ILC88 - Report VII (2)

ILO is a specialized agency of the United Nations

88th Session, 30 May - 15 June 2000

Report VII (2)

Withdrawal of the Hours of Work (Coal Mines) Convention, 1931; the Hours of Work (Coal Mines) Convention (Revised), 1935; the Reduction of Hours of Work (Public Works) Convention, 1936; the Reduction of Hours of Work (Textiles) Convention, 1937; and the Migration for Employment Convention, 1939

Seventh item on the agenda

International Labour Office Geneva

ISBN 92-2-111525-9
ISSN 0074-6681

Contents

Introduction

Summary of replies received and commentaries

Proposed conclusions

INTRODUCTION

At its 271st Session (March 1998) the Governing Body of the International Labour Office decided to place on the agenda of the 88th Session (2000) of the International Labour Conference the question of withdrawal of the following five Conventions: Hours of Work (Coal Mines) Convention, 1931 (No. 31); Hours of Work (Coal Mines) Convention (Revised), 1935 (No. 46); Reduction of Hours of Work (Public Works) Convention, 1936 (No. 51); Reduction of Hours of Work (Textiles) Convention, 1937 (No. 61); and Migration for Employment Convention, 1939 (No. 66).

Under article 45bis of the Standing Orders of the Conference concerning the procedure to follow in order to abrogate or withdraw Conventions or Recommendations, the Office drew up a first report and a questionnaire requesting all Governments to indicate their positions with regard to withdrawal, providing all relevant information.⁽¹⁾ After recalling the decisions of the Conference and the Governing Body according to which the Conference may now proceed with the withdrawal of Conventions which have not entered into force and of Recommendations, the report sums up the reasons put forward by the Governing Body in proposing that these Conventions should be withdrawn. It was sent to the ILO member States, who were invited to communicate their replies to the Office by 31 October 1999 at the latest.

When the present report was drawn up, the Office had received replies from 70 member States⁽²⁾ (Argentina, Australia, Austria, Azerbaijan, Bangladesh, Barbados, Belarus, Belgium,⁽³⁾ Benin, Botswana, Brazil, Bulgaria, Cambodia, Canada, Chile, China, Colombia, Costa Rica,⁽⁴⁾ Croatia,⁽⁵⁾ Cuba, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, Finland, Germany, Greece, Guatemala, Hungary,⁽⁶⁾ India, Indonesia, Iraq, Italy, Jordan, Republic of Korea, Kuwait, Lebanon, Lithuania, Malawi, Malaysia, Mauritius, Mexico, Morocco, Namibia, New Zealand, Nicaragua, Panama, Peru, Philippines,⁽⁷⁾ Poland, Portugal, Qatar, Romania, Saudi Arabia, Slovenia, Spain, Sri Lanka, Swaziland, Sweden,⁽⁸⁾ Switzerland, Thailand, Togo, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom and Venezuela).

The Office drew the attention of Governments to article 45bis, paragraph 2 of the Standing Orders of the Conference, which requests that they "consult the most representative organizations of employers and workers before finalizing their replies".

The Governments of 59 member States indicated that employers’ or workers’ organizations had been consulted or associated in drawing up the replies (Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Canada, Chile, China, Colombia, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, Finland, Germany, Greece, Guatemala, Hungary, India, Iraq, Italy, Jordan, Republic of Korea, Kuwait, Lebanon, Lithuania, Malawi, Malaysia, Mauritius, Morocco, Namibia, New Zealand, Peru, Philippines, Poland, Portugal, Romania, Slovenia, Spain, Swaziland, Sweden, Switzerland, Togo, Turkey, Ukraine, United Arab Emirates, United Kingdom and Venezuela).

In the case of 30 member States (Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium, Brazil, Canada, Croatia, Cyprus, Finland, Germany, Hungary, India, Republic of Korea, Lesotho, Lithuania, Malaysia, Mauritius, Morocco, Namibia, New Zealand, Philippines, Poland, Portugal, Sweden, Switzerland, Turkey, Ukraine and Venezuela) the opinions of employers’ or workers’ organizations were included in the Government’s replies or were annexed to them or communicated directly to the Office.

The present report has been drawn up on the basis of the replies received, the substance of which, together with brief commentaries, is given in the following pages.

1. ILO: Withdrawal of the Hours of Work (Coal Mines) Convention, 1931; the Hours of Work (Coal Mines) Convention (Revised), 1935; the Reduction of Hours of Work (Public Works) Convention, 1936; the Reduction of Hours of Work (Textiles) Convention, 1937; and the Migration for Employment Convention, 1939, Report VII(1) International Labour Conference, 88th Session, Geneva, 2000.

2. Replies sent too late to be included in the report may be consulted by delegates at the Conference.

3. The Government of Belgium sent the opinion of the National Labour Council (CNT) with its reply.

4. The reply of the Government of Costa Rica includes the observations of the Ministry of Justice, the General Directorate for Migrations and Foreigners and the National Directorate and General Labour Inspectorate of the Ministry of Labour and Social Security.

5. The Government communicated the opinion of the Economic and Social Council.

6. The Government communicated the opinion of the National ILO Council.

7. The Government communicated the opinion of the Tripartite Industrial Peace Council.

8. The Government communicated the opinion of the tripartite ILO Committee.

SUMMARY OF REPLIES RECEIVED AND COMMENTARIES

This section provides a summary of the general observations made by governments and employers’ and workers’ organizations and of their replies to the questionnaire.

Following an examination of the general observations, each question is presented with the total number of replies received and the number of affirmative, negative and other replies, with the list of the governments which gave them. The reservations or explanations accompanying the governments’ replies and the observations of employers’ and workers’ organizations are presented alphabetically by country, in succinct form. Those replies which may be considered as a simple affirmative or negative response have not been reproduced, except in cases where the replies of employers’ or workers’ organizations diverge from those of the Government. Replies which deal with several questions are given only under one question. Furthermore, the questions relating to Conventions Nos. 31 and 46, on the one hand, and to Conventions Nos. 51 and 61, on the other, have been considered together in order to make the report easier to read, as most of the replies themselves were grouped together and were similar in the respective cases.

The general observations and replies to questions are followed by a brief Office commentary.

General observations

Azerbaijan

The withdrawal of these Conventions is an advisable step towards the rationalization of the ILO’s standard-setting system.

Belgium

With regard to hours of work and the organization of working time, the Government’s preference would be for an effective instrument whose scope would cover more than one branch, and specifically for a revision of the Hours of Work (Industry) Convention, 1919 (No. 1).

Brazil

National Confederation of Commerce (CNC): This withdrawal would contribute to the streamlining of the standard-setting system.

Bulgaria

The Government supports without reservation the efforts of the Office and the initiative to modernize the ILO’s standard-setting system.

Dominican Republic

Withdrawal of these Conventions will contribute to the streamlining of the ILO’s standard-setting system.

Finland

Issues relating to hours of work are important. It would be appropriate to deal with them in a general discussion that could lead to the preparation of a new Convention, or at least to the revision of time-barred Conventions.

Central Organization of Finnish Trade Unions (SAK), Finnish Confederation of Salaried Employees (STTK) and Confederation of Unions for Academic Professionals in Finland (AKAVA): It is important to hold a general discussion during the Conference on questions relating to hours of work. The protection afforded by Conventions Nos. 31, 46, 51 and 61 should be included in that discussion.

Germany

German Confedration of Trade Unions (DGB): The ILO has not yet established a policy with regard to standards for hours of work, and the Conventions on this subject have been ratified by few States. Yet this is a crucial question for standard-setting activities.

India

National Front of Indian Trade Unions (NFITU): The fact that India has not ratified these five Conventions indicates no doubt that India considers that ratification is not called for in the current socio-economic context and taking into account the existing legislative guarantees. Still, while these Conventions are obsolete, Conventions should be adopted to replace them so as to respond to present demands and actual situations.

Lebanon

The Office should consider the possibility of drafting a Convention governing hours of work in all economic sectors, taking into consideration the particularities of each, either by means of a list of exceptions and dispensations or through protocols. As regards migrant workers, the Migration for Employment Convention (Revised), 1949 (No. 97), which revises Convention No. 66, and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), could be revised. It would be appropriate to consider the possibility of a framework Convention with principles that are sufficiently flexible to make it easily ratifiable.

New Zealand

The ILO’s standards must be practicable and flexible. Furthermore, they should not be developed for specific sectors.

Portugal

With regard to hours of work, while the Hours of Work (Industry) Convention, 1919 (No. 1), and the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), contain some provisions which do not reflect recent developments in the organization of hours of work, they are still useful instruments. None the less, in order to revise them it would be necessary to carry out an in-depth study of standards relating to hours of work. Such a revision should be preceded by a study of how national legislation and practice have evolved. The Governing Body should include the question of hours of work on the Conference agenda for a general discussion that could lead to standard-setting action.

General Union of Workers (UGT): The question of hours of work, which the European Union has associated with occupational safety and health, the struggle against unemployment and the improvement of workers’ living standards through the reconciliation of family responsibilities and work, is a crucial field for labour regulation. It should be included on the agenda of the next session of the Conference with a view to taking standard-setting action.

Switzerland

These Conventions are a dead weight on the legal arsenal of the Organization. Their withdrawal would be a positive sign of reform of the ILO and of the modernization of its structure. The Office is encouraged in general to continue reforming its standard-setting policy.

Turkey

Confederation of Turkish Real Trade Unions (HAK-IS): The withdrawal of these Conventions will help streamline the standard-setting system, but the trend towards a reduction in hours of work and the need for new ways of organizing hours of work should be taken into consideration.

Office commentary

Apart from the support for the streamlining the ILO’s standard-setting system voiced by some constituents, the general observations refer in most cases to the question of hours of work and the possible consideration of that question by ILO bodies. For several governments and workers’ organizations this is a very important matter, and the proposed withdrawal of Conventions Nos. 31, 46, 51 and 61 highlights the need for the Organization to take action through a general discussion, standard-setting action or both. Some governments expressed a preference for instruments with a global scope rather than those limited to certain branches.

With regard to the proposed withdrawal of Convention No. 66 on migrant workers, one Government hoped that consideration would be given to the possibilty of adopting a framework Convention devoted to that subject.

The Office recalls that among the proposals for the agenda of the Conference is one which calls for a general discussion on hours of work and another on migrant workers.⁽⁹⁾

I. The Hours of Work (Coal Mines) Convention, 1931 (No. 31)

Qu. 1

Do you consider that Convention No. 31 should be withdrawn as proposed by the Governing Body for the reasons stated in the report?
If you replied "no", please indicate the reasons why you consider that Convention No. 31 has not lost its purpose or still makes a useful contribution to attaining the objectives of the Organization, or provide any information relevant to its prospects for entry into force.

Total number of replies: 70.

Affirmative: 68. Argentina, Australia, Austria, Azerbaijan, Bangladesh, Barbados, Belarus, Belgium, Benin, Botswana, Bulgaria, Cambodia, Canada, Chile, China, Colombia, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, Finland, Germany, Greece, Guatemala, Hungary, India, Iraq, Italy, Jordan, Republic of Korea, Kuwait, Lebanon, Lithuania, Malawi, Malaysia, Mauritius, Mexico, Morocco, Namibia, Nicaragua, New Zealand, Panama, Peru, Philippines, Poland, Portugal, Qatar, Romania, Saudi Arabia, Spain, Slovenia, Sri Lanka, Swaziland, Sweden, Switzerland, Thailand, Togo, Tunisia, Turkey, United Arab Emirates, United Kingdom, Ukraine, Venezuela.

Negative: 1. Indonesia.

Other: 1. Brazil.

II. Hours of Work (Coal Mines) Convention (Revised), 1935 (No. 46)

Qu. 2

Do you consider that Convention No. 46 should be withdrawn as proposed by the Governing Body for the reasons stated in the report?
If you replied "no", please indicate the reasons why you consider that Convention No. 46 has not lost its purpose or still makes a useful contribution to attaining the objectives of the Organization, or provide any information relevant to its prospects for entry into force.

Total number of replies: 70.

Negative: 1. Indonesia.

Other: 1. Brazil.

Belarus. Council of the Federation of Trade Unions of Belarus: For workers engaged in hazardous work, the Labour Code of the Republic of Belarus limits hours of work to 36 hours per week and sets reduced hours of work for specific situations. The actual hours of work depends on the health hazards or the hazards of the working conditions. The legislation contains a list of production sites, workshops, occupations and functions in which working conditions are considered hazardous, including "work in mines" and "the textile industry and light industries". The lack or limited number of ratifications of the Conventions does not mean that they have lost their purpose. The standards set by the labour legislation would seem to indicate the contrary. The possibility that one or other of these Conventions may be ratified by a member State cannot be excluded.

Belgium. Yes. The Government has no interest in maintaining these Conventions, as it has absolutely no intention of ratifying them.
CNT: Yes. Still, the withdrawal of these Conventions must not jeopardize the protection of workers in countries that have ratified these instruments. Furthermore, the withdrawal must have no bearing on other ILO instruments in the same fields.

Brazil. As regards hours of work in coal mines, Brazilian legislation is more advanced than the provisions of Conventions Nos. 31 and 46, as it limits such work to six hours per day, or 36 hours per week, for all workers in mines. Consequently, these Conventions should be revised.
CNC: Yes (see General observations).
General Confederation of Workers (CGT): Such a withdrawal would not be prejudicial to workers in so far as none of these Conventions has entered into force.

Germany. DGB: No. The Conventions should not be withdrawn but revised, so as to replace them with Conventions which it may be hoped will attract more ratifications.

India. Indian National Trade Union Congress (INTUC) — Indian National Mineworkers’ Federation: Yes. Since the 1950s India has had national legislation on work in mines which governs hours of work very effectively. Conditions of work in underground mines have improved considerably since the legislation was adopted and the coal mines nationalized. The ILO Conventions propose a very marginal reduction of working hours in comparison with the national legislation, which provides for eight working hours a day. In addition, the legislation makes provision for more liberal authorization of overtime and for more advantageous remuneration. The hours of work should be reduced from eight to six per shift and per day, which would make it possible to create more jobs and to facilitate the optimum use of machines.

Indonesia. No. Conventions Nos. 31 and 46 are still relevant to ensure protection against hazardous work in these branches.

Kuwait. Yes, since they have not entered into force. Moreover, they take into consideration neither the changes that have since occurred at the regional and international levels nor economic and technological progress.

Lebanon. Concerning Convention No. 31: Yes, in principle. One may wonder, however, why this Convention was not ratified by more countries. Could it be due to the fact that it sets the daily time spent in underground mines at seven hours and forty-five minutes, which may be considered too long, or could it be due to the existence of other Conventions such as Convention No. 1, which establishes that hours of work should not exceed eight hours per day or 48 hours per week and which furthermore provides exceptions for hours of work in coal mines? Is it preferable to set a specific limit on hours of work in mines, which would be more appropriate to conditions of work underground? This question warrants a discussion at the Conference. Concerning Convention No. 46: Yes. There is nothing blocking its withdrawal. However, it is essential to have a replacement for this Convention. The Safety and Health in Mines Convention, 1995 (No. 176), does not determine hours of work, although they certainly have an impact on the safety and health of workers.

Lesotho. Association of Lesotho Employers: Yes. These Conventions are obsolete and belong to the archives.

Namibia. Mineworkers’ Union of Namibia (MUN): Namibia has no coal mines for which such Conventions would be relevant. However, to the extent that these Conventions would be applicable somewhere in the world, the Union would show solidarity with the workers concerned. Another possibility would be to take alternative protective measures for such workers. The Union agrees with the principle that these Conventions, which have attracted few ratifications, are now obsolete.

Portugal. Confederation of Portuguese Industry (CIP): Yes, in particular because of the lack of realism in these Conventions, as proven by the lack of ratifications. The same should be done for a number of other Conventions.

Ukraine. These Conventions are indeed obsolete. A comparison with Ukrainian legislation shows that they provide no greater advantages or safeguards.

Venezuela. General Confederation of Workers (CGT): These Conventions could be ratified in the future. The CGT wonders why the conditions for their entry into force are considered as practically non-existent, and is concerned by the statement to the effect that this withdrawal will help streamline the standard-setting system. Workers in the countries of the South are called upon to defend these Conventions, as it is in their countries that the great coal deposits and the textile industries are to be found, that large and small public works projects are carried out and that governments apply the recommendations of multinationals and world financial bodies most rigorously. The CGT supports the applicability of these Conventions and protests against the deregulation of the ILO’s standard-setting system. It is in favour of a reduction of hours of work and a limitation on overtime as established in these Conventions, together with a bold industrial health and safety policy which addresses the causes of occupational risk while guaranteeing a better standard of living for workers in general and for miners, public works workers and textile workers in particular. The reduction of hours of work and the reduction or elimination of overtime would make it possible to create new jobs. These Conventions have not lost their purpose and are a useful contribution to the objectives of the ILO. They contain provisions that are still valid and others which it would be necessary to modify. Consequently, they should not be withdrawn but partially revised.

III. Reduction of Hours of Work (Public Works) Convention, 1936 (No. 51)

Qu. 3

Do you consider that Convention No. 51 should be withdrawn as proposed by the Governing Body for the reasons stated in the report?
If you replied "no", please indicate the reasons why you consider that Convention No. 51 has not lost its purpose or still makes a useful contribution to attaining the objectives of the Organization, or provide any information relevant to its prospects for entry into force.

Total number of replies: 70.

Affirmative: 69. Argentina, Australia, Austria, Azerbaijan, Bangladesh, Barbados, Belarus, Belgium, Benin, Botswana, Brazil, Bulgaria, Cambodia, Canada, Chile, China, Colombia, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, Finland, Germany, Greece, Guatemala, Hungary, India, Iraq, Italy, Jordan, Republic of Korea, Kuwait, Lebanon, Lithuania, Malawi, Malaysia, Mauritius, Mexico, Morocco, Namibia, Nicaragua, New Zealand, Panama, Peru, Philippines, Poland, Portugal, Qatar, Romania, Saudi Arabia, Spain, Slovenia, Sri Lanka, Swaziland, Sweden, Switzerland, Thailand, Togo, Tunisia, Turkey, United Arab Emirates, United Kingdom, Ukraine, Venezuela.

Negative: 1. Indonesia.

IV. Reduction of Hours of Work (Textiles) Convention, 1937 (No. 61)

Qu. 4

Do you consider that Convention No. 61 should be withdrawn as proposed by the Governing Body for the reasons stated in the report?
If you replied "no", please indicate the reasons why you consider that Convention No. 61 has not lost its purpose or still makes a useful contribution to attaining the objectives of the Organization, or provide any information relevant to its prospects for entry into force.

Total number of replies: 70.

Negative: 1. Indonesia.

Belarus. See reply to questions 1 and 2.

Belgium. See reply to questions 1 and 2.
CNT: This withdrawal must have no bearing on the other ILO instruments in the same field.

Germany. DGB: See reply to questions 1 and 2.

Indonesia. No. Conventions Nos. 51 and 61 are still relevant to hours of work in public works and in the textile industry and are suitable for implementation at the national level.

Kuwait. See reply to questions 1 and 2.

Lebanon. Convention No. 51: Yes, replacements should be found for this Convention if public works call for a specific organization of work which sets a maximum number of hours that is different from that adopted for other fields of activity. Convention No. 61: Yes, the hours of work that apply to other fields should apply likewise to the textile sector. Indeed, the introduction of modern, high-performance techniques makes it possible for this industry to adopt schedules similar to those used in other sectors.

Lesotho. Association of Lesotho Employers: See reply to questions 1 and 2.

Portugal. See reply to questions 1 and 2.

Ukraine. See reply to questions 1 and 2.

Venezuela. See reply to questions 1 and 2.

Office commentary on the replies to questions 1 to 4

Nearly all the replies were in favour of the withdrawal of these Conventions which have not entered into force and which consequently involve no legal obligation on the part of States Members vis-à-vis either the other States Members or the Organization.

One tripartite national commission and one workers’ organization expressed reservations concerning the situation of workers who could be concerned by these Conventions. The Office recalls that the sole legal effect of withdrawal of Conventions which are not closed to ratification is to exclude the possibility, which in this case appears to be completely hypothetical, that they may one day enter into force.

One Government and a few workers’ organizations which clearly expressed their opposition to the withdrawal, supported the revision of these instruments.

One Government and one workers’ organization considered that these Conventions are still relevant.

V. Migration for Employment Convention, 1939 (No. 66)

Qu. 5

Do you consider that Convention No. 66 should be withdrawn as proposed by the Governing Body for the reasons stated in the report?
If you replied "no", please indicate the reasons why you consider that Convention No. 66 has not lost its purpose or still makes a useful contribution to attaining the objectives of the Organization.

Total number of replies: 70.

Negative: 1. Indonesia.

Other: 1. Brazil.

Belarus. Council of the Federation of Trade Unions of Belarus: Since the Migration for Employment Convention, 1939 (No. 66), is closed to ratification and the Government is preparing to ratify the Migration for Employment Convention (Revised), 1949 (No. 97), which revises Convention No. 66, it can be withdrawn.

Belgium. CNT: See reply to questions 3 and 4.

Brazil. The Government has no opinion or criticism to express.
CNC: Yes.
CGT: See reply to questions 1 and 2.

Indonesia. No. Convention No. 66 is relevant for the protection of migrant workers, particularly in the context of trade liberalization.

Kuwait. See reply to questions 1 and 2.

Lesotho. Association of Lesotho Employers: See reply to questions 1 and 2.

Portugal. CIP: See reply to questions 1 and 2.

Office commentary on the replies to question 5

Convention No. 66, adopted in 1939, has not attracted any ratifications. It was revised by Convention No. 97 and was closed to ratification once Convention No. 97 entered into force. Nearly all the replies supported the withdrawal of this Convention.

9. Document GB.276/2.

PROPOSED CONCLUSIONS

Pursuant to paragraph 3 of article 45bis of the Standing Orders of the Conference, the report is presented to the Conference for consideration. The Conference is also invited to consider and to adopt the following proposals:

1. The General Conference of the International Labour Organization,

Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its 88th Session on 30 May 2000,
Following consideration of the proposal for the withdrawal of several international labour Conventions under item 7 on the Session’s agenda,

decides to withdraw the Hours of Work (Coal Mines) Convention, 1931 (No. 31).

The Director-General of the International Labour Office shall notify all Members of the International Labour Organization as well as the Secretary-General of the United Nations of this decision to withdraw the instrument.

2. The General Conference of the International Labour Organization,

decides to withdraw the Hours of Work (Coal Mines) Convention (Revised), 1935 (No. 46).

3. The General Conference of the International Labour Organization,

decides to withdraw the Reduction of Hours of Work (Public Works) Convention, 1936 (No. 51).

4. The General Conference of the International Labour Organization,

decides to withdraw the Reduction of Hours of Work (Textiles) Convention, 1937 (No. 61).

5. The General Conference of the International Labour Organization,

decides to withdraw the Migration for Employment Convention, 1939 (No. 66).

Updated by HK. Approved by RH. Last update: 24 March 2000.