International Labour Organization (ILO) Rights and India: A Comparative Analysis

 

Animay Singh
Simpliance COE

Biography

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Introduction

The International Labour Organization (ILO) was founded in 1919, following World War-I as a social engineering project that sought to safeguard the rights of workers and ensure that freedom, equity, and dignity in conditions of work are observed universally. It is the first and oldest specialised agency of the UN and was originally founded as a part of the League of Nations. Currently, 187 of the 193 member states of the United Nations are members of the ILO

A fundamental aspect of the ILO’s functioning is the emphasis placed on tripartism, which aims to ensure that any dialogue involves the three main stakeholders when it comes to labour-related matters, namely employers, workers and States. The International Labour Organization(ILO) accomplishes its objectives through three main bodies that are comprised of the aforementioned stakeholders, these bodies are as follows:

  • International Labour Conference: It is an annual meeting of governments’, workers’ and employer’s delegates of the ILO member States. The objective of the conference is to discuss the broad policies of the organisation, establish and adopt international labour standards and elect the governing body. 

  • Governing Body: It is the executive body of the ILO and is responsible for making policy decisions, setting the agenda for the International Labour Conference, adopting a budget, and electing the Director-General. It is composed of 56 titular members of which 28 are held by governments and 14 each are held by employers and workers respectively. Ten of the titular government seats are non-elected, permanent seats held by States that have foremost industrial importance, India is one of these nations.

  • International Labour Office: It is the permanent secretariat of the International Labour Organization and is responsible for the administration of the organization and implementing technical cooperation activities in addition to awareness, advocacy and information-sharing programmes.

An Overview of Key Documents 

Before analysing the major conventions under the framework of International Labour Law, we must examine the Declaration on Fundamental Principles and Rights at Work, 1998. The Declaration divides fundamental principles and rights into four categories, those being freedom of association and the effective recognition of right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation. The core conventions of the ILO can be classified under these categories that are considered universal rights that apply to all individuals in every State.

While the international labour standards are periodically revised with new Conventions, Protocols or Recommendations being formulated, the ILO Governing Body has listed eight conventions it considers fundamental in terms of the subjects that they deal with, these are as follows:-

  1. Freedom of Association & Protection of the Right to Organise Convention, 1948 : Crystallized the most fundamental labour rights such as the right of workers to establish and join organisations of their choosing without their employer’s approval, the right of workers’ and employers’ organisations to draw up their own constitutions and rules, the right of workers’ and employers’ organisations to establish and join federations. It imposes a duty on Members of the ILO to ensure that workers and employers may exercise the right to organise freely, without any undue interference from administrative authorities.

  2. Right to Organise and Collective Bargaining Convention, 1949 : This document aims to protect workers and workers’ organisations from anti-union discrimination with respect to their employment. For example, imposing non-membership of Unions as a precondition to employment. It aims to promote voluntary negotiation between employers or employers’ organisations and workers’ organisations and calls for the creation of machinery for facilitating the same.

  3. Forced Labour Convention, 1930 and its 2014 Protocol : This document is one of the primary international instruments that can be credited with the reduction in forced/compulsory labour worldwide. It penalises exaction of forced labour and imposes an obligation on ratifying States to ensure that the same are strictly enforced. Ratifying States are also required to ensure that coverage and enforcement of legislations pertaining to forced labour are applicable to all workers irrespective of nature of work and sector of economy. This includes taking all measures necessary to eliminate all forms of forced labour as well as identification and rehabilitation of all victims of such labour.

  4. Abolition of Forced Labour Convention, 1957 : This Convention extends the general prohibition provided for in the above document by prohibiting use of forced labour as a means of political coercion, education, punishment, mobilising labour for economic development, labour discipline, as punishment for participation in strikes and as a means of racial, social, national or religious discrimination.

  5. Minimum Age Convention, 1973 : This document imposes an obligation on ratifying States to pursue a national policy that aims to ensure that child labour is effectively abolished. It also requires States to raise the minimum age for employment/work to a level that is in consonance with the physical and mental development of young persons. To this end ratifying States are required to submit a declaration that states the minimum age to be eligible for work which cannot be less than 15 years in any case. An exception is made for States whose economies are insufficiently developed to specify a minimum age of 14 years.

  6. Worst Forms of Child Labour Convention, 1999 : For the purposes of this Convention, the term ‘child’ applies to all persons under the age of 18. Each member that ratifies this convention is required to take immediate measures to eradicate the worst forms of child labour. This term denotes practices like slavery, trafficking, serfdom, use of child soldiers etc. Member States are required to implement programmes in consultation with employers’ and workers’ organizations to do the same.

  7. Equal Remuneration Convention, 1951 : This convention requires ratifying States to promote the application of the equal remuneration principle for work of equal value. This means the rates of renumeration for similar work are established without discrimination based on sex.

  8. Discrimination (Employment & Occupation) Convention, 1958 : This convention focuses on discrimination that is based on race, colour, sex, religion, political opinion, national extraction, or social origin. It includes other distinctions that have the effect of nullifying or impairing equality of opportunity. Ratifying states are required to prevent such discrimination through legislation, educational programmes and cooperation between employers’ and workers’ organisations.

The governing body has also designated four other conventions as priority instruments based on their importance from an international governance perspective. This is because they are essential in the operation of the international labour standards system. The governance/priority conventions are as follows:

  1. Labour Inspection Convention, 1947 : This document imposes an obligation on members of the ILO to ensure that a system of labour inspection in industrial workplaces is maintained under the supervision and control of a central authority to the extent that the same is feasible. It contains provisions that outline the functions, qualifications and strength of labour inspectors that must be maintained and contains a chapter on labour inspection in commerce as well.

  2. Employment Policy Convention, 1964 : This document aims to ensure that member states pursue an active policy goal of free and full employment for all its citizens. It outlines the major components of such a policy and states that the same must be in consonance with the individual conditions (pertaining to stage and level of economic development) prevailing in a member state.

  3. Labour Inspection (Agriculture) Convention, 1969 : This document is similar to the first one in this list but differs in terms of its subject matter. It aims to impose an obligation on ratifying States to refrain from excluding agricultural undertakings from the national system of labour inspection. It defines agricultural undertakings and outlines the functions of the system that specifically cater to such establishments.

  4. Tripartite Consultation (International Labour Standards) Convention, 1976 : This document defines representative organisations in the context of labour and imposes an obligation on ratifying States to undertake procedures that allow for effective consultations with respect to matters being dealt with by the ILO. These include government replies to questionnaires, proposals to be made to the competent authority in connection with Conventions/Recommendations, re-examination of unratified Conventions, questions arising out of reports made to the International Labour Office and proposals for denunciation of ratified Conventions.

Where does India stand?

India has ratified only four out of the eight core conventions, those being:

  1. Forced Labour Convention, 1930, No 29
  2. Equal Remuneration Convention, 1951, No 100
  3. Discrimination (Employment and Occupation) Convention, 1958, No 111
  4. Abolition of Forced Labour Convention, 1957, No 105

Thus we can see that from an international perspective India is effectively implementing only two of the four rights enshrined in the DFPR, those being Freedom from Discrimination and Protection Against Forced Labour. There are numerous judgements which show conformity with international standards and recognise these fundamental human rights, and even statutory enactments which implement the same. The question that now arises is: Why hasn’t India ratified the remaining core conventions?

The answer to this can be found by analysing the implications that ratification entails and juxtaposing this with current socio-economic conditions in the country. This is because ratification incurs legal obligation and requires implementation. This means that once a treaty has been  ratified,  a  state incurs an immediate legal obligation at the  international level. This is illustrated by the distinction between being a mere signatory of a treaty/convention and subsequent ratification. Being a signatory of a treaty usually indicates that a state intends to become a party to a treaty at some future date. Until ratification at that future date, a state is required to do nothing which would obstruct the objects and purposes of the treaty/convention, there is no legal obligation on the state. In contrast, once a state has ratified a treaty, it must conform to all the obligations set down in a treaty and it cannot generally avoid them unless there are exceptions provided therein. However, a state cannot cite the failure of concurrence between international and domestic law on an issue as an excuse for the above. 

Relevance of International Law

After reading the preceding section that explains ratification and the voluntary nature of international obligations, one might wonder why International Labour Law is relevant and moreover what bearing it has on domestic labour law and policy. The two questions are linked to each other and the answer to the same can be seen from two differing perspectives. One point of view sees ILO policies and standards as preferences that nations can adopt through regulatory decisions that ultimately provide them with competitive advantages in global trade. This is because international conventions provide a universal basis for policy and thus prevent nations from implementing measures such as deregulation with the intention of gaining trade advantages. Such measures would be met with international disapproval, sanctions as well as trade isolation and thus positive morality operates to give these instruments relevance.

The other approach views ILO conventions as norm prescribing documents that allow States to assess their policies with respect to its peer States. This means that States can compare their policies to both internationally accepted standards as well as the policies adopted by States that are similarly placed from a socio-economic perspective. Therefore, they can analyse the need for reform and amendment by finding policy preferences that fall midway between the two aforementioned points of reference.

If you have any comments, thoughts or queries relating to ILO and its significance in India, feel free to drop them in the comments below.

Disclaimer: This blog is meant for informational purposes and discussion only. It contains only general information about legal matters. The information provided is not legal advice and should not be acted upon without seeking proper legal advice from a practicing attorney.
Simpliance makes no representations or warranties in relation to the information on this article.

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