REPRESENTATION (article 24) - ITALY - C088 - 1972

1. General Confederation of Italian Agriculture

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Report of the Committee to consider the representation submitted by the General Confederation of Italian Agriculture concerning the Application of the Employment Service Convention, 1948 (No. 88), by Italy

Report of the Committee to consider the representation submitted by the General Confederation of Italian Agriculture concerning the Application of the Employment Service Convention, 1948 (No. 88), by Italy

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

Chapter 1
Making of the Representation, Establishment and Procedure of the Committee
Making of the Representation.
1. By a letter of 3 February 1970, the General Confederation of Italian Agriculture (hereinafter referred to as "the Confederation") made a representation under article 24 of the Constitution of the International Labour Organisation concerning the application in Italy of the Employment Service Convention, 1948 (No. 88). (Endnote_1)
2. In essence, the Confederation alleges that certain provisions of Act. No. 264 of 29 April 1949, respecting the placement of and assistance to the involuntarily unemployed are incompatible with the provisions of Article 4, paragraph 3, of the Convention, in that they provide for the appointment of a greater number of workers' representatives than of employers' representatives to the employment service committees established under the Act. In support of its representation, the Confederation also refers to two recent instruments establishing further employment service committees with a similar unequal representation of workers' and employers' representatives, i.e. Sicilian Regional Act No. 52 of 27 December 1969 relating to the employment service in the Sicilian region and Legislative Decree No. 7 of 3 February 1970, (Endnote_2) laying down rules for the placement and assessment of agricultural workers; and to a Bill approved by the Senate of the Republic on 11 December 1969 (Endnote_3) under which the local placement committees provided for in Act No. 264/1949 would receive greatly increased powers.
Relevant Provisions of the Employment Service Convention, 1948 (No. 88).
3. The Employment Service Convention, 1948 (No. 88), was ratified by Italy on 22 October 1952, and the Convention entered into force for Italy on 22 October 1953. The relevant provisions of the Convention are as follows:
Article 1
1. Each Member of the International Labour Organisation for which this Convention is in force shall maintain or ensure the maintenance of a free public employment service.
2. The essential duty of the employment service shall be to ensure, in co-operation where necessary with other public and private bodies concerned, the best possible organisation of the employment market as an integral part of the national programme for the achievement and maintenance of full employment and the development and use of productive resources.
Article 2
The employment service shall consist of a national system of employment offices under the direction of a national authority.
Article 4
1. Suitable arrangements shall be made through advisory committees for the co-operation of representatives of employers and workers in the organisation and operation of the employment service and in the development of employment service policy.
2. These arrangements shall provide for one or more national advisory committees and where necessary for regional and local committees.
3. The representatives of employers and workers on these committees shall be appointed in equal numbers after consultation with representative organisations of employers and workers, where such organisations exist.
Article 5
The general policy of the employment service in regard to referral of workers to available employment shall be developed after consultation of representatives of employers and workers through the advisory committees provided for in Article 4.
Provisions of the Constitution of the International Labour Organisation concerning Representations.
4. The following provisions of the Constitution of the International Labour Organisation regulate the procedure following representations concerning the observance of ratified Conventions:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government, to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
Standing Orders concerning the Procedure for the Discussion of Representations.
5. The procedure to be followed for the discussion of representations is set out in detail in Standing Orders adopted by the Governing Body on 8 April 1932 and amended on 5 February 1938.
Measures Taken by the Governing Body following the Making of the Representation.
6. At its 180th Session (Geneva, May-June 1970) the Governing Body, on the recommendation of its officers, set up a Committee, in accordance with article 2, paragraph 3, of the Standing Orders, composed of Mr. Parodi (Government member, France), Mr. Vitaic Jakasa (Employers' member, Argentina) and Mr. Fogam (Workers' member, Cameroon).
7. In order to avoid having itself to examine the various purely procedural questions which might arise at the different stages of the examination of the representation, the Governing Body decided to empower this Committee to perform all the functions entrusted by the Standing Orders of 1932 to the Governing Body as a whole until such time as it was in a position to submit to the Governing Body proposals as to the measures, if any, to be taken on the representation.
Procedure Followed by the Committee.
8. The Committee held three meetings.
9. At the first, which took place in Geneva on 26 June 1970, it decided that, under article 24 of the Constitution of the ILO and article 3 of the Standing Orders concerning the procedure for the discussion of representations, the representation was receivable as regards form.
10. The Committee thereupon made a preliminary examination of the representation, as regards substance, in accordance with article 4, paragraph 1, of the Standing Orders, and decided, by virtue of article 4, paragraph 2 (d), to communicate the representation to the Italian Government, inviting the latter to make, before 1 October 1970, such statement on the subject as it might think fit.
11. At its second meeting, held in Geneva on 17 November 1970, the Committee took note of the fact that the Government's reply had not been received. It therefore adjourned consideration of the substance of the matter until its next meeting. The government's observations in reply to the representation were received on 19 November 1970.
12. At its third meeting, held in Geneva on 25 February 1971, the Committee held a general discussion on the basis of the representation and the Government's observations in reply. As a result of this discussion, the Committee came to the conclusions set out in Chapter 6 of this report. The Committee thereafter drew up its report.
Chapter 2
The Representation and the Government's Observations in Reply
Text of the Representation.
13. The representation made by the General Confederation of Italian Agriculture in its letter of 3 February 1970 was in the following terms:
The General Confederation of Italian Agriculture, which was set up on 12 August 1944 and represents the large majority of agricultural employers, wishes to avail itself of the provisions of article 24 of the Constitution of the International Labour Organisation. It accordingly has the honour of drawing attention to the following points which relate to Act No. 264 of 29 April 1949 respecting the placement of and assistance to the involuntarily unemployed (Endnote_4) in conformity with the principles set out in international Convention No. 88. As is known, this Convention, which concerns the organisation of employment services, was ratified by Act 1089 dated 30 July 1952 and published in No. 195 of the Official Gazette on 23 August 1952.
For the sake of clarity, it must first be pointed out that the General Confederation of Italian Agriculture, which has not received legal recognition inasmuch as it does not qualify as an occupational association within the meaning of the law, has nevertheless been recognised by the Government and other public bodies as the most representative organisation of agricultural employers and as that which defends their material and moral interests. Its members accordingly sit on commissions, committees, councils, etc., which discuss problems of general national interest, e.g. inter-occupational problems and sectoral problems.
Representatives appointed by the Confederation sit on all commissions concerned at all levels with placement matters and on commissions dealing with social security contributions, committees entrusted with economic programming, committees concerned with particular aspects of placement, the councils which administer bodies such as the National Invalidity and Old-Age Insurance Institute, the National Sickness Insurance Institute and the National Industrial Accidents Institute; they are also members of parliamentary and governmental consultative councils and other bodies such as the National Council of Economic and Labour Affairs, etc.
The General Confederation of Italian Agriculture finds it necessary, in the interest of its affiliates, to draw the attention of the International Labour Office to the flagrant contradiction in the matter of representation as between the international Convention and the Italian law which should be in conformity with it.
Article 4.3 of Convention No. 88 provides that the representatives of employers and workers on committees entrusted with placement shall be appointed in equal numbers. It will perhaps be recalled that when the text was discussed at San Francisco an amendment submitted by the Workers' group whose purpose was to provide in Article 4.3 that the number of workers' representatives should be "at least equal to the number of representatives of the employers" was rejected. Thus, the principle of equality was even then considered to be in conformity with the general interest and, in particular, that of the workers themselves.
The Italian law, however, provides for a representation of eight workers and four employers in the national commission, seven workers and four employers in the provincial commissions, and seven workers and three employers in the municipal commissions. It is thus obvious that the balance which alone a system of equal representation on both sides can ensure is not achieved at the decision-making level and that the resulting situation of supremacy adversely affects the interests of employers.
The latter complained of this anomaly at the 39th Session of the International Labour Conference. The Italian Government representative argued that Italian legislation had not disregarded the principle of equality laid down by the Convention but had applied it more widely from the social point of view by attaching greater weight to the protection of workers; it invoked article 19, paragraph 8, of the ELO Constitution in support of that argument. In rebuttal, the Italian Employers' representative stated that:
(a) the operation of the placement service could not be judged by the extent to which it served the workers' or employers' interests but by its contribution to labour and production through the raising of the level of employment and the adjustment of the employment pattern to technical requirements;
(b) the statement that a difference in the number of representatives of the two parties was more "social" in character was prejudicial to the principle of equality and equity;
(c) the statement that equality was secured by including other types of representatives (craftsmen, peasants, directors of undertakings, etc.) might be true in theory but was not so in practice because these categories were not similar to employers and workers and their positions with regard to placement were not the same.
The Committee of Experts, after noting that the principle of equal representation had not been embodied in the relevant legislation, expressed the hope, at the end of its discussion on the matter, that "it will be possible to make these arrangements on a mutually agreed basis and in conformity with the terms of the Convention". However, no agreement the initiative for which was to have come from the Government was reached, and the Government, which maintained the status quo, set out in a memorandum submitted at the 40th Session of the Conference and in a statement made by one of its representatives, the reasons advanced a year earlier, in 1956, in defence of its attitude.
At the 42nd Session of the International Labour Conference the Convention was again. discussed. In view of the contradiction between the international instrument and national legislation as regards equal representation, the Committee of Experts, while maintaining its view that there was lack of conformity between the legislation and the Convention reiterated-more formal terms the wish expressed at the previous session, i.e. that it was necessary 'to make "arrangements on a mutually agreed basis and in conformity with the terms of the Convention".
In a further report submitted at the 1958 Session the Committee stressed the need for direct agreement between the parties concerned. The Italian Government having stated in its written explanations that "it was prepared to examine the amendments suggested by the Committee of Experts provided that they were mutually agreed to by the parties concerned", the Italian Employers' delegate stated that he accepted the experts' proposal and that he relied on the Government which was directly involved to convene the organisations concerned.
The record of the 43rd (1959) Session of the Conference contains the final reply of the Italian Government concerning the placement service. Without even attempting to arrive at the above-mentioned agreement between the organisations concerned, the Government merely states that no such agreement exists; it adds, however, that it will not lose sight of the matter and will seek a solution. At the 44th (1960) Session of the Conference the Italian Government again stated that the invitation addressed to the employers' and workers' organisations with a view to arriving at an agreement had produced no results because of the opposition of the trade unions, which had adopted the same attitude as the Workers' group at the Conference.
The reports submitted under article 22 of the ILO Constitution with respect to the application of Convention No. 88 contain all the arguments outlined above. In our view, two of these deserve special attention. The first is that contained in the report for the period 1 July 1956 to 30 June 1957, which states: "In the present circumstances it does not seem possible to achieve agreement between the workers' and employers' organisations with a view to changing the composition of the committees in question. The firm and determined opposition of the Workers precludes any agreement on the subject." The second argument, which is found in the most recent reports, is that the Italian Government intends to solve the problem, which is still under consideration, as part of the reform of the present legislation concerning placement.
With respect to the first argument, it should be pointed out that, since it has been impossible to ensure agreement between the employers' and workers' organisations, the Government should have taken steps to amend Act No. 264. As regards the second argument, it should be emphasised that the reforms now in progress do not improve the position but make it even worse.
It seems appropriate to quote here the statements made in a letter (No. N/67/9345 of 15 September 1969) concerning municipal placement committees sent to us by the Ministry of Labour and Social Security.
Lastly, as regards the contradiction between section 26 of Act No. 264 and the principle of equal representation laid down by ILO Convention No. 88, it should be pointed out that this is due to the more favourable conditions granted to workers by the Italian Government, which cannot be withdrawn as a result of the ratification of an international Convention. This is in conformity with the principles laid down in article 19, paragraph 8, of the ILO Constitution, whereunder the ratification of any Convention by any Member can in no case entail a derogation from any internal standard which ensures more favourable conditions to the workers than those provided for in the Convention.
Nevertheless, it is felt that the problem of an amendment to the legislation laying down such standards could be solved within the wider framework of the general reform relating to placement to which the competent departments of this Ministry have been giving careful consideration for some time.
On the basis of the Italian Government's communications to the Conference and its correspondence with the Confederation, it might have been expected that the Government would attempt to remedy the unfair situation created by Act No. 264 of 1949. However, events between the end of 1969 and the beginning of 1970 have cast serious doubts on these declarations of good intent and led us to believe that far from amending the present situation the Government will make it worse from the point of view of the employers' interests and will deceive their hopes. This view in based on the following facts:
(i) Under Act No. 52 of 27 December 1969, promulgated in the Sicilian region, the communal placement committees (section 6) are composed as follows: five workers' representatives and three employers' representatives, including one peasant farmers' representative. Section 6 also provides for the establishment of committees in the boroughs and districts of the communes; these committees are composed of five workers' representatives and three employers' representatives. Section 13 of the Act provides for the establishment of regional committees composed of seven workers' representatives and four employers' representatives, including one peasant farmers' representative. The text of this regional Act shows clearly the legislator's intention of depriving the government departments, and more specifically the placement services of the regional labour departments, of all the powers and functions conferred on them by the previous national legislation. Under Act No. 52/69, responsibility for placement is entrusted exclusively or almost exclusively to municipal committees. The concept of placement as a public service embodied in section 7 of Act No. 264 of 1949 is thus nullified by the regional Act.
(ii) A Bill approved by the Senate at its meeting of 11 December 1969 and submitted to the Chamber of Deputies (Endnote_5) relates to "standards for safeguarding the freedom and dignity of workers, freedom of association and trade union activities at the workplace, and placement standards". The Bill states in substance that the communal placement committees shall be composed as provided for in Act No. 264 of 1949 (i.e. seven workers' representatives and three employers' representatives) but it entrusts to these committees tasks which nullify the concept of placement as a public service and transfers administrative responsibility in this field from the public administration to the above-mentioned communal committees.
(iii) Legislative Decree No. 7 of 3 February 1970 (Endnote_6), published in the Official Journal of the Republic (No. 29) on 3 February 1970, introduces new regulations for placement in agriculture. The Decree provides for
(a) regional committees (section 2) composed of 11 workers' representatives, 4 employers' representatives and 1 representative of peasant farmers;
(b) provincial committees (section 4) composed of 10 workers' representatives, 4 employers' representatives and 1 representative of peasant farmers;
(c) local committees (section 6) composed of 5 workers' representatives, 2 employers' representatives and 1 representative of peasant farmers. The functions of these committees are no longer advisory but of a decision-making nature, and they too vitiate the essential concept of placement as a public service a concept whereby the legislator had intended to ensure equal regard for the interests of the social partners in the higher interest of labour and production.
The facts mentioned in (i), (ii) and (iii) above are in contradiction with what should be the true and firm intention of the Italian Government, namely to bring the country's legislation into line with international standards relating to equal representation. In consequence, the Confederation, taking advantage of the prerogative conferred on it by article 24 of the ILO Constitution, appeals against the Government's action and formally invites the International Labour Office again to place this question before the Governing Body at its forthcoming session.
It should be stressed that, sixty days after the date of publication (3 February) of the Legislative Decree mentioned in (iii) above, the Decree will be brought into effect by Act of Parliament. We therefore suggest that action be taken in time, before the Decree can b enforced and it consequently becomes more difficult to re-establish the right embodied in international principles, so that the Italian Government, which has accepted those international standards through an act of ratification approved by Parliament, is obliged to observe them.
The Confederation of Agriculture will be glad to provide the International Labour Office with any additional information that it may require. The Confederation hopes that the ILO will take steps to induce the Italian Government to respect a principle which is not only a standard of national and international conduct but also a matter of common sense.
Text of the Reply
14. The observations of the Italian Government in reply to the representation were in the following terms:
In its representation to the ILO alleging that the provisions in force at the national level and in the Sicilian region respecting the placement of workers (Act No. 264 of 1949, Act No. 7 of 1970 and Act No. 52 of 1969) are not in conformity with the Employment Service Convention (No. 88), the General Confederation of Italian Agriculture (Confagricoltura) has put forward the following points:
(a) the number of employers' representatives in the various committees active in this sector is smaller than the number of workers' representatives, whereas Article 4 of Convention No. 88 provides for the making of special agreements through advisory committees for the co-operation of representatives of employers and workers in the organisation and operation of the employment service and in its development. Convention No. 88 also provides the representatives of employers and workers on these committees shall be appointed in equal numbers;
(b) this inequality of representation is an inroad upon the recognised public service concerned of the placement of manpower as a public service. The following observations should be made in this respect:
As to Point (a).
There is a clear distinction between the joint advisory committees referred to in Article 4 of Convention No. 88 and the internal organisation of the Italian employment services. Article 2 of the Convention provides that the employment service shall consist of a national system of employment offices under the direction of a national authority. In referring to the joint committees, Article 4, for its part, stresses their advisory nature and lays down as their sole function that of ensuring the co-operation of representatives of employers and workers in the organisation, operation and development of the employment service. It follows that the committees to which Convention No. 88 refers are conceived of as bodies which are external to the employment services themselves.
This being the case, it seems clear that Convention No. 88 is in no way designed to prevent special account being taken in the organisation of the employment services themselves of the economic and social interests of those who benefit from the activities of the offices in question and of the weight attached by the legal system to these interests in its general provisions.
It is for this reason that even the systems existing in certain countries where the placement of workers is entrusted to the workers' organisations themselves, either directly or indirectly for example, through the medium of "union-shop" or "closed-shop" clauses may be claimed to be in conformity with the Convention.
Such systems also constitute ways of organising the "public employment service" provided for in Article 1 of Convention No. 88; it is obvious, however, that within the framework of this public service the general interest, as regards employment problems, coincides fully with the interest of the workers, even at the executive and operational level.
Turning now to the Italian system, in our country the employment service is provided by central and regional offices of the Ministry of Labour.
The committees referred to in sections 3, 4, 5 and 6 of Act No. 7 of 1970 (Endnote_7) and in sections 1, 6 and 13 of Sicilian Regional Act No. 52 of 1969, the membership of which has formed the subject of the representation submitted to the ILO by the General Confederation of Italian Agriculture (Confagricoltura), operate within the framework of these offices and as organs of this service.
We repeat that the committees referred to form an integral part of the internal organisation of the placement offices, and have decision-making powers which are far more than merely advisory in character. They also maintain appropriate liaison with other departments of public administration and with other economic and social categories, depending upon the importance attaching in each case to the interests that they represent. For this reason, membership of these committees is not confined to representatives of employers and workers, but also includes representatives of managers of undertakings, craftsmen and cultivators.
It is apparent from what has just been said that the Italian system does not consist only in making provision for external co-operation by employers' and workers' representatives in the employment service; representation of these and all other interested categories of persons is integrated within the employment service itself. It is accordingly clear that the requirement of co-operation as laid down in Article 4 of Convention No. 88 is automatically transcended.
The Italian employment service system, as a whole, may therefore be regarded as more favourable for those who benefit from it, namely the workers, than are other systems in which the workers participate only in an advisory capacity, in compliance with the minimum requirement laid down in Convention No. 88. From this point of view, it must accordingly be recognised that, in the light of the provisions of article 19, paragraph 8, of the ILO Constitution, no criticism can be made of the Italian system.
It must be added moreover that, in the last analysis, the fact that representatives of the employers are also included in this integrated system is more favourable for the employers themselves than would be a system in which they had only a purely advisory function, even if this were through membership of a body with equal representation.
It is hardly necessary to add that within this more integrated and differently conceived framework, the obligation to establish yet other committees of employers and workers, which would be external, purely advisory and based on equal representation, can no longer be justifiably insisted on.
As to Point (b).
No one would deny that in Italy the placement of workers is a public service. Its character as such is certainly not negatived by the participation in the placement service of representatives who are not members of the public administration considered in its strictest sense. Moreover, the committees are presided over at all levels by a representative of the Ministry of Labour.
Collegiate bodies whose members include persons external to the administration itself play a role in several sectors of public administration. The persons concerned are not invariably and exclusively called upon to undertake this activity by reason of the interests they represent; there are many cases in which persons participate in such bodies in a purely individual capacity. And yet this fact, whatever the number of persons involved, certainly does not deprive the functions performed by these bodies of their character as a "public service".
With respect to the committees already referred to, provided for in the Acts of 1949, 1969 and 1970, the public service character of the functions performed by them is confirmed by the fact that their acts are administrative acts, backed by the guarantees and subject to the limitations applying to such acts. These limitations include in particular the fact that an appeal lies against these acts to the higher administrative authority, and when they become final they are subject to an appeal to the administrative or to the ordinary courts, as the case may be.
The principle that offers of, and applications for, employment may be brought together only through the public placement offices has been established in conformity with the constitutional principle according to which the Italian Republic recognises the right of all its nationals to work and helps to promote conditions conducive to the implementation of this right. It follows that the public and compulsory character of the placement of manpower could hardly be clearer, and it is impossible to see how the internal structure of the services responsible for placement could affect this finding.
CHAPTER 3
Present Structure of the Italian Employment Service
15. The legislation which is the subject of the representation consists of three Acts relating to the national employment service (Act No. 264 of 1949, Act No. 83 of 1970 replacing Legislative Decree No. 7 of 1970, which was referred to in the representation, and Act No. 300 of 1970), and one Act of the Sicilian Region relating to the Sicilian regional employment service (Act No. 52 of 1969 of the Sicilian Region). This outline of the present structure of the employment service as established by the above-mentioned legislation will deal first with the system established by the national legislation and will describe the regional system for Sicily separately.
National Employment Service.
16. In order to understand fully the structure of the. national employment service, it is necessary to refer first to Legislative Decree No. 381 of 15 April 1948 (Endnote_8), reorganizing the central and local establishment of the Ministry of Labour and Social Welfare. This decree provides that the labour and maximum employment offices (hereinafter referred to as "employment offices") shall be local bodies of the Ministry of Labour and Social Welfare. Such offices shall be established in the chief town of each province (provincial offices) and the office in the chief town of the region shall be the regional labour and maximum employment office responsible for coordinating and supervising the work of the provincial offices of the region. Separate sections of the provincial offices may be established in other localities within the province; in places where there are no such sections, local agents or temporary substitute staff may be appointed. Local offices of the employment service are thus referred to as "sections", being formally sections of the provincial offices.
17. The committees which are to co-operate with the Ministry of Labour and Social Welfare and with the employment offices at the various levels are established by Act No. 264/1949, making provision for the placement of, and assistance to, involuntarily unemployed workers (as amended by Act No. 586/1949 and Act No. 300/1970), and by Act No. 83 of 1970 (which replaces Legislative Decree No. 7 of 1970 referred to in the representation) introducing rules for the placement and classification of agricultural workers. The latter Act introduces a separate system of agricultural manpower committees, although the placement of agricultural workers remains a function of the employment offices described above. The result is that the employment offices now have two committees each attached to them, one for non-agricultural employment and the other for agricultural employment. In each case the committees at the various levels fulfill executive, and in some cases also advisory, functions. Only at the national level is there a single purely advisory committee covering all forms of employment.
18. In order to make as clear as possible the somewhat complex structure of the Italian employment service, it is proposed to describe first the single central committee and then separately the non-agricultural and agricultural committees.
Central Committee for Placement and Assistance to the Unemployed, Established in the Ministry of Labour and Social Welfare.
Composition (Act No. 264/1949, section 3):
Government representatives: 7.
Workers' representatives: 8.
Employers representatives: 4.
Others (managers of undertakings, farmers cultivating their own land and craft workers): 3.
National Social Welfare Institution: 1.
Functions (Act No. 264/1949, section 2):
Advisory in relation to
(i) the organisation and operation of the placement service generally;
(ii) appeals against decisions of provincial employment offices;
(iii) measures to assist the unemployed;
(iv) vocational training of workers and the rehabilitation and training of handicapped workers.
Non-Agricultural Placement Committees.
Local Placement Committees.
19. Under section 33 of Act No. 300/1970 placement committees must be established at the district, commune and sub-commune sections of provincial labour offices if the most representative workers' organisations so request. Previously, decisions whether to establish committees at the local level were a matter for the Minister of Labour acting on the advice of the provincial committee (section 26 of Act No. 264/1949, as amended by Act No. 586/1949).
Composition (Act No. 264/1949, section 26 as amended by Act No. 586/1949):
Government representatives: 1.
Workers' representatives: 7.
Employers' representatives: 3.
Functions (Act No. 300/1970, section 33):
Executive:
(i) establishment of priority lists for placement which lay down the order in which placement sections must refer workers registered with them to employment;
(ii) authorisation of placement of workers asked for by name;
(iii) arrangements for giving turns of work in rotation to persons registered for placement as building labourers.
Appeal (Act No. 300/1970, section 33).
Appeal lies to the director of the provincial labour office. In addition the latter may of his own motion annul may unlawful placement refusal or decision. Appeal lies from ids decisions to the Minister of Labour and Social Welfare.
Provincial Placement Committees.
20. Provincial placement committees are established at each provincial employment office under section 25 of Act No. 264/1949.
Composition (Act No. 264/1949, section 25):
1. Government representatives: 3.
2. Workers' representatives: 7.
3. Employers' representatives: 4.
4. Farmers cultivating their own land: 1.
5. Chamber of Commerce, Industry and Agriculture: 1.
Functions (Act No. 264/1949, section 25):
(i) Executive: to take decisions regarding the occupational classification and transfer of workers, questions relating to requests for individual workers by name and appeals against decisions of the placement sections, agents and temporary substitutes;
(ii) Advisory: to advise on questions relating to placement in the province.
Appeal (Act No. 264/1949, section 25).
Appeal lies to the Minister of Labour and Social Welfare, who must consult the Central Committee before deciding.
Agricultural Placement Committees.
Local Agricultural Manpower Committees.
21. Local agricultural manpower committees are established by section 6 of Act No. 83/1970 at each local employment office (Endnote_9) in whose area no fewer than 50 workers registered in the lists of agricultural workers are resident.
Composition (Act No. 83/1970, section 6):
Government representatives: 1.
Workers' representatives: 5.
Employers' representatives (including one representative of farmers cultivating their own land): 3.
Functions (Act No. 83/1970, sections 7, 8 (2), 9 (2), 12):
Executive:
(i) introduction and organisation of employment by rotation;
(ii) establishment of priority lists for placement which lay down the order in which the employment offices must refer workers registered with them to employment ;
(iii) authorisation of placement of individuals asked for by name;
(iv) compilation of lists of agricultural workers;
(v) forecasts of local agricultural manpower requirements.
Appeals (Act No. 83/1970, sections 7, 17, 22).
Appeals against inclusion or non-inclusion on the lists of agricultural employees lie to the provincial agricultural manpower committee and thence to the Minister, who must consult the Central Committee before making a decision. Appeals against other decisions lie to the director of the provincial employment office, who makes his decision following consultation of the provincial agricultural manpower committee. Appeal against a final decision lies to the local magistrate.
Provincial Agricultural Manpower Committees.
22. Provincial agricultural manpower committees are established at each provincial placement office by section 4 of Act No. 83/1970.
Composition (Act No. 83/1970, section 4):
Government representatives: 4.
Workers' representatives: 10.
Employers' representatives (including one representative of farmers cultivating their own land): 5.
Functions (Act No. 83/1970, sections 5 and 17):
Executive:
(i) to fix criteria for the registration of applicants on the placement lists at the local employment offices;
(ii) to determine areas in which placement shall be made on the basis of priority lists and to fix criteria for the establishment of such lists by the local agricultural manpower committees;
(iii) to decide on appeals from the decisions of the local agricultural manpower committees relating to inclusion or non-inclusion on the lists of agricultural workers;
Advisory:
(iv) to submit proposals to the regional agricultural committees on the specialisations in respect of which applications may be made to employ named individuals.
Regional Agricultural Manpower Committees.
23. Regional agricultural manpower committees are established at the regional employment offices by section 2 of Act No. 83/1970.
Composition (Act No. 83/1970, section 2):
Government representatives: 5.
Workers' representatives: 11.
Employers' representatives (including two representing farmers cultivating then-own land): 5.
Functions .(Act No. 83/1970, section 3):
Executive:
(i) to make forecasts of regional manpower requirements;
(ii) to issue instructions in regard to the placement and classification of agricultural workers and with a view to the balancing of the agricultural labour supply in the regions;
(iii) to prescribe the skills in respect of which applications may be made to employ named individuals;
Advisory:
(iv) to draw up proposals concerning vocational, training and geographical mobility within the region;
(v) to make proposals to the Central Committee on the matters within its competence ;
(vi) to give its views on questions raised by employment offices.
Sicilian Regional Employment Service.
24. Sicilian Regional Act No. 52 of 27 December 1969, amends and supplements, inter alia, Act No. 264 of 1949 and repeals any of its provisions which are incompatible with the Regional Act. In essence, the Regional Act retains the provincial employment offices and local sections thereof established under Legislative Decree No. 381/1948 but replaces the provincial and local committees established by Act No. 264 of 1949 by a regional network of committees capped by a regional advisory committee. It further makes the communal committees attached to the local sections of the provincial employment offices directly responsible for placement.
Communal Committees.
25. Communal committees are established in each commune of the region at the local section of the provincial employment office by section 6 of Regional Act No. 52 of 1969.
Composition (Regional Act No. 52/1969, section 6):
Workers' representatives: 5.
Employers' representatives (including one representative of farmers cultivating their own land): 3.
Functions (Regional Act No. 52/1969, sections 2, 3, 6, 8, 9):
Executive:
(i) placement of unemployed persons through the local section of the employment office;
(ii) establishment of priority lists of the order in which registered workers are to be placed;
(iii) supervision of observance of conditions of-employment and labour legislation; Advisory:
(iv) in connection with decisions by provincial placement committees on the occupational classification of workers and applications to employ specific persons;
(v) in connection with employment expansion programmes and vocational training.
Appeal (Regional Act No. 52/1969,. sections 3 (last paragraph) and 5).
Appeal lies to the provincial committee against decisions relating to the inclusion of workers' names in the placement lists, the order of priority and placement. A further appeal lies to the Regional Commissioner for Labour and Co-operation, who must consult the regional placement committee before reaching a decision.
Placement Committees for Agricultural Workers.
26. Placement committees for agricultural workers may be established in specific parts of communes or in villages on the proposal of the provincial employment office (Regional Act No. 52/1969, section 6, second paragraph (Endnote_10)).
Composition (Act No. 52/1969, section 6, fifth paragraph):
Agricultural workers' representatives: 5.
Agricultural employers' representatives (including one representative of farmers cultivating their own land): 3.
Functions: The same as those of communal placement committees.
Appeal: As in the case of communal placement committees.
Provincial Committees.
27. Provincial committees, as provided for on a national basis by section 25 of Act No. 264/1949, are appointed in the Sicilian region by the Regional Commissioner for Labour and Co-operation by virtue of Regional Act No. 2 of 23 January 1957, section 5.
Composition (Act No. 264/1949, section 25):
Government representatives: 3.
Workers' representatives: 7.
Employers' representatives: 4.
Farmers cultivating their own land: 1.
Chambers of Commerce, Industry and Agriculture: 1.
Functions (Regional Act No. 52/1969, section 5):
Executive:
(i) decisions on the occupational classification of workers;
(ii) decisions on objections relating to applications to employ specific persons;
(iii) decisions on appeals from communal placement committees.
Appeal (Regional Act No. 52/1969, section 5).
Appeal lies to the Regional Commissioner for Labour and Co-operation.
Regional Committee for Placement and Maximum Employment.
28. A regional committee for placement and maximum employment is established under the chairmanship of the Regional Commissioner for Labour and Co-operation by section 13 of Regional Act No. 52/1969.
Composition (Regional Act No. 52/1969, section 13):
Government representatives: 4.
Workers' representatives: 7.
Employers' representatives (including one representing farmers cultivating their own land): 4.
Functions (Regional Act No. 52/1969, section 13) :
Advisory relating to :
(i) appeals against decisions of provincial committees;
(ii) placement of physically handicapped persons;
(iii) programmes for the expansion of employment and vocational training;
(iv) organizational, technical and administrative matters.
Summary.
29. It emerges from this analysis of the present legislation regulating the employment service that there is in Italy a national advisory committee, namely the Central Committee for Placement and Assistance to the Unemployed attached to the Ministry of Labour and Social Welfare. There is also in the Sicilian region a regional advisory committee, namely the Regional Committee for Placement and Maximum Employment. At the other levels namely the provincial and local levels and, in the case of agriculture, also the regional level the employment service committees are entrusted with executive functions, in some cases in addition to advisory functions. Thus the local placement committees, the local agricultural manpower committees, and the Sicilian provincial committees have purely executive functions; while the provincial placement committees, the provincial agricultural manpower committees, the regional agricultural manpower committees and the Sicilian communal committees have both executive and advisory functions.
30. It further emerges that on all these committees the workers have a greater number of representatives than the employers. In some cases, they even have an absolute majority (local placement committees, local, provincial and regional agricultural man power committees, Sicilian communal committees). In two cases (the Central Committee and the provincial placement committees both in Sicily and elsewhere) interests are represented on the committees (such as managers of undertakings, craftsmen and farmers cultivating their own land) which the Italian Government has argued in the past (Endnote_11) should be assimilated to employers. This would reduce the workers' majority over employers to one member. 31. It is not without interest to note the earlier developments which led to the introduction of the employment service in its present form by Act No. 264 of 1949. Originally, from 1918, there had been a national system of employment offices with joint committees attached to each office. In 1928, however, under the Fascist system of government the employment offices were transferred to the offices of the trade unions, the responsibility for coordinating their activities being entrusted to the Ministry of Corporations. Following the abolition of the Fascist trade unions in 1943, the Allied Military Government introduced a provisional system of employment offices (Endote_12), which was replaced by the present structure in 1949 in circumstances described by the Italian Workers' member of the Conference Committee in 1958 in the following terms:
Originally the employment service was directed by the trade unions. However, following the disappearance of a unitary trade union movement, the Government considered that it must take over responsibility for this service, to guarantee that it would be available to all workers impartially. The trade unions agreed to renounce their earlier rights, but it was agreed that they should participate in the functioning of the new service through the various advisory committees...... (Endnote_13)
CHAPTER 4
Material Relevant to the Application of Article 4 of the Employment Service Convention, 1948 (No. 88)
A. Preparatory Work Leading to the Adoption of the Employment Service Convention, 1948 (No. 88).
32. The origins of national employment services as they are known today are to be found in the nineteenth century, when separate employment services developed, run respectively by trade unions and employers' organisations. (Endnote_14) These separate services were progressively replaced by municipal or bipartite offices in the operation of which employers and workers collaborated on a joint and equal basis.
33. The extent to which this concept of equal collaboration had become generally accepted was revealed by a survey of national law and practice in the field of employment service organisation, undertaken by the International Labour Office in 1946, as a first step in the procedure leading to the adoption of international instruments in this field. The report prepared by the Office on the basis of this survey concluded that "in national practice .. .the committees" set up to facilitate the collaboration of employers' and workers' organisations with the employment service at all operational levels "almost invariably include equal representation of employers' and workers' organisations". (Endnote_15)
34. On the basis of this Office report, a questionnaire was addressed to governments, which included a question on the establishment of advisory committees. Of the governments which replied to the questionnaire, the majority agreed that advisory committees should be appointed and should include equal numbers of employers' and workers' representatives. (Endnote_16) On the basis of these replies, the Office formulated a number of pro posed conclusions relating to a Convention concerning employment service organisations. The paragraph relevant to advisory committees is in the following terms:
5. (1) Advisory committees to secure the full co-operation of management and workers' representatives in employment service organisation and operation
(a) to be established nationally and so far as possible regionally and locally;
(b) to consist of equal numbers of management and workers' representatives, together with representatives of such other interests as may be considered useful according to the national and local circumstances.
(2) General functions of these committees to include the provision of advice on operational as well as policy-making questions. (Endnote_17)
35. At the 30th Session of the International Labour Conference during the discussion of this point by the Committee on Employment Service Organisation, a draft amendment was proposed by the Government member for Ireland which would have provided merely for "suitable arrangements to be made for consultation or co-operation of management and workers' representatives in employment service organisation and operation". The Employers' members thereupon urged that the text should include mention of "equal numbers of representatives of employers' and workers' organisations" and the United Kingdom Government member suggested specific mention of advisory committees as the means through which management-labour co-operation should be achieved. The Workers' members agreed to these two additions to the Irish Government member's draft amendment, while expressing their preference for the original Office text. (Endnote_18)
36. As a result of this debate, the Office prepared a draft text for Article 4 of the Convention substantially in the terms in which it was finally adopted. In explaining why the text provided for advisory committees as the means for the co-operation of employers' and workers' representatives, the Office commented
The Conference agreed to specific mention of advisory committees as the means through which the co-operation of employers' and workers' representatives should be assured. It was feared that, if committees were not mentioned as the recognised means of co-operation, the door would be left open for arrangements which would not ensure to employers' and workers' representatives their full share of responsibility in employment service organisation and operation. (Endnote_19)
37. The importance of the principle of management-labour co-operation in the organisation and operation of the employment service was stressed by members of all the groups at the 30th Session of the Conference (Endnote_20), and the purpose of such co-operation was set out by the Reporter of the Committee on Employment Service Organisation in his statement to the plenary of the Conference as one of the basic principles of the organisation of a public employment service in the following terms:
The necessity to avoid in the employment service the sterility too often found in a purely bureaucratic regime, and, on the contrary, to make it more fruitful by the co-operation of representatives, in equal numbers, of active employers' and workers' organisations, which would ensure general neutrality in the event of difficult situations. (Endnote_21)
The Reporter further stated
The Committee was unanimous on the need for an employment service to preserve neutrality, but felt that this principle must be introduced into the Convention by means of advisory committees which would include equal numbers of representatives of employers' organisations and workers' organisations; these advisory committees should watch over the observance of this neutrality. (Endnote_22)
38. The Committee included in the draft Recommendation, which was designed to supplement the Convention, a number of points in respect of which the principle of neutrality would find its application. The relevant paragraph of the Recommendation reads as follows:
12. The employment service should
(a) observe strict neutrality in the case of employment available in an establishment where there is a labour dispute affecting such employment;
(b) not refer workers to employment in respect of which the wages or conditions of work fall below the standard defined by law or prevailing practice;
(c) not, in referring workers to employment, itself discriminate against applicants on grounds of race, colour, sex or belief. (Endnote_23)
39. At the 31st Session of the Conference, the Committee on Employment Service organisation stated in its report on the second discussion that the intention was that each country will decide its own policy on referral in such cases but that representatives of employers and workers will be consulted before decisions are taken. (Endnote_24)
40. The question of equality of representation was again raised during the second discussion of the draft Convention, by the Workers' members, who proposed an amendment providing that
the number of representatives of the workers shall be at least equal to the number of representatives of the employers. (Endnote_25)
This amendment was designed to safeguard the position in countries where the workers had a larger representation than the employers. It was opposed by the Employers' members on the grounds of the importance of the principle of equal representation m a service which must be used effectively by both sides if it is to fulfill its purpose. The amendment was supported by 2 Government members and opposed by 5 Government members and was defeated by 42 votes to 25.
B. Consideration by the Regular Supervisory Bodies of the Application by Italy of Article 4 of the Employment Service Convention, 1948 (No. 88), and of Other Cases Relevant Thereto.
The Present Case.
41. It will be recalled that under article 22 of the ILO Constitution governments are required to report regularly on the application of ratified Conventions and that their reports are examined in turn by the Committee of Experts on the. Application of Conventions and Recommendations and by the Conference Committee on the Application. of Conventions and Recommendations.
42. The Italian Government's first report on the application of the Employment Service .Convention in 1954 referred to the committees established under Act No. 264 of 1949 and stated that employers and workers on these committees were appointed in equal numbers. The Committee of Experts, however, pointed out, in an observation made in 1955, that this Act made provision for a greater number of workers' than of employers' representatives. In reply, the Government stated to the Conference Committee in 1955 that it was thought necessary to ensure that workers were given a larger number of seats on the employment service committees since it was their interests that were chiefly affected by any arrangements dealing with placement for employment. In its subsequent reports, and statements to the Conference Committee, the Government contended first that certain elements represented on the committees (managers of under takings, craftsmen and farmers cultivating their own land) should be assimilated to employers, and secondly that, in any event, any change in the present system would be contrary to article 19, paragraph 8 of the ILO Constitution.
43. The position adopted by the Committee of Experts in relation to article 19, paragraph 8, of the Constitution is examined in detail in Chapter 5 below. Having decided for the reasons set out in Chapter 5 not to invoke this constitutional provision, the Committee of Experts set out its position based exclusively on the provision of the Convention in some detail in its observation of 1958, in the following term.
1. It is clear from the terms of Article 6 (a) that the basic purpose of the service provided for by the Convention is to "assist workers to find suitable employment and assist employers to find suitable workers", i.e. to be of help to both parties in the employment market.
2. In order to ensure the co-operation of the interested parties in the working of the employment service, the Convention provides in Articles 4 and 5 for consultative committees composed of representatives of these bodies.
3. Since any inequality in the representation of these interests on the committees would be likely to prejudice the functioning of these bodies, the Convention provides for representation on an equal basis, a requirement which may also be found in a number of other Conventions.
4. The practical implementation in Italy of the principle of equal representation would appear to depend essentially on the definition of the employers who are to be represented on the committees.
5. The Convention does not contain any provision on this point, but it is clearly impossible to give effect to its Articles 4 and 5 unless the two interested parties reach agreement between themselves on this definition.
The Committee is bound to conclude therefore that the efficient working of the consultative bodies, and consequently of the employment service they are designed to advise, will not be brought about by any theoretical views which the Committee might put forward but only by practical agreement among the parties concerned. The Committee trusts therefore that the Government will be in a position, on the basis of such an agreement, to consider the possibility of amending the above mentioned Act No. 264 of 1949 so as to give effect to the spirit as well as the letter of Articles 4 and 5 of the Convention.
44. Since then, the Committee of Experts has continued to press the Italian Government, in observations made in 1959, 1960, 1962, 1964, 1966 and 1968, to take the necessary measures to introduce equality of representation on the employment service committees, if possible in agreement with the parties concerned. In 1970, the Committee of Experts decided to adjourn its consideration of the case pending the examination of the representation.
Other Cases.
45. Convention No. 88 has been ratified by 52 States and in most cases no question has arisen for consideration by the Committee of Experts because provision is made for equal representation of employers and workers on the employment service committees.
46. However, in the cases in which there is not equal representation or in which full information has not been provided on employers' and workers' representation on the committees, the Committee of Experts has examined the question in further detail. In addition to the case of Italy, the Committee of Experts has dealt with one case in which there was a greater number of employers' representatives, one case in which the Government had power to appoint an unequal number of representatives and a number of cases in which the Government had failed to supply information on the number of employers' and workers' representatives. In all these cases the Committee of Experts has addressed comments to the Governments concerned with a view to ensuring that the requirement of equal representation was strictly complied with. (Endnote_26)
Committees with Executive Powers.
47. There are a number of countries which have ratified Convention No. 88, in addition to Italy, in which employers and workers are represented not on advisory committees but on committees exercising executive functions and thus forming an integral part of the structure of the employment service. In some cases employers and workers are represented on committees which are responsible for running the employment ser vice at all levels (Federal Republic of Germany, Israel, Norway, Sweden, Yugoslavia). In other cases they are represented on a national management committee and on regional or local advisory committees (Belgium, Greece). In yet other cases, there is a single central committee with executive powers, on which employers and workers are represented (Luxembourg, Malta, Peru).
48. In all these cases the governments themselves have referred to the committees question as committees established in accordance with Article 4 of the Convention. The Committee of Experts has been prepared to accept such committees as complying with Article 4, but as a result has also been concerned to satisfy itself that the requirement of equal representation set forth in paragraph 3 of that Article is respected. This has been the position in the Italian case in the past, in that the Government itself referred to the committees established by Act No. 264/1949 (i.e. the Central Committee and the provincial and local placement committees) in connection with Article 4. The Committee of Experts has not had to consider whether equal representation should be insisted upon in relation to committees which it is claimed are not committees coming within the terms of Article 4 by reason of the executive functions which they fulfill within the employment service system.
C. Other Provisions Invoking the Principle of Equal Representation.
49. The Committee felt it was relevant, in considering the present case, to recall that the provision for equal representation of employers and workers is not unique to this Convention. It is of course an element in the Constitution of the International Labour Organisation itself, whose whole structure and work are based upon a tripartism which requires the equal representation of employers and workers at all levels at which labour matters are discussed and decided upon. This equal representation, with neither employers nor workers predominating, is designed to ensure a balanced functioning of the various bodies constituted on a tripartite basis.
50. There are also other Conventions which require that employers and workers should be represented on bodies established under the Convention. While the first of these Conventions, the Unemployment Convention, 1919 (No. 2), provides merely for "committees, which shall include representatives of employers and of workers", all the subsequent Conventions require that the representation shall be equal.
51. The Placing of Seamen Convention, 1920 (No. 9), requires committees consisting of an equal number of representatives of shipowners and seamen to be constituted to advise on matters concerning the carrying on of the employment offices for seamen.
52. The Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), requires that the employers and workers concerned shall be associated in the operation of the mini mum wage fixing machinery "in such manner and to such extent, but in any case equal numbers and on equal terms, as may be determined by national laws or regulations" (Article 3, paragraph 2 (2)). The complementary Minimum Wage-Fixing Recommendation, 1928 (No. 30), provides that
To secure greater authority for the rates that may be fixed, it should be the general policy that the employers and workers concerned, through representatives equal in number or having equal voting strength, should jointly take a direct part in the deliberations and decisions of the wage-fixing body; in any case, where representation is accorded to one side, the other side should be represented on the same footing (Paragraph II (2) (a)).
53. The Minimum Wage Fixing Machinery (Agriculture) Convention, 1951 (No. 99), provides that
The employers and workers concerned shall take part in the operation of the minimum wage fixing machinery, or be consulted or have the right to be heard, in such manner and to such extent as may be determined by national laws or regulations but in any case on a basis of complete equality (Article 3, paragraph 3).
The complementary Minimum Wage Fixing Machinery (Agriculture) Recommendation, 1951 (No. 89), provides that
To secure greater authority for the rates that may be fixed, in cases where the machinery adopted for fixing minimum wages makes it possible, the workers and employers concerned should be enabled to participate directly and on an equal footing in the operation of such machinery through their representatives, who should be equal in number or in any case have an equal number of votes (Paragraph 4).
54. Finally, the Minimum Wage Fixing Convention, 1970 (No. 131), provides that Wherever it is appropriate to the nature of the minimum wage fixing machinery, provision, shall also be made for the direct participation in its operation of
a) representatives of organisations of employers and workers concerned or, where no such organisations exist, representatives of employers and workers concerned, on a basis of equality; (Article 4, paragraph 3).
55. Equal representation has thus generally been required in cases in which Conventions require the participation of representatives of employers and workers on bodies called for under their terms.
CHAPTER 5
Material Relevant to the Argument of More Favourable Conditions
A. History of Article 19, Paragraph 8, of the ILO Constitution.
56. In its present form, article 19, paragraph 8, of the Constitution of the International Labour Organisation is an amended version, introduced in 1946, of article 19, paragraphs 10 and 11, of the 1919 Constitution, which read as follows:
10. The above article shall be interpreted in accordance with the following principle:
11. In no case shall any Member be asked or required, as a result of the adoption of any Recommendation or draft Convention by the Conference, to lessen the protection afforded by its existing legislation to the workers concerned.
57. This provision was introduced into the Constitution because during the discussions in the Commission on International Labour Legislation appointed by the Peace Conference in 1919, the fear was expressed by the United States member that the adoption of a Convention or Recommendation by the International Labour Conference might have the effect of requiring a State to diminish the protection already afforded to the workers by its legislation. Its purpose was to make clear that international standards were directed to assuring to the workers minimum, not maximum, advantages and that a Convention or Recommendation should in no case have the result of lessening the advantages already acquired. (Endnote_27)
58. In 1946, the original Constitution of the ILO was amended and article 19, paragraph 8, took its present form
In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation.
This amendment was recommended by the Conference Delegation which had been appointed in 1945 to consider amendments to the Constitution, and was designed "to clarify ... the scope of the 'without prejudice' clause which at present constitutes paragraphs 10 and 11" of article 19. (Endnote_28)
59. It will be noted that the new form of this paragraph introduced two new elements: it added to "the adoption of any Convention or Recommendation by the Conference", the "ratification of any Convention by any Member", as one of the factors which may not affect existing more favourable conditions and it adds to "existing legislation" (which is replaced by "law"), "award, custom or agreement" as the means by which such more favourable conditions may be granted. It thus seems that the amendment was intended to clarify but not to change the nature of the protection afforded by the paragraph.
60. There is only one aspect of article 19, paragraph 8, of the Constitution that has been the subject of interpretation by the International Labour Office, that is to say the question whether it obliges member States to maintain in force provisions which exist at the date of ratification and which grant workers more favourable conditions than those provided for in the Convention in question. This question has been raised in two requests to the International Labour Office for guidance as to the meaning of provisions of Conventions similar to article 19, paragraph 8, of the Constitution, and has been answered in the negative. (Endnote_29)
61. The views expressed by the Office in these two cases can be summarized as follows: the purpose of article 19, paragraph 8, is to ensure that the ratification of a Convention does not result in the lowering of more favourable conditions existing at the date of ratification to the standards laid down by the Convention. However, it does not impose an obligation on a State to maintain in force provisions incorporating higher standards than those of the Convention.
62. It is thus clear that article 19, paragraph 8, is a saving clause, designed to protect higher standards which may be enjoyed by the workers of a country from being reduced, as a result of ratification, to the minimum provisions of a given Convention. It is of particular relevance in countries whose constitutions provide for the incorporation into national law of the provisions of international treaties as a result of ratification. Without such a saving clause, ratification might in such cases have the effect of amending the pre-existing legislation incorporating higher standards by substituting for it the provisions of the Convention.
63. So far as the scope of article 19, paragraph 8, is concerned, the preparatory work leading to the adoption of the ILO Constitution provides no guidance as to whether it is intended to cover merely conditions of work or whether it extends to administrative arrangements such as those involved in this case. While the only illustrations given of the sort of conditions it would cover (the right of a seaman to leave his ship (Endnote_30), maximum hours of work, minimum age for admission to employment (Endnote_31) relate to conditions of work, they are incidental references.
B. The Concept of Minimum Standards:
64. Article 19, paragraph 8, applies only to the position at the date of ratification being designed to ensure that higher standards existing at that moment in time are not adversely affected by the act of ratification. However, it has a parallel in a principle or more general application, namely that international labour Conventions lay down minimum standards, and States are at all times free to grant more favourable conditions than those provided for by the Convention which they have ratified. (Endnote_32) Whether a particular provision grants more favourable conditions than those required by a Convention is a question of fact to be determined in each, case in the light of all the circumstances.
C. Conventions Permitting Derogations on the Basis of More Favourable Conditions.
65. One question that arises in considering the applicability of the principle of more favourable conditions to this case is whether provisions which are inconsistent with the express terms of a Convention can ever be regarded as ensuring more favourable conditions than the Convention itself. In considering this question it should be recalled that the possible establishment of a procedure which would enable governments to ratify Conventions on the basis of legislation which, though not fulfilling in detail the require ments of the Convention concerned, was substantially equivalent from the standpoint of the level of social protection afforded by it was considered by the Conference Delegation on Constitutional Questions which was appointed by the Conference in 1945 to consider amendments to the Constitution. In its report, the Conference Delegation expressed the view that any arrangements adopted with a view to giving effect to this suggestion should be introduced by the inclusion of appropriate clauses in individual Conventions. (Endnote_33)
66. This procedure has in fact been followed in respect of a number of Convention which contain clauses accepting systems or particular rules which, while not complying, with the specific requirements of the Convention, provide equivalent protection. Thus, two Conventions concerning crew accommodation on board ships and fishing vessels respectively provide that the requirements of the Convention may be varied if the variations "provide corresponding advantages as a result of which the over-all conditions are not less favourable than those which would result from the full application of the provisions of the Convention" (Conventions Nos. 92, Article 1 (5), and 126, Article 1 (7)). Similarly, in the Medical Examination of Young Persons (Underground Work) Convention, 1965 (No. 124), Article 2 (2) provides that alternative arrangements for medical supervision to those required by the Convention may be permitted "where the competent authority is satisfied on medical advice that such arrangements are equivalent to or more effective than those required" under the Convention.
67. Other Conventions permit the exclusion from their scope of categories of per sons who are "entitled to benefits at least equivalent on the whole to those provided for in this Convention" (Seafarers' Pensions Convention, 1946 (No. 71), Article 2 (2) (f)); or who "enjoy conditions of service which are not less favourable . . . than those required by the .Convention" (Paid Vacations (Seafarers) Convention (Revised), 1949 (No. 91), Article 2 (2)); or who "are protected by special schemes which provide in the aggregate benefits at least equivalent to those required by this Convention" (Employment Injury Benefits Convention, 1964 (No. 121), Article 3 (1); Invalidity, Old Age and Survivors' Benefits Convention, 1967 (No. 128), Article 39 (1); Medical Care and Sickness Benefits Convention, 1969 (No. 130), Article 4 (1)).
68. Finally, the two last-mentioned Conventions each contain provisions authorizing temporary derogations from particular provisions of the Convention, provided that the over-all protection assured is higher than that required under the Convention as regards both the percentage of the population protected and the amount of benefits paid. The conditions that must be fulfilled before a country can avail itself of the derogations permitted are very stringent and are set out in considerable detail (Invalidity, Old Age d Survivors' Benefits Convention, 1967 (No. 128), Articles 41 and 42; Medical Care Sickness Benefits Convention, 1969 (No. 130), Article 33).
D. The Position of the Committee of Experts on the Application of Conventions and Recommendations.
69. The Committee of Experts on the Application of Conventions' and Recommendations has considered the question of the applicability of article 19, paragraph 8, of the Constitution to the present case, both the workers' representatives at the Conference. Committee (in 1956) and the Government (in its report for 1955-56) having referred to it as an argument in favour of retaining the existing position.
70. In 1957, the Committee of Experts expressed the following view:
The Committee feels that the numerical composition of advisory bodies is essentially an administrative matter involving, as stated in Article 4 of the Convention, "arrangements" for associating the employers and workers in the organisation and operation of the employment service and in the development of its policy. The Committee trusts therefore that it will be possible to make these arrangements on a mutually agreed basis and in conformity with the terms of the Convention and would be glad to be kept informed of future developments in the Government's next report.
71. In 1958, it dealt with the question in the following terms:
It would appear preferable, in this case, not to invoke article 19, paragraph 8, of the Constitution, which deals with conditions of work rather than with procedural matters such as those referred to in Article 4, paragraph 3, of the Convention.
The Committee of Experts has therefore not considered the question whether the Italian employment service system in fact guarantees more favourable conditions to the workers concerned, having preferred to treat article 19, paragraph 8, of the Constitution as applicable to conditions of work rather than to administrative arrangements.
CHAPTER 6
Conclusions
72. In seeking to arrive at conclusions to set before the Governing Body, the Committee noted that the facts which form the subject of the representation are not in dispute. The essential elements of those facts can be summarized as follows.
73. There are in Italy several different categories of committee, at the national, regional, provincial and local levels, forming part of the employment service system. Two committees are purely advisory in character: the Central Committee for Placement and Assistance to the Unemployed and the Sicilian Regional Committee for Placement and Maximum Employment. Four categories of committee have both advisory and executive functions: the provincial placement committees, the provincial agricultural _ manpower committees, the regional agricultural manpower committees and the Sicilian communal committees. Three categories of committee are purely executive in character: the local placement committees, the local agricultural manpower committees and the Sicilian provincial committees.
74. On each of these committees, the workers have a greater number of representatives than the employers. In some cases they even have an absolute majority (local placement committees, local, provincial and regional agricultural manpower committees, Sicilian communal committees). In two cases (the Central Committee and the provincial placement committees) interests are represented on the committee (managers of under takings, craftsmen, farmers cultivating their own land, Chambers of Commerce, Industry and Agriculture) which might be assimilable to those of employers. However, the Committee did not consider it necessary to reach a conclusion on this point in respect of which it did not in any event have the necessary elements before it since, even if the representatives in question were assimilated to the employers, the workers' representatives would still be greater in number than those of the employers and the question of principle at issue would not be affected.
75. While the facts are thus clear, the legal issues raised by the representation are highly complex, and the Chairman underlined the difficulties involved in formulating a conclusion and the doubts that could legitimately be entertained in relation to the various possible solutions. None the less, the Committee felt it was its duty to formulate its views and make recommendations which it could place before the Governing Body.
76. It appeared to the Committee that the central legal question was whether article 19, paragraph 8, of the Constitution of the ILO (Endnote_34) could be relied upon to justify the fact that, despite the terms of Article 4, paragraph 3, of the Employment Service Convention (Endnote_35), representation of employers and workers on committees falling within that Article was not on a basis of equality.
77. In this connection the Committee did not lose sight of the fact that, by its terms, that Article bears on the legislative situation at the time of the adoption or ratification of a Convention, and that a substantial part of the legislation called in question by the representation is subsequent to the ratification of the Convention by Italy; it felt, how ever, that the general principle according to which international labour instruments lay down minimum standards which can be bettered by national action was sufficiently akin to that laid down in the constitutional provision to make it unnecessary to circumscribe the scope of its application in time.
78. The Committee found it necessary, in examining the present case, to consider the substantive scope of article 19, paragraph 8, of the Constitution of the ILO.
79. In the first place, it noted that in the past the provision had been relied upon only in relation to conditions of work. The Employers' member urged the view that it concerned essentially the material conditions of workers, and was not intended for procedural matters. After discussion, it seemed doubtful to the Committee that such a distinction could be made as a general rule. Thus, for example, the view might legitimately be taken that, if the only difference between the Convention here under consideration and the Italian legislation was that the committees provided for in Article 4 of the Convention had in Italy executive in addition to advisory functions, this procedural difference could be regarded as more favourable to the workers in the meaning of article 19, paragraph 8, of the Constitution.
80. Secondly, the Committee addressed itself to the question whether article 19, paragraph 8, of the Constitution could be relied upon as regards national legislative pro-visions inconsistent with the express terms of a Convention. That question is made particularly difficult by the fact that another provision of the same article of the Constitution, article 19, paragraph 5 (d), requires every State which ratifies a Convention to "make effective" the provisions of such Convention. It should also be borne in mind that a significant element in the legal system governing international labour Conventions is the fact that reservations as opposed to possibilities of flexibility provided for in the Conventions themselves are not admitted. As a general rule, therefore, all the provisions of a ratified Convention must be complied with, and the rule contained in article 19, paragraph 18, permitting more favourable conditions, can only find its application within the framework of this principle.
81. The Committee noted that, in most cases in which article 19, paragraph 8, might be considered applicable, the more favourable conditions provided for by national legislation, as compared with the terms of a Convention, would not involve any incompatibility with the Convention in question. In some cases, the Convention might provide for advantages which are more than satisfied by the national legislation: thus national legislation prohibiting work in excess of seven hours a day would necessarily satisfy a standard prohibiting work in excess of eight hours; national legislation prescribing a minimum age for employment of 15 years would necessarily satisfy a standard prescribing one of 14, etc. In other cases national legislation might confer advantages which are not required by the Convention and which are additional to those provided for therein. Thus national social security legislation might provide, in case of maternity for example, for the grant of special benefits in addition to those provided for by the Conventions on the subject. In both these types of case, there would be no incompatibility with the Convention.
82. It is true that certain Conventions make provision for the possibility of ratification on the basis of a national system which, although not complying with the Convention in every particular, is at least as, or more, favourable to the workers but they do so expressly, and in some such cases the Convention lays down in considerable detail the extent to which the protection for which it provides has to be bettered over-all under the national system if derogations from certain particular requirements are to be admit ted. It seemed to the Committee that this implies that, in the absence of an express provision of this nature, it is not possible to rely on the argument that a national situation is designed to favour the workers to justify non-compliance with an express term of a Convention.
83. In the light of the foregoing considerations, the Committee felt that it was justified in construing the scope of article 19, paragraph 8, of the Constitution and of the parallel principle of the "minimum standards" as applicable to provisions which go beyond the requirements of a Convention without contradicting them.
84. Can it be considered that a national provision which, like the Italian law, provides for committees with a greater number of workers' representatives than of employers' representatives goes beyond the Convention without contradicting it? Such a conclusion might have been envisaged if the Convention had provided, for example, that the number of workers' representatives should be at least equal to that of the employers' representatives, but, as has been indicated (see above paragraph 40), an amendment to this effect was rejected when the Convention was drawn up by the Conference. The text adopted by the Conference provides for representatives in equal numbers and any disparity is necessarily incompatible with the rule of equality of representation which the Convention lays down in absolute terms.
85. The Italian Government has emphasised that it is the Italian system as a whole and not only the greater representation of workers that should be regarded as more favourable than the system provided for by the Convention, in that the representation of employers and workers is integrated within the employment service itself through committees with decision-making powers, instead of their co-operation being limited to participation in advisory committees external to that service. This does not however modify the basic problem posed by the system, namely its incompatibility with the provisions of the Convention on equality of representation. Further, it does not appear that the inequality of representation on the various Italian committees is inescapably linked with the role of these committees in the employment service. The two questions can thus be dissociated and examined separately.
86. The Chairman of the Committee and the Workers' member expressly recognised that the character of the Italian employment service reflected real and important national problems which ranged from the nature of the functions of such a service in a country with a history of high unemployment to the fact: related to representation of employers and workers that there were more workers' organisations than employers' organisations. However, it was felt that the implications of recognising that special factors in a national situation could justify non-compliance with a term of a ratified Convention would be too serious to permit the Committee to give weight to these factors. It was also pointed out that for some of them practical solutions might be found as for instance, to compensate the disparity in numbers of non-governmental organisations by the introduction of a system of weighted voting.
87. It thus seemed to the Committee that there was no basis of a general nature which would permit derogation from the application of Article 4, paragraph 3, of the Employment Service Convention, providing for representation of employers and workers in equal numbers.
88. The Committee then had to consider which of the Italian committees should be regarded as coming within Article 4 of the Convention. Amongst the elements to be taken into account in this connection were the fact that the Convention provides for advisory committees although the Committee had taken the view that the addition of executive functions was not itself a violation of the Convention and the fact that the Convention makes mandatory the establishment of a national committee, but requires regional and local committees only "where necessary".
89. The Committee unanimously concluded that purely advisory committees should be regarded as coming within the scope of Article 4 of the Convention and that paragraph 3 of that Article required equal representation of employers and workers on those committees. In the case of Italy, the Committee considered that this principle must be applied to the Central Committee for the Placement of and Assistance to the Unemployed, whose functions are exclusively advisory. The Workers' member considered that, in order to secure compliance with the Convention as regards this Committee, on which there are eight workers' representatives, it would be sufficient for the present number of employers' representatives to be raised from four to five, since three other members of the Committee represented interests which should be assimilated to those of employers (the representatives of farmers cultivating their own land, managers of undertakings and craftsmen). The Committee also concluded that the Sicilian Regional Committee for Placement and Maximum Employment was an advisory committee to which the requirement of equal representation applied; the Workers' member indicated, however, that he had entertained some doubts in this connection, since the Committee in question formed an integral part of the Sicilian Regional Employment Service in which committees at the provincial and communal levels performed executive functions.
90. As regards the committees which have executive functions, the Committee did not reach a unanimous conclusion. The Workers' member considered that in virtue of the different nature of these functions the committees in question could be regarded as being bodies of a different kind from those envisaged in Article 4 of the Convention, and hence outside its scope; that being so, their composition was in his view a matter for purely national determination: he therefore considered that the advantage to the workers of a majority of votes in a decision-making process to which the Convention did not relate could be preserved. The two other members, on the other hand, felt that the fact that the committees had executive functions in their view compatible with the Convention did not mean that they were not the bodies envisaged by Article 4 of the Convention for. associating employers and workers with the Employment Service; they also considered that there was no reason why equality of representation should not apply to such committees, and the Employers' member indeed expressed the view that, if such equality was appropriate b advisory committees, it was a fortiori necessary on committees with the power of taking decisions by vote.
Geneva, 27 September 1971.
(Signed):
A. Parodi, Chairman.
A. Vitaic Jakasa.
G. B. Fogam.
Endnote 1
The text of this communication is reproduced in Chapter 2 of the present report.
Endnote 2
Subsequently replaced by Act No. 83 of 11 March 1970.
Endnote 3
Subsequently enacted as Act No. 300 of 20 May 1970.
Endnote 4
ILO : Legislative Series, 1949 It. 2A.
Endnote 5
This Bill was subsequently enacted as Act No. 300 of 20 May 1970.
Endnote 6
This Decree was subsequently enacted, with a number of minor amendments, as Act No. 83 of 11 March 1970.
Endnote 7
This appears to be meant as a reference to Legislative Decree No. 7 of 1970, which has now been replaced by Act No. 83 of 1970.
Endnote 8
ILO : Legislative Series, 1948 It. 3.
Endnote 9
In Act No. 83/1970 the term "placement section", used in the other legislation, has been replaced by "employment office".
Endnote 10
The relation between this provision and the subsequent national Act No. 83/1970, which provides for the establishment of agricultural manpower committees, on a national basis, is not clear.
Endnote 11
Statement to the Conference Committee, 1956, Government Report for 1955-56.
Endnote 12
See ILO: Employment service organisation, Report V(l), International Labour Conference, 30th Session, Geneva, 1947, Appendix II, pp. 299-300.
Endnote 13
Italian Workers' member's statement to the Conference Committee in 1958.
Endnote 14
ILO: Employment service organisation, op. cit., p. 4.
Endnote 15
Ibid., p. 58.
Endnote 16
ILO: Employment service organisation, Report V (2), International Labour Conference, 30th Session, Geneva, 1947. Chapter I contains the replies of the governments.
Endnote 17
Ibid., p. 125. See also pp. 102-104 for a brief survey of the replies, to the question relating to machinery for management-labour collaboration with the employment service.
Endnote 18
ILO: Record of Proceedings, International Labour Conference, 30th Session, Geneva, 1947, p. 529.
Endnote 19
ILO: Employment service organisation, Report IV (2), International Labour Conference, 31st Session, San Francisco, 1948, p. 30.
Endnote 20
ILO : Record of Proceedings, loc. cit.
Endnote 21
Ibid., p. 213.
Endnote 22
Ibid., p. 216.
Endnote 23
"Employment Service Recommendation, 1948 (No. 83).
Endnote 24
ILO: Record of Proceedings, International Labour Conference, 31st Session, San Francisco, 1948, p. 402.
Endnote 25
ILO : Record of Proceedings, International Labour Conference, 31st Session, San Francisco, 1948, p. 404.
Endnote 26
Direct requests to Yugoslavia, 1962, 1964; to Israel, 1968, 1970; to Ethiopia, 1966; observation to Australia, 1970.
Endnote 27
For minutes of the discussions see Official Bulletin, Vol. I, pp. 212-217.
Endnote 28
ILO: Record of Proceedings, International Labour Conference, 29th Session, Montreal, 1946, p. 345. For the report of the Conference Delegation on this point see ILO: Constitutional questions, Part 1: Reports of the Conference Delegation on Constitutional Questions, Report II (1) to the same session of the International Labour Conference, pp. 52-53.
Endnote 29
Request by the Government of Poland relating to Article 10 of the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30); see Official Bulletin, Vol. XVII (1932), p. 50. Request by the Government of Sweden relating to Article 20 of the Hours of Work and Manning (Sea) Convention, 1936 (No. 57); see Official Bulletin, Vol. XXIII (1938), p. 30.
Endnote 30
Official Bulletin, Vol. I (1919-20), p. 214.
Endnote 31
M. de la Pradelle (edited by): La Paix de Versailles. Ligislation Internationale du travail (Paris, Les Editions internationales, 1932), pp. 581-582.
Endnote 32
This principle was expressly recognised by the Commission on International Labour Legislation of the Peace Convention of 1919, which drafted the ILO Constitution: See the minutes of the Commission's discussion in M. de la Pradelle, loc. cit.
Endnote 33
ILO: Constitutional questions, op. cit., pp. 50-52.
Endnote 34
This provision is in the following terms: "8. In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation."
Endnote 35
This provision is in the following terms: "3. The representatives of employers and workers on these committees shall be appointed in equal numbers after consultation with representative organisations of employers and workers, where such organisations exist."