraudulent arrangements, and that this was the problem that needed to be addressed. With reference to the comment made by the Government member of South Africa as to the need for a substantive rather than a formalistic test for the determination of the existence of an employment relationship, he responded that the substance of such tests is indeed important. Such tests, he stated, should be global in nature, and should involve consideration of a number of criteria. He then commented on the example of the worker hired to expand a company's computer system raised by the Government member of the United States. He asserted that his group could not accept the view of the representative of the Secretary-General that, on a continuity test, this person could fall within the scope of the proposed Convention since, in their view, this worker would clearly be considered an independent contractor under any other employment test. He raised the difficulty of drawing lines when speaking of degrees of dependency or subordination. He asked the secretariat to clarify the meaning of "assimilation" which had been raised during the discussions, as well as the meaning of "similar to" found in Article 1 of the proposed Convention.
61. Responding first to the meaning of "assimilation", the representative of the Secretary-General pointed out that this term is not found in the proposed Convention or Recommendation, but had been raised by the Government member of Canada. He stated that the term would mean, in the context of contract labour, that a worker would be treated as an employee for specified purposes. Concerning the use of the term "similar to", found in Article 1 of the proposed Convention, he noted that it did not mean "identical to", but rather the use of the term was a recognition that there are different degrees of dependency and subordination. He remarked that, therefore, the range of tests that could be applied to determine dependency or subordination in the case of contract workers could be different from those used to determine employee status. The Employer Vice-Chairperson stated that such a definition of "similar to" introduced new difficulties, and that the definition set out in the proposed Convention was totally unsuitable.
62. The Government member of Spain stated that, given the differences in the legal systems of the countries present, it would not be possible for a Convention to accommodate the establishment of a fixed common minimum level of protection. The Committee's objective should, therefore, in the view of her Government, be to provide generally applicable guidelines to combat fraudulent employment relationships.
63. The Worker Vice-Chairperson stressed that contract labour is a real situation facing real workers and poses a challenge for labour law. The problem is a growing one that, in the view of the Worker members, must be addressed sooner or later by all countries. He commented that most of the Government members seemed to accept the need for standard setting to address this problem. The Worker members acknowledged that the approach adopted must be flexible and broad enough to take into account the member States' different legal systems, but that the Convention should also be anchored in fundamental principles. He raised the issue of the problem created by the difference existing between commercial and employment contracts, namely contracts among equals versus contracts among unequals. He asserted that a Convention needed to address the situation whereby an employer structures or manipulates relationships in such a way as to avoid an employment relationship. He maintained that some of that manipulation constituted fraud, but some was lawful; however, in both cases, protection would be needed. He went on to state that the issue of contract labour is not limited, as it affects millions of workers in construction, agriculture, manufacturing and transport, as had been illustrated in Report VI(1). The Worker Vice-Chairperson illustrated his point by enumerating the types of workers affected, and giving examples of particular situations. Amongst others, examples were drawn from the construction industry where carpenters may be considered as small building companies, and from the agricultural sector where crop-pickers may be regarded as agricultural service companies. In addition, he noted that migrant plantation workers, employed by intermediaries, are often not provided with social protection by either the plantation owner or the intermediary. Continuing his illustration, he gave an example from the information technology sector, where a programmer may work alongside a computer company employee who is performing equal work under equal circumstances but does not receive comparable benefits. The programmer is an employee of another company set up for that purpose. Individual cases were highlighted such as that of a construction worker who was killed on-site but who was not the subject of compensation, due to uncertainty as to the identity of his employer. Another case occurred where several workers lost their lives in a serious industrial accident and their identity could not even be determined. Other cases mentioned included taxi drivers who are regarded as transportation providers even though they do not own the vehicle they drive, and long-haul truck drivers whose wage rates are fixed by major freight companies but who are obliged to purchase their own equipment. The Worker Vice-Chairperson continued with the example of hotel workers who were once employees but who now perform the same work on a piece-rate basis, and home-care workers, looking after the sick and elderly, who may not themselves benefit from minimum social protection. In short, he concluded by stating that millions of workers are dependent, as far as rates of pay, and hours and content of work, including orders and promotions, are concerned, on someone who is not their employer. Contract labour, he stressed, is a growing phenomenon, resulting in workers being deprived of their rights to minimum protection and to bargain collectively over wages and working conditions.
64. In the light of the Worker Vice-Chairperson's remarks, the Government member of Lesotho queried whether the situation of contract labour could not better be dealt with at the national level. In response, the Worker Vice-Chairperson stated that it would be in the general interest of society to recognize and address the problem at the international level. He went on to note that whether or not a worker was protected would ultimately depend upon how the relationship was characterized at the national level. The Employer Vice-Chairperson interpreted the remarks of the Government member of Lesotho as meaning that the complexity of the subject made it difficult to address at an international level.
65. The Government member of France suggested that, in attempting to define contract labour, a positive definition should be adopted that could be inspired by the notion of "false self-employment" as it is termed in his country. Those workers in a situation of dependency or subordination similar to the situation of an employee should benefit from equal treatment with employees. His Government was of the view that States should establish the procedures necessary to ensure such equality of treatment. He recalled the terms on equality of treatment in Article 5 of the proposed Convention as it had emerged from the previous year's discussion (and which no longer appears in the draft Convention as set out in Report V(2B) Add.). If equality of treatment could not be put in place, then the Committee should seek to meet the dynamic objective of formulating guarantees that would evolve to meet changes in the world of work.
Consideration of the proposed text
contained in Report V(2B) Add.
A. Proposed Convention concerning contract labour
Preamble
66. The Government members of Argentina, Brazil, Chile, Guatemala and Mexico submitted an amendment to delete the title of the proposed Convention and the entire text of the Preamble. The Government member of Chile stated that the justification for the proposed amendment was that, in their view, the entire text under discussion was unclear and superficial and thus inadequate to protect this category of worker. She pointed out that the Government members had had difficulty in understanding the scope of application of the proposed instrument and it had been impossible for them to reach a consensus. Acknowledging that the issue is of vital importance to millions of workers worldwide, she stated that further general discussion was needed to determine the scope of application, formulate a systematic structure and determine what type of instrument was appropriate for adoption.
67. The Government member of Argentina observed that the differences between the members of the Committee arose due to linguistic, terminological and conceptual problems in the proposed texts. If the Committee was unable to clearly define the subject matter with which they were dealing, then further difficulties would be generated, including increasing the precariousness of contracts. His Government recommended that a prudent approach be taken given the lack of a common conceptual understanding of the term "contract labour". He urged that any further discussion of this subject should include a discussion of the scope of individual contracts of employment. The Government member of Guatemala endorsed the comments made by the previous speakers. Her Government was concerned that the objectives of the instrument and the definition of the group of workers to be covered remained unclear. She urged the Committee to reconsider the definition in a way to ensure that it would in no way undermine the existing rights of workers. However, given the late stage of the discussions on this issue, her Government believed that it would be impossible during this session to reach an agreement on such a definition; thus they had proposed the amendment under consideration.
68. The Government member of Spain also associated herself with the remarks of the previous speakers. She explained that, although her Government accepted that the proposed texts under consideration were an improvement over those that arose out of the previous year's discussion, they were still inadequate. She pointed out that Article 1 of the proposed Convention addressed four groups of workers; her Government believed that it would be illogical and inappropriate to apply one standard of protection to such diverse categories of workers.
69. In supporting the proposed amendment, the Government member of Peru noted that the differences in interpretation between languages and countries had already been evident during the previous year's discussion. He stated that, in his country, a regime of subcontracting through intermediaries exists which was different from that found in some other countries. He stressed that any instrument adopted needed to generate productive employment and ensure adequate protection as work continues to evolve in the next century.
70. The Employer Vice-Chairperson declared his group's support for the proposed amendment, noting that it was inspired by many of the same views that they had been expressing. He recalled that the Employer members had repeatedly raised the linguistic, conceptual and definitional difficulties with the text, and had insisted that this was not a suitable subject for standard setting. Contract labour being a dynamic and evolving contributor to job creation, the Employer members could not support the adoption of any new standard which would invariably interfere with ordinary commercial relationships. They would view any action that led to the adoption of an instrument on this subject with the utmost seriousness. Although they accepted that the texts under discussion were better than the previous texts, these still did not provide an acceptable basis for consideration of an international instrument. The Employer Vice-Chairperson stated that his group would consider taking strong action should the Committee go forward to propose instruments based on the proposed texts.
71. While recognizing the existence of problems concerning terminology in the proposed Convention, the Worker members believed that these were not insurmountable. The Worker Vice-Chairperson stated that his group opposed the amendment to delete the Preamble, citing two primary reasons. First, contract labourers around the world would not be adequately protected in the absence of an ILO Convention. Second, they believed that the Committee should only decide the question as to the nature of the instrument to be adopted after having had the benefit of a full discussion on the definition, which would include a discussion of the linguistic concerns. He emphasized that the Worker members were realistic in their view of the role of the Convention: it should ensure that the justification for and principles governing the employment relationship are not lost in the changing world of work. He urged the Committee not to forestall further standard setting on the issue, and to recognize the modest and flexible nature of the proposed Convention. The proposal to consider the definition, before determining what form any instrument should take, was endorsed by the Government members of Australia, China and India.
72. The Government member of Cyprus opposed the proposed amendment, as her Government believed that there was a need for a Convention on contract labour. The Government member of the United Kingdom, speaking on behalf of the Governments of the Member States of the European Union, with the exception of Spain, also opposed the amendment. The Government member of Austria explained that the revised Office text had been accepted as providing a good basis for discussion; what was being proposed through the amendment would only render the discussions more difficult. The Government member of the United States expressed his Government's opposition to the proposed amendment; however, he stated that there was still a need for greater clarity in the definitions. Similar views to those expressed by the Government member of the United States were voiced by the Government members of Canada and Cameroon. The Government member of Trinidad and Tobago commented that, although it was unfortunate that the Committee had not had the benefit of a full discussion on the changes in the world of work, her Government believed that the Committee could fruitfully continue with its work as there seemed to be a consensus on the need to ensure at least a minimum level of protection for all workers.
73. The Government member of Mexico clarified that the proposed amendment did not seek to avoid the subject being addressed; rather its objective was to ensure a high level of protection for these workers, which could not be achieved on the basis of the proposed text. He contended that, in order to further this objective, it would be necessary to discuss the subject again in the future on the basis of a clearer and more realistic text. The Government member of Chile reiterated the need for these workers to be protected by granting them equal treatment and not through casualization and a diminution of their rights.
74. The Government member of South Africa, in opposing the amendment, urged the Committee to focus on the need to protect workers without a contract of employment working under conditions of dependency or subordination. She commented further that these workers deserved protection and, therefore, the Committee should not postpone its consideration of the instruments before them. Rather than adopt the proposed amendment, she asserted that the Committee should continue to address the issues, including the problems of terminology; in this context, she drew the attention of the Committee to the need to discuss Articles 1, 2 and 4 of the proposed Convention.
75. The Government member of Peru questioned the scope of the proposed Convention, stating that the Committee should not seek to regulate something without being clear as to the scope of what was to be regulated. The speaker stated that any Convention adopted must be ratifiable and capable of being applied in practice. She emphasized the view of her country that any Convention must contribute to social peace and not cause conflict. Similar sentiments were expressed by the Government member of Brazil, who stated in addition her Government's objection to the proposed Convention because it confused private law, commercial law and labour law concepts. Her Government was also of the view that the proposed Convention created a third category of worker, thus weakening protections already existing under national law.
76. The Employer Vice-Chairperson suggested that underlying the concerns that had been raised was the notion of the need for a third discussion on this subject, and he reminded the Committee that it was the Office that had raised the possibility of a third discussion in its introduction to Report V(2B) Add. Furthermore, he noted that the members of the Committee had had little time to consider the revised text found in that report. The Government member of Chile confirmed that, as a result of the proposed amendment, it was hoped that this session could be devoted to a general conceptual discussion, with the prospect of a third discussion being put on the agenda of a future Conference. The Government member of Cyprus, however, stated that it was still premature to decide whether or not a third discussion would be appropriate.
77. The Government member of Argentina, responding to the remarks of the Government member of Cyprus, argued that the Committee should not be prepared to adopt a Convention at any cost and should more extensively debate the issues involved. His Government accepted that a legitimate problem exists that must be solved, but this could not be done by creating a category of "second-class" workers benefiting from less protection. The Government members of Brazil, El Salvador and Uruguay supported the proposed amendment and further conceptual debate on the subject.
78. The Government member of India expressed concern at what appeared to be a diminishing level of consensus. In stating his Government's opposition to the amendment, he noted that contract labourers, including homeworkers, agricultural workers and construction workers, constitute a significant and vulnerable part of the workforce, who are denied social security and other benefits and are in need of protection. He urged the Committee to reflect seriously upon the needs of these workers and not to postpone such consideration to a later date.
79. The Employer Vice-Chairperson, in response to the remarks of the Government member of India, stressed that any consensus based on the text of the proposed instruments would not include the Employers' group: it would attract their total opposition. He also remarked that the Committee had been informed earlier of the existence of a law in India for the abolition of contract labour, going beyond what was proposed in the draft instrument. If this is the case, the adoption of an international instrument on the subject would make no difference in that country.
80. To illustrate the linguistic problems apparent in the French and Spanish versions of the proposed instruments, the Government member of Canada provided a literal translation into English of the terms used in the other languages, which would result in the text being called the Proposed Convention on subcontracting (or outsourcing). He demonstrated how those members of the Committee who were not using the English text of the proposed instrument might well have difficulty understanding precisely what evils it was seeking to remedy.
81. To clarify the situation facing the Committee should the proposed amendment be adopted, a member of the secretariat recalled that the Committee had taken the decision to base its discussion on the Addendum to Report V(2B) and move on to examining the proposed instruments. It had a mandate to report to the plenary of the Conference on the basis of the documents that had been referred to it. In accordance with the Standing Orders of the Conference, the Committee was obliged to consider all amendments that had been submitted to it. She pointed out that if the amendment to delete, now under discussion, was adopted, the Committee would move on to the next Article. If, later in the proceedings, substantive Articles were adopted, a Preamble of a purely formalistic nature would need to be added, which would be done by the Drafting Committee. In response to the call by a number of the Committee members to continue a general discussion on the matter, the member of the secretariat stated that it was not within the power of the Committee to formally substitute a general discussion for the mandate it had been given by the Conference, which was to report back on the basis of reports containing proposed instruments. Referring to the point made by the Employer Vice-Chairperson, that the intention of the proposed amendment was to oppose the adoption of a Convention in favour of a Recommendation, the member of the secretariat stated that, nevertheless, if the amendment were adopted, the Committee would still be obliged to consider the other Articles of the draft Convention, which could be taken up for inclusion in a Recommendation. As a practical matter, she noted that the Committee could continue to discuss the relevant issues generally in the context of the particular Articles. The Employer Vice-Chairperson commented that as the Committee had been discussing the issues in a general manner, it could continue to do so.
82. Since the amendment under consideration seemed to be based on the need for a third discussion on contract labour, the Employer Vice-Chairperson requested clarification as to how the Committee could achieve this. In response, a member of the secretariat stated that, to act on the desire expressed by several Committee members to have an additional discussion at another session of the International Labour Conference, a member of the Committee would need to propose a draft Conference resolution for consideration by the Committee. The submission and adoption of this resolution in the Committee would be governed by the provisions of articles 63 and 65 of the Standing Orders of the Conference. She went on to explain that, if adopted, the resolution would be referred, along with the Committee's report, to the plenary of the Conference for adoption. Regarding the possible content of such a resolution, she reminded the Committee that different procedures applied for placing an item on the agenda of the Conference for standard setting or for the purpose of a general discussion. Different rules also applied regarding the timing of a possible further discussion. A resolution could also recommend that the Conference take other action, such as asking the Office to undertake more research. She noted that, since a resolution would necessarily recommend action to be taken by the Conference, it would have no legal effect on the work of the Committee, and the discussion on the proposed instruments would normally continue.
83. The Government member of the United States proposed a motion, pursuant to article 63 of the Standing Orders, to postpone consideration of the amendments on the Preamble until the Committee had fully considered Article 1 of the proposed Convention. The Government members of Argentina, Brazil, Canada, Chile, China, Guatemala, Japan, Mexico, Peru, South Africa and Spain supported the motion. The Worker members also expressed their support. The Employer Vice-Chairperson explained that his group had proposed amendments to Article 1 which were based on the assumption that a decision would already have been taken as to the form of the instrument. Despite this difficulty, the Employer members were willing to support the view expressed by the majority to commence with a discussion of Article 1, on the understanding that they would need to seek the cooperation of the Committee in respect of certain of their proposed amendments to that Article.
Article 1
84. As had been requested by several members of the Committee, an open discussion on the definition under Article 1 took place prior to consideration of the specific amendments that had been submitted. The Government member of Argentina explained that his understanding of "subcontratación", as found in the Spanish text of the proposed definition, is subcontracting involving a relationship between a subcontractor, the user enterprise and the worker. He commented that, pursuant to the law of his country and other Latin American countries, this relationship is addressed to ensure shared responsibility between the two enterprises and full guarantees to the worker. The Government members of Chile and Peru confirmed that this indeed was also the situation in their countries regarding "subcontratación", and they also therefore questioned the appropriateness of this term as used in the proposed instrument. The Government member of Argentina noted that the definition proposed in the draft instruments includes bilateral relationships and not merely the trilateral one characteristic of his region. His Government was particularly concerned that, pursuant to the proposed definition, individual contracts with workers would be permitted, which could undermine collective agreements, to the detriment of those workers. His Government objected to the introduction of individual contracts in countries where they are not prevalent, taking workers out from under the umbrella of collective agreements, and risking the creation of second-class workers. The Government member of the United States commented that, had the equivalent words found in the Spanish and French translations of the texts been included in the English version, i.e. subcontracting, his Government would also have had serious problems with the definition.
85. The Government member of Canada asserted that the fundamental question was the situations the proposed Convention was seeking to address through the definition in Article 1. He reiterated his Government's position regarding the linguistic difficulties, pointing out that what had been termed "contract labour" in the English text, had been translated into French and Spanish as "subcontracting". Despite the use of this term in the Spanish and French texts, the subject under discussion was not subcontracting, and he observed that the terms "subcontracting" or "outsourcing" are absent from the English text. He emphasized that, pursuant to the dictionary definition of "subcontracting", it necessarily involves a triangular relationship. As a result of these linguistic differences, he underscored the importance of clearly identifying the problem to which the Committee was seeking to find a solution. In the view of his Government, the objective was essentially to ensure that workers who do not automatically have employee status, but who are in a position of dependence or subordination comparable to that of employees, should be recognized as having certain guarantees. Such protection was necessary, he asserted, since in the labour market there exist workers who are marginalized because they essentially fall through a gap in the definition of "employee" and thus are outside the scope of the labour law. He outlined how this situation has been addressed under Canadian law: those workers in a relationship of subordination or dependency are considered to be "dependent contractors" as opposed to "independent contractors", and the term "employee" has been defined for certain purposes as including a dependent contractor.
86. The Government member of Cyprus maintained that the Office definition of contract labour, as it appears in the revised text, represented an improvement over the previous definition, as it was simpler and more flexible. She argued that the proposed instrument was not intended to cover independent contractors, rather only those workers who were more or less employees, due to their position of subordination or dependency. She indicated, however, that it was not as clear whether disguised employment was outside the scope of the definition. In addition, she questioned whether the terms "dependency" and "subordination" both needed to be included since they appeared to be quite similar. The representative of the Secretary-General responded that the term "dependency" characterizes mainly the economic aspects of the contract labour relationship. In this context, he pointed to certain criteria found in the proposed Recommendation, including the extent to which the user enterprise makes investments and provides tools, etc. to perform the work; whether the worker can make profits or run the risk of losses in performing the work; and whether the worker works for a single user enterprise. Regarding the term "subordination", he explained that it relates mainly to the organizational aspects of the relationship. Examples of criteria for determining subordination could also be found in the proposed Recommendation, including the extent to which the user enterprise determines when and how work should be performed, whether the user enterprise pays amounts due to the worker periodically and according to pre-established criteria, and the extent of supervisory authority or control of the user enterprise over the worker with respect to the work performed.
87. The Government member of Chile, while agreeing that there were linguistic difficulties with the proposed definition, stated that the central concerns did not stem simply from these difficulties, but rather from significant conceptual differences. One main issue is the need to determine who the employer is, for purposes of establishing responsibility. She explained that in her country, unlike in some other countries, any worker performing work under conditions of subordination and dependency would be treated as an employee. She recalled that the secretariat had assured the Committee that countries providing a higher level of protection than that required under a Convention that might be adopted on contract labour, could still ratify the instrument. In the view of her Government, however, the lower level of protection in a Convention could give rise to pressure to deregulate, and thus to create a third category of workers with minimal protection. With respect to the issue of fraudulent relationships, she indicated that, where existing rights are violated, it is the responsibility of the State to ensure that the law is applied. This was especially important in her country, where 90 per cent of the workforce had only the law to rely on. She noted that the proposed Part II of the Convention was of considerable interest, however, since it addressed triangular relationships.
88. The Government member of Peru stated that the Committee had reached a critical point in its deliberations in seeking to establish a clear, objective and transparent definition. He recalled that 1998 marked the 50th anniversary of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). He suggested that the Committee's work should be inspired by the broad scope and accessibility of that Convention. In the view of his Government, the scope of "contract labour" remained unclear, in particular there was confusion as to whether it included both bilateral and triangular relationships. If only bilateral employer-employee relationships were to be addressed, his Government could not accept the need for an international instrument, since such relationships were already well defined in national law and international instruments.
89. The Government member of Spain commented that difficulties arose from the linguistic problems mentioned by a number of other speakers, as well as the various concepts and objectives being confused in the text. She restated her Government's position that it would be inappropriate to apply one standard of protection to the diverse situations encompassed by the definition in the proposed Convention. She raised the concern that the instrument could result in the creation of a category of second-class employment with a lower level of protection. On the other hand, with respect to self-employed workers, Article 5 of the proposed Convention could provide too much protection. Regarding fraudulent employment, her Government did not believe that the approach taken by the proposed instrument was appropriate. The Government member of Guatemala endorsed the views expressed by the Government member of Spain. She added that the labour legislation in her country could not accommodate the definition provided in the proposed Convention, since it would result in the creation of a third category of worker and diminish the rights that workers already enjoy. In the view of her Government, this third category does not exist in Guatemala; therefore, finding an acceptable term would likely prove difficult.
90. The Government member of South Africa responded to the concern raised by a number of speakers that the proposed Convention risked creating a category of second-class workers. If that were the case, she stated, it would be contrary to the principles upon which the ILO is based; however, that was not the objective of the instrument. She referred to the Office report illustrating that, while there are workers who still work within the traditional employment relationship, that situation is becoming less and less prevalent, giving way to a number of different situations. She repeated the examples of workers in the transport sector and homeworkers who are not paid a formal wage. She urged the Committee to acknowledge that there exists a group of workers outside the conventional employment relationship, but working under a similar form of subordination or dependency. Once the existence of the situation was acknowledged, she suggested that the Committee would then be able to examine how best to protect these workers, including giving consideration to the concern raised by a number of Committee members as to the need for equality of treatment.
91. Accepting the existence of linguistic and conceptual difficulties in the proposed definition, and different customs and traditions affecting the approach to this subject, the Government member of India encouraged the Committee to try to understand and acknowledge the very serious problems faced by the vast number of contract labourers in many countries. These workers, he explained, often receive a lower wage than regular employees, are denied social benefits, health and safety protection and job security, and are often exposed to dangerous working conditions. These workers, he submitted, can be found in all sectors of activity, including construction, agriculture, plantations, manufacturing, docks and hotels. In his country, these workers number in the millions, and there was, in the opinion of his Government, an urgent need to provide protective measures for such workers. He recalled that the role of the ILO is to promote workers' rights and to assist in protecting the unprotected. While his Government was prepared to accept the proposed definition, he suggested that the Committee members objecting to the definition should make efforts to formulate an alternative that would be acceptable to them, rather than postponing consideration of this important matter.
92. The Government member of Japan acknowledged that there were differences in legal systems and described the labour law system relative to the coverage of workers in Japan. In that country, it is not necessary for workers to have a formal employment contract in order to be considered employees; the actual nature of the relationship is examined, rather than the form. He explained that the criteria of dependency and subordination were also used to determine the existence of an employment relationship. The proposed definition, therefore, was in these respects acceptable to his Government. However, the term "similar to" was problematic, in their view, since it could create a third category of worker. He contended that problems could also be caused by the fact that it would be difficult to reach consensus on the meaning of the term "employee", which varies from country to country.
93. The Worker Vice-Chairperson pointed out that the mandate of the ILO is not limited to protecting employees, but extends to all workers. The formulation of a definition of contract labour would, in the view of his group, provide an important contribution at a critical point in time. He noted that the formulation of a definition did not create obligations; the Committee would have the opportunity to determine the scope of the obligations when discussing the other Articles of the proposed Convention. He stressed that the role of the Committee was to seek to define an actual situation where workers perform work under conditions of dependency or subordination but do not, for whatever reasons, receive protection. The instrument under discussion, he stressed, is not directed at determining how businesses are organized, nor did it concern itself with the type of work that could be done or the nature of the arrangements between enterprises. He assured the Committee that the proposed Convention was flexible, in that it provided extensive scope for Governments to determine the criteria to be established to ascertain dependency or subordination. The definition should also be viewed as satisfactory since it ensured that workers could not be denied employment status based on criteria that could be easily manipulated, even where such manipulation was in conformity with the law. As an example, he described the situation of a worker forced to buy equipment (such as sewing machines in the garment industry), who is then treated as being self-employed. He also maintained that the definition did not create a new type of worker but only identified an existing group in need of protection.
94. In response to a request from the Government member of the United States and to the concerns raised by a number of other Committee members, the representative of the Secretary-General recalled the situations that the proposed instruments sought to cover. He clarified that contract labour was understood as covering all situations in which a worker performs work for an enterprise with which the worker does not have a contract of employment, but whose relationship with the enterprise is characterized by conditions of dependency or subordination, similar to the conditions existing in a relationship between the enterprise and its employees. The worker may be self-employed working under a commercial contract, or may be made available by another enterprise which may or may not be his or her employer. He explained that this broad definition covered both bilateral and triangular relationships. He recalled that the tests for determining dependency and subordination are similar, but not necessarily identical, to those applied in determining the existence of an employment relationship, the difference being in the range of tests to be applied. He acknowledged, therefore, that the proposed instruments could lead to the recognition of a new category of worker, between employees and self-employed workers. However, this would not result in the weakening of the position of workers already protected as employees. On the contrary, he explained, the proposed instrument would provide some protection to workers who are not now receiving adequate protection or any protection at all because they work for an enterprise under a contractual arrangement regarded as a commercial relationship under current law and practice. He emphasized that the proposed instruments were not aimed at carving off a group of "employees" to create a new category of worker, but rather to draw some of the workers in self-employment towards the status of employees, without totally identifying them with employees.
95. Recalling the earlier discussions in the Committee, the representative of the Secretary-General went on to note that a large number of countries prefer to deal with the protection of these workers in the grey zone by classifying them clearly as an employee or a self-employed worker. However, the fact remains that many workers are still deprived of adequate protection where they are not defined as employees under current national law and practice. He commented that many countries had already recognized the need to deal with this category of workers in a special manner. In this context, he described the Canadian approach, based on the concept of a "dependent contractor", and endowing these workers with employee status for specific purposes, including collective bargaining rights. He noted that special treatment of a particular category of worker was not limited to contract labour; in many countries a number of atypical categories of workers, for example part-time and temporary workers, are treated specially with respect to some labour law protections. The Employer Vice-Chairperson said that his statement confirmed many of the concerns held by his group, and asked for it to be provided in writing to the Committee.
96. The Employer Vice-Chairperson contended that the general discussion on the definition had led the Committee no closer to reaching consensus. In the view of the Employer members, an instrument based on the proposed definition would not satisfy a sufficient number of Governments for any resulting instrument to have any real and practical effect. In their view, it would be an instrument that would in fact have negative effects. He noted that the linguistic problems concerning the French and Spanish versions of the text had not been solved. Recalling the concerns raised by the Government member of Argentina regarding individual contracts, he asserted that individual contracts are a fact of life, and in many countries they provide a wholly legitimate alternative to collective contracts, which many workers prefer. As to the Canadian approach of establishing a category of "dependent contractors", the Employer Vice-Chairperson characterized this as a unique approach, illustrating the range of approaches that have evolved in this area, which would be impossible to capture in one instrument. The Employer members found the characterization offered by the Government member of Cyprus that the instrument applies to people who are "more or less employees", to be problematic. The Government member of Chile had suggested that contract labour always involved triangular relationships, and the Government member of Peru had commented on the prevailing confusion as to the scope. The Employer Vice-Chairperson pointed out that pursuant to the proposed definition, both bilateral and triangular arrangements are encompassed. He then referred to the previous comments of the Government member of Spain and to the concerns expressed by the Government member of Guatemala, illustrating how difficult it would be to achieve precision in a definition. As to the earlier remarks of the Government member of South Africa, the Employer members believed that the reliance on some form of dependency or subordination would give rise to uncertainty. She had also referred to transport drivers and pointed out that homeworkers did not perform work on the premises of the enterprise for whom they worked. The Employer members did not regard homeworkers as contract workers, and believed that many transport workers actively sought independence and wished to be entrepreneurs.
97. The Employer member of India presented some observations on the particular situation in India, noting that while there was considerable recourse to contract labour in that country, not all of those workers were exploited. He contended that inflexibilities in the labour market had given rise to the widespread need for contract labour. He also reminded the Committee that India had adopted the most stringent law on contract labour, providing for its abolition in certain industries. Yet he remarked that despite the existence of the law, problems remained with its application, indicating the limits of a legal approach such as that sought through the proposed Convention. The Employer member of India concluded by asserting the need for extensive labour law reform in his country, where, in his opinion, there was too much freedom of association. Following up on the comments of the Employer member of India, the Employer Vice-Chairperson addressed the apparent contradiction between the prohibition on contract labour in Indian law and the Government member of India's remark that there were millions of contract workers in India needing the protection of an ILO instrument on the subject. He concluded that this pointed to a problem in enforcement of the law which the Government needed to address, and which would not be resolved by the adoption of an international instrument. If on the other hand the Government considered further legislation to be necessary, it was its responsibility to ensure that it was enacted.
98. The Employer Vice-Chairperson went on to call attention to the concern raised by the Government member of Japan regarding the creation of a third category of worker, as well as the lack of a common concept of the term "employee". He then responded to a number of the comments made previously by the Worker Vice-Chairperson. Regarding the example of the workers being forced to buy their own sewing machines and then work as contractors, for instance, he remarked that the real question was whether they were in fact contract workers or employees under the specific circumstances. He reiterated the view of the Employer members that seeking to cut across a commercial relationship where two enterprises are involved is an area of major difficulty for his group. He proceeded, in response to the Worker members' concern about carpenters being told they are companies, by stating that many carpenters prefer to be employed under commercial contracts, and no element of exploitation enters into the equation. Concerning technology programmers, he observed that in many cases these workers are paid more, not less, than employees due to their special skills. As for self-employed taxi drivers who did not own their own vehicles, he noted that vehicle ownership was only one test for determining their status. Regarding migrant workers being denied employment protection, he suggested that this was a very specific matter which should be dealt with separately, and not within the context of the proposed Convention. With regard to the example of the unfortunate death of a construction worker, he said that his group agreed that it was always important to be able to establish the identity of the employer. However, the proposed instrument was not necessary in that respect.
99. In summing up his comments, the Employer Vice-Chairperson asserted that enormous confusion remained on linguistic, conceptual and definitional matters, particularly since the vast diversity of national law and practice made achieving a common definition extremely difficult. He also repeated the concerns raised by various Government members about the creation of a third category of worker, the lack of a common understanding regarding the terms "dependency" and "subordination", and the linguistic problems in the French and Spanish texts. Given the host of concerns raised, he concluded that it would be a disaster for the Committee to adopt a definition in the proposed form, since it would result in an instrument that was incapable of ratification or application. He did, however, acknowledge once again his group's belief in the need to deal with the specific issue of disguised employment, and referred to the amendment proposed by the Employer members on that issue. He noted that the definitional matters in this amendment were dealt with by a process of exclusion rather than inclusion, and along with other proposed amendments provided the basis of the proposal of the Employers' group for a Recommendation on the subject. He concluded by cautioning that the adoption of a definition along the lines of that proposed would result in confusion, an inability to ratify and implement the instrument, unnecessary regulation and discouragement of contract work, diminished job opportunities, a loss of labour market flexibility, and an interference in commercial contracts and arrangements. So rather than elect such a route, the Employer members raised the alternative of a further discussion on contract labour in the future, and advised that they would be submitting a resolution to that effect.
100. In response to the remarks of the Employer Vice-Chairperson, the Worker Vice-Chairperson reasserted his group's position that the definition in Article 1 would cover many workers in need of protection. He underscored the point that the ILO existed to protect workers, and the Workers' group would not allow its purpose to be restricted to protecting employees. He noted that a growing number of dependent workers were unable to enjoy basic worker rights because their employer determined either that they were not employees, but rather independent contractors, or that they were the employee of another employer. The effect in both cases is that the employer, or perhaps the user enterprise, denies responsibility for the worker, a responsibility that must be met for the worker to be protected. Furthermore, in a triangular relationship, being the recognized employee of another enterprise is not sufficient, as acknowledged explicitly in the Private Employment Agencies Convention, 1997 (No. 181). He observed that many workers who are considered independent contractors actually work under conditions of dependency or subordination to the user enterprise which are similar, or sometimes even the same, as employees: they have no other employer, they have no freedom to decide the content of the work they do or how and when to perform it. He pointed out that, while some of these workers would be found to be employees if they challenged the arrangement in court, in reality few workers could exercise this option since the outcome may not be clear at the outset, and many workers would fear being dismissed as a result. In the case of workers who meet some, but not all, of the criteria for being considered an employee, the Worker Vice-Chairperson observed that many countries have extended the scope of the employment relationship to offer protection to these workers. He noted that others have addressed this problem through the creation of new legal categories: he then cited the examples found in Canada, Germany and Japan.
101. The Worker Vice-Chairperson went on to enumerate some of the benefits of the proposed Convention, both in extending basic worker rights to dependent and subordinate workers and in granting countries the flexibility to choose an appropriate solution. He noted that it should be possible for any dependent worker to have easy access to legal procedures to clarify his or her employment status; however, until the status is established, the worker would need the protection of an international instrument. Where a country chooses to broaden the scope of the employment relationship beyond the traditional scope in order to encompass dependent workers, then once the employment relationship is established, these workers would not need the protection of the Convention. He noted further that a country might choose to create special legal categories to afford these workers basic protection, which would be inspired by the protection mandated in the proposed Convention. He confirmed that, regarding the category of bilateral dependent relationships dealt with in Article 1, the matter was not limited to disguised employment relationships. The Convention sought to afford dependent workers basic protections, until either a clear employment relationship was established, or some other way, left up to national law and practice, was found to protect these workers. He referred again to Convention No. 181, noting that it confirms the appropriateness of regulating triangular relationships, particularly with regard to matters such as health and safety, the payment of taxes and social security contributions, and shared responsibility for the payment of wages. He maintained that the proposed Convention should regulate the same matters vis-à-vis enterprises other than private employment agencies. Furthermore, he noted that disguised employment relationships did exist in triangular situations as well. In addition, the Worker members were of the view that the proposed Convention should provide workers in a triangular relationship with basic protection, regardless of what their legal status was determined to be and whose employee they were deemed to be. In conclusion, he noted that, despite the differences inherent among various legal systems, the problem of contract labour could be defined and tackled so that dependent workers would not become victims of the legal concept of the employment relationship which had initially been developed to protect them.
102. Speaking on behalf of the Governments of the Member States of the European Union, the Government member of the United Kingdom stressed the need to protect unprotected or inadequately protected workers. The purpose of this standard-setting exercise, in their view, was to address situations that are similar to employment situations, and to combat disguised employment. In the latter case, workers should be reclassified and treated as employees. While the eventual aim should be to ensure equal treatment for all categories of workers, in the meantime there was a need to lay down minimum standards. He drew the Committee's attention to the fact that the definition in Article 1 was derived from wording suggested by the Governments of Member States of the European Union during the first discussion on contract labour. They believed that the definition was broadly usable and flexible enough to cover those in need of protection; thus it continued to be a satisfactory basis for the future work of the Committee.
103. Having completed the general discussion on the definition under Article 1, the Committee went on to consider the amendments that had been proposed thereto. The Government members of Argentina, Brazil, Chile, Guatemala and Mexico withdrew their proposed amendment to delete Article 1. The Government member of Chile explained that those who had proposed the amendment believed that, in the light of the discussion that had taken place on the definitional concerns, the Committee had significantly advanced in its work. It had become clear that the proposed instrument was aimed at helping to protect workers. She expressed her Government's hope that, given that a common level of understanding had been reached, at least as to the objective, the Committee would then be able to reach an agreement on the text. The Government member of Argentina endorsed the position of the Government member of Chile, and restated his Government's concern about the use in Spanish of the term "subcontratación" and the need to ensure that any instrument does not create a category of second-class workers. The Worker Vice-Chairperson expressed his group's appreciation for the good faith gesture in withdrawing the amendment, and their desire to work with the members of the Committee to find an appropriate solution to meeting the common objective.
104. Before introducing their proposed amendment, the Employer Vice-Chairperson commented further on the statement that had been made earlier by the representative of the Secretary-General, which in the view of his group was highly significant. He stated that it gave cause for serious reflection and confirmed some of the reservations they had expressed about the implications of the proposed text, particularly the potential for interference with commercial/contractual arrangements. The Employer Vice-Chairperson then turned to the issue of his group's proposed amendment to delete the entire text of Article 1 of the proposed Convention and replace it by a new text. He noted that the Employer members had proposed amendments to Article 1 which were framed on the assumption that a decision would already have been taken regarding the form of the instrument, and that this discussion had been postponed. The amendment at hand was the logical companion to a number of other amendments that the Employer members had submitted to change the title of the instrument and also the reference to it throughout the Preamble from Convention to Recommendation. If the Committee had decided in favour of a Convention, they would have withdrawn their proposed amendment. He therefore proposed that the Committee should suspend discussion of this amendment and one they had submitted to delete the word "Convention" and replace it by "Recommendation", and move on to discuss the other proposed amendments which dealt with the substantive text of Article 1. They could then return to a discussion of the Preamble and if the Committee decided to proceed on the basis of a Convention they would withdraw the two amendments.
105. A member of the secretariat recalled that the Committee had previously decided to defer discussion of the Preamble until it had fully considered Article 1. It was then agreed by the Committee that two of the Employer members' proposed amendments would be taken up at the end of the discussion of the other amendments proposed to Article 1.
106. The Employer Vice-Chairperson then introduced an amendment to replace the word "or" by the word "and" in the fourth line of the Article, so that the work performed by the contract worker would need to be performed "under actual conditions of dependency on and subordination to", rather than "under actual conditions of dependency on or subordination to" the user enterprise. He explained that the effect of the amendment would be to clarify the operation of the proposed criteria for dependency and subordination. The Employer members were concerned that the existing wording would allow for too broad an application of the definition. In their view, it was necessary to have a tighter test for determining whether a person would fall under the definition, thus both dependency and subordination should be required. He noted that in the written statement of the representative of the Secretary-General, the same phrase, "dependency and subordination", appeared repeatedly. The statement had also alluded to the so-called control tests contained in Paragraph 2 of the proposed Recommendation, which could be used to determine whether "dependency", involving mainly economic aspects, and "subordination", involving mainly organizational aspects, of the contract labour relationship exist. The Employer members felt strongly that there was a need to link the test of dependency with that of subordination, otherwise the Committee would run the risk of making a nonsense out of its exercise. To illustrate the consequences of only having to satisfy one criterion, either dependency or subordination, he described the case of an electrician or a plumber who entered into a commercial contract with an enterprise to carry out an installation. The worker might carry out work for three to six months exclusively for that enterprise. According to a test of dependency in Paragraph 2, subparagraph (g), of the proposed Recommendation, namely whether the worker works for a single enterprise, the worker would fall within the scope of the definition. He also gave the example of an independent contractor who was working under an arrangement to be paid periodically and according to pre-established criteria, in accordance with the criteria in subparagraph (b) of that same Paragraph; he felt that such an independent worker would also fall under the definition. He insisted that the definition must be sensible, practical and workable, and should not draw workers within the scope of the instrument who really should not be included. He acknowledged that, while their proposed amendment was not their preferred alternative, it was at least an attempt to make an unsatisfactory definition a little more satisfactory.
107. The Worker Vice-Chairperson opposed the amendment, stating that it would reduce flexibility in national law and practice and could be used to exclude workers from coverage unnecessarily. Member States should have the right to choose which criteria they wanted to adopt. He saw no reason for the Committee to begin limiting the coverage of the instrument before it had determined the rights that should be granted to such workers. He ended by pointing out that the effect of the Employer members' amendment would be to make the instrument less likely to be ratified.
108. The Government member of the United Kingdom, speaking on behalf of the Governments of the Member States of the European Union, opposed the proposed amendment since it narrowed the scope of the definition. The Government member of South Africa also opposed it for the same reason. The Government member of Japan explained that in his country an element of subordination, which he referred to as the commissioning of work, was an essential factor in determining the employment relationship. He was, therefore, in favour of using the word "and" instead of "or", as set out in the proposed amendment.
109. The Employer Vice-Chairperson restated his group's view as to the need for a tighter definition. He gave a further example of a situation where a person was renovating a house and had entered into commercial contracts with persons who were clearly independent, self-employed workers. They could perhaps work for a period of several months under an arrangement that they would be paid certain amounts at certain times. If the notion of dependency alone applied, those independent workers would come within the definition, when, in the view of the Employer members, they clearly should not. The Government members of Mexico and China indicated that their Governments would support the amendment. The Government member of Chile indicated that she would have to abstain since her Government believed that the definition still needed to be refined, and in her country both criteria were used together. The Government member of Argentina observed that the question of dependency and subordination was only part of the definitional issue since there were other criteria to be considered as well. He stated that his Government was in favour of greater flexibility for the worker, and the use of the word "or" would provide this. His Government thus opposed the amendment. The Employer Vice-Chairperson warned that the proposed definition was putting the rights of contract workers above those of self-employed workers and individuals and companies entering into commercial arrangements. He reiterated that the proposed amendment was intended to produce a proper and effective test before a worker would be included within the scope of the definition. In response to the point raised by the Government member of Argentina, the representative of the Secretary-General confirmed that the proposed definition which uses "or" would indeed provide more flexibility and give broader coverage to contract workers. The Government member of Trinidad and Tobago stated that, on the basis of what the representative of the Secretary-General had said, her Government opposed the proposed amendment. The Government member of Chile noted that, in the light of the explanation given, her Government would oppose the amendment, because if both subordination and dependency were present, the scope of the Article would extend only to employees, and they were already protected by labour law. The proposed amendment was put to a formal vote, the results of which were as follows: 27,552 votes in favour, 33,866 against, with 574 abstentions (the quorum was 30,307). The amendment proposed by the Employer members was defeated. The Employer Vice-Chairperson observed that less than half of the Government members of the Committee had voted, which seemed to be a repetition of what had happened consistently the previous year, and that the margin by which the amendment had been defeated was narrow on a principle that was important to the Employer members. He therefore called for a record vote which was taken after a show of hands indicated that more than one-fifth of the members in the sitting were in favour of doing so. The results of the vote were as follows: 27,552 votes in favour, 33,579 votes against and 574 abstentions (the quorum was 30,307).(2) The proposed amendment to replace "or" by "and" was rejected.
110. The Chairperson reminded the members of the Committee of the important task with which they had been entrusted. In this respect, he cited the following remarks that had been made by the President of the Conference during his opening address to the plenary of the Conference: "the members of the Committee will have to display much imagination and a spirit of compromise in their endeavours to produce a result which is acceptable to the broad majority and, above all, of use to those potentially affected by the subject."
111. The Committee then moved on to consider an amendment proposed by the Government member of Canada to replace throughout the French version of the text the words "travail en sous-traitance" and "travailleur(s) occupé(s) en sous-traitance" by the words "travail sous contrat" and "travailleur(s) sous contrat". The Government member of Canada, in introducing the proposed amendment, noted that the intention was not only to address linguistic concerns, but also to ensure that all the members of the Committee were referring to the same concept. He observed that the general discussion had exhibited that the proposed text did not render in all languages the same meaning of what the instrument was aiming to achieve. In seconding the proposed amendment, the Government member of the United States noted that the translations into Spanish and French appeared to have been one of the major stumbling blocks hindering the Government members, and expressed the hope that the amendment would help to advance the work of the Committee.
112. The Government member of Spain stated that, while sharing the concern expressed by the Government member of Canada, her Government believed that it could better be addressed by deleting the term "contract labour" throughout the text in all the languages, and she submitted a subamendment to that effect, which was seconded by the Government member of South Africa. The text of the proposed subamendment reads as follows: "Throughout the text, replace the words 'contract labour' and the words 'contract worker' by the words 'persons who perform this work'". The Government member of Spain recalled that a considerable amount of confusion had been caused by the choice of the term "subcontratación" in Spanish and "sous-traitance" in French, which have a precise meaning that is inconsistent with the content of the proposed Convention. If the subamendment were adopted, she acknowledged that there would be consequential amendments that would need to be addressed by the Drafting Committee. She then read out what she described as an approximation of how the Article might read once the consequential amendments were made by the Drafting Committee:
The persons covered by this Convention are those who perform work personally for a natural or legal person (referred to as a "user enterprise") where the work is performed under actual conditions of dependency on or subordination to the user enterprise and these conditions are similar to those that characterize an employment relationship under national law and practice but where the person is not the employee of the user enterprise.
113. The Government member of Canada voiced his Government's support for the subamendment to their amendment, and stated that his Government embraced the subamendment. Having heard the suggestion of the Government member of Spain as to how the Article might ultimately read in Spanish if the subamendment were adopted, the Government member of Canada then read out the same text in French, and the Government member of the United States read it out in English, in an effort to ensure that it was clear to the Committee what was intended to be achieved in the three languages. Members of the secretariat then read out what they understood to be the content of the subamendment itself in those languages.
114. The Government member of Argentina offered support for the subamendment on the understanding that the Committee would need to continue to consider the conceptual concerns, in particular to ensure that a category of second-class workers having fewer rights than regular employees was not created. The Government members of Chile, Guatemala and Peru also spoke in favour of the subamendment, raising similar concerns as to the need to further address the conceptual issues. Remarking that the adoption of the subamendment would remove the terminological obstacles that had hindered the Committee's work, thus permitting them to move ahead and focus on the substantive issues, the Government member of Cyprus also supported the subamendment. The Worker members, the Government members of Switzerland, the United Kingdom (speaking on behalf of the Governments of the Member States of the European Union, with the exception of Italy and Spain) and the United States also supported the amendment as subamended by the Government member of Spain.
115. In response to a request from the Government member of Italy for clarification as to the purpose and effect of the subamendment, a member of the secretariat explained that the subamendment had been moved to address the concern raised by a number of Committee members that the terminology used in French and Spanish did not reflect the aims of the Convention, which encompassed both bilateral and triangular relationships. The Employer Vice-Chairperson challenged the receivability of what had been proposed as a subamendment by the Government member of Spain, claiming that it was not in fact a subamendment, but rather a new text. He also brought to the attention of the Committee some of the consequences that, in the view of the Employer members, would result were the subamendment to be adopted, including the problem of finding a title for the instrument and dealing with the numerous references to "contract labour" appearing throughout the text of the two proposed instruments. A member of the secretariat noted that the nature of the subamendment before the Committee was to replace words proposed in the amendment to describe the persons concerned by other words, with the aim of explaining the same idea but in different terms; drafting problems or inconsistencies deriving from the adoption of such a subamendment would normally be referred to the Drafting Committee. The subamendment of the Government member of Spain was ruled to be receivable by the Chairperson. The Employer Vice-Chairperson stated his group's disagreement with the advice and the ruling as to the receivability of the subamendment.
116. At the request of the Employer members, the secretariat had a written version of the proposed subamendment prepared for the consideration of the Committee. The Government members of Canada and Spain asked the Office to prepare an indicative text to illustrate what the text of Article 1 as amended might look like if it had been dealt with by the Drafting Committee. The Office thus also made available two documents setting out the effects on Article 1 were the subamendment to be adopted: the first showing the immediate effect on Article 1; the second illustrating how draft Article 1 might read following revision by the Drafting Committee. The latter text reads as follows:
The persons covered by this Convention are those who perform work (referred to as "persons who perform this work") for a natural or legal person (referred to as a "user enterprise") where the work is performed personally under actual conditions of dependency on or subordination to the user enterprise and these conditions are similar to those that characterize an employment relationship under national law and practice but where the person who performs this work is not the employee of the user enterprise.
117. The Employer Vice-Chairperson enumerated the particular difficulties that the Employer members had with the subamendment. First, they were of the view that any possible advantage gained by the subamendment was purely terminological; however, even if the subamendment solved the language problems in French, English and Spanish, it could in fact create further problems in other languages, in particular in German. In addition, since the intention of the subamendment was to remove the reference to "contract labour" and "contract workers" in Article 1, such references would also need to be removed from the rest of the instrument, which could give rise to difficulties in formulating appropriate expressions. Finally, given that the Committee had been convened to consider proposed instruments on contract labour, they queried whether the Committee was then entitled to propose an instrument that does not deal explicitly with contract labour. The Employer Vice-Chairperson requested the Office to provide some guidance on the implications of this change. He suggested that some of the confusion that had been caused by the subamendment and the Office document illustrating how Article 1 might read if the subamendment were adopted, could be removed by replacing the phrase "where the work is performed personally" with "where the work is performed by a natural person". Furthermore, he suggested that the words "and who are not covered by the terms of a commercial contract" be added at the end of the indicative text provided by the Office.
118. Responding to the question raised by the Employer members concerning the implications of the subamendment presented by the Government member of Spain on the Committee's mandate, a member of the secretariat explained that the mandate of the Committee was to examine the texts on contract labour that had been referred to it by the Conference and to report back to the plenary of the Conference. Whether the Committee wanted to include the term "contract labour" in any instrument that it might adopt, was a decision for the Committee following discussion of the topic.
119. The Worker Vice-Chairperson reiterated his group's support for the subamendment, and called for a vote to be taken on its adoption. The Employer Vice-Chairperson attempted to propose a further subamendment to replace the words "where the work is performed personally" with the words "where the work is performed by a natural person". A member of the secretariat, referring to the document that had been provided by the Office at the request of the Committee (to set out how Article 1 might read should the subamendment proposed by the Government member of Spain be adopted), noted that this was only an indicative text: the amendment that was itself under discussion in fact only touched upon the words "contract labour" and "contract worker". The Worker Vice-Chairperson objected to the further subamendment, stating that it did not relate to the subamendment before the Committee but rather to the document that had been prepared. He also raised a point of order, stating that, since his group had called for a vote before the further amendment had been proposed, the Employer members' proposal was not receivable. The Employer Vice-Chairperson argued that if his group's proposed subamendment was not receivable, then neither was that submitted by the Government member of Spain. He then attempted to propose a further subamendment to replace the words "persons who perform this work" by the words "natural persons who perform this work personally".
120. The Worker members put forward a motion for closure. With the support of at least one-fifth of the members of the Committee present at the sitting, a vote was then held on the motion for closure of the discussion on the amendment proposed by the Government member of Canada, as subamended by the Government member of Spain. The results of the vote were as follows: 284,663 votes in favour, 191,224 votes against and 21,730 abstentions (the quorum was 229,468). The motion for closure was, therefore, carried, and debate continued under article 64 of the Standing Orders.
121. The Government member of Italy agreed with the intention of the attempt the Employer members had made to introduce the term "natural person" into Article 1, and confirmed that, in the view of her Government, this would be a preferable term. However, she suggested that the issue was one within the mandate of the Drafting Committee, and could be left to it to resolve. The Employer Vice-Chairperson, while expressing appreciation for the support of the Government member of Italy, contested the view that the issue was purely of a drafting nature. He also noted that the Employer members could not support the subamendment proposed by the Government member of Spain since they maintained serious doubts regarding the practicability of the definition that would result and concerns as to difficulties that would arise in making the rest of the text of the instrument conform in consequence.
122. The amendment proposed by the Government member of Canada, as subamended by the Government member of Spain, was put to a vote. The results of the vote were as follows: with a quorum of 229,468, there were 282,490 votes cast in favour, 4,346 votes against and 212,954 abstentions. As a result, the subamendment was adopted, to replace the words "contract labour" and "contract worker" by "persons who perform this work" in the text of the proposed definition.
123. An amendment proposed by the Government members of Denmark, Germany, Ireland and Luxembourg, to delete the words "and these conditions are similar to those" in the proposed text of Article 1, was then introduced. The Government member of Germany explained that although he would be referring to the word that had appeared in the Office documents to reflect "contract labour" in German ("Vertragsarbeiter"), this term was inappropriate. He went on to note that the amendment would result in the deletion of the concept of "similar to" from the definition, in relation to subordination or dependency. He explained that the amendment had been proposed with the objective of ensuring that a third category of worker, designated as an "employee-assimilated" person or as a "dependent contractor", would not be created. The inclusion of persons who are in fact similar to employees is problematic because there is no uniform term to refer to employees in the member States. The terms "worker" and "employee" are used in ILO Conventions, but are not defined. Since there is no uniform term, the related term "contract worker" will remain very unclear if the definition is based on "similar" conditions of dependency. If instead the same actual conditions of dependency as those used in national law and practice to define an employment relationship were taken to be controlling, a clearer term could be found to refer to "contract labour". He added that there were a number of advantages to using the actual conditions of dependency and subordination, as this definition would apply beyond disguised or fraudulent employment relationships and would mean it was not possible to exclude workers simply by virtue of using a formal label. The definition would, he explained, include workers made available to a user enterprise who work under the same conditions as the employees of that enterprise: under such circumstances, the worker would be considered an employee and not a second-class worker. With the clarification of the term "contract labour" that would be achieved by means of the amendment, a concrete foundation could be established for determining uniform protective provisions for "contract workers".
124. The Government member of Denmark supplemented the remarks of the Government member of Germany, stressing in particular that the purpose of the amendment was to eliminate any doubt that the instrument could create a new group of workers who do not enjoy full employment rights. Her Government considered it important as a matter of principle that ILO Conventions and Recommendations recognize the principle of equal treatment. As the proposed Convention, pursuant to Article 4, required a member State to establish procedures to determine whether an employment relationship exists, she considered that in countries where "employee" is broadly defined, as in Denmark, most of the persons referred to in Article 1 would be regarded as employees, with full rights. She contended that it would remain the privilege of the member States to develop the scope of the term "employee", and thus to determine who would fall within the scope of the instrument. She commented that the procedure under Article 4 was an important contribution to combating disguised employment. The Government member of Spain expressed her Government's support for the amendment, for the reasons cited by the Government members of Denmark and Germany.
125. Highlighting the difficulties that the Government member of Germany had raised with respect to the terms in German that had been used in the proposed instruments, the Employer Vice-Chairperson repeated his group's concern regarding the complex linguistic problems. In supporting the proposed amendment, the Employer members endorsed the view that a third category of worker should not be created. They also considered that the proposed amendment was successful in removing much of the vagueness of the terminology.
126. In opposing the amendment, the Worker Vice-Chairperson explained that his group did not see the subject under discussion as being in the nature of atypical work, such as part-time or temporary work, but rather as addressing the situation of workers who should receive the protection of labour law, but do not. The Worker members considered that there were three legal problems involved. First, the failure to enforce the law. Second, difficulties in distinguishing between the scope of commercial law, governing contracts between equals, and labour law, which seeks to ensure fair contracts between unequals. Finally, they raised the problem of updating labour law to reflect the realities of new forms of work. The Worker Vice-Chairperson asserted that the draft Convention addressed these three distinct situations of workers being denied needed protection because of the existence of at least one of the three obstacles. Dealing firstly with disguised employment, the Worker Vice-Chairperson stated that the legal problem involved was a failure to enforce the law. He commented that often, but not always, the worker was put in this situation by an employer fraudulently seeking to avoid obligations under labour law, even though many workers may not be aware that they are the victims of fraud. Other workers, although recognizing the illegality, are powerless to stop it, sometimes due to the lengthy and costly legal procedures required to establish the worker's legal status, especially in small enterprises. He commented further that workers may not seek to enforce their rights for fear of victimization, since they were often in precarious employment situations. In the opinion of the Worker members, the proposed amendment would have the effect of limiting any instrument to disguised or fraudulent employment, which they considered to be only part of the problem.
127. One of the other situations that the Worker members considered should be addressed was triangular relationships, the problem being a failure to update the law to ensure the allocation of responsibilities. Two legal problems were highlighted in the context of the situation where there is no recognized employment relationship within the triangular relationship: a failure to enforce (the problem of disguised employment within a triangular relationship) and the problem of the triangular relationship being an appearance only. The other situation needing to be addressed in the view of the Worker members was that of ambiguous relationships. This situation was posited as a possible source of confusion in that it was sometimes identified with the problem of lack of enforcement or disguised employment, whereas it was related to the problem of distinguishing when to apply commercial law and when to apply labour law, in addition to the need to update labour law in the light of new realities. The Worker Vice-Chairperson noted that some countries approach the problem of ambiguous relationships solely as one of distinguishing commercial and labour law. Some of these countries have sought to resolve the legal problem by expanding the scope of the employment relationship (the "two-category" approach). Alternatively, other countries have chosen to expand the definition of the employment relationship, but believe that the labour market has placed these workers in a situation where it is not necessary to extend to them the full range of protections afforded to employees (the "three-category" approach). The Worker members considered that the three category approach was taken by those countries that had concluded that the changing organization of business had created a new reality. The Worker Vice-Chairperson voiced his group's belief that an instrument on this subject needed to accommodate both a two-category and three-category approach, and, since the purpose of the proposed amendment was to insist on the two-category approach, they could not support it. The Worker Vice-Chairperson noted that he did not use the term "contract labour" but rather "unprotected workers". Most Governments understand these legal problems as going beyond just disguised employment. He reiterated that Article 1 was concerned only with the definition and not with determining rights and obligations, which were to be considered by the Committee later in its deliberations. Finally, he commented that where the situations described in Article 1 do not exist in fact, the member State would not be required to take any measures.
128. In opposing the amendment, the Government member of Finland observed that the amendment would undermine the objective of the proposed instrument, which was to extend protection to workers who were not properly protected or who were in triangular relationships which were not yet covered. His Government strongly believed that any instrument would be meaningless if the amendment were to be adopted, since it would then be limited to workers who were already protected as employees under national law and practice.
129. The Government member of Japan noted that there were four elements to the definition and that Paragraph 2 of the proposed Recommendation outlined how to determine whether the conditions of dependency or subordination had been met. In Japan, irrespective of the form of the contract, where actual dependency or subordination exist, the labour law applies. Furthermore, he noted, a study group consisting of experts was charged with determining whether a person was covered by the law, and had established more detailed criteria for difficult categories, such as entertainers, truck drivers who own their own vehicles, carpenters and homeworkers. The criteria used to establish the applicability of the labour law, he pointed out, was almost identical to those contained in Paragraph 2 of the proposed Recommendation. Furthermore, workers in hidden employment without a contract were covered . In the view of his Government, however, the use of the term "similar to" created a third category of worker, and carried with it the danger of driving people who would otherwise have received full employee status into this category. The phrase "similar to" would also render the control test more ambiguous. For these reasons, his Government supported the amendment.
130. The Government member of Canada voiced his Government's opposition to the amendment. In his Government's opinion, on a careful examination of the effects of the amendment, it would in fact lead to the recognition of a third category, which his Government wished to avoid. The actual result of the proposed amendment would be to remove the qualification made by the Office text in relation to the criteria of dependency and subordination. Under the proposed amendment, any person performing work personally who was in a dependent relationship would come within the scope of the instrument. Relationships which contained an element of economic dependency could, he submitted, include the activities of a small traders.
131. The Government member of Cyprus recalled that, after the first discussion on contract labour, her Government had requested the deletion of the word "similar" since the emphasis should not be on the similarity but on the characteristics of the employment relations, which left latitude to governments. In the view of her Government, the deletion of the words proposed would not narrow the scope of the instrument. Her Government, therefore, supported the amendment proposed.
132. The Government member of France added his Government's voice to those opposing the deletion of the words "and these conditions are similar to those", in the belief that the result would be to restrict unduly the scope of the instrument, limiting it to disguised employment. He stated that the words needed to be retained in the text, in order to protect those workers on the fringes of the employment relationship who are in need of protection; otherwise, the instrument would be applicable only to those workers who are already entitled to benefit from full employment rights. He also pointed out that the discussion of the scope of the instrument did not prejudge the protection to be provided. The Government members of South Africa and the Netherlands opposed the amendment, endorsing the reasons expressed by the Government member of France. The Government member of Austria was also of the view that the amendment would unduly restrict the scope of the instrument, and therefore opposed the amendment. The Government member of Italy was also unable to support the amendment, and recalled her earlier comments that the Committee was dealing with workers in a "grey zone" that exists in some countries, and the Committee should ensure that they are provided with at least a minimum level of protection. She stressed, however, that her Government was not endorsing the creation of a third category, but rather an instrument setting out a means of addressing this category where it already exists.
133. The Government member of Ecuador regarded the words "similar to" as incongruous, since their inclusion would lead to the establishment of a hierarchy of workers, which his Government could not accept. He urged the Committee to return to a consideration of some of the basic issues that they were aiming to address. In the view of his Government, the text was problematic from a legal point of view. He explained that in his country, where there exists a relationship of dependency or subordination, the worker is protected under the labour legislation.
134. The Government member of Chile supported the amendment, on the ground that it would avoid the situation of employees not being recognized as such despite the existence of an employment relationship. The result of the amendment, in the opinion of her Government, would be that a worker in a position of subordination or dependency who works for someone else would receive protection. As a consequence, the scope of the application of employment rights in some countries would be broadened, while in others no measures would need to be taken. She indicated that the criteria laid down in the proposed Recommendation were exhaustive enough to ensure that the majority of countries would be able to define the scope of the employment relationship. Her Government believed that it was inappropriate for an instrument to address the issue of fraudulent employment, since this was a problem of application of national law, the responsibility for which should rest with governments.
135. The Government member of Argentina remarked that there was really only one category of worker: those who work. Regarding the proposed amendment, he pointed out that the word "similar" had significant legal implications, and was important for purposes of analogy. In addition, he noted that eliminating this reference in the text would limit the instrument to addressing disguised employment; thus his Government was not prepared to support the amendment as proposed by the Government members of Denmark, Germany, Ireland and Luxembourg.
136. The Government member of the United States recalled his earlier comment on the need for a clear and flexible instrument. Remarking that the use of the term "similar to" could lead some to reach the conclusion that a third category of worker was being created, he suggested that this concern was addressed by leaving to the member States the flexibility of determining what criteria they deemed appropriate for determining whether an employment relationship exists, as provided for in Article 4 of the proposed Convention and Paragraph 2 of the proposed Recommendation. The Government member of Trinidad and Tobago requested the secretariat to shed light on the issue of whether the instrument would in fact create a third category of worker, and, if so, whether these workers could be granted the same protection as regular employees or would only be entitled to more limited protection. Furthermore, she noted her Government's opposition to the proposed amendment on the ground that it would limit the flexibility of governments in determining which workers would be covered by the Convention.
137. Referring to the statement he had made earlier, the representative of the Secretary-General observed that the word "similar" may lead to the recognition of a new category, but would depend on how member States apply the criteria applicable respectively to dependency and subordination. He went on to say that the purpose of the proposed instrument was to provide protection to those workers who were receiving inadequate protection or no protection at all. Such workers could be working under a commercial contract. He pointed out that the text of Article 1 included the phrase "under national law and practice" to provide member States with a certain amount of flexibility in applying the criteria and tests to determine the existence of dependency or subordination. On the matter of whether employment protections should be the same for these workers as those afforded to regular employees, he responded that this was not an issue for the discussion under Article 1 but would be addressed when the Committee considered later provisions of the proposed Convention. In response to the previous speaker's remarks, the Employer Vice-Chairperson stated that what was relevant was not what the draft text aimed to do, but rather the effect it in fact had. This was the reason why so many Government members were concerned. He pointed to paragraph 2 of the introductory portion of Report V(2B) Add., enumerating three categories of workers. He insisted that the draft text clearly recognized, identified and created a third category.
138. The Worker Vice-Chairperson reiterated that the definition did not establish anything in law, it only described possible employment situations which, if they existed, would fall under the scope of the instrument. He pointed out that a third category was not created by the proposed Convention, but it could be, and in some countries it already had been, created legally at the national level, since member States were free to deal with the problem as they saw fit. He requested the secretariat to explain the legal effects that the proposed amendment would have on the scope of the instrument with regard to bilateral and triangular relationships, which were intended to be covered by the draft text. He then questioned the endorsement of the proposed amendment by the Government member of Germany when, as he understood it, a third category of workers ("worker-like contractors") existed in Germany, who did not have the same status as employees but one that was similar. The Government member of Germany replied that there was no third category of workers in his country. He explained that there were certain terms in labour law and social security law that set criteria to determine whether workers were dependent and subordinate. They did not apply to independent workers, a certain number of whom enjoyed a limited number of rights similar to those enjoyed by employees. The representative of the Secretary-General remarked that those independent workers in Germany who, due to their economic dependency, received some coverage, were precisely the type of workers that would be covered by the proposed instrument. He then explained that the proposed amendment would drastically reduce the scope of the coverage of the instrument by limiting it to those people who were effectively in employment relationships. He added that the statements made by the Government members of Finland and France clearly indicated the consequences of a vote in favour of adopting the proposed amendment. In light of this explanation, the Government member of Denmark withdrew her endorsement of the proposed amendment.
139. The Government member of Peru reflected that it was thanks to the development of labour law that they had an established minimum level of benefits for workers. She remarked that they were now faced with the problem of people performing work under conditions that were similar to those of workers already covered. She questioned whether an international instrument was the proper response and whether it would be able to deal effectively with the problem. In the opinion of her Government, it would be better to leave such matters up to national law and practice. She commented that she was not sure that the deliberations would help them when they returned to their respective countries to identify the relationship and provide protection to workers in the grey area.
140. The Employer Vice-Chairperson stated that there could be no better illustration of the difficulties facing the Committee than the fact that they had completed the first discussion, had been provided a new draft text by the Office at the eleventh hour, were now halfway through the second discussion and still did not know what exactly they were dealing with. He claimed that deep division still remained over what should be addressed. He stressed that in the view of the Employer members this was no basis for the adoption of an international labour standard, which required a better degree of understanding and support. He recalled that many Government members had expressed their concern that the instrument would create a third category and that this would be an undesirable outcome. Referring to the intervention made by the representative of the Secretary-General, he said that the definition would create interference with commercial contracts, particularly if the words "similar to" remained in the text. He proffered two examples of how in his group's view the looseness and vagueness that was accentuated by the words "similar to" in the definition would cut across commercial contracts. The first example involved the situation where there was a direct commercial contract between an enterprise and a group of workers who could have a partnership and otherwise be self-employed independent workers. In that case, the workers might, under a loose definition, be regarded as being in a dependent or subordinate relationship, which would be sufficient to grant them some employee benefits. This situation would clearly lead to a third category of worker in between employees and independent contractors. The persons in this third category would get some of the benefits normally given to employees without being identified as employees, a situation that would constitute an interference with current law and practice in most countries, which have other ways of recognizing the employment relationship or of attributing limited elements of the employee status to such workers. In the second example, where there is a contract between two enterprises, the first enterprise carrying out work for the second and sending workers to carry out that work, many of the workers involved would be in a position similar to that in the first example, i.e. they would be entitled to some employee benefits. He pointed out that, as the text stood, the allocation of the responsibilities of an employer would need to be determined, allowing for an interference with commercial and employment relationships; consequently, he insisted that any instrument based on the current definition would be totally unacceptable. He affirmed that the proposed amendment sought to remove some of the uncertainty and confusion surrounding the definition and to leave member States in a position to decide for themselves what would need to be done regarding national law and practice should they decide to ratify the proposed Convention.
141. The Worker members were of the opinion that the proposed Convention would only interfere with commercial contracts when the workers involved were unprotected and working under conditions of dependency or subordination, situations which should be covered by labour law, not by commercial law. The Worker Vice-Chairperson recalled the remarks made by the Government member of Finland who had noted that the new wording of the proposed amendment would make the instrument meaningless. He reminded the Committee that the definition did not establish any legal obligations but only described possible situations to be addressed by the proposed Convention. The proposed amendment was put to a formal vote, the results of which were: 223,819 votes in favour, 247,722 votes against and 4,346 abstentions (the quorum was 229,468). The proposed amendment to delete the words "and these conditions are similar to those" was rejected. At the request of the Employer members, a record vote was taken after a show of hands indicating that the request was supported by at least one-fifth of the members present at the sitting. The results were: 219,473 votes in favour, 249,895 votes against and 6,519 abstentions (the quorum was 229,468).(3) The proposed amendment was defeated.
142. After the Committee had appointed the members of the Drafting Committee, the Government member of Argentina recalled that a number of linguistic problems had arisen throughout the discussions, particularly in Spanish. For this reason, and in the interests of putting Spanish on an equal footing with French and English, he requested that a member of the Committee with Spanish as his or her mother tongue be represented on the Drafting Committee. A member of the secretariat informed the Committee that while the Standing Orders provide for the Drafting Committee to examine proposed Conventions and Recommendations in English and French only, since many concerns had been raised regarding the Spanish text, arrangements could be made for one Spanish-speaking Government member to attend the Drafting Committee on an informal basis as an observer who could be consulted by the Office in preparing the Spanish version of the instruments.
143. The Government member of Japan withdrew an amendment to replace the word "similar" by the word "equivalent", on the basis that it was identical in substance to the amendment previously discussed. An amendment to replace the words "similar to" by "the same as" was then introduced by the Employer Vice-Chairperson, who contended that while the proposed amendment previously discussed dealt with similar issues, the terms in which the Employer members' amendment had been drafted would make it clearer that the conditions of dependency or subordination must be the same as those characterizing an employment relationship. He repeated his group's position that they would not accept the creation of a third category of worker, placed somewhere between independent contractors and employees. He restated the arguments that had been advanced by his group during the previous discussion on the expression "similar to", including that it added an element of looseness and vagueness to the definition, that it would lead to difficulties of interpretation and application and to interference with commercial arrangements and employment relationships. If their proposed amendment were adopted, it would not in their view render the definition totally satisfactory; however, it would be "easier to live with" as it would confine the scope of any resulting instrument to disguised employment. In the opinion of the Employer members, the need to address disguised employment was the only issue upon which the Committee had reached a consensus, and the amendment that had been proposed addressed this situation in a sensible way that should be acceptable to everyone.
144. The Worker Vice-Chairperson observed that amendments of this nature would limit the scope of the instrument to such an extent as to make the instrument meaningless. His group, therefore, opposed the amendment for the reasons they had put forward on the previously discussed amendment. Similarly, the Government members of Canada and Switzerland voiced their opposition to the proposed amendment on the ground that it would limit the scope of the instrument to disguised employment. The Government member of Switzerland, whose view on this point was endorsed by the Government member of Peru, stated that, as a consequence of the amendment, the scope of the instrument would be limited to an area that is a question of the application of national law and practice, and would result in workers who are entitled to full rights being provided with only certain rights. The Government member of Canada added that his Government also viewed the proposed amendment as constituting an incursion into commercial relationships. The Government members of South Africa and Venezuela opposed the proposed amendment on the basis of the arguments raised in the previous debate on the term "similar to". While not being in complete agreement with the terms of the amendment proposed by the Employer members, the Government member of Cyprus continued to have concerns about the inclusion of the term "similar to".
145. The Government member of Argentina noted that a number of differences had arisen because of the terminology used, which could perhaps have been avoided had the Committee taken more time to focus on the meanings of various terms. Turning to the proposed amendment at issue, he stated that the term "similar to", used in the English text, was not equivalent to "análogas" which was found in the Spanish version. The essence of the instrument, in the view of his Government, was to protect people working in conditions having all the characteristics of an employment relationship, who were not recognized as employees. He urged the Committee to find a term to describe disguised employment without creating a third category of worker. The Government members of Chile and Spain expressed their intention to abstain from any vote on the proposed amendment as the matter had already been disposed of by the Committee in dealing with an earlier amendment. The Government member of Peru also viewed the proposed amendment as an attempt to alter a decision that had already been taken by the Committee, but her Government was prepared to support it.
146. The Employer Vice-Chairperson stressed that the proposal under discussion was not the same as the amendment that had been defeated previously, but was more precise. Regarding the comment that the amendment was not needed because the matter was already dealt with pursuant to national law and practice, the issue being merely one of application of that law, the Employer Vice-Chairperson asserted that not all national jurisdictions cover disguised employment. The Government member of Cyprus called for an indicative vote of Government members to be taken in order to expedite the proceedings. The Employer Vice-Chairperson stated that his group would accept the taking of an indicative vote on this occasion, but not necessarily in the future. As a majority of the Government members cast votes against the adoption of the Employer members' proposed amendment, the Chairperson requested them to consider withdrawing their amendment. They declined, and a formal vote was taken, the results of which were as follows: 3,680 votes in favour, 4,760 votes against and 760 abstentions. The quorum was 4,272. As a result, the amendment proposed by the Employer members to replace "similar to" by "the same as" was defeated.
147. The Committee moved on to consider an amendment proposed by the Government member of Japan, and seconded by the Government member of Switzerland, to replace the phrase "the employee of the user enterprise" by "the employee of a private employment agency within the meaning of paragraph 1(b) of Article 1 of the Private Employment Agencies Convention, 1997." The Government member of Japan explained that the proposed amendment would in effect move the exclusion of employees of private employment agencies from Article 2(1) to Article 1 of the proposed instrument, so as to clarify the scope within the definition. He stated further that the Committee had not reached a uniform understanding of the term "employee", either due to linguistic or legal differences existing, thus it was difficult to fully appreciate the workers intended to be covered by that term. The Government member of Australia requested clarification on the meaning of the amendment proposed. The Government member of South Africa, whose views were endorsed by the Government members of Cyprus and the United States, contended that the matter of the exclusion of employees of private employment agencies was best left to Article 2, leaving Article 1 to set out a clear definition. In the light of these comments, the Government member of Japan withdrew the proposed amendment, as well as the companion proposal it had submitted to Article 2 to delete the reference to the Private Employment Agencies Convention, 1997.
148. An amendment proposed by the Government members of Germany, Greece, Ireland, Luxembourg and Portugal to replace the words "is not the employee of the user enterprise" at the end of Article 1 with the phrase "does not have a recognized contract of employment with the user enterprise", was put to the Committee for its consideration. The proposed amendment was introduced by the Government member of Germany who asserted that only those workers who have a recognized contract of employment should be excluded from the scope of the instrument, otherwise those in disguised employment relationships could also be excluded. He noted further that this approach in essence moves to Article 1 the exclusion that had been permitted under the second sentence of Article 2 of the proposed Convention as it had appeared in Report V(2B), and in so doing clarifies this exclusion. The Government member of Greece added that, in his country, the word "employee" does not adequately describe someone working on the basis of an employment contract; it has a more general meaning. Therefore, his Government believed that the wording in the proposed amendment was more specific, and would ensure that those otherwise protected would be excluded. The Government member of Ireland concurred with the view that the proposed amendment would make the definition in Article 1 more specific.
149. The Government member of Uruguay indicated his Government's support for the proposed amendment, and stressed that they would not accept the creation of a third category of worker. Support for the proposed amendment was also registered by the Government member of Japan in view of the problems surrounding the definition of the term "employee". He also noted that the term "recognized" did not exist in his country in connection with a contract of employment; he requested the sponsors of the amendment to provide clarification as to the implications of the term. The Government member of Germany remarked that this concept did not normally apply in his country either, but rather the concept of a recognized employment relationship was used. He noted, however, that explicitly referring to workers without "a recognized contract of employment" should guarantee protection to a range of workers, including those who should be treated as employees but are not. The Government member of Greece noted that, in his country, the term "recognized contract of employment" referred to an official, formal employment contract: workers concluding such contracts have an official employment relationship and the status of an employee.
150. The Government member of Canada submitted a subamendment to the proposed amendment, calling for the deletion of the phrase "contract of" after the word "recognized" and for the addition of the word "relationship" after the word "employment", so that the text would read "does not have a recognized employment relationship with the user enterprise". The subamendment was seconded by the Government member of South Africa. The Government member of Canada explained that the subamendment introduced a broader concept than contract of employment. He stated that the notion of dependency or subordination characterizes an employment relationship and not a contract of employment. While under national law, an employment relationship may take the form of an employment contract, the instrument, in the view of his Government, needed to be expressed in universal terminology. The subamendment would also have the advantage, he asserted, of linking the exclusion to the qualifier of dependency or subordination "that characterize an employment relationship" which is introduced earlier in the definition.
151. The Government member of Greece remarked that he disagreed with the proposed subamendment because the term "relationship" did not have the same meaning as "contract of employment", at least in his country. The Government member of Finland expressed his Government's support for the proposed subamendment, commenting that, since disguised employment was one aspect covered by the instrument, it should be referred to explicitly in Article 1. The subamendment would also clarify that the instrument applied to workers who were not in recognized employment relationships, thus making it consistent with the terminology used in Article 4.
152. The Worker Vice-Chairperson suggested that, rather than pursuing the subamendment, the Government member of Canada consider a proposal to add at the end of the proposed definition, the phrase "or not recognized or treated as an employee of the user enterprise". In response, the Government member of Canada stated that it would be simpler to deal with the subamendment first, and then address the different notion of "treated".
153. Before the Committee continued its consideration of the amendment proposed by the Government members of Germany, Greece, Ireland, Luxembourg and Portugal, as subamended by the Government member of Canada, the Employer members raised the issue of the consideration of a resolution that they had submitted which they wished to have taken up by the Committee, before completing discussion on the proposed Convention. As to the time at which the Committee would debate the substance of the resolution, the Employer Vice-Chairperson repeatedly contested the ruling of the Chairperson and the explanations given by members of the secretariat in support of that ruling. The Employer members wanted the resolution discussed earlier and contended that they had not been consulted with respect to the schedule that had been prepared concerning the submission and amendment process for resolutions. The Legal Adviser informed the Committee that, pursuant to the Standing Orders, the motion to move a resolution would have to be considered by the Committee; however, under article 61 of the Standing Orders, it is the prerogative of the Chairperson to decide on the order of debate. As a practical matter, he noted that, given the mandate before the Committee to consider the texts of a proposed Convention and Recommendation, normally a Committee would complete its discussions on that matter before considering resolutions. If there were compelling reasons for considering a draft resolution earlier, then the Chairperson could decide to depart from the normal procedure. In response to a specific request for clarification from the Employer members, the Legal Adviser explained that article 63(4) of the Standing Orders, governing the submission and discussion of resolutions, does not require a resolution to be discussed at a particular time. He further reminded the Committee that the International Labour Organization has the special procedural peculiarity of not permitting a challenge to the decision of the Chairperson, if that decision falls within the scope of the Chairperson's powers.
154. Returning to the subamendment proposed by the Government member of Canada to the amendment submitted by the Government members of Germany, Greece, Ireland, Luxembourg and Portugal, the Government member of Germany stated that his Government could give its support to the subamendment. The Worker Vice-Chairperson asked for clarification of the difference between the terms "recognized contract of employment" and "recognized employment relationship". The representative of the Secretary-General explained that "recognized employment relationship" would also include those workers who, though not having a contract of employment, are in an employment relationship characterized by dependency and subordination. The Government member of Greece had hesitations about accepting the subamendment, but would consider supporting it. The Government members of Ireland, Portugal and the United States indicated their support for the proposed subamendment.
155. The Government member of Argentina agreed with the term "recognized employment relationship" as used in the subamendment, but suggested that such a relationship was not "with" the user enterprise but "through" the user enterprise. The Worker Vice-Chairperson supported the subamendment. The Employer Vice-Chairperson explained that, while his group understood the intentions motivating the subamendment, its adoption would not in their view remove all their concerns. However, given the consensus that had been displayed, he stated that the Employer members would not oppose the adoption of the subamendment. In the light of the consensus, the amendment proposed by the Government members of Germany, Greece, Ireland, Luxembourg and Portugal, as subamended by the Government member of Canada, was declared adopted.
156. The next amendment put before the Committee proposed the addition of the words "recognized or treated as an employee" and the deletion of the term "the employee", in Article 1. Incorporating amendments already adopted by the Committee, the end of Article 1 would thus read as follows: "but where the person who performs this work does not have a recognized employment relationship with, or is not treated as, an employee of the user enterprise." In presenting this amendment as subamended, the Employer Vice-Chairperson explained that it was important to add the notion of treatment as an employee to the definition in Article 1 due to the diversity of meanings in national law and practice of "employment relationship", and thus the need for flexibility. He noted that, in some countries, a written contract is required to establish an employment relationship, whereas in others the absence of such a contract would not necessarily preclude a worker attaining the status of an employee if he or she were treated as such. He assured the Committee that the amendment was not intended to "water down" the scope of the instrument.
157. The Worker Vice-Chairperson opposed the proposed amendment on the ground that it would have the effect of limiting the scope of the instrument to disguised employment only. The Government member of Finland indicated that his Government would oppose the proposed amendment because it was nearly the same as the text of the subamendment that the Committee had previously adopted by consensus. The Government member of Spain commented that it would be absurd if workers without a recognized employment relationship were treated the same as those with a regular employment relationship, and were afforded all of the employment protections as if they were regular employees. The Government member of South Africa interjected that adding the term "treatment" to the text would have the effect of excluding workers who deserve protection from the instrument, thereby watering down its effectiveness and bringing the Committee back to the issue of dealing only with disguised employment. The amendment proposed by the Employer members was defeated on a formal vote. The results of the vote were as follows: 3,600 votes in favour, 5,160 votes against and 280 abstentions. The quorum was 4,272.
158. The Employer members presented an amendment, which would add the following words to the end of Article 1: "or another enterprise in respect of the work performed." The Employer Vice-Chairperson explained that their proposal would avoid interference where there existed a formal employment relationship with the supplying enterprise, and reiterated that a person with a recognized employment relationship should have their rights applied and enforced in every instance. He asserted further that the employment relationship and its consequences should only attach to one enterprise; a second enterprise should not be forced to assume some of that responsibility. He concluded that although the proposed amendment did not in his group's view resolve all the problems with the definition, it did make it more practical in effect and with respect to implementation.
159. The Worker members rejected the proposed amendment on the basis that it would exclude a group of workers in need of protection, namely those involved in triangular relationships. The Worker Vice-Chairperson noted that the notion of protection for workers in triangular relationships was already enshrined in the Private Employment Agencies Convention, 1997 (No. 181), which had been adopted with the support of the Employers' group. The Government member of Finland agreed that the proposed amendment if adopted would considerably reduce the scope of the Convention, essentially excluding those in triangular relationships; therefore, his Government was not prepared to support the amendment. In addition, his Government believed that the amendment would place the worker in an impossible situation due to the burden of proof, since a worker would need to prove a negative, namely that he or she is not an employee of another enterprise. Finally, his Government feared that the amendment could provide an avenue for circumventing the instrument, since the two enterprises could decide which would take on the role as the formal employer, without having the resources to discharge the concomitant responsibilities. The Government member of Spain, whose view was shared by the Government member of Argentina, was also unable to support the proposed amendment, since it did not assist in clarifying the definition, and in fact added an element of confusion with respect to the allocation of responsibilities where two enterprises are involved. On behalf of the Governments of the Member States of the European Union, the Government member of the United Kingdom stated that the proposed amendment was unacceptable because it would essentially eliminate all triangular relationships from the scope of the instrument.
160. The Government member of Switzerland spoke in favour of the amendment, agreeing with the Employer members that the worker who would be excluded as a result was one who already benefits from a typical employment relationship. He commented that, in the absence of the words proposed in the amendment, some workers who should be entitled to full employment rights due to their employment relationship with one enterprise may find their rights decreased. In voicing support for the amendment, the Government member of China concurred with this view. The Government member of Switzerland stated further that the amendment proposed would in the opinion of his Government help to avoid insurmountable difficulties that could arise with respect to such matters as social security contributions, if the allocation of responsibilities were not restricted. The Government member of Australia concurred with the views expressed by the Government member of Switzerland.
161. The Government member of Canada indicated that his Government was also in favour of the proposed amendment, and stressed that its adoption would not result in the exclusion of all workers in triangular relationships, but rather would avoid covering an arrangement from which full employment protection already derives. He recalled that the aim of the instrument was to ensure protection to workers who have thus far been denied protection because they fall outside the scope of a typical employment relationship. He submitted that, where a person benefits from an employment relationship with another enterprise, the Committee's only concern should be the apportionment of responsibilities, as foreseen in Part II of the proposed Convention. The Government member of the United States also spoke in support of the proposed amendment, commenting that it offered further clarification regarding the types of workers to be covered by the instrument. He pointed out that procedures were foreseen pursuant to Article 4 of the proposed Convention to allow the determination of whether an employment relationship exists, and that criteria for making this determination were enumerated in the proposed Recommendation.
162. The Government member of South Africa requested clarification from the Employer members as to what was intended to be the scope of the exclusion resulting from the proposed amendment: the exclusion of all triangular relationships or only of those where there was no recognized employment relationship with the second enterprise? The Employer Vice-Chairperson responded that they were seeking to avoid the complications that would arise where a worker had a recognized employment relationship with one enterprise (the supplying enterprise, a subcontractor, the enterprise carrying out work for the user enterprise), and the user enterprise would be required to assume some of the responsibility for that worker. He stressed that, to come within the scope of the exclusion, there would have to be a formal, legal, unambiguous employment relationship with one enterprise or the other; in a triangular relationship where no such relationship exists, the worker would still be protected under the instrument. On the issue of the burden of proof which had been raised by the Government member of Finland, the Employer Vice-Chairperson contended that it could be argued that it is difficult to prove the existence of an employment relationship under any circumstances.
163. The Government member of Peru prefaced her comments by stating that generally her Government still found that the definition could lead to confusion, but that a certain logic was beginning to emerge. She noted that thus far the Committee was aiming to provide some benefits to workers who did not have all the attributes of a regular employment relationship. Regarding the proposed amendment under discussion, her Government was not prepared to support it, on the ground that it would limit the scope of the instrument to protecting workers in bilateral relationships. She asserted that, where there were two enterprises involved, the worker should be able to claim some rights from the user enterprise, even where the worker has an employment relationship with another enterprise. The Government member of Chile agreed with the statement of the Government member of Peru, and added that, although the Private Employment Agencies Convention, 1997 (No. 181), protects workers made available by such an agency, many other triangular relationships fall outside the scope of that Convention. She suggested that the amendment if adopted could result in a worker, who fulfils all the prerequisites for protection under the instrument, being denied protection on the basis of the existence of a contract of employment with another enterprise. She asked for clarification of the implications that adoption of this amendment would have on Part II of the proposed Convention. The Government members of Cyprus and Uruguay posed a similar question. The Government member of Cyprus commented that the intention behind the proposed amendment appeared reasonable.
164. The Worker Vice-Chairperson stated that one of the primary reasons for his group's staunch opposition to the proposed amendment was because the consequence of its adoption would be the elimination of Part II of the proposed Convention; thus deleting any provision for the allocation of responsibilities between enterprises. Part II could not address apportionment if the group of workers it purported to cover were excluded from the scope of the instrument. He cautioned that while the Private Employment Agencies Convention, 1997 (No. 181) provides for the protection of some of these workers, the proposed amendment would deny protection to others falling outside the ambit of that Convention. The Worker members were of the view that workers in triangular relationships need special attention, even where they are employees, since the user enterprise may actually control the conditions of work. Attention was drawn to the earlier Office reports on this subject, documenting that triangular relationships had increased absolutely, relatively and in variety, while labour law had been based on the existence of only one employer who would be able to assume obligations. The Worker Vice-Chairperson noted that some countries had already updated their laws in response to this new trend, and that the existence of this growing phenomenon had been the motivation behind the adoption of Convention No. 181.
165. The Government member of Japan asked for clarification as to the scope of the coverage of Article 1, paragraph 1(b), of Convention No. 181 in relation to the exclusion proposed by the Employer members in their amendment. The Employer Vice-Chairperson responded that the category of workers referred to in the proposed amendment was broader than those under the relevant provision of Convention No. 181. The representative of the Secretary-General concurred with this interpretation. The Employer Vice-Chairperson insisted on the fact that his group did not intend by virtue of the proposed amendment to exclude all triangular relationships; only those where the worker is clearly an employee of the enterprise carrying out the work. It did not touch the situation where the worker did not have a recognized employment relationship. He observed that it was not only the enterprise making workers available to another enterprise that was at issue, but also the situation where there is a contract between two enterprises for the carrying out of work, and the employees of one enterprise carry out work on the premises of the user enterprise. On the issue of the implications of the proposed amendment on Part II of the Convention, he confirmed that it did imply the deletion of that Part. This interpretation was again confirmed by the representative of the Secretary-General. The Employer Vice-Chairperson explained that Part II would no longer be necessary since there would be no need to allocate responsibilities regarding persons who were already protected due to their recognized employment status. In the view of the Employer members, it would be absurd, for example, to give employees of one enterprise the right to bargain collectively with a second enterprise, and could even result in the deterioration of their terms and conditions of employment.
166. The Worker Vice-Chairperson reiterated his group's concerns regarding the consequential deletion of Part II of the proposed Convention. He noted in particular that the matter of occupational health and safety should be the responsibility of the user enterprise, since it was under the control of that enterprise. In addition, he stated, such matters as hours of work and overtime, etc. may also be under the control of the user enterprise. He also referred to the need to allocate responsibilities for unpaid wages, since workers are not always protected even when they have a contract of employment. Responding to the example raised of occupational health and safety, the Employer Vice-Chairperson agreed that responsibility should rest with the enterprise where the work is carried out, and stressed that this represented a special example that was virtually universally accepted and applied. However, as for the example raised by the Worker members concerning unpaid wages, he challenged the grounds for making the user enterprise liable when the workers were the employees of the second enterprise. He insisted that the people who needed protection would be so protected under Part I; therefore, there was no need for Part II.
167. The Worker Vice-Chairperson referred to Article 12 of Convention No. 181 as an illustration of the acceptance of the need to allocate responsibilities in a triangular relationship. He pointed out that, pursuant to that provision, member States are required to determine and allocate responsibilities in relation to the following: collective bargaining, minimum wages, working time and other working conditions, statutory social security benefits, access to training, protection in the field of occupational safety and health, compensation in case of occupational accidents or diseases, compensation in case of insolvency and protection of workers' claims, and maternity and parental protection and benefits. The Employer Vice-Chairperson countered that the responsibility referred to in that Convention was only one facet of the issue and was excluded from the present instrument precisely because it was already taken care of in Convention No. 181. As the Employer members indicated their intention to call for a record vote on the amendment, the Worker Vice-Chairperson suggested that the Committee proceed directly to a record vote. The results of the record vote were as follows: 3,840 votes in favour, 4,960 votes against and 280 abstentions (the quorum was 4,272).(4) The amendment proposed by the Employer members to add the words "or another enterprise in respect of the work performed" was defeated. Taking into account the amendments, as subamended, that had been adopted by the Committee up to that point in its deliberations, Article 1, as amended, reads as follows:
The persons covered by this Convention are those who perform work (referred to as "persons who perform this work") where the work is performed personally under actual conditions of dependency on or subordination to the user enterprise and these conditions are similar to those that characterize an employment relationship under national law and practice but where the person who performs this work does not have a recognized employment relationship with the user enterprise.
There were two proposed amendments submitted by the Employer members that were not discussed by the Committee. At the request of the Employer members, consideration of these amendments had been deferred to the end of the discussion of other proposed amendments to Article 1. The first amendment proposed the replacement of the entire Article to redefine "contract worker" and add a definition of "disguised employment" without specific reference to a Convention or a Recommendation. The second amendment sought to replace the word "Convention" by "Recommendation".
Consideration of the draft resolutions
168. After extensive consultation with the Officers of the Committee as to the future course of action that the Committee would take concerning two draft resolutions that had been submitted up to that point, the Chairperson announced the consensus that had been reached on the procedural aspects. The draft resolution that had been submitted by the Employer members, for adoption by the Committee with a view to submission to the Conference, was presented. The draft resolution reads as follows:
The General Conference of the International Labour Organization,
Having met in Geneva in its Eighty-sixth Session, from 2 to 18 June 1998,
Having adopted the report of the Committee appointed to consider the fifth item on the agenda;
Invites the Governing Body of the International Labour Office to:
(a) instruct the Director-General to conduct further studies and research on the subject of contract labour;
(b) to consider any further means by which the subject of contract labour might be addressed.
169. The Employer Vice-Chairperson stated that the proposal was self-explanatory, and concerned the further consideration of the question of contract labour. The result, he explained, would be that the issue would not be disposed of at the present session of the Conference, but there would be further consideration. He expressed his group's desire to consult with the Worker members and Government members on the terms of the two resolutions, with a view to reaching a consensus.
170. The Worker Vice-Chairperson indicated that his group's preference remained to continue considering the proposed instruments; however, in the light of the Employer members' draft resolution, they had submitted an alternative resolution, which reads as follows:
The General Conference of the International Labour Organization,
Having met in Geneva in its Eighty-sixth Session, from 2-18 June 1998,
Having adopted the report of the Committee appointed to consider the fifth item on the agenda,
Noting that the Committee on Contract Labour has identified situations where subordinate or dependent workers require protection which are appropriate for standard setting and,
Noting that the Committee has made significant progress in formulating a Convention;
Invites the Governing Body of the International Labour Office to place the question of subordinate or dependent workers requiring protection on the agenda of the International Labour Conference with a view to the completion and adoption of a Convention supplemented by a Recommendation as soon as practicable, but no later than three years from now;
Further invites the Governing Body of the International Labour Office to instruct the Director-General:
(a) to hold meetings of experts to examine issues arising out of the deliberations of this Committee on Contract Labour;
(b) to conduct further studies and research; and
(c) to take other measures with a view to completing the standard setting begun on this issue.
171. The Worker Vice-Chairperson pointed out that his group's resolution recognized that the Committee had already made a certain amount of progress which should be built upon. He clarified that the Workers' group was not asking the ILO to set ground rules for commercial relationships but was trying to extend protection to subordinate or dependent workers who need protection. Regarding future work on this subject, he explained that his group did not want a general discussion but would press for the item to be placed on the agenda of a future Conference as a standard-setting exercise, with a view to a Convention supported by a Recommendation. Furthermore, the draft resolution called for meetings of experts and further studies and research on the matter, which he indicated should be undertaken on the basis of preparing international instruments. He questioned whether the International Labour Organization could remain relevant if it did not establish an international labour standard in this area, given the broad evolution of work and labour law that would continue into the next century. He also expressed his group's willingness to seek to reach consensus with the Employer members and the Government members. The Government member of the United States expressed his Government's satisfaction that the Worker members and Employer members would be involved in constructive consultations.
172. The Government member of Austria pointed out what she thought was an error in the German text of the Workers' proposed resolution.
173. At the commencement of the Committee's following sitting, the Employer Vice-Chairperson informed the Committee that, while there had been extensive consultations between the Worker and Employer members, they had not been able to reach a full consensus.
174. The Government member of the United Kingdom, on behalf of the Governments of the Member States of the European Union, reiterated their view that different categories of workers need protection. He recalled further that these Members had begun with a desire to have an instrument adopted at this session of the Conference. He expressed their regret that it seemed unlikely that the Committee would be able to fulfil the task assigned to it, and noted that the task had been made more difficult by the late circulation of Report V (2B) Add., although the reasons for this had been understood. In the light of all the discussions that had taken place in the Committee, he confirmed that the Government members on whose behalf he spoke would accept a resolution, if a suitable text could be agreed upon, and requested the Workers' and Employers' groups to continue their discussions with a view to submitting a joint resolution. In conclusion, he emphasized that the decision to defer adoption of an instrument on this subject should not be seen as setting a precedent that the International Labour Organization should avoid standard setting in appropriate areas.
175. The Worker Vice-Chairperson sought clarification from the Office regarding the range of outcomes that the Committee could produce, where no instrument could be proposed to the Conference for its adoption. The Legal Adviser explained that, according to article 17(1) of the Constitution of the International Labour Organization and article 40 of the Standing Orders, the normal procedure is for the Committee to consider and report on the draft instruments before it and to propose the text of such instruments for adoption by the Conference. As far as other outcomes were concerned, this was not provided for specifically in the rules, and it was, therefore, necessary to return to the basic mandate of the Committee. The Committee was to report to the Conference on the texts before it and would, therefore, have to report any reasons for not agreeing on a text. However, there was a wide range of options regarding the contents of such a report. The minimum would be for the Committee to simply record its views in a report to the Conference. This would place the views of the Committee on record and such a report could be referred to in future discussions and by other bodies considering the matter. In that case, he explained, there would be no decision of the Conference, just the views of the Committee. The report of the Committee could also include formal conclusions as to the general principles to be taken into account or specific provisions that the Conference could adopt (such as the conclusions adopted at the end of a first discussion) for consideration at a later date. He clarified that these conclusions would not be binding on future sessions of the Conference. If the Committee wanted to go further, it could adopt a resolution for adoption by the Conference, setting out a draft text. In response to a query raised by the Employer members, the Legal Adviser clarified that the submission of a resolution of the type that had already been put by the Employer members before the Committee, which did not contain formal conclusions, was another legitimate option.
176. The Government member of Uruguay introduced a draft resolution that had been submitted by the Government members of Argentina, Brazil, Colombia, Chile, Mexico, Spain, Peru and Uruguay. The resolution reads as follows:
The General Conference of the International Labour Organization,
Having met in Geneva at its Eighty-sixth Session, from 2 to 18 June 1998,
Having adopted the report of the Committee appointed to consider the fifth item on the agenda,
Invites the Governing Body of the International Labour Office to instruct the Director-General:
(1) to hold meetings of experts to examine and analyse the various situations which have been identified in the discussions of the Committee on Contract Labour, and in respect of which protection should be provided;
(2) to study and deal separately with the various situations. The experts referred to in the preceding point should complete their work within a maximum of two years;
(3) to include in the agenda of the General Conference of the International Labour Organization the situation of workers who need protection, with a view, if necessary, to adopting international instruments as soon as possible.
177. The Government member of Uruguay explained that the draft resolution had been submitted as an alternative in the event of the Workers' and Employers' groups being unable to agree on a joint text. The Government members of Argentina, Peru and Spain confirmed this intention. Their resolution, noted the Government member of Uruguay, tried to provide a basis for future discussion by defining concepts. He noted that the Government members sponsoring the resolution were not asking that one or more instruments be adopted because that would be for the experts to propose. The Government member of Argentina added that their resolution aimed to acknowledge the results of the Committee's work.
178. The Committee then embarked on a general discussion of the various resolutions that had been put before it, and the amendments that had been submitted in writing to the Worker members' draft resolution. The Worker Vice-Chairperson noted that his group preferred their own resolution; however, they were prepared to accept some of the amendments that had been proposed to it, in the light that common ground appeared to be emerging. With regard to the title of the resolution, they were willing to accept the title set out in the draft resolution of the Government members of Argentina, Brazil, Colombia, Chile, Mexico, Spain, Peru and Uruguay, namely "Resolution concerning the adoption of international instruments for the protection of workers who find themselves in the situations identified by the Committee on Contract Labour". The title, in their view, acknowledged the existence of workers in need of protection. With respect to an amendment proposed by the Government members of Canada and South Africa to replace the reference to the identification of situations where subordinate or dependent workers require protection with the phrase, "Noting that the Committee on Contract Labour has begun to identify situations where workers require protection", the Worker members were appreciative of this effort to make the paragraph shorter and legally clearer; however, they indicated their intention to propose a subamendment to add the words "in their relationship to a user enterprise" to the end of the paragraph. Referring next to the proposed amendment submitted by the Government members of Argentina, Brazil, Chile, Mexico, Peru, Spain and Uruguay (to delete the fifth paragraph of the resolution submitted by the Worker members), the Worker members could not accept this proposal. The Worker Vice-Chairperson argued that the Committee had made considerable progress in developing its position over the past two years, particularly regarding linguistic and conceptual matters, and this should be acknowledged. The Worker Vice-Chairperson noted that his group would, however, support the proposed amendment to the same paragraph submitted by the Government members of Canada and South Africa, to delete the word "significant" and replace the words "a Convention" with "an international instrument", as long as the word "instrument" was changed to "instruments".
179. In continuing his review of the proposed amendments to his group's draft resolution, the Worker Vice-Chairperson referred to three amendments which sought to change the wording from "a Convention supplemented by a Recommendation" to "an international instrument" or "instruments". He noted that the authors of these proposed amendments sought to ensure that the Office draft a text or texts for consideration of a proposed Recommendation and/or Convention. His group could, however, accept the reference to "instruments", as long as it was in the plural. In this context, he pointed out that the Committee was not seeking to make a decision at the present time as to whether a Convention, a Recommendation, or a Recommendation and a Convention, should ultimately be adopted. That matter would be left for the future Conference to decide. On the proposed amendment submitted by the Government members of Canada and South Africa to replace the last paragraph of the resolution with a new text, the Worker Vice-Chairperson commented that his group could accept this change because it elaborates the ideas underlying the Worker members' draft resolution. The replacement text proposed in the amendment submitted by these two Governments reads as follows:
Further invites the Governing Body of the International Labour Office to instruct the Director General:
(a) to hold meetings of experts to examine, at least the following issues, arising out of the deliberations of this Committee:
(i) which workers, that have begun to be identified in the Committee, are in need of protection;
(ii) appropriate ways in which such workers can be protected;
(iii) how such workers would be defined bearing in mind the different legal systems that exist and language differences.
(b) to take other measures with a view to completing the standard setting begun on this issue.
180. Similarly, the Worker Vice-Chairperson voiced his group's acceptance of the proposed amendment submitted by the Government members of Argentina, Brazil, Chile, Mexico, Spain and Uruguay to add to clause (a) in the last paragraph of the Worker members' draft resolution, the words "and that the various situations identified be dealt with separately". He added that this language could be introduced as a subamendment to the proposed amendment from Canada and South Africa to replace the last paragraph. This would mean that subparagraph (ii) of clause (a) of this proposal could refer to finding appropriate ways to protect workers, with the possibility of dealing separately with the various situations identified during the deliberations. In conclusion, the Worker Vice-Chairperson stressed that his group was willing to adopt most of the suggestions proposed by the Government members, as these amendments would lead to the development of a more consistent text and would bring them closer to achieving consensus. He expressed optimism that a resolution acceptable to the Committee could be formulated.
181. The Employer Vice-Chairperson reminded the Committee that a resolution could not determine the outcome of further consideration of a Conference agenda item; therefore, the resolution should not presume the adoption of any instrument. He pointed out that point (3) in the fourth paragraph of the draft resolution submitted by the Government members of Argentina, Brazil, Columbia, Chile, Mexico, Spain, Peru and Uruguay reached the same conclusion with its reference to adopting international instruments "if necessary". He stressed that this was an important qualification that should be included in any resolution adopted by the Committee. Moreover, he affirmed that his group was in agreement with a number of the proposed amendments to the Worker members' resolution submitted by the Government members, to replace the reference to "a Convention supplemented by a Recommendation" with the word "instrument", as long as the qualification of "if necessary" were included.
182. Regarding the proposed amendment submitted by the Government members of Argentina, Brazil, Chile, Mexico, Peru, Spain and Uruguay to delete the paragraph in the Workers' proposed resolution reading: "Noting that the Committee has made significant progress in formulating a Convention", the Employer Vice-Chairperson agreed with the sentiment, commenting that it was highly doubtful that any progress made by the Committee could be characterized as "significant". He conceded, however, that the Committee had made progress in its work. As a result, he proposed that the paragraph either be deleted from the draft resolution or reformulated to reflect that the Committee had made "progress in its work". Concerning one of the proposed amendments submitted by the Government members of Canada and South Africa, which would delete the words "subordinate or dependent" from the sixth paragraph of the Worker members' draft resolution, he noted that the result would be to refer solely to "workers requiring protection", a category so broad that it would essentially include all employees. Although his group supported the deletion of the reference to subordinate or dependent workers, he asserted that the resulting wording would be unclear. Consequently, his group would consent to adopt wording which would invite the Conference to place on the agenda of a future Conference those issues that had been identified by the Committee as requiring further attention, without making specific reference to dependency or subordination.
183. On the proposed amendment submitted by the Government members of Canada and South Africa to replace the words "a Convention" in the fifth paragraph of the Worker members' resolution with "an international instrument", the Employer Vice-Chairperson again commented that his group would request inclusion of the words "if necessary". If the word "instrument" were made plural, as the Worker Vice-Chairperson had suggested, he noted that this would not change the meaning of the Worker members' draft resolution. He then referred to the proposed amendment submitted by the Government members of Canada and South Africa to delete the fourth paragraph and replace it with: "Noting that the Committee on Contract Labour has begun to identify situations where workers require protection." He pointed out that this would eliminate the reference to "subordinate or dependent workers", while calling attention to the work done by the Committee; therefore, his group could support it. However, he noted that his group could not support the recommendation made by the Worker Vice-Chairperson to add a reference to "in their relationship to a user enterprise".
184. The Employer Vice-Chairperson continued by noting that his group understood the intention of the Government members of Canada and South Africa in proposing an amendment to replace the last paragraph, and could support it if the qualifying phrase "if necessary"was added, with reference to standard setting. Concerning the Worker Vice-Chairperson's recommendation to add the words "and that the various situations identified be dealt with separately" to subparagraph (ii) of clause (a) of the proposed amendment of the Government members of Canada and South Africa concerning "appropriate ways in which such workers can be protected", the Employer Vice-Chairperson indicated that, while his group considered the formulation to be somewhat vague, they would not oppose the proposed amendment. Furthermore, his group could support the proposed amendment submitted by the Government members of Argentina, Brazil, Chile, Mexico, Spain and Uruguay to use the words "an international instrument" as long as, again, the qualifier "if necessary" were added. He also voiced his group's support for the measure to delete the reference to completing work on the issue within three years. He pointed out that the strict three-year timetable would necessitate a single discussion on the issue, which would serve to tie the hands of the Conference.
185. Regarding the draft resolution submitted by the Government members of Argentina, Brazil, Colombia, Chile, Mexico, Peru, Spain and Uruguay, the Employer Vice-Chairperson reaffirmed his group's support for the qualifier in point (3) of the fourth paragraph, that international instruments be adopted "if necessary". However, they were opposed to the inclusion of the phrase "as soon as possible". On the matter of an appropriate heading for the resolution, he noted that, if one were adopted, it should, in line with the text of the resolution itself, refer to further discussion of the need for the adoption of international instruments.
186. A number of Government members, including from Argentina, Canada, Cyprus, Italy, Peru, South Africa, Spain and the United States, expressed satisfaction with the attempts made by the Worker and Employer members to agree on a joint text and encouraged them to continue their discussions with a view to reaching a consensus. The Government member of Cyprus asserted that it was important for such a resolution to recognize the usefulness of the work of the Committee and the progress that it had already achieved. She stated further that her Government also believed it was important to add to the resolution an invitation to the Governing Body to place this item on the agenda of the Conference, with a view to adopting an instrument or instruments. Concerning the proposed amendment submitted by the Government members of Canada and South Africa to replace the last paragraph of the Worker members' resolution, she suggested commencing with the words "in this connection".
187. The Government member of Italy commented that the draft resolution submitted by the Government members of Argentina, Brazil, Colombia, Chile, Mexico, Spain, Peru and Uruguay lacked coherence. Concerning the Worker members' proposed resolution, she stated her Government's opposition to the reference to "dependent or subordinate workers". Her Government preferred instead a broader reference which was not limited to well-known typical forms of relationships. She also called attention to the need to delete the reference to the word "Convention" (although this form of instrument was in Italy's view the most appropriate for adoption at the next session of the Conference) throughout the text of the draft resolution and refer to "instruments" for the sake of consistency. This would also make it easier to draft a text that would be acceptable to all members of the Committee at the session now under way.
188. The Government member of Peru expressed her Government's view that additional discussion of this issue, as proposed in the resolutions, would help to elucidate the issues arising from this rich and complex subject, and permit the Governments to further discuss and debate these matters in their own countries. The Government member of Argentina suggested that the Workers' and Employers' groups, when meeting again to draft a joint resolution, should focus on the points of convergence rather than disagreement. He noted that the Committee in plenary could then deal with any of the remaining areas of disagreement. The Government member of South Africa suggested that the Governments sponsoring the third resolution subamend the draft resolution of the Worker members instead of working on the basis of their own separate draft resolution. She then recommended that the Committee deal with the question of the title of the resolution last.
189. The Government member of Canada commented that there was clearly a need for further research to be undertaken, with a view to recommending that the subject be placed on the agenda of a future Conference. He emphasized that while this general objective seemed to be shared by the members of the Committee generally, the actual drafting of the text of the draft resolution was becoming complicated by the participation of such a large group. He stressed that whatever form the resolution took, it could not bind a future Conference; therefore, any attempt to require the Conference to reach a particular result would be fruitless. He urged the Committee members to keep the resolution simple, and not delay the process by debating minor points. The Government member of Italy endorsed the views expressed by the Government member of Canada.
190. The Employer Vice-Chairperson acknowledged that there were a limited number of matters on which the Employers' group and the Workers' group did not agree. He indicated that where there was disagreement, some could be overcome by taking into account the third resolution, the proposed amendments and the views expressed during the Committee's deliberations. He affirmed his group's intention to work again with the Worker members, as so many Government members had urged, in an attempt to bring before the Committee a text for discussion and adoption.
191. The Worker Vice-Chairperson restated his group's position that any future discussion should be based on a new draft Convention and Recommendation. He added that the Committee's mandate had been to examine a draft Convention and Recommendation; they believed it would be appropriate to continue with that approach in the future, and did not support leaving the question open in a resolution. He contended that the Committee had already done some of the hardest work concerning the proposed instrument, in particular with respect to formulating the definition and defining the scope of the instrument. The Employer members agreed that the form in which the issue would come before the Conference should not be left open.
192. The Chairperson expressed satisfaction with respect to the spirit in which the Committee was conducting its discussions, and acknowledged the valuable suggestions made by the Government members. He noted that it reinforced the hope and optimism which the Employers' and Workers' groups had engendered since the preceding day. He was hopeful that they would be able to resolve their existing differences.
193. The Government member of South Africa enumerated three points on which there would likely need to be discussion in plenary. The first concerned the type of workers that should be the subject of any future discussion. Second, she believed that the two groups were unlikely to reach agreement on the addition of the words "if necessary" in relation to standard setting. Finally, on the issue of the time frame within which any further action would occur, she stated that this was an issue on which Governments would want to express their views. The Government member of the United States suggested that if the Worker and Employer members were not able reach an agreement on the text of a resolution, that the Committee move on to discuss the resolution proposed by the Government members of Argentina, Brazil, Colombia, Chile, Mexico, Spain and Uruguay. The Government member of Papua New Guinea concurred with this view, noting that the third resolution could provide a useful reference point for reaching agreement. The Employer Vice-Chairperson also agreed that the third resolution would provide a good basis for discussion if a consensus could not otherwise be reached.
194. When the Committee reconvened, a draft resolution submitted jointly by the Employers' and Workers' groups was presented to the Committee for its consideration. The draft resolution, for adoption by the Committee with a view to submission to the Conference, reads as follows:
Resolution concerning the possible adoption of international instruments
for the protection of workers in the situations identified by the
Committee on Contract Labour
The General Conference of the International Labour Organization,
Having met in Geneva in its Eighty-sixth Session, from 2-18 June 1998,
Having adopted the report of the Committee appointed to consider the fifth item on the agenda,
Noting that the Committee on Contract Labour has begun to identify situations where workers require protection, and
Noting that the Committee has made progress on these issues;
Invites the Governing Body of the ILO to place these issues on the agenda of a future session of the International Labour Conference with a view to the possible adoption of a Convention supplemented by a Recommendation if such adoption is, according to the normal procedures, considered necessary by that Conference. The Governing Body is also invited to take this action so that this process is completed no later than four years from now,
Further invites the Governing Body of the ILO to instruct the Director-General:
(a) to hold meetings of experts to examine at least the following issues arising out of the deliberations of this Committee:
(i) which workers, in the situations that have begun to be identified in the Committee, are in need of protection;
(ii) appropriate ways in which such workers can be protected, and the possibility of dealing separately with the various situations;
(iii) how such workers would be defined, bearing in mind the different legal systems that exist and language differences;
(b) to take other measures with a view to completing the work commenced by the Committee on Contract Labour.
195. The Employer Vice-Chairperson and the Worker Vice-Chairperson confirmed that their groups had agreed upon the text of the draft resolution, in accordance with the wishes that had been expressed by the Committee. This joint resolution was an attempt to merge the three previous resolutions, taking into account the amendments that had been proposed to those resolutions and the comments of the Governments.
196. In the view of the Employer members, the resolution had a clear title that accurately reflected the substance of the text. Concerning the reference to the Committee having "begun to identify situations where workers require protection" in the fourth paragraph of the resolution, they were of the view that this acknowledged that the process had started and would be continuing through the measures set out in the resolution. With respect to the fifth paragraph, the Employer members considered that the Committee certainly had made progress, despite the fact that at times the discussions were difficult. The Employer Vice-Chairperson stressed that the sixth paragraph was important to his group since it invited the Governing Body to place "these issues" (referring to those mentioned in paragraphs 4 and 5 of the draft resolution) on the agenda of a future session of the International Labour Conference with a view to the possible adoption of a Convention supplemented by a Recommendation. The qualifying phrase in the paragraph, referring to the "normal procedures", was of particular importance in their view, and they understood it to refer to the normal procedures for the consideration of a standard-setting item. The Governing Body was invited to take action so that the process could be completed within four years. Acknowledging that the resolution does not seek to bind the Governing Body on this point, the Employer Vice-Chairperson commented that his group did not believe, given the work already accomplished on this issue, that more than a single discussion would be necessary. The Employer Vice-Chairperson then turned to the seventh paragraph and the reference to the meetings of experts to be held. He noted that this paragraph was drafted in such as way as to allow flexibility as to the number of meetings to be held, which could be one or more, and the issues to be examined. On the subject of the possibility of dealing separately with the various situations, as provided in subparagraph (ii) of clause (a) of the seventh paragraph, he stated that this was drawn from the resolution that had been submitted by certain Government members, and was intended to indicate that if it is found that there is more than one category of worker in need of protection, then there may be more than one means of ensuring the provision of that protection. Regarding subparagraph (iii) referring to differences in language, he stressed that very careful attention needed to be given to that issue in the light of the language problems that had confronted the Committee. Clause (b) of the seventh paragraph requesting the Governing Body to instruct the Director-General to take "other measures", was intended, according to the Employer Vice-Chairperson, to give the Director-General flexibility. He suggested that the "other measures" could include having research, studies or surveys undertaken, or having publications prepared: whatever action would be appropriate to bring clarity to the issue in order to permit the work of the Committee to be successfully concluded.
197. The Worker Vice-Chairperson expressed his group's satisfaction that a joint agreement had been reached with the Employer members, but also their disappointment that the Committee had not been able to adopt a Convention and Recommendation, particularly given that, at the end of the first year's discussion on this subject, conclusions had been adopted as the basis for draft instruments. He confirmed that the draft resolution had been inspired by the provisions of the three previous resolutions and the comments made thereto, and that it was aimed at ensuring that it would not prejudice any of the groups represented in the Committee. He acknowledged that language problems, in particular the use of the term "contract labour", had led to difficulties in relation to the Committee completing its mandate. He insisted that the proposed Convention and Recommendation that would be prepared for the future consideration of this subject be drafted in such a way as to resolve the language problems, and that the term "contract labour" not be used to describe the situations addressed by the Committee. The Worker members interpreted the invitation to the Governing Body as a recognition of the need to complete the work of the Committee on Contract Labour, and for this reason the resolution referred to a Convention supplemented by a Recommendation. Concerning the reference in the seventh paragraph of the resolution to "dealing separately with various situations", his group understood this to mean that a Convention could be divided into Parts to deal with different situations identified, as opposed to having the situations dealt with in several Conventions. The Worker Vice-Chairperson cautioned that it would be premature to make such a specific determination at this stage, since the Committee had not yet elaborated on all the possible situations where protection could be needed, and the decision would be for the Conference to make.
198. The Worker Vice-Chairperson then drew attention to the recommendation to hold meetings of experts, set out in the seventh paragraph of the draft resolution. He emphasized the importance of ensuring whatever technical and financial resources were needed to do the job properly be made available so that these meetings may be held, with the benefit of sufficient background material. He stated that the experts and others continuing to carry out preparatory work on this issue should have at their disposal the proposed amendments that had been submitted to the proposed instruments but never discussed by this Committee. He pointed out that a fourth year had been added to the timetable to ensure that the groundwork could be properly laid before the issue returned to the Conference. The fourth year had not been added, he stressed, with a view to a double discussion, as his group agreed with the Employer members that a single discussion during a future session of the Conference would be sufficient. In conclusion, he stressed the importance of ensuring that the issue would be returned to the Committee members in a manner that would ensure that constructive work could be completed.
199. A number of Government members, including from Botswana, Brazil, Cameroon, Canada, Chile, China, Cyprus, El Salvador, India, Lesotho, Mexico, Norway, Panama, Papua New Guinea, Peru, South Africa, Spain, the Syrian Arab Republic, Trinidad and Tobago, the Government member of the United Kingdom on behalf of the Governments of the Member States of the European Union, the United States and Uruguay, spoke in support of the draft joint resolution, and expressed their appreciation that the Worker and Employer members had arrived at a consensus. The important contribution of the Government members and the spirit of cooperation that had prevailed within the Government group was acknowledged by the Worker and Employer members, as well as by a number of Government members, including those from Botswana, Canada, Colombia, India, Mexico, Peru and the United States.
200. The Government member of Venezuela expressed her Government's regret that the Committee had not been able to reach agreement on the text of an instrument. She stated that the outcome ran the risk of setting an unfortunate precedent for the International Labour Organization, by the use of procedural tactics to reverse the decisions that had been arrived at democratically in the first discussion. This had meant that the Committee had not been able to accomplish its work in the time available. While she stressed the importance of maintaining and preserving tripartism in the work of the ILO, she noted that her Government would respect the bipartite resolution that had been prepared. The Government member of Cyprus, whose statement was supported by the Government members of Canada and Norway, expressed concern that a precedent not be set for future committees to avoid completing their work. She thought that in this case it had been unavoidable, but it should not be repeated. In the light of the consensus that had been reached on the resolution, she reminded the Committee members that from that point it would be the common responsibility of all groups to ensure that the job they had begun was successfully completed. In a similar vein, the Government member of Mexico observed that the adoption of the resolution represented the beginning of the work of the various groups. The Government members of China and Mexico urged the groups to continue working in the same cooperative spirit to ensure that concrete results acceptable to all could ultimately be achieved.
201. The Government member of Chile, speaking also on behalf of the Government members of Argentina, Brazil, Colombia, Mexico, Peru and Uruguay, noted that, from their first statements, the Governments of many Latin American countries had raised concerns as to the lack of conceptual clarity, and the misunderstandings that seemed to be arising. They had also feared the creation of a third category of worker as part of new pressures for excessive deregulation of the labour market. She commented as well that the group on whose behalf she spoke shared the regret expressed by the Worker members and the Government member of Venezuela that the Committee had been unable to adopt any instrument; however, by not doing so, the Committee had perhaps chosen the lesser of two evils. It was important, she stressed, for the ILO to remain credible in its standard-setting role; this could only be done if it adopted clear and comprehensive instruments that could be ratified by a majority of countries. She asserted that the work of the Committee had been fruitful in that a number of matters had been clarified, and she appreciated the efforts that the Committee had made to understand the concerns expressed by the Spanish-speaking countries. She concluded by emphasizing the importance of protecting workers in the light of new forms of business organization, and the important role for the ILO in that context to move forward in addressing these issues in the correct way. The Government member of Uruguay confirmed his Government's endorsement of the statement. The Government member of Colombia recalled that the resolution submitted by the Government members noted above had assisted the Committee in reaching consensus by recommending further study be undertaken to bring about a better understanding of the scope of the issues and to determine an appropriate response to the problems identified. He urged the Spanish-speaking countries to continue working in concert to achieve this goal. He expressed his Government's hope that the work that had been begun by the Committee would be concluded in the not too distant future.
202. The Government member of El Salvador also endorsed the comments made by the other Latin American and Spanish-speaking delegates, and commented that the Committee had acted in a responsible manner by adopting the resolution. He added that the Committee's work should not be seen as a failure simply because a Convention had not been adopted. The resolution would mean that sufficient time would be available to address the issues. The Government member of Peru, whose statement was supported by the Government members of Botswana and Cameroon, noted that her Government considered that the agreement reached by the parties on the resolution should be seen as a positive precedent since the Committee avoided proceeding in haste to adopt an instrument that would have been difficult for member States to ratify or to apply. The Government member of Botswana added that it was important that the Committee willingly acknowledged its limitations, and equally important that it make good use of the lessons learned and the true progress that the Committee had achieved. Although his Government would have preferred a more detailed formulation in the resolution concerning the future work to be undertaken, the Government member of Cameroon supported the draft resolution, as his Government had been of the view that the draft text presented by the Office had not provided an appropriate basis for discussion. The Government member of the United States noted his Government's view that the resolution provided a solid foundation for moving forward to develop an instrument to protect workers.
203. The Government member of South Africa asserted that it was important for the Committee and the International Labour Office to reflect upon what had happened. First, on matters of process, she commented that it had taken far too long for the language problems in the text to come to the fore. In addition, she counselled the ILO to examine ways to promote a more conciliatory approach to the standard-setting process, following trends developing on the national level, rather than continuing the tradition of an adversarial approach within committees. Second, she observed that the complexity of the issue that had been placed before the Committee was a reflection of the growing complexities of the labour market. She remarked that, while it would not be possible to go back to dealing only with traditional forms of employment, the evolving world of work should not bring with it an abandonment of all protection in the labour market; creativity was called for in this regard. Third, she noted that most of the members of the Committee had spoken in theoretical terms. She suggested that in preparation for a future meeting of the Committee, the Governments examine the actual situations in their countries in order to be able to speak with authority, on the basis of experience. She continued by confirming her Government's support for the proposed meetings of experts. She also thought that it would be the responsibility of all delegates in future Conference Committees to prepare themselves more for the discussions.
204. The Government member of India stated that his Government shared the concerns expressed by the Government member of South Africa. His Government was left with a degree of disappointment at the outcome, since it was felt that the Committee had taken a step backward in not fulfilling its mandate to adopt international instruments. He also raised a doubt as to whether the Committee would be any wiser after the four years of meetings and research had passed. He noted further that the lack of conceptual clarity and the language problems had prevented the Committee from concluding its work. He voiced his Government's disappointment that the many workers remaining unprotected would not have the benefit of an ILO instrument, which was needed urgently, and that those systems where an attempt was being made to provide protection continued to be denied the support of such an instrument. Nonetheless, his Government respected the consensus that had been reached and welcomed the resolution under the unusual circumstances. With respect to the agenda for action, the Government member of India went on to suggest that the experts who would be assigned to study the issue should consider the particular situation of various regions, such as South Asia, Latin America and the European Union, as the national law and practice in each of these regions differed significantly. He concluded by expressing his Government's hope that an agreement could be reached on the matter within the four-year period.
205. The Government member of Panama noted that, although other members of the Committee had expressed disappointment or a feeling of failure at not achieving the Committee's objectives, his Government was of the view that, given the varying national circumstances, the Committee had been given a difficult mandate to formulate an instrument universal enough to be adopted by a large number of countries. He commented that the Committee had taken the more reasonable approach of agreeing on a resolution rather than pursuing an irresponsible and inflexible approach of persisting with attempts to draft a Convention. He pointed out that the Spanish-speaking Government members had pointed out the linguistic and conceptual problems, as well as the need to accommodate the different legal systems. He asserted that the Committee had not failed; it had succeeded in discussing important points which would be useful in future efforts to adopt international labour standards in this area. He concluded by acknowledging the existence of workers in need of protection, and in this context cited the following excerpt from a speech given to the Conference by Rafael Caldera, President of the Republic of Venezuela: "The developed countries are beginning to realize that what is important is not just to achieve economic prosperity, but also to combat poverty, not merely by expanding markets but equally by generating new types of productive activities ... [which] offer everyone throughout the world the possibility of development through a truly humane system governing labour."
206. The Government member of Papua New Guinea suggested that the views expressed by the Committee through the resolution and during its deliberations could be useful in guiding the future work on this subject. He endorsed the view that the conceptual complexity of the issue needed to be appreciated to ensure that in future a ratifiable instrument could be produced. In this respect, he stated that the ILO secretariat would need input from individual countries. The Government member of Lesotho acknowledged that the draft resolution had facilitated the work of the Committee, since, in the view of his Government, it would have been premature to adopt an instrument at the present time, given the many problems which had come to light in the course of the discussions. The Government member of Trinidad and Tobago also expressed her Government's regret that the Committee had not been able to develop an instrument. She suggested, however, that the result was a reflection of great maturity, and stressed the need to fully understand the complex issues involved before going forward with the adoption of an international instrument. She found a lot of value added in what the Committee had been able to accomplish. The Government member of the Syrian Arab Republic pointed out what he believed to be an inconsistency between the title of the proposed resolution and the wording of the text, as the title referred to "the situations identified", whereas in the text the phrase used was "the situations that have begun to be identified". He suggested that the title be modified accordingly. The Employer Vice-Chairperson responded to the comment of the Government member of the Syrian Arab Republic by noting that the heading was necessarily a summary and could not determine the content or meaning of the text.
207. The Worker Vice-Chairperson emphasized that the Committee should not be seen as establishing a precedent. His group believed it was important to put on record some of the difficulties the Committee had faced and the reasons for the extraordinary steps taken. He acknowledged that the subject had been placed on the agenda at the suggestion of the Workers' group. He accepted that there had not been a common understanding of the concept before it was placed on the Conference agenda. He also pointed out that no general discussion had preceded the standard-setting exercise, and there had been no meeting of experts. In addition, while the Office had undertaken a study of 20 countries, it had not been possible to complete this work by the time the first law and practice report needed to be prepared. Confusion had also been caused, in the view of his group, by the fact that a single discussion to revise the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), had been placed on the agenda of the Conference for the same year as the first discussion of contract labour. Neither the general nor the standard-setting discussions relating to private employment agencies had focused primarily on the protection of workers. In response to the Government member of South Africa, the Worker Vice-Chairperson stressed that the experts' process must be governed by the discipline of achieving a ratifiable Convention. The decision whether there ought to be a Convention or not should not be determined in advance of a full tripartite committee meeting at an ILO Conference. Regarding the often mentioned concern about creating a third category of workers, the Worker members agreed that any instrument should not make it possible to reduce protection, but should be used to extend and increase protection. He expressed his group's pleasure at hearing from the Government members that they had learned a lot, and commented that perhaps they would not have to wait until a Convention was adopted before taking steps to protect workers in those situations in their countries.
208. On a different subject, the Worker Vice-Chairperson condemned the conditions under which the interpreters at the Conference were required to work. He urged the International Labour Office to take the necessary measures to ensure that the feedback from the microphones was reduced, in order to improve the interpreters' working conditions.
209. The Chairperson thanked the Worker Vice-Chairperson for his constructive comments on improving conditions for the interpreters. In light of the statements that had been made by many members of the Committee, he declared that the draft resolution submitted by the Employers' and Workers' groups was adopted by the Committee by consensus. The representative of the Secretary-General observed that the Office had taken due note of the contents of the resolution as well as of the comments that had been made by the Employer, Worker and Government members as to the future course of action. The Chairperson, given the tacit understanding that had been reached in the Committee not to pursue further work on the draft instruments, thanked all the delegates for their participation in the Committee.
Adoption of the report
210. At its 18th sitting, the Reporter submitted the report to the Committee. The Committee unanimously adopted the report and the attached resolution, subject to minor amendments requested by some of the members.
211. The Government member of Spain repeated his Government's appreciation that the Worker and Employer members were able to reach agreement on the resolution. He also added his Government's voice to those acknowledging the important contribution of the Government members to the work of the Committee.
212. The Employer Vice-Chairperson stated that, in the view of his group, the subject of contract labour should not have been included on the Conference agenda as a standard-setting item, and that insufficient preparatory work had been done. Furthermore, he stated, it would have been difficult at the stage that had been reached to have included the item for a general discussion, given the breadth of the subject and the significant terminological problems. The Employer Vice-Chairperson stressed the need to separate out the various issues. He called on the Governing Body to take more care in future in choosing items for standard setting. Reiterating the Employer members' view that disguised employment was the problem that needed to be addressed, he noted that they accepted that a number of other issues also required further examination. He indicated that the resolution represented the correct outcome of the work of the Committee. Moreover, he stated that it was significant that the resolution had been reached by consensus, indicating the prevailing desire to be flexible and to reach agreement. He then expressed his group's appreciation to all those who had contributed to the outcome of the Committee.
213. The Worker Vice-Chairperson reiterated his group's firm view that the problems at issue extend well beyond disguised employment and touch millions of workers. He stressed the need to complete the important work that the Committee had begun. In the view of the Worker members, the meetings of experts recommended in the resolution would represent an important step in the process of arriving at a ratifiable Convention. He then joined the Employer Vice-Chairperson in thanking all those who had contributed to the Committee's work.
214. The Government member of the United Kingdom, on behalf of the Governments of the Member States of the European Union, recalled their view that different categories of workers need protection and that it had been their desire that an instrument be adopted at this session of the Conference. She stated further that they regretted that the Committee had been unable to fulfil its task. However, in the light of the discussions that had taken place in the Committee, they were willing to accept that further work was necessary; therefore, the adoption of a resolution represented a satisfactory outcome. She stressed, however, that the decision to defer adoption of an instrument on this subject must not be seen as setting a precedent: the International Labour Organization should continue its work in standard setting in appropriate areas.
215. The Chairperson noted that the work of the Committee was coming to an end, at least for the time being. He expressed his hope that the discussions would be revived on the basis of further direction from the Conference, which would depend on the outcome of the further study and research to be undertaken. Recalling that the mandate of the Committee was to propose the text of draft instruments to the Conference for adoption, he noted that the Committee could not fulfil this mandate at the current sitting, due to the complex nature of the subject and the fact that the form and content of "contract labour" differs greatly between countries. He stressed that there remain serious conceptual, legal and terminological problems. However, the fact that the Committee was not able to adopt an instrument on the subject should not, in his view, lead to the conclusion that the debate had been in vain. The Chairperson characterized the discussion as having been very useful in helping to provide insights and an in-depth understanding of the subject. He added that, while several doubts were clarified, many still persist, though these would be addressed through the action-oriented research that had been recommended in the resolution. In closing, he expressed his thanks to the Worker and Employer members for the consensus they had reached, and to other members of the Committee and the secretariat for their contribution and assistance.
216. The Committee submits its report and the attached resolution to the Conference for its consideration.
Geneva, 15 June 1998.
(Signed) Mr. J. Saloheimo,
Reporter.
Resolution concerning the possible adoption of international instruments for the protection of workers in the situations identified by the Committee on Contract Labour
The General Conference of the International Labour Organization,
Having met in Geneva in its Eighty-sixth Session, from 2-18 June 1998,
Having adopted the report of the Committee appointed to consider the fifth item on the agenda,
Noting that the Committee on Contract Labour has begun to identify situations where workers require protection, and
Noting that the Committee has made progress on these issues;
Invites the Governing Body of the ILO to place these issues on the agenda of a future session of the International Labour Conference with a view to the possible adoption of a Convention supplemented by a Recommendation if such adoption is, according to the normal procedures, considered necessary by that Conference. The Governing Body is also invited to take this action so that this process is completed no later than four years from now,
Further invites the Governing Body of the ILO to instruct the Director-General:
(a) to hold meetings of experts to examine at least the following issues arising out of the deliberations of this Committee:
(i) which workers, in the situations that have begun to be identified in the Committee, are in need of protection;
(ii) appropriate ways in which such workers can be protected, and the possibility of dealing separately with the various situations;
(iii) how such workers would be defined, bearing in mind the different legal systems that exist and language differences;
(b) to take other measures with a view to completing the work commenced by the Committee on Contract Labour.
1. The modifications were as follows:
(a) 4 June: 196 members (86 Government members with 66 votes each, 44 Employer members with 129 votes each and 66 Worker members with 86 votes each);
(b) 5 June: 191 members (88 Government members with 1,311 votes each, 46 Employer members with 2,508 votes each and 57 Worker members with 2,024 votes each);
(c) 6 June: 185 members (88 Government members with 287 votes each, 41 Employer members with 616 votes each and 56 Worker members with 451 votes each);
(d) 8 June: 182 members (88 Government members with 2,173 votes each, 41 Employer members with 4,664 votes each and 53 Worker members with 3,608 votes each);
(e) 9 June: 169 members (89 Government members with 40 votes each, 40 Employer members with 89 votes each and 40 Worker members with 89 votes each);
(f) 10 June: 169 members (89 Government members with 40 votes each, 40 Employer members with 89 votes each and 40 Worker members with 89 votes each);
(g) 11 June: 167 members (89 Government members with 39 votes each, 39 Employer members with 89 votes each and 39 Worker members with 89 votes each);
(h) 12 June: 163 members (89 Government members with 1,365 votes each, 39 Employer members with 3,115 votes each and 35 Worker members with 3,471 votes each);
(i) 15 June: 161 members (89 Government members with 646 votes each, 38 Employer members with 1,513 votes each and 34 Worker members with 1,691 votes each).
2. The Employer members requested that the details of the record vote with respect to the Government members be included in the report. The results of the vote were as follows:
For: Australia, Canada, China, Congo, Indonesia, Japan, Lesotho, New Zealand.
Against: Argentina, Austria, Belgium, Chile, Denmark, Finland, France, Germany, Greece, India, Ireland, Italy, Libyan Arab Jamahiriya, Lithuania, Luxembourg, Malta, Netherlands, Niger, Norway, Philippines, Poland, Portugal, South Africa, Spain, Sweden, Trinidad and Tobago, United Kingdom, United States, Zimbabwe.
Abstentions: Brazil, Mexico.
Absent: Algeria, Bahamas, Bahrain, Bangladesh, Barbados, Cameroon, Costa Rica, Côte d'Ivoire, Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Ecuador, Egypt, El Salvador, Gabon, Ghana, Guyana, Hungary, Iran (Islamic Republic of), Israel, Jamaica, Kuwait, Lebanon, Malaysia, Mali, Mozambique, Myanmar, Namibia, Nigeria, Panama, Papua New Guinea, Paraguay, Peru, Qatar, Russian Federation, Saudi Arabia, Senegal, Seychelles, Slovakia, Sri Lanka, Switzerland, Syrian Arab Republic,Tunisia, Turkey, United Arab Emirates, Uruguay, Venezuela, Yemen.
3. The Employer members requested that the details of the record vote with respect to the Government members be included in the report. The results of the vote were as follows:
For: Australia, Brazil, Chile, China, Cyprus, Germany, Japan, Malaysia, New Zealand, Peru, Spain, United States, Uruguay.
Against: Argentina, Austria, Belgium, Canada, Czech Republic, Finland, France, Greece, India, Italy, Libyan Arab Jamahiriya, Lithuania, Malta, Namibia, Netherlands, Philippines, Poland, Portugal, Slovakia, South Africa, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Turkey, United Kingdom, Zimbabwe.
Abstentions: Denmark, Mexico, Norway.
Absent: Algeria, Bahamas, Bahrain, Bangladesh, Barbados, Cameroon, Congo, Costa Rica, Côte d'Ivoire, Cuba, Democratic Republic of the Congo, Ecuador, Egypt, El Salvador, Gabon, Ghana, Guyana, Hungary, Indonesia, Iran (Islamic Republic of), Ireland, Israel, Jamaica, Kuwait, Lebanon, Lesotho, Luxembourg, Mali, Mozambique, Myanmar, Niger, Nigeria, Panama, Papua New Guinea, Paraguay, Qatar, Russian Federation, Saudi Arabia, Senegal, Seychelles, Sri Lanka, Syrian Arab Republic, United Arab Emirates, Venezuela, Yemen.
4. The Employer members requested that the details of the record vote with respect to the Government members be included in the report. The results of the vote were as follows:
For: Australia, Canada, China, Namibia, New Zealand, Switzerland, Zimbabwe.
Against: Argentina, Austria, Belgium, Brazil, Chile, Congo, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, India, Ireland, Italy, Lesotho, Libyan Arab Jamahiriya, Malta, Mexico, Netherlands, Panama, Peru, Philippines, Poland, Portugal, Slovakia, South Africa, Spain, Sweden, Tunisia, Turkey, United States, United Kingdom, Uruguay.
Abstentions: Algeria, Cyprus, Japan, Kuwait, Niger, Norway, Saudi Arabia.
Absent: Bahamas, Bahrain, Bangladesh, Barbados, Cameroon, Costa Rica, Côte d'Ivoire, Cuba, Democratic Republic of the Congo, Ecuador, Egypt, El Salvador, Gabon, Ghana, Guatemala, Guyana, Indonesia, Iran (Islamic Republic of), Israel, Jamaica, Lebanon, Lithuania, Luxembourg, Malaysia, Mali, Mozambique, Myanmar, Nigeria, Papua New Guinea, Paraguay, Qatar, Russian Federation, Senegal, Seychelles, Sri Lanka, Syrian Arab Republic, Trinidad and Tobago, United Arab Emirates, Venezuela, Yemen.