Case of serious failure (CAS) - Discussion: 2009, Publication: 98th ILC session (2009)

Somalia

Part Two

Observations and Information concerning particular countries

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

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

A Government representative of the United Kingdom expressed apologies on behalf of the non-metropolitan territories of Anguilla, Bermuda, British Virgin Islands, Falkland Islands, Gibraltar, Isle of Man and St Helena, as they had been unable to provide the reports requested under article 22 of the Constitution. He emphasized that this failure was not due to a lack of political commitment on the part of the territories, but rather a lack of capacity. He recalled that non-metropolitan territories were usually very small and largely autonomous island administrations with limited human and financial resources. Heavy reporting schedules burdened even the largest of administrations, and for small administrations, the disruption of work schedules resulting from the need to recruit or retain staff in the event of retirement, sickness or bereavement stretched their resources. However, he was pleased to report that the Government of Anguilla, after having received technical assistance from the ILO, had completed all its outstanding reports, which had recently been submitted to the Office, along with the remaining article 22 reports for the Isle of Man. In general terms, his Government was working with the governments of the non-metropolitan territories to ensure that they continued to raise their human rights standards. Work was currently under way for the extension to them of a number of fundamental ILO Conventions. In that respect, it was to be welcomed that St Helena had written to the Office requesting the extension of Convention No. 182.

A Government representative of the United Republic of Tanzania reaffirmed the commitment of his Government to submit reports in respect of the requests of the Committee of Experts within the specified schedule, namely before 1 September 2009. Nevertheless, he noted that some of the issues raised had already been overtaken by events. For example, the need to request a recommendation from the political party as a condition for admission to a higher learning institution was no longer applicable. He noted that his country had been a multipartite nation since 1995 and the only obligation to join higher learning institutions was to abide by the laws governing these institutions.

A Government representative of Togo explained that the failure of his Government to supply reports on a number of Conventions was related to the numerous difficulties hindering the country’s desire to move forward. He noted that the main difficulty was the lack of qualified and sufficient number of human resources to gather the relevant information for the preparation of reports. Recruitment in the civil service had been frozen and labour inspectors who retired were not replaced. In 2006, the country had only 15 inspectors, who did not manage to fulfil their numerous duties. In addition, the qualifications of inspectors had to be updated so as to enable them to deal with the new challenges of the world of work. Furthermore, he indicated that the long socio-political crisis experienced by Togo had resulted in the destructuring of the internal and external systems of coordination of the labour administration. The standards and international relations unit of the Ministry of Labour, which was responsible for monitoring the implementation of Togo’s commitments in relation to the ILO, had been non-operational for a long time. These difficulties had a negative impact on the Government’s capacity to respond to the multiple requests from the Committee of Experts.

He recalled that, despite these obstacles, the Government of Togo had not been inactive. The Ministry of Labour had been restructured in 2008, responsibilities had been attributed and staff had been recruited. With a view to having personnel with the capacity to prepare reports, the ILO had been requested to provide training for around 20 inspectors at the Turin Centre. The training of 15 inspectors had been scheduled for July 2009. It was to be hoped that this technical assistance, which had been requested for three years, would result in the acquisition of the necessary capacity for the preparation and supply of 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 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 that the transmission of reports constituted, not only with regards to the transmission itself but also as regards the scheduled deadline. In this respect, the Committee recalled that the ILO could provide technical assistance in helping to achieve compliance with this requirement.

In these circumstances, the Committee expressed the firm hope that the Governments of Cape Verde, Guinea, Guinea-Bissau, Sierra Leone, Somalia, United Republic of Tanzania (Zanzibar), Togo, Turkmenistan and United Kingdom (British Virgin Islands, Falkland Islands (Malvinas)), 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.

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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 Bahrain expressed regret at the delay in providing information on the submission of the instruments adopted by the Conference to the competent authorities. He indicated that in his country Conventions were usually submitted to the Council of Ministers for examination with a view to their ratification and for the formulation of proposals, which would be submitted to the National Assembly. The Work in Fishing Convention, 2007 (No. 188), and the Maternity Protection Convention, 2000 (No. 183), had been submitted to the competent authorities. He reaffirmed his Government’s commitment to providing information to the ILO, submitting all the relevant instruments to the competent authorities in the near future, and informing the ILO of the steps taken in that regard. He added that his country had recently ratified the Occupational Safety and Health Convention, 1981 (No. 155), and expressed the commitment to make good any gaps in the information provided to the Office.

A Government representative of Bangladesh described the system for the submission of international instruments to the competent authorities in his country. Such instruments could be approved either by the Executive, namely the Cabinet, or by Parliament. Before submission, the respective instruments were first forwarded for review to the relevant ministries and government agencies, and then to the Ministry of Law, Justice and Parliamentary Affairs. The Conventions and Recommendations referred to in the report of the Committee of Experts had passed through the various stages of this process, and some had been duly submitted to the Cabinet, which might have sought further information from the respective ministry. It was the role of the Ministry of Labour and Employment to remain in contact with these agencies to expedite the process of submission and also to report on a regular basis to the relevant parliamentary standing committee. The reported failure to submit the instruments to the competent authorities might have resulted from certain shortcomings in communication and reporting to the ILO and it was hoped that the situation would be rectified in future reports. In keeping with his country’s commitment to fundamental principles and rights at work, all ILO instruments would continue to be submitted to Parliament and the Cabinet for their consideration and decision.

A Government representative of Cambodia indicated that preparatory measures had been taken for the submission of instruments to the competent authorities and, following the 2008 session of the Conference, his country had requested and received ILO technical assistance for this purpose, as a result of which the necessary documents were being prepared for the submission of the respective instruments to the competent authorities. He expressed the firm hope that the first step of the process of submission, which concerned the instruments adopted by the Conference from 2000 to 2006, would soon be completed.

A Government representative of the Central African Republic explained that until recently the competent authorities had considered that once a period of 18 months established in article 19 of the Constitution had elapsed after the respective session of the Conference, submission to the competent authorities was no longer possible. It was only in 2008, during a consultation with the Standards Department, that they had been informed that the time limit could be exceeded. The Government had always been more concerned with the ratification of Conventions rather than with submission. The political situation in the country, and the urgent matters confronting the National Assembly, did not facilitate ratification. Moreover, the economic and structural characteristics of the country were not conducive to effect being given to certain instruments, such as those relating to seafarers, as the country had no access to the sea and had no hope, even in the medium term, of acquiring a maritime fleet. There was, nevertheless, currently a debate on the merits of ratifying the Indigenous and Tribal Peoples Convention, 1989 (No. 169). Instructions had been given to the Ministry responsible for labour so as to expedite the process of the submission of the relevant instruments, although since the beginning of 2009 the Department responsible for standards had been confronted by the departure of a number of officials responsible for those matters. The strengthening of capacities was therefore needed, as lack of capacity explained the various difficulties encountered in the preparation of reports in due time. A tripartite plus committee would therefore be established in the next few months to examine the instruments, follow up the submission and ratification procedures and prepare reports. Several documents on standards had been submitted to the members of the National Assembly, the President of the Bar, and the Ministry of Justice. The Government had the political will to take all the necessary measures to comply with its obligations.

A Government representative of Côte d’Ivoire indicated that every effort was now being made by his Government to ensure the submission of all the respective instruments to the National Assembly.

A Government representative of Djibouti indicated that his Government had ratified over 60 Conventions, most of which did not correspond to the geographical, economic and social characteristics of the country, which was not an agricultural, mining or industrial country. The Government had therefore decided to review all the ratified Conventions in order to gradually denounce those not adapted to the real situation in the country. Conventions Nos 6 and 45 had been denounced in 2008. Once this process had been completed, the Government would refer the issue of submissions to Parliament so as to find a definitive solution.

A Government representative of Spain expressed regret at the delay in the submission to Parliament of several ILO Conventions that Spain had approved. She assured the Conference Committee that the necessary measures had been taken to resolve this failure of submission. However, she indicated at the outset that Spain was currently one of the countries that had ratified the largest number of Conventions. Secondly, labour legislation in Spain in the various areas of labour relations, employment, freedom of association, occupational safety and health, social security, equality of opportunities and treatment at work and in employment between men and women far exceeded the levels set out in ILO standards. Finally, she indicated that this consisted of a formal failure of compliance, which she regretted, although it hardly constituted a serious failure of compliance.

A Government representative of Comoros indicated that, over the past three years, the Labour Department had been transferred from one ministry to another on several occasions and that there were real dysfunctions and difficulties at both the institutional level and in terms of human and material resources. In its awareness of these shortcomings, the Government had prepared a programme in partnership with the ILO in relation to labour inspection and the preparation of laws, and was committed to complying in the future with the time limits for the provision of reports.

A Government representative of Haiti apologized for the fact that her Government had not been able to submit the instruments adopted by the Conference within the time limits. The reasons, however, were unrelated to the will of her Government, and arose out of the political and social crisis, the natural cataclysms and the unrest that had affected the country. Nevertheless, the Government had not remained inactive as in March 2009 all the necessary submissions had been carried out with ILO technical assistance.

A Government representative of Kenya thanked the Committee of Experts for its report, but regretted that his country was listed in paragraph 87. He recalled that the submission of instruments to the competent authorities was a constitutional requirement and that timely submission would always remain the surest means of helping the ILO to achieve its objectives. Nevertheless, the reported occurrence had not been deliberate and had largely been caused by the very dynamic political situation in the country since 2002. The lengthy process of reviewing labour law following the last two general elections and the 2005 referendum had affected the process of submitting the pending instruments. He was pleased to inform the Committee that, following the enactment of the new labour laws, a National Labour Board had finally been established in November 2008 and inaugurated in April 2009. The instruments in question, the 1995 and 1996 Protocols and all the instruments adopted between 2000 and 2007, had been included among the priority agenda items for consideration by the Board and submission to the competent authorities. The progress made would be reported to the Committee of Experts during the next reporting cycle.

A Government representative of Kiribati explained that the Cabinet in her country preferred to review the instruments concerned individually rather than dealing with all of them at once. Such a review would therefore be the next step before the instruments could be submitted to Parliament through the Cabinet. However, at present, her Government was giving greater priority to ratifying the remaining fundamental Conventions, namely Conventions Nos 100, 111, 138 and 182, which had been approved for ratification by the Cabinet.

A Government representative of Mozambique apologized for the failure to submit to the competent authorities the Conventions and Recommendations adopted by the Conference. His Government had started to review all the outstanding Conventions and Recommendations, which would be submitted to the assembly. A process of legal reform had been undertaken to which the Government was committed and to which it was giving priority. Delays were occurring in the process of the submission of Conventions and Recommendations because they had to be translated into Portuguese. He welcomed the attention paid to the issue of submission and requested ILO assistance for the translation of the respective instruments into Portuguese.

A Government representative of Nepal expressed full commitment to the principles set out in the ILO Constitution and in its Conventions and attached great importance to the work of the Conference Committee, as illustrated by his Government’s ratification of a number of Conventions, including the Indigenous and Tribal Peoples Convention, 1989 (No. 169). He indicated that measures had already been taken for submission to Parliament of the instruments adopted by the Conference in 2005 and 2006.

A Government representative of Papua New Guinea explained that the prolonged delay in the submission of the instruments adopted between 2000 and 2007 had been due to administrative difficulties. The Department of Labour and Industrial Relations was now engaged in preparing a single comprehensive policy submission to Cabinet which would include all the instruments adopted by the Conference since 2000. He gave an undertaking that, over the next six months, a new approach would be pursued of submitting the instruments adopted by the Conference directly through the Cabinet, with the National Tripartite Consultative Council (NTCC) being advised. This was a modification of the previous practice under which labour-related matters went to the NTCC before the National Executive Council. He indicated that before the next session of the Conference the Office would be informed of the decisions made on all the outstanding instruments that were to be submitted to the Cabinet.

A Government representative of Sudan indicated that Sudan had discharged its obligations by submitting 13 reports requested by the Committee of Experts, for which the Committee had expressed its satisfaction. Despite the difficulties and the exceptional situation that it was currently facing, Sudan undertook to supply all the reports due by the end of the year to achieve its common objectives so that the respective Conventions and Recommendations were submitted to the National Assembly. The Committee of Experts had noted the reasons for the delay relating to the 20-year civil war. A peace treaty had been signed in 2005 which foresaw the adoption of a transitional Constitution and the distribution of resources and power between the central and regional authorities. Great efforts were currently being made and would require time and consultations with the social partners and the relevant technical committees. International labour standards required certain practical capacities for their implementation. Sudan was going through an exceptional situation, in view of which the ILO’s Subregional Office in Cairo had been requested in 2008 to provide technical assistance concerning international labour standards and, particularly to provide assistance for the preparation of reports, which had made it possible to send 13 reports. In conclusion, he reaffirmed his Government’s commitment to standards and hoped to receive technical support in relation to training and national capacity building.

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 different speakers in complying with this obligation, as well as the promises to submit shortly to the competent authorities the instruments adopted by the Conference. The Committee highlighted the increase in the number of Governments which had been invited to provide explanations at this session of the Conference concerning the major delay in fulfilling the constitutional obligations concerning submission. As have been done by the Committee of Experts, the Committee expressed great concern at the non-respecting of the obligation to submit Conventions, Recommendations and Protocols to the competent authorities. To fulfil the obligation to submit means the submission of the instruments adopted by the Conference to national parliaments and represent a requirement of the highest importance in order to ensure effectiveness of standards-related activities of the Organization. The Committee recalled in this regard that the Office could provide technical assistance to contribute to compliance with this obligation.

The Committee expressed the firm hope that the 46 countries mentioned, namely Antigua and Barbuda, Bahrain, Bangladesh, Bosnia and Herzegovina, Cambodia, Cameroon, Cape Verde, Central African Republic, Chile, Comoros, Congo, Côte d’Ivoire, Croatia, Democratic Republic of the Congo, Djibouti, Dominica, Equatorial Guinea, The former Yugoslav Republic of Macedonia, Gambia, Georgia, Ghana, Guinea, Haiti, Ireland, Kazakhstan, Kenya, Kiribati, Lao People’s Democratic Republic, Libyan Arab Jamahiriya, Mozambique, Nepal, Papua New Guinea, Paraguay, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Sierra Leone, Solomon Islands, Somalia, Sudan, Tajikistan, Turkmenistan, Uganda, Uzbekistan and Zambia, would transmit in the near future information on the submission of Conventions, Recommendations and Protocols to the competent authorities. The Committee decided to mention all 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

A Government representative of the Russian Federation indicated that his Government was aware of the problem concerning reports on unratified Conventions and Recommendations and indicated that the necessary efforts to remedy the situation would be made in cooperation with the Lower House of Parliament. The respective information would be provided in the next report to the ILO.

A Government representative of Timor-Leste recalled that her country had become a Member of the ILO in 2003. It was aware of its full responsibilities under the ILO Constitution and its main objective was the ratification of ILO Conventions. She indicated that, since the adoption of the Labour Law in 2002 (named UNTAET Regulation No. 5/2002), the national legislation reflected all the fundamental principles and rights. A review had now been commenced of the labour legislation based on social dialogue. In the context of this important opportunity, she urged the ILO to provide technical assistance, especially on tripartite issues. The majority of assistance provided by the ILO in the past had concerned employment, self-employment and vocational training. She added that the reasons for the failure to submit the necessary reports included the unavailability of information and the political crisis affecting the country, including the changes in government structures. She recalled that her country had ratified four fundamental Conventions, namely Conventions Nos 27, 89, 98 and 182, and it was hoped in the near future to ratify Conventions Nos 100 and 111.

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

The Committee stressed the importance it attached to the constitutional obligation to transmit reports on non-ratified Conventions and Recommendations. In effect, these reports permitted a better evaluation of the situation in the context of the General Survey 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 Cape Verde, Democratic Republic of the Congo, Gambia, Guinea, Kyrgyzstan, Liberia, Russian Federation, Saint Kitts and Nevis, Sao Tome and Principe, Seychelles, Sierra Leone, Somalia, Tajikistan, Timor-Leste, Togo, Turkmenistan, The former Yugoslav Republic of Macedonia, Uganda, Uzbekistan and Vanuatu would comply with their future obligations under article 19 of the Constitution. The Committee decided to mention these cases in the corresponding paragraph of the General Report.

The Worker members concluded by emphasizing that these serious failures by member States to fulfil their obligations impeded the proper functioning of the supervisory system and allowed the countries concerned to take unfair advantage of this non-compliance with their obligations, as it was impossible to review national law and practice. He noted that the individual cases that would soon be discussed were of a different nature, but that the failures considered so far were very serious, and even much more serious. Member States should take all possible steps to meet their obligations by having recourse, if necessary, to the technical assistance of the ILO.

The Employer members recalled that the obligation to submit reports constituted a fundamental element of the ILO supervisory system. These obligations were intended to prevent governments that had neglected their reporting duties from obtaining an undue advantage. Compliance with reporting obligations was essential for dialogue between the ILO supervisory system and member States on the implementation of ratified Conventions. Any form of failure to comply with these obligations therefore constituted a serious failure in the supervisory system. They noted with interest that the report of the Committee of Experts offered a better understanding of some of the reasons for the failure by member States to fulfil their reporting and other standards-related obligations. It was also to be welcomed that a number of African countries had explained their difficulties during the discussion. The Employer members suggested that an approach should be adopted under which less emphasis was placed on the outdated Conventions, as identified by the Governing Body. Finally, they strongly encouraged member States to request technical assistance from the Office where issues of capacity arose in relation to compliance with reporting and related obligations.