Under Articles 26 to 34 of the ILO Constitution, a complaint may be filed against a Member State for not complying with a ratified convention. “Upon receipt of a complaint, the Governing Body may form a Commission of Inquiry, consisting of three independent members, which is responsible for carrying out a full investigation of the complaint, ascertaining all the facts of the case and making recommendations on measures to be taken in order to address the problems raised by the complaint”. 1 “A Commission of Inquiry is the ILO’s highest-level investigative procedure; it is generally set up when a Member State is accused of committing persistent and serious violations and has repeatedly refused to address them”. 2
So far around 35 complaints have been filed and 14 complaints lodged have led to the establishment of Commissions. 3 In some cases the complaint simply withers and in others, the cases are treated through other mechanisms, such as establishing a special representative to deal with the matter. If a Commission of Inquiry is established, it is perceived as a weighty sanction in comparison to the other mechanisms of the ILO.
Who can file a complaint? 4
Under Article 26 of the ILO Constitution, only the following entities may file a complaint:
- A Member State that has ratified the relevant convention (the complaint must allege that the state has violated a convention it has ratified)
- A delegate to the International Labour Conference: each Member State has four delegates to the International Labour Conference: two delegates representing the government, one representing workers, and one representing employers 5
Unlike the complaint’s procedure in the context of Freedom of Association, unions are not allowed to file an article 26 complaint. However, unions are permitted to send comments once the complaint has been lodged. 6 Unions can also file a request as delegates to the International Labour Conference.
Process and outcome 7
The process of the Commission of Inquiry involves extensive investigation normally carried out inside the country and includes the examination of the judiciary and Human Rights institutions of the country. Interviews are carried out with a wide range of victims. Within three months of receiving the report of the Commission of Inquiry, the government must indicate whether it accepts the recommendations. If it does not accept the recommendations, it may submit a dispute to the International Court of Justice (ICJ), whose decision becomes final. 8 So far no government has appealed the recommendations of the Commission to the ICJ, even if in some cases they have disagreed with the outcome. If the government refuses to fulfil the recommendations, the Governing Body can take action under article 33 of the ILO Constitution. In such a case, the Governing Body may recommend to the Conference “such action as it may deem wise and expedient to secure compliance” with the recommendations. 9 Article 33 has been used only once – in 2002, against Myanmar/Burma. 10 Overall establishing a Commission of Inquiry is the most complex complaints procedure within the ILO. Once a complaint is filed, strong support is needed from the three groups of the Governing Body (employers, workers and governments) in order to obtain its establishment. The establishment of a Commission of Inquiry is reserved only for serious allegations of violations of ILO conventions. 11
Commissions of Inquiry in action
Case of forced labour in Myanmar/Burma 12
In June 1996, 25 worker delegates to the International Labour Conference lodged a complaint with the ILO regarding forced labour in Myanmar. The ILO appointed a Commission of Inquiry in March 1997 with the mandate to examine Myanmar’s observance of the Forced Labour Convention. Myanmar ratified the convention in 1955. In the course of its inquiry, the Commission reviewed documents, conducted hearings in Geneva, and visited the region. In the course of the hearings and the visit, the Commission heard testimony given by representatives of several non-governmental organisations and by some 250 eye witnesses with recent experience of forced labour practices.
The Commission found: Abundant evidence of pervasive use of forced labour imposed on the civilian population by the authorities and the military in Myanmar. Forced labour had been exacted for: portering; the construction and maintenance of military camps; other work in support of the military; work on agriculture and logging and other production projects undertaken by the authorities or the military; the construction and maintenance of roads and railways; other infrastructure work and a range of other tasks. Sometimes, this forced labour had been imposed for the profit of private individuals.
Allegations of the use of forced labour in the construction of the Ye-Dawei (Tavoy) railway were raised in the complaints to the ILO. The railway was allegedly related to the construction of the Yadana gas pipeline, a project that involved the transnational corporation TOTAL. TOTAL denied the connection between the railway and the pipeline. However, because the Commission was denied access to Myanmar, it found itself “unable to make a finding as to whether TOTAL, companies working for TOTAL or the Yadana gas pipeline project were the beneficiaries of those helipads built in the region of the Yadana gas pipeline for which there is information that they were constructed with forced labour”. 13 However, the Commission held that whether or not the forced labour used for the helipads was imposed for private benefit, “the use of forced labour constitutes a breach of the obligation of the Government to suppress the use of forced or compulsory labour in all its forms”. 14
In light of its findings, the Commission made a series of recommendations to the government of Myanmar, including that they bring relevant legislation into compliance with the convention, that they cease the use of forced labour in practice, and that they enforce penalties against those who exact forced labour. 15 Even after the recommendations and findings of the Commission of Inquiry, forced labour continued to be a problem in Myanmar. In 2000, for the first time in its history, the ILO invoked Article 33 of its constitution. Under Article 33, “the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith”. Accordingly, the Governing Body made several recommendations concerning the continued monitoring of the situation. Notably, they also “recommend[ed] to the Organisation’s constituents – governments, employers and workers – that they review their relations with Myanmar (Burma), take appropriate measures to ensure that such relations do not perpetuate or extend the system of forced or compulsory labour in that country, and contribute as far as possible to the recommendations of the Commission of Inquiry”. 16
In February 2007, the ILO concluded a supplementary understanding 17 with the Government of Myanmar “designed to provide, as previously requested by the International Labour Conference and the ILO Governing Body, a mechanism to enable victims of forced labour to seek redress”. 18
Case of violation of freedom of Association in Zimbabwe
Through a statement addressed to the 97th Session of the International Labour Conference during its 16th plenary sitting held on 13 June 2008, 13 worker delegates filed a complaint under article 26 of the Constitution of the International Labour Organisation against the Government of Zimbabwe. The complaint alleged the non-observance of 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), ratified by Zimbabwe on 9 April 2003 and 27 August 1998, respectively. In particular, the complaint alleged serious violations of basic civil liberties, including the quasi-systematic arrest, detention, harassment and intimidation of trade union leaders and members for the exercise of legitimate trade union activities.
The Commission informed the Government of Zimbabwe and the complainants that it intended to perform its task with complete objectivity, impartiality and independence. It made clear that it did not consider its role to be confined to an examination of the information furnished by the parties themselves or in support of their contentions and that it would take all appropriate measures to obtain information that was as full and objective as possible on the matters at stake.
The Commission offered a number of Member States neighbouring Zimbabwe an opportunity to present information on the matters raised in the complaint. This opportunity was also offered to members and deputy members of the Governing Body, international and regional organisations with consultative status before the ILO, organisations from within the United Nations system, the SADC, and the African Union. In a communication dated 16 April 2009, the Commission received some information from the United Nations High Commissioner for Human Rights. Other organisations and Member States did not provide substantive information to the Commission.
The Commission of Inquiry concluded that a systematic, and even systemic, violation of the Conventions at issue was taking place in Zimbabwe. It referred to a clear pattern of arrests, detentions and violence, and the torture of trade union leaders and members by security forces, which coincided with Zimbabwe Congress of Trade Unions (ZCTU) nationwide events. These measures evinced some centralized direction to Zimbabwean security forces to take such action and a clear pattern of control over ZCTU trade union gatherings through the application of the Public Order and Security Act (POSA). The Commission noted the systematic targeting of ZCTU officials and members, particularly in rural areas, involving significant violence and anti-union discrimination in employment. It found that this appeared to be a calculated attempt to intimidate and threaten ZCTU members. The Commission also noted with particular concern the routine use of the police and army against strikes, widespread interference in trade union affairs and the failure to guarantee judicial independence and the rule of law, resulting in a situation of impunity for those perpetrating atrocities.
The Commission concluded with the following recommendations for the government of Zimbabwe:
- “the harmonization of the relevant legislative texts, and particularly the Labour Act, the Public Service Act and the Public Order and Security Act, with Conventions Nos 87 and 98, as requested by the ILO supervisory bodies;
- the cessation with immediate effect of all anti-union practices, as documented in its report;
- the Zimbabwe Human Rights Commission to be rendered operational as soon as possible, with adequate resources;
- the provision of training on freedom of association and collective bargaining, civil liberties and Human Rights to key personnel in the country, most notably the police, security forces and the social partners;
- the reinforcement of the rule of law and the role of the courts in Zimbabwe, by ensuring that the courts are respected, properly resourced and provided with appropriate training and support;
- the continued strengthening of social dialogue; and the continuation of ILO technical assistance in these areas.” 19
Commissions of Inquiry are considered to be the ILO’s “highest-level investigative procedure” and are rarely invoked. A government must be accused of committing continual and serious violations that it has time and again refused to address. This mechanism is therefore only valuable for victims of very serious and ongoing abuses of labour rights. Furthermore, the government must have ratified the convention under which the victim is complaining and not all worker organisations are permitted to file a complaint. Complainants must be delegates to the International Labour Conference. Furthermore for a Commission to be established the tripartite Governing Body (employers, workers and government representatives) has to agree and consent to it.
Hence, it is difficult to generate the necessary consensus for establishing a Commission of Inquiry, due to the fact that political support is needed. Plaintiffs who are trying to obtain a result may be advised to use the other tools at their disposal before considering applying for a Commission of Inquiry. 20 For example, it is easier to file a complaint before the Committee on Freedom of Association (if the case relates to freedom of association issues) or make a representation. However, because Commissions of Inquiry are only formed in very serious cases, in a case where victims do believe that the government has committed persistent and serious violations and has refused to address them, the mere formation of a Commission will send a strong message.
The ILO supervisory mechanisms have produced many positive achievements, but like many other instruments, it remains difficult to ensure implementation of these international observations and recommendations at the national level. In overcoming this challenge, national unions and workers’ organisations have a crucial role to play in disseminating these recommendations into the national arena, and using them to support their claims.