ILO Conventions

The International Labour Organisation

The International Labour Organization (ILO) came into existence on the 19th of April 1919 as a result of the peace conference convened at the end of World War 1.

The ILO is a tripartite body constituting of representatives from governments, employers and workers of the member state.  It is based in Geneva.  Its primary duty is to set international labour standards on labour laws and practice.   Each year, the ILO looks at the various issues affecting labour relations in the world, discuss and come up with a labour standard in that particular area to be achieved by the countries of the world.  These are called CONVENTIONS.  The ILO standards are designed to protect the interests of employers, workers and the governments in matters concerning labour relations.  The ILO also passes other supplementary instruments called RECOMMENDATIONS that support but do not have the same force as the Conventions.

National governments are expected to ratify and adopt international Labour standards to rectify and translate them into labour legislation as they find relevant to their situations.  To that extent, the ILO   Conventions and recommendations are standard setters and are often referred to, to justify a case for legislation or amendment of an existing legislation or to influence the industrial court on a given issue.

Kenya became a member of the ILO in 1964 and indicated it was now bound by 24 of the ILO Conventions that had been ratified by the colonial government.  This meant it was going to continue discharging all its obligations in respect of all these ratified Conventions.  Since 1964, Kenya has ratified a further 22 Conventions thus bringing a total 46 ratified Conventions to date.

Objectives of the ILO.

• To achieve full employment and to raise the standards of living.
• To provide employment to workers in the occupation in which they can have the satisfaction of giving the fullest measure of their skill and make contribution to their common well being.
• To provide facilities for the training and transfer of labour.
• To formulate policies in regard to wages and earnings, bonuses and other conditions of labour calculated to ensure a just share of the fruits of progress to all, and a minimum living wage to all employed and in need of protection.
• To get effective recognition of the right of collective bargaining, co-operation of management and labour in continuous improvement of productive efficiency and collaboration of workers and employers in social and economic measures.
• To extend social security measures to provide a basic income to all in need of such protection and comprehensive medical care.
• To adequately protect the life and health of workers in all occupations.
• To provide child welfare and maternity protection.
• To provide adequate nutrition, housing and facilities for recreation and culture.
• To assure equality of educational and vocational opportunity.

Structure of the ILO

The total number of members to the ILO is 181.  The ILO consists of 3 principal organs as described below.

1. The International Labour Office

This is the head office of the organization and is situated in Geneva.  The main functions of this office are:

• To prepare documents on the items of the agenda of the International Labour Conference.
• To assist governments in framing legislation on the basis of the decisions of the International Labour Conference.
• To carry out its functions in connection with the observance of the conventions.
• To bring out publications dealing with industrial labour problems of international interest.
• To collect and distribute information on international labour and social problems.
  2. The Governing Body

It is a tripartite body consisting of 56 members of which; 28 are drawn from governments, 14 from the employer’s organizations and another 14 from employee organizations. The functions of this body are as follows:

• To co-ordinate the work of the organization.
• To draw up the agenda of the ILC
• To appoint the Director-General of the Office
• To scrutinize the budget.
• To follow-up implementation by member states of the conventions and recommendations adopted by the ILC.
• To fix dates, duration and agenda of the regional conference.
• To seek opinion from the International Court of Justice on the direction of the ILC.
  3. The International Labour Conference (ILC)

This is a tripartite body in composition and meets at least once every year.  Its functions are: –

• To formulate international labour standards.
• To fix the amount of contribution by each member state.
• To select once every 3 years members of the Governing Body.
• To elect its president.
• To ask the Governing Body to seek opinion from the International Court of Justice.
• To decide the budget expenditures prepared by the Governing Body.
• To appoint committees to deal with different matters during each session.
• To regulate its own procedures.
• To make amendments to the constitution.
• To confirm the powers, functions and procedures of the regional conference.

 

Functions of the ILO

• It passes Conventions and makes recommendations on labour matters every year, which are then considered by the governments of member-states for adoption. This has helped build up an International Labour Code.
• It gives expert advice to member-countries in making plans for improving their labour conditions.
• It carries out research studies on labour problems throughout the world and publishes its findings in the form of books and magazines. This is done through the International Institute for Labour Studies.
• It trains people in solving labour problems in their countries.
• It organizes regional conferences every year.

Types of Standards

There are two main types of International Labour Standards, which are enforced via a 2/3 majority of the International Labour Conference.

The International Labour Conventions.  A convention is an instrument, which is designed to be ratified, and a member state that ratifies it hereby undertakes to apply the standards it contains.

The International Labour Recommendations. This is an instrument which is exclusively designed to set standards as a guide for action, but is not subject to ratification.

Both conventions and recommendations are adopted by the Conference and are officially communicated to every member state of the organization, which is expected to bring them before authorities – the national parliament.

Ratification of ILO

The following should be noted in the case of all ILO conventions.

• Conventions are designed to be ratified by the member states – and hence creating binding obligations.
• Formal ratifications of all conventions must be communicated to the ILO Director General for registration.
• A convention is binding only to the members whose ratifications have been registered.
• A convention comes into force 12 months after the date on which the ratification of 2 members has been registered with the ILO Director General.
• Thereafter, a convention shall come into force for any member 12 months after the date on which its ratification was registered.

Decision to ratify any convention

The final decision whether or not to ratify a convention or recommendation is reached by the elected representatives of the people in parliament – that is, after recommendation by the various competent authorities e.g. National Tripartite Labour Advisory Board

It should also be pointed out that there is a basic distinction between submission of these instruments to the competent authorities and ratification.  The obligation to submit is general in character and does not imply that the convention must be ratified.  Moreover, this obligation arises even with recommendations, which are not open to ratification.

The ratification of International Labour Conventions is a matter for free decision of each country. Recommendations, which often complement conventions on the other hand, are guidelines for national legislation and practice.  They are subject to ratification and do not give rise to substantive obligations.

What really matters is not the number of conventions ratified, but rather the extent to which a country puts into effect the few international labour standards it has ratified.

Once a Convention has been ratified, the government is required (under Article 22 of the ILO Constitution) to submit an annual report on its implementations in law and practice.  Under article 23 of the ILO Constitution, the government is required to send a copy of its reports to the most representative organization of employers and workers in the country, and they may make any comments they feel necessary, either through the government or directly to the ILO.

Constraints with Regard to Ratification of ILO Standards

• Pre-mature ratification of ILO standards i.e., ratification before ensuring harmony between the Country’s laws with the relevant provisions of the Convention to be ratified.
• Problems of acute shortage of staff in the Ministry with the requisite knowledge on standards.
• Recent introduction of the “social clause” in international trade agreements – with the possibility of the application of sanctions for alleged violation of ratified ILO standards.
• Difficulties in application of ratified ILO standards in the face of the implementation of the SAP’s (structural Adjustment Programmes)

ILO Conventions

These are instruments which not only set standards of achievement, but which when rectified create binding international obligation for the country concerned.

It is conceived as a model for national legislation. A convention is binding only on member countries that have ratified it.

Recommendations

• This creates normal such obligations but are essential guides to natural actions.
• Recommendations when rectified only act as guides they are not binding.

Research

• Research and Publishing are important aspects of the work of ILO.
• The ILO provides technical co operations under three programmes through:
• UNDP – United Nations Development Programme.
• Regular Budget Programme.
• Funds in trust.

 

ILO CONVENTIONS

International Institute of Labour Studies (ILLO)

It is based at Geneva Switzerland and was established in 1960.

International Centre for advance Technical & Vocational Training (I.C.A.T.V.T)

Established in 1965 by the ILO. Its based in Turin in Italy.  It provides advanced technical and vocational training for members from the member states of ILO.

International Labour Conference (ILC)

• Takes place every year at Geneva.
• Delegates in this conference speak and vote independently.

CONVENTION No. 87 (1948)

Summary of the Provision

• Workers and employers without distinction whatsoever have the right to establish and join organizations of their own choice with a view to furthering and defending their respective interest.
• And such organizations have the right to draw up their constitutions and laws.
• They have a right to elect their representative in full freedom
• Have a right to organize their administration and activities and be able to formulate their own programmes.
• Public authorities shall refrain from any interference which would restrict the rights or impaired the lawful exercise of this right.

CONVENTION No. 98 (1949)

Aim of this standard

• Protection of workers who exercise the right to organize
• Non-interference between workers and employers organization
• Promotion of voluntary collective bargaining.

Summary of the Provisions

• Workers shall enjoy adequate protection against acts of antiunionism discrimination
• Workers should be protected more particularly against dismissal or any other prejudice by reason of union membership on participating in union activities

CONVENTION No. 135 (197)

• Workers representatives
• Aims of this standard
• Protection of workers representatives in their undertaking against arbitrary dismissals, dissemination

Summary of this provision: Workers representatives should be protected against prejudicial acts based on their status; They should be afforded facilities in their undertaking to enable them carry out their promptly and efficiently

CONVENTION No. 158

• Termination of Employment
• Termination of employment is cessation of employment at the initiative of the employer
• This convention provides that the employment of a worker shall not be terminated unless there is a valid reason. This may have to do with the capacity or conduct of the worker.

Resource which are not valid grounds for termination are:

• Union membership.
• Participation in union activities at appropriate hours.
• Seeking office or acting as workers representative.
• Filing a complaint against the employer.

Summary of this provision

• This convention provides for procedures to be followed for the termination of employment and also appeals.
• The burden of proving the existence of valid reason rests on the employer.
• Completed bodies shall be empowered to reach a conclusion with regard to the evidence provided by parties according to procedures provided by National Law and Practices
• However, termination of employment may be valid if reasonable notice or compensation in lieu of notice is given in time.
• If the termination is unlawful (wrongful, unjustified) then the decision can be reversed to reinstatement or payment of compensation.

LABOUR LEGISLATIONS IN KENYA (LABOUR LAWS)

This refers to general principle that govern relationships that exist between one who sells personal labour and one who buys such labour.

They can also be referred as laws which govern relationship between employers and employees.

Sources of Labour Laws:

Laws governing labour matters are derived from a number of sources. This is the same sources from which laws governing other areas are derived.

• Customs of society or areas.
• Common law for example proceedings of industrial court.
• Islamic Law.

Constitution of Kenya

• This is the most basic law in Kenya and provides the legal bases for the structure of the sate, the relationship between the state and the citizens and the relationship amongst the citizens themselves.
• The constitution does not govern labour matters directly but forms a background against which the labour laws and operations operate. It therefore provides for:
  • Power to create ministries and appoint Ministers hence the Minister and other personnel dealing with labour matters.
  • Power to make laws hence passing of labour laws by Parliament either directly or indirectly.