Case of serious failure (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)

Equatorial Guinea

PART TWO

Observations and information concerning particular countries

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I. OBSERVATIONS AND INFORMATION CONCERNING REPORTS ON RATIFIED CONVENTIONS (ARTICLES 22 AND 35 OF THE CONSTITUTION)

A. Discussion of cases of serious failure by member States to respect their reporting and other standards-related obligations

The Employer members noted a general improvement in terms of compliance with reporting obligations, with an increase of around 6 per cent as compared to last year. They noted in particular the efforts made by eight countries with persistent difficulties in previous years (Grenada, Ireland, Kiribati, Kyrgyzstan, Libya, Sao Tome and Principe, Seychelles and Sierra Leone), which had now complied with their constitutional obligations vis-à-vis ratified Conventions. Despite this progress, the Employer members believed that the reporting situation was still not satisfactory given that more than a quarter of all due reports on the application of ratified Conventions were not received by the time of the meeting of the Committee of Experts (only 34.1 per cent were received on time). Further steps were therefore needed to address the problem at its roots. As far as ratifying countries were concerned, the Employer members stressed that these countries should not just rely on the offer of technical assistance but take their responsibility for reporting seriously. Even before ratifying an ILO Convention, countries needed to consider whether they would be able to discharge their reporting obligation and, if need be, reinforce their reporting capacities. From a wider perspective, there was a need to consolidate and simplify ILO Conventions and thus focus reporting on the essential. Identifying ways to do so would be a task for the standards review mechanism. The Employer members trusted that it would soon be operational.

The Worker members stated that although some countries had made an effort, an effective supervisory system implied that each State had to meet its obligations. Submitting instruments to the competent authorities was therefore part and parcel of the process. Unless that was done, the competent authorities could have no knowledge of the ILO’s instruments and of the action taken by the Organization. As to the failure of some countries to respond to the Committee of Experts’ comments, the latter had to be able to analyse government reports on the subject. It was essential that there be fewer and fewer cases each year of countries failing to meet their standards-related obligations.

(a) Failure to supply reports for the past two years or more on the application of ratified Conventions

The Committee took note of the information provided.

The Committee recalled that the transmission of reports on the application of ratified Conventions was a fundamental constitutional obligation and the basis of the system of supervision. The Committee stressed the importance of transmitting the reports; not only the transmission itself but also with regard to the scheduled deadline. In this respect, the Committee recalled that the ILO could provide technical assistance in helping to achieve compliance with this obligation.

In these circumstances, the Committee expressed the firm hope that the Governments of Burundi, Comoros, Equatorial Guinea, Gambia, San Marino, Somalia, Tajikistan and Vanuatu which to date had not presented reports on the application of ratified Conventions, would do so as soon as possible, and decided to note these cases in the corresponding paragraph of the General Report.

(b) Failure to supply first reports on the application of ratified Conventions

A Government member of Kazakhstan recalled that cooperation between the ILO and Kazakhstan was an important aspect of his country’s foreign policy and that Kazakhstan systematically complied with its obligations as a Member of the ILO. Its first report on the Safety and Health in Construction Convention, 1988 (No. 167), would be submitted to the Office before the end of the Conference and the report for 2014 would be sent within the deadline.

The Committee took note of the information provided and of the explanations given by the Government representative who had taken the floor.

The Committee reiterated the vital importance of the transmission of first reports on the application of ratified Conventions. In this respect, the Committee recalled that the ILO could provide technical assistance to contribute to compliance with this obligation.

The Committee decided to note the following cases in the corresponding paragraph of the General Report: ■ Afghanistan – since 2012: Conventions Nos 138, 144, 159, 182; ■ Equatorial Guinea – since 1998: Conventions Nos 68, 92; ■ Sao Tome and Principe – since 2007: Convention No. 184; ■ Vanuatu – since 2008: Conventions Nos 87, 98, 100, 111, 182; – since 2010: Convention No. 185.

(c) Failure to supply information in reply to comments made by the Committee of Experts

A Government representative of Ghana stated that his country’s report supplying information in reply to comments made by the Committee of Experts would be finalized in the course of the Conference and submitted to the Office.

A Government representative of Afghanistan noted the comments made by the Committee of Experts concerning his country’s failure to supply first reports on the application of four ratified Conventions. He indicated that work was currently being undertaken with a view to providing the first reports but problems were being experienced in consolidating the information received from different government entities. To address this issue, consideration was given to establishing a unit working exclusively on reporting under ILO Conventions. He requested ILO technical assistance to help in such endeavour and to build the capacity of the members of such a unit so as to be able to provide the reports due on time.

A Government representative of Cambodia recognized that his Government was late in supplying information in reply to comments made by the Committee of Experts on Conventions Nos 87 and 98, although the reporting obligation concerning many other Conventions had been discharged on time. The technical assistance of the ILO had been requested to strengthen the capacity of the members of the Inter-Ministerial Committee that had been set up to collect and provide information and draft comments on these matters. On 29 April 2014, ILO technical assistance on reporting obligations had been provided as the starting point of a capacity-strengthening process. He hoped that this fruitful cooperation would allow fulfilling the reporting obligation in the near future.

A Government representative of Mauritania recalled that Mauritania, member State of the ILO since 1961, had ratified around 40 Conventions and was strongly attached to the values of social justice and peace. Between 2008 and 2012, the reports had always been submitted within the deadlines. The delays in sending reports in 2013 had been due to problems relating to human resources. ILO technical assistance from the ILO Country Office in Dakar had been requested in that regard.

A Government representative of Thailand said that her Government had taken measures with regard to reporting on ratified Conventions in response to the comments made by the Committee of Experts. According to the General Report, there were five reports pending. However, prior to the publication of this report, the Government had submitted its reports on Convention Nos 14 and 105. She confirmed that the remaining reports on Conventions Nos 19, 122 and 182, along with the reports due this year, would be submitted by August 2014.

A Government representative of Angola indicated that the Ministry of Public Administration, Work and Social Security was concerned about the issue of submission. The problem had been that submissions could not be made since the instruments had not been translated into Portuguese. The above Ministry, supported by the Ministry of Foreign Affairs, had undertaken to translate those instruments. In that respect, he reiterated the request for technical assistance. It was envisaged that the process would be completed by the end of the year and that the Office would be informed of any action carried out.

A Government representative of Eritrea indicated that in 2012, his Government had sent the required reports on 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) on time. It was unfortunate that they had not been received, and he apologized for the inconvenience caused. However, his Government had prepared a new detailed report based on the comments made by the Committee of Experts on the two Conventions, as well as on other Conventions for which it was due to report on this year, which would be submitted on 1 June 2014. Moreover, the Labour Proclamation had been amended in light of the Committee of Experts’ comments. Regarding the allegation made by the International Trade Union Confederation that in practice there was no collective bargaining in Eritrea, he stated that the Labour Proclamation declared trade unions to be legal entities with the right to elect their representatives according to their constitutions and without the interference of public authorities. To date, there were more than 230 workers’ associations, and the Government had registered more than 110 collective agreements, figures which indicated that trade unions were in fact exercising their rights freely. The ILO’s technical assistance was of paramount importance to improving the implementation of standards.

A Government representative of Guyana said that in 2012, the Government had been severely behind with regard to the discharge of its reporting obligation and had explained at the time some of the constraints it was facing and had expressed its commitment to corrective measures. His Government had since submitted 16 of the reports that were outstanding and was working to complete the rest by the deadline of 1 September 2014. Part of the reason for not submitting reports was however a lack of capacity, and the Ministry of Labour had addressed the issue by employing additional staff who would assist in preparing the reports. Also since 2012, Guyana had ratified the Occupational Safety and Health Convention, 1981 (No. 155) and the Domestic Workers Convention, 2011 (No. 189). The Government was dedicated to fulfilling its reporting commitment, and in that regard it was working with the ILO Regional Office in Trinidad and Tobago to train young officers to be able to produce reports.

The Committee took note of the information provided and of the explanations given by the Government representatives who had taken the floor.

The Committee underlined the vital importance, to permit ongoing dialogue, of clear and complete information in response to comments of the Committee of Experts. In this respect, the Committee expressed serious concern at the large number of cases of failure to transmit information in response to the comments of the Committee of Experts. The Committee recalled that governments could request technical assistance from the Office to overcome any difficulty that might occur in responding to the comments of the Committee of Experts.

The Committee urged the Governments of Burundi, Cambodia, Comoros, Croatia, Dominica, El Salvador, Equatorial Guinea, Eritrea, Gambia, Ghana, Guinea, Guyana, Haiti, Malaysia – Peninsular, Malaysia – Sarawak, Malta, Mauritania, Rwanda, San Marino, Sierra Leone, Syrian Arab Republic, Tajikistan, Timor-Leste, Turkmenistan and Vanuatu, to make all efforts to transmit as soon as possible the required information. The Committee decided to note these cases in the corresponding paragraph of the General Report.

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II. SUBMISSION TO THE COMPETENT AUTHORITIES OF THE CONVENTIONS AND RECOMMENDATIONS ADOPTED BY THE INTERNATIONAL LABOUR CONFERENCE (ARTICLE 19 OF THE CONSTITUTION)

Observations and information

(a) Failure to submit instruments to the competent authorities

A Government representative of Sudan indicated that the Conventions and Recommendations adopted from 1994 to 2012 had been submitted to the competent authorities.

A Government representative of Kazakhstan stated that the documents concerning submission had been brought to the attention of the Parliament.

A Government representative of Mauritania indicated that the Department of Labour had undertaken to rectify the delay in the submission of instruments before 31 July 2014. The comments of the present Committee, like those of the Committee of Experts, were certainly appreciated and taken into account. In fact, following an observation in 2013 from the Committee of Experts on the Labour Inspection Convention, 1947 (No. 81), labour inspectors had been given instructions concerning that Convention, and the number of inspectors had risen from ten in 2013 to 13 in 2014.

A Government representative of Brazil said that the Government was working to identify the best way of handling this issue in a comprehensive way, in accordance with the specific constitutional competencies of all the institutions involved in this procedure and in the context of tripartite dialogue. The primary objective was to avoid any recurrence of this situation in the future. Brazil had made progress in consolidating social dialogue. Hence, on the basis of her country’s experience, there was renewed confidence that the historical heritage of the Organization would serve as an inspiration for reaching the consensus that was needed to move forward in the debate.

A Government representative of Kuwait indicated that the Government was currently carrying out consultations, including with the social partners, on the possibility of ratifying the Conventions concerned, with a view to eventually submitting the instruments to the competent authorities. He recalled that in 2013, the Committee of Experts had welcomed the fact that all the instruments adopted by the Conference had been submitted by the competent minister to the Council of Ministers, and then to the National Assembly. This was a long and complicated procedure both in terms of logistics and administration and was subject to factors beyond the Government’s control such as the timing of parliamentary sessions. A national committee has been set up this year to deal with this constitutional obligation and to accelerate the process. Its creation was the outcome of technical cooperation received from the ILO. The results of the national committee’s work would be communicated to the Committee.

A Government representative of Libya wished to comment on both paragraphs 106 and 113 of the General Report. He indicated that Libya was going through a critical transitional phase, in its march towards the establishment of a democratic State. In spite of the present circumstances, the Ministry of Labour and Rehabilitation in the transitional Government had paid great attention to formulating draft laws on labour and trade unions. It had also set up a committee responsible for the preparation of reports on ratified Conventions and replies to the Committee of Experts’ comments. Libya had thus complied with its constitutional obligation. Furthermore, the Ministry had forwarded the Conventions adopted at previous sessions of the Conference to the relevant sectors for their examination and positions as to their ratification with a view to their eventual submission to the General National Congress, which was not exactly a Parliament given the present situation. The speaker indicated that his Government had communicated to the Office information to this effect which had probably arrived after the publication of the report. He pledged that his Government would keep the Office informed of any new developments in this regard, and that every effort would be made to meet Libya’s constitutional obligations.

A Government representative of Jordan explained that the constitution of Jordan had been amended in November 2011, and that the changes required the Government to examine all national legislation to ensure its conformity with the new Constitution. In January 2014, Jordan had ratified the Social Security (Minimum Standards) Convention, 1952 (No. 102). The Government had always submitted instruments to the competent authorities and would shortly be in a position to submit information in this respect.

A Government representative of Papua New Guinea referred to the progress made within the Government’s implementing agency in relation to the obligation of submission to the competent authorities, including through the preparation of a draft document concerning the submission of 19 instruments to the National Executive Council. This initial progress had been hindered in late 2012, when the implementing agency had undertaken administrative changes affecting its technical capacity to ensure that the submission would reach the competent authority. In view of the large number of instruments to be submitted to the competent authority, further technical and legal consultations were needed prior to submission. Nevertheless, he reaffirmed his Government’s commitment to address this failure and the internal technical capacity issues. Information would be communicated to the Committee in the near future.

A Government representative of Suriname informed the Committee that, on the previous day, her Government had submitted the report on the Worst Forms of Child Labour Convention, 1999 (No. 182). The Conventions adopted had not been submitted to the competent authorities due to an administrative problem. A document for submission to the competent authority (the National Assembly) was in the final stages of preparation, and her Government hoped to be able to meet its obligation by the end of 2014.

A Government representative of Bangladesh stated that 37 ILO instruments had been submitted to the competent authority of Bangladesh, the Tripartite Consultative Council (TCC). At its July 2013 meeting, the TCC had recommended that Bangladesh should ratify the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185) and the Maritime Labour Convention, 2006; Bangladesh had, accordingly, ratified those Conventions in 2014. He recalled however that any labour-related issue including ILO instruments needed to be discussed by the standing parliamentary committee related to the Ministry of Labour and Employment.

A Government representative of Bahrain said that his Government had sent a document detailing his country’s position on the procedure for submission in March. Article 19 of the Constitution gave member States a great deal of freedom as to the appropriate procedures, including when the Executive was the competent authority for examining instruments that had been adopted.

The Committee took note of the information provided and of the explanations given by the Government representatives who had taken the floor. The Committee took note of the specific difficulties mentioned by certain delegates in com-plying with this constitutional obligation, and in particular the promises to submit shortly to parliaments the instru-ments adopted by the International Labour Conference.

The Committee pointed out that a particularly high num-ber of governments had been invited to provide explanations on the important delay in meeting their constitutional obli-gation of submission. As had been done by the Committee of Experts, the Committee expressed great concern at the fail-ure to respect the obligation to submit Conventions, Rec-ommendations and Protocols to competent authorities. Full compliance with the obligation to submit meant the submis-sion of the instruments adopted by the Conference to na-tional parliaments and was a requirement of the highest importance in ensuring the effectiveness of the Organiza-tion’s standards-related activities. The Committee recalled in this regard that the Office could provide technical assis-tance to contribute to compliance with this obligation.

The Committee expressed the firm hope that the countries mentioned, namely Angola, Bahrain, Belize, Brazil, Comoros, Democratic Republic of the Congo, Côte d’Ivoire, Djibouti, Dominica, El Salvador, Equatorial Guinea, Fiji, Guinea, Haiti, Iraq, Jamaica, Jordan, Kazakhstan, Kyrgyzstan, Kuwait, Libya, Mali, Mauritania, Mozambique, Pakistan, Papua New Guinea, Rwanda, Saint Lucia, Sao Tome and Principe, Sierra Leone, Solomon Islands, Somalia, Sudan, Suriname, Syrian Arab Republic, Tajikistan, Uganda and Vanuatu, would transmit in the near future information on the submission of Conventions, Recommendations and Protocols to the competent authorities. The Committee decided to mention these cases in the corresponding paragraph of the General Report.

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III. REPORTS ON UNRATIFIED CONVENTIONS AND RECOMMENDATIONS (ARTICLE 19 OF THE CONSTITUTION)

(a) Failure to supply reports for the past five years on unratified Conventions and Recommendations

The Committee took note of the information provided.

The Committee stressed the importance it attached to the constitutional obligation to transmit reports on unratified Conventions and Recommendations. In effect, these reports permitted a better evaluation of the situation in the context of General Surveys of the Committee of Experts. In this respect, the Committee recalled that the ILO could provide technical assistance to help in complying with this obligation.

The Committee insisted that all member States should fulfil their obligations in this respect and expressed the firm hope that the Governments of the Democratic Republic of the Congo, Equatorial Guinea, Guinea, Guinea-Bissau, Libya, Marshall Islands, Solomon Islands, Saint Kitts and Nevis, Sao Tome and Principe, Sierra Leone, Somalia, Tuvalu and Vanuatu, would comply with their future obligations under article 19 of the ILO Constitution. The Committee decided to mention these cases in the corresponding paragraph of the General Report.

The Worker members emphasized the importance of the discussion of member States’ non compliance with their standards-related obligations. The fact that some of the countries cited the previous year were no longer on the list showed that the discussion served a purpose. The governments that had spoken should be thanked and should all be encouraged to take the necessary steps to address their shortcomings.