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Stein Evju, The European Social Charter and the International Labour Organisation – interlinks past and present in:

Wolfgang Däubler, Reingard Zimmer (Ed.)

Arbeitsvölkerrecht, page 146 - 154

Festschrift für Klaus Lörcher

1. Edition 2013, ISBN print: 978-3-8487-0674-7, ISBN online: 978-3-8452-4921-6, https://doi.org/10.5771/9783845249216-146

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The European Social Charter and the International Labour Organisation – interlinks past and present Stein Evju Introduction The International Labour Organization (ILO) is indisputably the pioneer in the field of labour standards. It was created in 1919 by the labour articles of the Treaty of Versailles,1 to reflect the belief that universal and lasting peace can be accomplished only if it is based on social justice. The fundamental principles on which the ILO is based were reaffirmed with the Philadelphia Declaration of 1944, which is an integral part of the ILO Constitution, stating in particular that: (a) labour is not a commodity;2 (b) freedom of expression and of association are essential to sustained progress; (c) poverty anywhere constitutes a danger to prosperity everywhere; (d) the war against want requires to be carried on with unrelenting vigour within each nation, and by continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare. The leading role of the ILO in setting international labour standards was further reaffirmed by its becoming, in 1946, the first specialized agency of the then newly formed United Nations. By the principles on which it rests and its standard setting through Conventions, Recommendations and Declarations3 the ILO has influenced, and continues in many ways to influence labour standards set by other international bodies. Among them is the Council of Europe and its European Social Charter. That is the subject of this paper, that is to say the interaction and the links between the ILO, ILO standards and the European Social Charter. I. 1 Part XIII of the Peace Treaty, Articles 387–427; the latter stating the General Principles on which the organization was based. 2 See Evju, Working Paper, at www.labourlawresearch.net/Portals/0/06%20Labour%20-%20C ommodity%20Reppraisal.pdf, differing from O’Higgins, 16 Industrial Law Journal (1997), 225, on the history of the maxim. 3 In particular the ILO Declaration on Fundamental Principles and Rights at Work, 1998, and the ILO Declaration on Social Justice for a Fair Globalization, 2008. Drafting the European Social Charter of 1961 Starting points The European Social Charter (ESC) is the sole international legal instrument at European level which guarantees a comparatively wide and comprehensive set of social and economic rights. A comprehensive preparatory process within the Council of Europe and in collaboration with the ILO resulted in the Charter being signed by 13 Member States on October 18, 1961 (CETS 35). It entered into force on February 26, 1965. Later, further instruments have been added to it; I shall return to this later. From the outset, the idea spurring the process behind the Charter was to develop and define social policy objectives to be aimed at by Member States and guide the policy of the Council of Europe in the social field.4 Such an instrument was intended as a complement to the European Convention on Human Rights and Fundamental Freedoms, 1950 (ECHR; CETS 5). The legal nature of a Social Charter was however a matter of uncertainty and debate until rather late in the drafting process. Moreover, it was an intention as a starting point to avoid unnecessary duplication of the work of other international organizations and also to work in close cooperation with, in particular, the ILO. Representatives of the ILO participated at various stages in the drafting process within the Council of Europe and, under a 1951 cooperation agreement convened a tripartite conference in 1958 considering relations between the draft ESC and ILO instruments and reaching agreements on a number of issues. Some were however not resolved and were the subject of subsequent efforts within the Council of Europe up until the adoption of the European Social Charter in 1961. II. 1. 4 The initiatives were taken from 1951 to 1954 by the Consultative Assembly and the Committee of Ministers in collaboration and the subsequent drafting process was entrusted primarily to the Social Committees of either body. The drafting process for the most part is documented in detail in the Collected “Travaux Préparatoires” (Provisional edition) Volumes I to V (1955). My presentation relies heavily on this source material; however, I refrain from specific references so as not to unduly burden what is essentially a condensed overview with a mass of details. For more extensive discussions of the genesis of the ESC see, e.g., Harris/Darcy, The European Social Charter, 2nd ed. (2001); Novitz, International and European Protection of the Right to Strike (2003), 136-147; and [unnamed], ‘The European Social Charter and International Labour Standards’, 84 International Labour Review (1961), 354 ff, 462 ff. The ESC and the ILO – interlinks past and present 147 Models and content In keeping with this point of departure a number of international human rights and labour standards instruments were considered at the outset as possible models, including, in particular, the Universal Declaration of Human Rights, the ECHR, the draft UN Covenant on Economic, Social and Cultural Rights, and ILO Conventions. On this basis the first drafts of a European Charter spanned a broad range of topics, to some extent beyond those models, including rights for workers to share in management, later toned down to information and consultation rights, promoting workers’ rights to ownership of real and personal property, the right to strike,5 and rights relating to the cultural development of the human personality. At various stages during the subsequent process ESC drafts were collated with such model instruments as referred to above. The focus gradually shifted towards ILO Conventions and Recommendations, which came to dominate in the final phases, including the 1958 tripartite conference. Some of the more ambitious proposals of early drafts were abridged or abandoned. Nonetheless, the principled approach on the side of the Council of Europe was that the standards laid down in an ESC should at least be equivalent to the standards contained in ILO Conventions on corresponding issues. A Part I of the adopted Charter contains aims and principles to be pursued by States, which are spelled out in provisions of a legally binding nature in Part II. In Part II the final scope of the ESC moreover presents differing features, not merely in detail and specificity of its various provisions but also thematically. From the point of view of labour law it is of the essence that the ESC is the first binding international convention to explicitly protect the right to collective action, including the right to strike (Article 6(4) ESC).6 However, the Charter’s scope in substance extends well beyond labour law. In very broad terms, the substantive provisions of the 1961 Charter can be divided into two main groups – employment and social cohesion. Articles 1–10 of the Charter fall under the first heading; the second heading would include Articles 11–19. A finer division of the rights protected gives three main categories. First, rights that, broadly speaking, pertain to work and employment protection. These rights pertain to four areas: • the right to work, including the pursuance of full employment policies by States (Article 1) and the right to vocational guidance and vocational training (Articles 9 and 10); 2. 5 On this see Evju, European Labour Law Journal 2011, 196; Evju, ArbuR 2012, 276. 6 Rather than relying on the emerging ILO case law in this field, this provision was based primarily on the corresponding provision in the Inter-American Charter of Social Guarantees of 1948 (the Bogotá Charter); see Evju (fn. 5), 198–199, resp. 277. 148 Stein Evju • protection in employment and in the work environment, and of the employment relationship: the right to just conditions of work and to safe and healthy working conditions (Articles 2 and 3); the right to a fair remuneration, including the right of women and men to equal pay for work of equal value (Article 4); and protection relating to termination of employment (Article 4 para. 4, on notice periods); and the safeguarding of remuneration (Article 4 para. 5). • the right to organize and to bargain collectively (Articles 5 and 6); and • special protection for certain categories of workers (‘vulnerable groups’), i.e., children and young persons (Article 7), women (Article 8), persons with disabilities (Article 15) and migrant workers (Article 19, and also Article 18). Second, provisions concerned with social protection for the whole of the population, i.e., regardless of their link to the labour market. They include the right to protection of health, to social security, social and medical assistance, and the right to benefit from social welfare services (Articles 11–14). Third, special protection for certain categories (vulnerable groups) outside of the context of work. This includes rights of children and young persons (Article 17) and of disabled persons (Article 15), protection of the family (Article 16), and again migrant workers (Articles 18 and 19). When grouping Charter provisions like this, it is essential at the same time to emphasize the interrelationship between the groups and the various provisions. And referring back to the expressions ‘employment’ and ‘social cohesion’, the ESC in general terms can be seen to enounce a dual set of key principles which interlink their different provisions. The first being that every person should have the opportunity to work and, by their work, be able to earn an income sufficient to give the worker and his/her family a decent standard of living. Second, that social insurance and assistance schemes should be set up, on a solidary basis, to support those who are not able to earn such income and provide guarantees for all persons against falling into poverty and social exclusion. Legal nature and requirements for ratification The first initiatives with regard to elaborating a European Social Charter pointed in the direction of a declaration of aims and principles rather than a legally binding international convention. The drafting process was ridden with uncertainty on this quintessential issue for quite some time and differing opinions among Member States prevailed. It was not until at the end of 1957 and early 1958, shortly before the tripartite conference, that agreement in principle on a binding convention was arrived at. Agreement was then reached on the principle that a State which would wish to ratify the Charter must undertake to consider its Part I as a declaration of 3. The ESC and the ILO – interlinks past and present 149 aims to be pursued and to accept as binding a certain number of the provisions contained in Part II. The underlying rationale for this solution was that all provisions of Part II could not be accepted by all Member States; therefore, the requirement to accept a minimum number as binding was adopted with a view to securing the ratification of the Charter by as many States as possible. A minimum number of articles or provisions to be accepted was quickly settled on. There was no agreement, however, on whether the Charter should provide for a certain number of provisions that should be binding on all Parties to the ESC as a compulsory minimum. The issue remained contentious into the tripartite conference. During the conference proceedings the ILO pointed out that a number of ILO Conventions allowed States to ratify some, but not all parts of a Convention but all provide that ratifying States are bound by a minimum number of parts, including a certain number of compulsory parts. At the end of the conference it was almost unanimously agreed to apply a similar principle to the ESC, laying down a ‘nucleus’ of compulsory provisions. Which provisions, and how many that should form this nucleus – frequently referred to as the ‘hard core ‘ – was not decided, however. This issue was not settled until the end of 1960 by the Council of Europe’s Committee of Ministers, adopting a proposal from September of that year by its Social Committee. The ‘nucleus’ thus adopted consists of seven Articles of Part II of the Charter, of which a minimum of five must be accepted. Article 20 ESC requires a Contracting Party to undertake, i.a.: b) to consider itself bound by at least five of the following articles of Part II of this Charter: Articles 1, 5, 6, 12, 13, 16 and 19; and c) in addition to the articles selected by it in accordance with the preceding subparagraph, to consider itself bound by such a number of articles or numbered paragraphs of Part II of the Charter as it may select, provided that the total number of articles or numbered paragraphs by which it is bound is not less than 10 articles or 45 numbered paragraphs. Implementation and supervision During the drafting process considerable attention was devoted to the matter of how to frame machinery and procedures for the supervision of States’ compliance with their undertakings. It was rejected at an early stage to employ a judicial procedure in any way similar to that under the ECHR. Subsequent proposals ranged from establishing a large scale, tripartite European Economic and Social Council to involving the European Commission of Human Rights or to vest supervisory tasks with the ILO’s Committee of Experts on the Applications of Conventions and Recommendations. The various alternatives that were tabled offer a vast amount 4. 150 Stein Evju of detail. Suffice it here to say, first, that whichever the alternative, throughout the process the need to ensure links and collaboration with the ILO was emphasized. Second, the structure of the supervisory mechanism that was finally adopted was to a large extent modeled on that of the ILO. National reports by Contracting Parties, at intervals and on provisions decided on by the Committee of Ministers,7 are examined by the Committee of Independent Experts – now entitled the European Committee of Social Rights (ECSR). It should be noted that within the supervisory machinery of the Charter the ECSR has exclusive legal authority, both in assessing national reports and investigating collective complaints (see in III, below). ECSR members are neither representatives of the contracting parties nor national representatives of the States that have nominated them for election; members sit in their individual capacity and are independent experts. The Committee’s findings are communicated to a body of government representatives of the Contracting Parties – now aptly called the Governmental Committee – which in turn makes recommendations on the basis of policy considerations for possible decisions on Resolutions or Recommendations by the Committee of Ministers. Moreover, further similarities between supervisory measures as well as interlinks at the operative level obtain, which I shall touch upon in the subsequent sections, III and IV. Subsequent developments The original European Social Charter of 1961 has been expanded on and added to by a series of instruments. Resulting from an initiative taken in 1978 to add to the protection of social and economic rights, an Additional Protocol to the ESC was adopted on May 5, 1988 (CETS 128), adding four rights to those in the 1961 Charter. By the end of the 1980s several factors converged to foster further and more significant change, leading to a decision in 1990 to ‘revitalize’ the Charter. The first result of this process was the adoption of a Protocol amending the ESC, of October 21, 1991 (CETS 142). This Protocol deals exclusively with the Charter supervisory system. Notably, it clarifies the respective functions of the ECSR and the Governmental Committee. Further, provisions were added, i.a., with a view to reinforce the ECSR and its interaction with States in the supervisory procedure and reinforce the role of social partners and NGOs in the process of supervision. III. 7 Following a decision by the Committee of Ministers in 2006, under the current reporting system the provisions of both the 1961 Charter and the Revised Charter have been divided into four thematic groups. States present a report on the provisions relating to one of the four thematic groups on an annual basis. Consequently each provision of the Charter is reported on once every four years. The ESC and the ILO – interlinks past and present 151 The second outcome of the ‘revitalization’ process was the adoption of an Additional Protocol Providing for a System of Collective Complaints, of November 9, 1995 (CETS 158). One of its main purposes, extending on the 1991 Amending Protocol, was again to increase the role of social partners and NGOs in the supervisory process. Complaints may be brought by certain categories of international or national trade unions or employers’ organizations or NGOs. Complaints may be brought against States having ratified the 1995 Protocol and in respect of any obligations accepted by the State under the 1961 Charter, the 1988 Additional Protocol, or the Revised Charter. This machinery was quite closely modeled on the complaints system pertaining to the ILO Committee on Freedom of Association. There is a highly significant difference, however. Whereas the ILO complaints procedure is limited to matters of freedom of association the Collective Complaints machinery pertaining to the ESC covers all substantive provisions of the Charter. The final result of the process was the adoption of the Revised European Social Charter (RevESC) (CETS 163), of May 3, 1996, which was basically intended to update and adapt the substantive content of the old Charter and supplement its provisions in light of social changes and developments since the adoption of the original text. The Revised Charter amends and adds to the original 19 rights of the 1961 Charter, incorporates the four rights in the 1988 Additional Protocol, and then adds eight new rights, thus bringing the total number of rights guaranteed to 31.8 The amended and new provisions draw on a number of models, i.a., ILO and EU instruments. The ESC and the ILO, concluding observations The emphasis on interaction and cooperation with the ILO in the sphere of the European Social Charter extends beyond the principled level of social and labour standards and similarities of supervisory machineries. With a view to maintaining cooperation and close contacts, pursuant to Article 26 ESC/Article C RevESC a representative of the ILO may participate in a consultative capacity in the deliberations of the ECSR. The Form for Reports, the Charter guideline for national reports, at the outset made reference under each provision to ILO instruments pertaining to the same subject. This has since been expanded on, so that the current forms, adopted in 2008, include references to a broader specter of relevant international instruments. The strong link with ILO standards remains nonetheless. ILO representatives normally attend ECSR sittings whenever issues of general princi- IV. 8 Pursuant to Article A of the Charter the minimum requirement for ratification is accepting 16 out of the 31 full Articles or 63 out of the 98 numbered paragraphs; in addition, at least 6 out of 9 ‘hard core’ articles (now Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20) must be accepted. 152 Stein Evju ples are involved and close contacts are maintained between the Secretariat of the ECSR and the International Labour Office, which is one of the main international bodies the Secretariat may consult for information to assist in the course of preparation of drafts for deliberation in the ECSR. History attests, moreover, to information provided independently by the ILO triggering new examinations on old topics by the ECSR.9 In all, the interaction between the two is still a vivid feature. 9 For a specific example, pertaining to Norway, see Evju (fn 5), 222. The ESC and the ILO – interlinks past and present 153 How international standards can guarantee the right to collective bargaining Csilla Kollonay-Lehoczky Introduction This paper is to deal with the freedom of collective bargaining under the ILO and Council of Europe standards in the light of the new provisions of the 2012 Hungarian Labour Code. One of the most important declared goals of this new legislative product was to increase the role of the contractual freedom of the parties in setting the terms and conditions of employment. The preparatory political documents emphasized the importance of the increase of the “individual and collective autonomy”. While this phrase is in itself misleading, since individual and collective autonomy are opposites in labour law, and not a friendly couple or two elements of the same term, the main problem is that the law has clearly failed to fulfil its promise regarding the increase of collective autonomy in the regulation of employment. Instead, it significantly limits the freedom and potential reach of collective agreements and trade union autonomy. Upon the fast adoption of the new Labour Code trade unions tried to find support at international level against several new provisions at least suspect of violating international standards. The purpose of this note is to check how international institutions might be expected to protect allegedly violated economic human rights. The paper first gives a brief overview of the concept of representativity and its special significance for the post-communist countries. Then it examines how the most important criteria of promoting collective bargaining, under the representativity requirement are assessed under ILO Convention 98 and Article 6 of the European Social Charter. Do international regulations really help? ILO and the European Social Charter The economic crisis has speeded up the tendency that in the last three decades has already been infiltrating slowly, gradually into the world of labour and also in the area of social and economic human rights protection. The pressure to cut back, circumvent or simply abolish the achievements of one hundred years’ development; undisputedly the effect of the globalization putting on the table the clear demand I. 1.

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Zusammenfassung

Die wachsende Bedeutung des internationalen Arbeitsrechts schlägt sich in vielen Bereichen nieder: Tarifautonomie und Streikrecht werden durch die Rechtsprechung des EGMR mitbestimmt, die ILO-Übereinkommen stellen einen Mindeststandard dar, der auch in einer Wirtschaftskrise nicht unterschritten werden darf. Nicht jeder nationale Gesetzgeber und nicht jedes Gericht hat dies aber bisher erkannt. Von daher ergeben sich viele Kontroversen, in Deutschland u. a. bei der Kündigung kirchlicher Mitarbeiter und bei der überlangen Dauer gerichtlicher Verfahren deutlich werden.

Die insgesamt 35 Autoren sind in der Wissenschaft, aber auch in internationalen Organisationen, in Ministerien und als Richter tätig. Der Band verbindet Theorie und Praxis; als Leser bekommt man nicht nur Stoff zum Nachdenken, sondern nicht selten auch ganz konkrete Handlungsanleitungen. Bislang gibt es kein vergleichbares Buch in der rechtswissenschaftlichen Literatur.