3. Rights Protected under the ILO system
There are 190 ILO Conventions covering a broad range of subjects concerning work, employment, social security, social policy and related Human Rights. The Conventions are legally binding on the states that ratify them.
ILO procedures are mainly used by employers’ and workers’ organisations. individuals themselves cannot initiate proceedings with the ILO. The only way they can file a complaint is by doing so via an employer or workers’ organisation.
Complaints regarding violations of ILO conventions are made in the form of complaints against the relevant Member State’s government, for failure to adequately enforce the convention. This is the case even if the actual author of the violation is a private company or an individual employer. Complaints can be brought either in national courts or via the ILO supervisory mechanisms discussed in this guide.
The fundamental conventions
The ILO’s Governing Body has identified eight conventions as “fundamental”, covering subjects that are considered as fundamental principles and rights at work:
- Freedom of association and the effective recognition of the right to collective bargaining
- The elimination of all forms of forced or compulsory labour
- The effective abolition of child labour
- The elimination of discrimination in respect to employment and occupation
These same principles are also covered in the ILO’s Declaration on Fundamental Principles and Rights at Work (1998). Furthermore, the ILO launched a campaign in 1995 to achieve universal ratification of the eight fundamental conventions. There are nearly 1,400 ratifications of these conventions, representing 92% of the total possible number of ratifications. 1
Workers’ rights protected in the core ILO conventions frequently impacted by corporate-related Human Rights abuses
|Fundamental principles and rights at work||Core ILO conventions||Rights protected|
|Freedom of association and collective bargaining||Freedom of Association and Protection of the Right to Organize Convention, 1948 (n°87)||
- Right for workers and employers to establish and join organisations of their own choosing without previous authorization
- Right to organize freely and not liable to be dissolved or suspended by administrative authority
- Right to establish and join federation and confederation
|Right to Organize and Collective bargaining Convention, 1949 (n°98)||
- Right to adequate protection against acts of anti-union discrimination
- Right to adequate protection against any acts of interference by each other, in particular the establishment of workers’ organisations under the domination of employers or employers’ organisations
- Right to collective bargaining
|Elimination of forced labour and compulsory labour||Forced Labour Convention, 1930 (n°29)||
- Prohibition of all forms of forced or compulsory labour defined as all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily
- Protocol to the Forced Labour Convention, 2014
|Abolition of Forced Labour Convention, 1957 (n°105)||- Prohibition of forced or compulsory labour as a means of political coercion or education|
|Abolition of child labour||Minimum Age Convention, 1973 (n°138)||
- Minimum age for admission to employment or work at 15 years
- Minimum age for hazardous work at 18
|Worst Forms of Child Labour Convention, 1999 (n°182)||- Elimination of the worst forms of child labour, including all forms of slavery or practices similar to slavery|
|Elimination of discrimination in respect of employment and occupation||Equal Remuneration Convention, 1951 (n°100)||- Right to equal remuneration for men and women workers for work of equal value|
|Discrimination (Employment and Occupation) Convention, 1958 (n°111)||
- Equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in these fields
- Elimination of discrimination in relation to access to vocational training, access to employment and to particular occupations, and terms and conditions of employment
Other ILO conventions
Beyond the fundamental conventions, the ILO has developed additional conventions that define general labour rights (such as labour inspection, employment policy, employment promotion, employment security, wages, working time, occupational safety, social security, maternity protection, and migrant workers) as well as some conventions that are sector-specific such as those relating to seafarers, fishers, dock workers and other specific categories of workers. 2
Indigenous and Tribal Peoples Convention (n°169)
In addition to the eight fundamental conventions, the Indigenous and Tribal Peoples Convention also warrants special mention in the context of corporate related Human Rights abuses. The Indigenous and Tribal Peoples Convention, 1989 (No. 169), which revised the earlier Indigenous and Tribal Populations Convention, 1957 (No. 107), “provides for consultation and participation of indigenous and tribal peoples with regard to policies and programs that may affect them. It provides for enjoyment of fundamental rights and establishes general policies regarding indigenous and tribal peoples’ customs and traditions, land rights, the use of natural resources found on traditional lands, employment, vocational training, handicrafts and rural industries, social security and health, education and cross-border contacts and communication”. 3
No article 26 complaints (see section on Article 26 below) have been filed with the ILO under Conventions Nos. 107 or 169. 4 However, the Convention has been the subject of several representations. 5
Using ILO conventions in national courts: the case of Arco Oriente Inc.
Convention No. 169 has influenced national legislation and policies and has been used in national litigation to protect indigenous peoples’ rights. For example, in 1998 the oil company Arco Oriente Inc. signed a hydrocarbon development agreement with the government of Ecuador. Much of the land belonging to the Federación Independiente del Pueblo Shuar del Ecuador (FIPSE), an indigenous group, was based in the project area. FIPSE had met as a group and had agreed to prohibit individual negotiations or agreements with the company. Both the government and the company were notified of this agreement. However, Arco signed an agreement with several persons obtaining authorization to perform an environmental impact survey. FIPSE filed an amparo action demanding its right of inviolability of domicile, political organisation and internal forms of exerting authority. 6 The Constitutional Court found that Arco’s behavior was incompatible with ILO Convention No. 169 and with the Constitution, as both protect the rights of indigenous peoples. These include the right to be part of the consultation and the participation in the projects throughout the whole process of a project when the plans potentially affect them directly, the right to protect and exercise their individual customs and institutions, to keep their cultural identity, as well as the rights to property and possession of ancestral land. The Court ordered the company to refrain from approaching or seeking dialogue with individuals, FIPSE Centers, or Associations without prior authorization from FIPSE’s Meeting of Members. 7
Violence and harassment Convention (No. 190)
On 21 June 2019, the State members of the ILO adopted the Convention on violence and harassment (No. 190). It recognizes that violence and harassment in the world of work “can constitute a violation of human rights” since it is a threat to equal opportunities and is incompatible with the right to decent work. In its preamble, ILO highlights that violence and harassment are incompatible with the promotion of sustainable enterprises and that it impacts negatively on the organisation of work. Hence, “all actors in the world of work” must refrain from it and prevent it. 8 States must promote a “general environment of zero tolerance” and provide access to remedies for victims and protect whistle-blowers. 9
As of March 2021, five states have ratified this Convention (Uruguay, Argentina, Fiji, Namibia and Somalia), which is expected to enter into force on 25 June 2021.
The MNE Declaration
In addition to the conventions, the ILO has also formulated the Tripartite Declaration of Principles concerning Multinational enterprises and Social Policy (the MNe Declaration), a joint declaration that was prepared by a tripartite group representing governments, employers and workers. The Declaration was approved by the Governing Body of the ILO, and is intended to give MNes, governments and employers’ and workers’ organisations basic guidance in the domain of employment, training, working conditions and life, and industrial relations. It refers to many ILO conventions and recommendations 10 . The Declaration sets out principles that governments, employers’ and workers’ organisations and multinational enterprises are recommended to observe on a voluntary basis. 11
Although an interpretation procedure was set up to clarify the content of the Declaration in cases of disagreement between parties, it has been dormant for many years. This is partly due to the fact that this mechanism cannot be used simultaneously with other mechanisms. Many potential applications overlap with other complaints mechanisms and hence this recourse has become virtually obsolete. 12 Furthermore its main purpose is to provide social policy guideline. This means that it is not very useful as a direct recourse strategy for victims of violations of Human Rights by TNCs. As such, the MNe interpretation procedure will not be further discussed in this guide. The ILO’s MNE Declaration reflects an agreed understanding that, whilst ILO Conventions and recommendations address the responsibilities of governments and are intended for application by governments, many of their underlying principles can also be applied by business enterprises. This is arguably one of the Declarations’ most important contributions to the corporate responsibility debate. Over the years, the MNe Declaration has provided an unambiguous refutation of the argument sometimes made by business that, as ILO Conventions and Recommendations address governments, they are not for application to business activities.
In March 2017, the MNe Declaration was substantially revised to take into account developments within and outside the ILO, including new labour standards adopted by the International Labour Conference, the Guiding Principles on Business and Human Rights endorsed by the Human Rights Council in 2011, and the 2030 Agenda for Sustainable Development. The revision includes new principles addressing specific decent work issues related to social security, forced labour, the transition from the informal to the formal economy and access to remedy and compensation of victims. It also encompasses new provisions on the abolition of child labour and provides guidance on due diligence processes in achieving decent work, sustainable businesses through an explicit reference to the UNGPs. 13
Protocol to Convention 29 on forced labour
The alarming numbers of men, women and children 14 trapped in forced labour led to the successful adoption of the Protocol to the Forced Labour Convention and the Forced Labour Recommendation (No. 203) in June 2014. In conjunction with the ILO Conventions on Forced Labour (No. 29), and the Abolition of Forced Labour (No. 105), they provide a comprehensive policy framework to effectively abolish forced labour. They include provisions to better protect people trapped in forced labour, improve access to justice and strengthen the role of workers’ and employers’ organisations as well as labour inspection.