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CHAPTER IX
The Drafting Process

• The purposes of the proposed legislation and the legislative plan
  • Purposes
  • The legislative plan
• ILO involvement in the legislative drafting process: the ILO project plan and/or terms of reference
• Involving the workers' and employers' organizations and other interested parties 
  • Formal arrangements
  • Ad hoc arrangements
  • Regional arrangements
  • The ILO role in the labour law reform process
• Relationship to existing law
• Practicability
  • Regulatory feasibility: cost/benefit analysis
  • Administrative feasibility
• Design
• The use of comparative labour law
• Relationship to other relevant legislation

The purposes of the proposed legislation and the legislative plan

Purposes

Legislation is passed by a legislature with one or more purposes. The legislative drafting process should begin with a clear articulation of what these pruposes are. This helps to unite the initial audience of the proposed legislation, namely the legislator, and the ultimate audience, the workers and employers to whom it is to be addressed and the judicial and administrative bodies responsible for ensuring the interpretation and application of the legislation that is adopted. By clearly articulating the purpose(s) of the legislation, as expressed by the legislator, in the drafting of the bill, the drafter can facilitate the task of these persons or bodies.

Those responsible for interpreting and ensuring respect for the legislation, when confronted with the problem of interpretation, will do so in the light of the purpose that flows through the text or the context of the legislation, which they will ultimately seek to identify by looking into the collective mind of the legislature. In some traditions, interpreters might also look to preparatory documents and the debates in the legislature. This inquiry is undertaken to identify the collective purpose(s) of the legislature, independent of the individual views expressed. In this regard, it is important to distinguish objective(s) or goal(s), motive(s), policies and principles behind the proposed enactment:

• the objective(s) or goal(s) of the proposed legislation refer(s) to its purpose or intended effects. These may be of a social, economic, or political nature. The objectives are achieved not only by the adoption of the legislation, but necessarily also by its operation and application;
• the motive(s) relate(s) more directly to the different participants in the legislative reform process. The participants might each have a wide range of differing motives (related to their perceived interests) for supporting a particular piece of legislation or particular provisions in it. While largely irrelevant to the interpretation of the law once adopted, the motives in labour law reform might be of considerable importance when quite distinct stakeholders are involved in the process, alongside individual legislators, and need to be born in mind by the draftsperson;
• policies reflect the balances struck and choices made between competing interests in seeking to further the objectives sought;
• principles are values or norms that the legislature wishes to promote or take into account in devising a programme or a rule. They need not be explicit, because they form part of the tradition or community in which the interpreter is working, as well as that of the legislature.¹ While they may be explicit and clearly articulated in particular provisions of the law, they are often implicit and underlie these provisions. When articulated, they are often expressed in more abstract terms than the provisions of the law.

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The legislative plan

In some legal traditions, the purpose and object of the legislation is set out in a legislative proposal or plan, prepared at the outset of the formal stage of the legislative process. This proposal or plan sets forth the rationale for the proposal and a summary of the substantive provisions that are envisaged. The preliminary proposal or plan is generally submitted to the executive for approval. Once approved, the plan is sent to those responsible for preparing the initial draft legislation.

The process of arriving at a plan and then draft legislation in the area of labour law may well be more complex, given the range of stakeholders concerned and the public interest in the material. The next section of this Chapter addresses ways in which various legal systems have sought to involve the social partners in the drafting process. The section further articulates the participatory approach cultivated by the ILO when it provides advisory services for the reform of labour law.

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ILO involvement in the legislative drafting process: The ILO project plan and/or terms of reference

A process that involves ILO assistance should start with a clear articulation of the legislative purposes and objects. This is generally negotiated with the Government that is requesting ILO assistance and necessarily incorporates the objectives that the Government wishes to achieve, which should be compatible with basic ILO principles and standards. It should also incorporate the principles guiding ILO participation in labour law reform, particularly the fundamental principles and rights at work and international labour standards (as far as relevant to the subject matter treated), and should reflect the ILO’s commitment to tripartism and the process of social dialogue, as well as certain implicit values or norms that local participants consider to underpin their legal tradition.

In the case of externally-funded technical cooperation assistance, an ILO project document usually provides an early opportunity to identify purposes and objects and to set out ILO principles. The project document also enables the parties, at least consisting of Ministry officials and often, when a task force has already been constituted, the social partners, to discuss the principles and objectives of the reform and come to an agreement about the process before it gets underway. Clearly articulated terms of reference developed for an ILO-funded technical cooperation initiative should serve a similar purpose. Of course, the entire process cannot be predetermined. Throughout the course of the reform, as consultations are held with the concerned parties and/or if political or major economic changes occur, it may become necessary to reconsider some of the initial terms.

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Involving the workers' and employers' organizations and other interested parties

In most legal systems, the executive branch of government has the responsibility to formulate and propose legislation, while the legislature is responsible for its adoption. However, in the domain of social law generally, and labour law in particular, the stakeholders (groups with a particularly important stake in the content of the legislation, in this case workers' and employers' organizations) may have a particularly high level of involvement in the process of labour law reform. Sometimes this involvement is through permanent tripartite bodies, and in other cases through bodies set up specifically for the purpose or through more informal arrangements.

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Formal arrangements

	In Colombia, the Central Labour Council has the power to advise the Government on draft labour legislation and to monitor changes to existing legislation.2
	In Hungary, the Labour Code of 1992 recognized the National Interest Conciliation Council (NICC). The NICC comprises the social partners and the Labour Ministry. It is responsible for ensuring consultation on labour relations and employment issues of national importance, notably labour law reform. The social partners also have statutory rights to information. The decisions of the NICC can also be the basis of recommendations to the Ministry of Labour on wage rates, which can be proclaimed as forms of subordinate legislation (regulations).3
	In Portugal, the right of workers' organizations to participate in drafting labour legislation is recognized in the Constitution,4 and further regulated in individual laws.5
	In South Africa, the National Economic Development and Labour Council (NEDLAC) was created in 1995. It reflects the post-apartheid Government's commitment to seeking representative consensus on major economic, social and development policies. In light of the particular needs of South Africa, it is composed of the traditional social partners, plus organizations which represent community interests. Its objectives include considering all proposed labour legislation relating to labour market policy before it is introduced in Parliament. It has reached agreement on a wide array of legislation (Labour Relations Act, 1995 and amendments to it, the Mine Health and Safety Act, 1996, Amendments to the Insolvency Act to afford worker protection, Basic Conditions of Employment Act, 1997, Employment Equity Act, 1998). It has also adopted a number of codes of good practice, including on dismissal based on operational requirements, and the handling of sexual harassment cases. NEDLAC has also recommended that the Government ratify a number of International Labour Conventions. 6

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Ad hoc arrangements

Other countries may establish ad hoc task forces or more informal tripartite meetings to allow for worker and employer participation in processes of labour law review that are under way with ILO assistance. While the process of ILO assistance is discussed in more detail below, one prominent recent example of the task force approach may be of interest:

In Indonesia, in response to the social impact of the Asian Financial Crisis and the collapse of an authoritarian regime in favour of democratic political reforms, a Tripartite-Plus Task Force was established.7 Through a broadly consultative process, involving workshops held through the Department of Manpower, ILO resource persons emphasized national ownership and control of the outcomes of the reform. The Tripartite-plus constituents reviewed and revised the labour laws to be responsive to a democratic and modern labour market.8

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Regional arrangements

In some cases, tripartite participation can be fostered through regional arrangements, which may provide for the consideration of labour law reform.
  

In the Caribbean, the Common Market of the Caribbean, the CARICOM9, provides a forum in which Ministers of Labour from the regions meet. Workers' and employers' representatives participate in these meetings. With ILO technical assistance, a creative initiative is underway to draft model laws in the labour domain on areas of mutual concern to the different member States. So far, model laws on termination of employment, registration, status and recognition of trade unions and employers' organizations, occupational safety and health and the working environment and equality of opportunity and treatment in employment and occupation have been prepared. A fifth draft law, dealing with the protection of employees during industrial action, is currently being revised.

In the Southern African Development Community (SADC), the fourteen member States10 have created a tripartite Employment and Labour Sector (ELS) which, among other broad objectives, seeks to promote the formulation and harmonization of legal, economic and social policies and programmes, coordinate and harmonize terms and conditions of migrant workers and harmonize factory inspection law and practice. The SADC-ELS has provided an institutional framework for consultation on a range of labour harmonization issues, including the development of a Code on non-discrimination of persons with HIV/AIDS in the workplace, a draft Charter on Fundamental Rights of Workers, and a draft Code on the safe use of chemicals.

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The ILO role in the labour law reform process

ILO technical assistance in the labour law domain has sought to heighten the involvement of the social partners throughout the process of labour law reform. This reflects the centrality of the principles of social dialogue and tripartism for the ILO.¹¹ It is also in keeping with the spirit of the Tripartite Consultation Convention, 1976 (No. 144).

The role of an international labour law expert is often critical to fostering a truly tripartite process. That person is relied upon not only for sound comparative labour law knowledge, but also for a strong capacity to foster participation and group cohesion. The international labour law expert should enjoy full independence from all of the tripartite actors in the reform process.

The international labour law expert is usually an ILO consultant, typically from academia, and is ultimately accountable to the ILO for recommendations that are put forward. Sometimes, the international labour law expert is an ILO official from the Headquarters' department responsible for assisting constituents with labour law revision or a representative of that technical unit in a field office. The expert's status as an ILO consultant or official may provide a certain amount of latitude vis-à-vis the parties to the reform process, who may feel more comfortable asking for the expert's opinion on competing policy considerations. This expert, knowledgeable about comparative and international labour law matters and reasonably familiar with the country or region concerned, is sufficiently removed from involvement in the national context to be able to provide impartial advice and help to achieve results in large measure, if not entirely, acceptable to all parties.

Ideally, the international labour law expert should meet with the interested parties separately and jointly at the very beginning of the process to develop an understanding of their concerns and establish a climate of trust. The task of meeting the parties may be facilitated by the setting up of a tripartite (or tripartite-plus) task force for labour law reform if no appropriate such body already exists, potentially comprising the participants identified below (see Box 1). The process is facilitated if regular meetings can be held to build up a degree of momentum and group cohesion and to ensure consultation throughout the process.

However, a different arrangement may be worked out with the Government, which may for example envisage an early draft prepared initially by the expert and discussed with Government, followed by thorough consultation with the social partners (and any other key stakeholders involved in the process) and revision of the initial draft taking into account their views. The national context should play a decisive role in determining the nature of the consultations, but full tripartite consultation should take place in all cases.

Participation by the representatives of workers' and employers' and of any other interests involved should help to ensure that the proposed legislation takes fully into account the realities of the national context and is well adapted to the needs and conditions of the country.

To varying degrees and depending on the region, the involvement of ILO Headquarters technical departments may be sought throughout the process. In particular, comments will be provided by the ILO on the draft legislation prepared. These comments should straightaway seek to ensure:

• that the draft is faithful to the fundamental principles and rights at work, as well as other labour standards of particular relevance to the member State and the Conventions that it has ratified;
• that in areas of potential difficulties with chosen solutions, other helpful comparative law experiences are made available to the expert and task force; and
• that the text is written in plain user-friendly language, that it takes a gender-inclusive approach and that any unnecessary ambiguity is identified and eliminated.

These comments should strengthen the tripartite process by providing an opportunity for the ILO expert and the task force to meet and review the initial draft in the light of the feedback from Headquarters.

On some occasions, the ILO may also play a role in the process after the draft legislation has been prepared and commented upon by:

• convening a public symposium to discuss the legislation;
• upon request, attending parliamentary sessions introducing the bill;
• contributing to the cost of the publication of the newly adopted legislation; and/or
• assisting the parties to disseminate information to the public about the rights and obligations set out in the new legislation.

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Relationship to existing law

Any future enactment has to be drafted taking into consideration the existing legal context. To put the proposed enactment into the existing legal context means to develop its provisions so that they are consistent with the relevant provisions of the existing legislation, insofar as the intention is not to change the latter. To make the proposed enactment compatible with the factual context in which it is to function entails an assessment of its acceptability to the various interests affected by it and the practicability of its application.

Labour law should ideally be a harmonious set of correlated rules (spelled out in legislation and developed by the judiciary) based on a number of basic ideas and fundamental principles which, inter alia, include the following:

• that the overall objective of labour law, its raison d'être, is to protect workers in a subordinate relationship vis-à-vis those for whom they work, who control the conditions of work of these workers and have disciplinary authority over them;
• the protective function of labour law should be fulfilled with due regard being given to the interests of employers and to economic concerns, that is labour law should be well balanced from the social protection and economic perspectives;
• basic workers' freedoms, rights and interests, such as freedom of association, the right to bargain collectively, non-discrimination, prohibition of forced labour and equality of treatment, should be recognized and fully respected;
• basic employers' freedoms, rights and interests, such as freedom of association, property rights and management requirements should also be recognized and fully respected; and
• · social dialogue and collective bargaining should be promoted as the main means of regulating employment relationships, with labour legislation playing a two-tier role of: (i) setting out minimum labour standards; and (ii) establishing rules of the game for the collective interaction between employers and workers, bearing in mind that the balance between labour law and collective dialogue varies between countries.

To achieve, this:

The proposed enactment should be consistent with the basic ideas and fundamental principles upon which labour law in the country is built, unless these are being reviewed and modified

     While in some jurisdictions such basic ideas and fundamental principles are clearly spelled out in legislation, in others they can be drawn only indirectly through a purposive analysis of existing labour law, according to which a legislative text "is thought of as a map of blue-print and the primary focus in interpretation is not so much the meaning of the text as the reasons for enacting it and the directions in which it points"¹². To make such indirect purposive analysis might therefore require a thorough examination of judicial practice as well. To this end, relevant literature can also be of significant help.

Except where it is the intention to change existing labour law, the proposed enactment should be textually compatible with existing legislation. This textual compatibility has two basic elements, namely substantive compatibility and formal compatibility. Substantive compatibility requires the proposed enactment to be developed in such a way as to ensure that its provisions do not unintentionally supersede relevant provisions of the existing labour legislation. Formal compatibility presupposes that the proposed enactment is to be structured and drafted according to the standards applied in the jurisdiction concerned, again unless the intent is to change these standards. Therefore:   

To the extent that it is not the intention to revise them, the substantive consistency of the proposed enactment with the relevant provisions of the existing labour legislation should be ensured

To the extent that it is not the intention to modify it, the form of the proposed enactment should correspond to the form followed by relevant existing legislation

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Practicability

Any legislative drafting exercise is based on the anticipation that the enactment under preparation will be effectively applied, that is that the legislative intent behind it will be accomplished. To this end, it is important for attention to be given to assessing the practicability of the proposed legislation from both the regulatory point of view, which implies a cost/benefit analysis, and from the point of view of administrative feasibility.

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Regulatory feasibility: cost/benefit analysis

Legislating insufficiently or excessively can have serious adverse practical effects, especially where the subject matter under regulation involves considerations of both social protection and economic efficiency. Almost each drafting exercise of labour legislative is confronted with such a social protection versus economic efficiency dilemma. While under-regulation can result in insufficient social protection, over-regulation can negatively affect economic efficiency. It is therefore important to seek an appropriate balance between these two objectives.

In doing so, it is important to assess the costs and benefits to be expected as a result of the implementation of the new legislation. Such costs and benefits should be recognized and carefully evaluated. The cost/benefit analysis needs to take into account not only the impact of the new protection on the workers and enterprises affected, but on the economy and society as a whole. This should be done from both a short- and long-term perspective. For example, it may be relatively easy to recognize the short-term costs of new forms of protection, but less easy to recognize the longer-term benefits that may result in terms of better labour and employment relations and productivity, as well as long term costs for society of not providing the protection envisaged. Similarly, the long-term costs to the competitiveness of enterprises should be considered. Although the cost/benefit assessment of legislative impact is not purely the job of drafters, the latter should work with the relevant authorities to undertake it, even if it can be only carried out very imprecisely.

If the proposed enactment implies significant potential costs or is expected to give significant benefits, whether social or economic, its cost/benefit probability analysis should be ensured

The cost/benefit analysis should take into consideration the short- and long-term expected impact of the legislation and the impact on workers and enterprises and on the economy and society at large

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Administrative feasibility

In analysing the intent behind the proposed enactment, account should also be taken of the extent to which it can be effectively administered. Verification of administrative feasibility implies the following aspects:

• an appropriate normative base to administer the implementation of the proposed enactment, such as appropriate rules empowering labour inspectors to enter employers' premises;
• a sufficiently developed institutional framework, particularly as regards the labour inspectorate and judiciary; and
• human resources capable of ensuring such administration.

All these elements are important and indispensable preconditions for the successful implementation of the proposed enactment. If any of them are missing or underdeveloped, appropriate measures should either be envisaged to develop the administrative framework to a sufficient extent or the intent behind the proposed enactment should be adjusted to the existing circumstances. Therefore:

If the administrative feasibility of the proposed enactment is doubtful, this should be discussed with its sponsor(s) and a strategy developed for dealing with the problem

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Design

The framework for the new enactment. After consideration of the purpose of the proposed enactment, the problem of its design comes to the forefront. At this stage an overall panoramic view of the subject matter under regulation and of the norms to be included in the the proposed enactment has to be developed in order to structure it in a way to ensure its comprehension by those to whom it is addressed as a precondition for its successful implementation. To this end:

The topics to be addressed in the proposed enactment should be structured in a way that respects the logic of the interrelationship of the provisions on the subject matter covered and facilitates comprehension by those called upon to apply them

A preliminary outline or framework should be developed on the basis of this structure, which should be:

     

	in accord with the intent behind the proposed enactment;
	compatible with the formal drafting techniques practised in the jurisdiction concerned;
	simple and user-friendly, insofar as its contents so permit; and
	discussed with the parties participating or being consulted in the process of drafting

  Such a framework should be indicative in nature and allow those concerned in the process to: (i) see the structure of the proposed enactment; (ii) determine the order to be followed in the course of drafting; and (iii) develop a more detailed outline of the text, adjusting this framework to the circumstances or concerns which may emerge in the course of drafting.

Ways of amending existing legislation. From the point of view of its relationship with the existing legislation, any newly developed enactment can be either of a non-amending or of an amending nature. ¹³ The development of non-amending legislation means drafting an enactment on subject matter that has not been legislated upon before, while the drafting of amending legislation involves the development of an enactment relating to subject matter that has already been covered by existing legislation. This is the usual situation in the case of labour legislation. Depending on the effect on existing legislation, the following ways of introducing changes are normally used:

• deletion and substitution of provisions of the amended legislation, or the insertion of new provisions (in this case, the amending legislation does not stand separately from the amended legislation which continues to be in force);
• repeal and replacement of the amended legislation through the:
  • consolidation of newly developed provisions and of existing legislation; and
  • enactment of the consolidated text and repeal of the pre-existing text;
• separate enactment of the amending law, which is to be construed together with (sometimes citing) the amended legislation, but stand separately from it.

Different types of amending enactments imply different designs. While the design of an enactment aimed at deleting and substituting provisions of the existing legislation or at inserting new provisions is quite technical in nature and does not provide the drafter(s) with a significant amount of discretion, the design of an enactment aimed at repealing and replacing the existing legislation gives the drafter(s) more freedom of choice. The design of an enactment aimed at changing the existing legislation indirectly and at being construed together with it requires a significant amount of consistency with the design of the amended legislation. Notwithstanding these different possibilities, amending legislation should be designed in the context of the amended legislation and of the jurisdiction to which the latter belongs. Therefore:

The design of an amending enactment should be consistent with the design of the amended legislation and other relevant laws to facilitate comprehension, unless design change would enhance comprehension

A separate amending enactment may be prepared for each amended Act

An enactment containing amendments to all the amended Acts may be prepared if the purpose and nature of the anticipated changes so allow, in which case amending provisions regarding each amended Act should be grouped in separate parts of the propose enactment

If the proposed amending enactment also entails changes to a significant number of provisions of several Acts, these amendments may be assembled in a schedule to the new Act. ¹⁴

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The use of comparative labour law

Reference to the manner in which the subject matter under consideration has been addressed in the legislation of other countries (or other constituent units of a federal state) is an important legislative drafting tool. It can not only facilitate the pre-drafting analysis and design stages, but may also significantly enrich the drafter(s) information base regarding substantive solutions and drafting practice. For the effective applicaton of this technique, the following recommendations may prove helpful:

A variety of comparative legislation should be looked at, particularly from countries having similar legal traditions

Particular attention should be given to legislation which has been referred to (in literature and practice) as good practice

The ideas or patterns drawn from comparative legislation should be carefully adapted to the design, language and form of the proposed enactment

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Relationship to other relevant legislation

If the proposed enactment covers a matter already appropriately regulated by another enactment on another subject, several approaches are possible depending upon the nature of the issue. For example, this may be done by:

• Providing in the new legislation that the issue is regulated by the cross-referenced legislation;
• extending the scope of the existing legislation; or
• incorporating its provisions in the new legislation.

These techniques are normally justified by practical considerations, but their use has both pros and cons. Proponents of these techniques place emphasis on the fact that they: (i) are conducive to the uniformity of legislation and enhance its consistency; (ii) discharge the law-making process from unnecessary overload and avoid needless repetitions; and (iii) save time and resources. Adversaries of these techniques draw attention to the fact that they may make the structure of the law excessively complicated and less accessible and comprehensible to those concerned by its application.¹⁴.

In the field of labour in particulal, knowledge and comprehension of a law is enhanced if it is set forth in legislative texts that are as comprehensive and integrated as possible, either in a single labour code or in a limited number of Acts each treating a whole branch of labour law (terms and conditions of employment, labour relations, safety and health, etc.). From this perspective, highly fragmented texts are to be avoided. However, cross references can usefully be made. If, for example, the question of unjustified dismissal arises in the context of an Act on labour relations, the Act may properly refer to the provisions on the subject in the Act on employment.

Use referential techniques only if they improve comprehension by those to whom the legislation will apply

Identify precisely the legislation referred to

Verify carefully the compatibility of the legislation referred to and the circumstances in which the proposed enactment is intended to be applied

Ensure substantive, linguistic and formal consistency between the proposed enactment and the legislation to which it refers

If necessary, include in a reference (in brackets) a brief description of the referred legislation

Example:

"in accordance with section 117 of the Employment Rights Act 1996 (enforcement by award of compensation), or..."

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Notes

1.  Ruth Sullivan, Dridger on the construction of statutes, Third edition (Toronto, Butterworths, 1994), p. 46.

2.  Trebilcock, Social dialogue, p. 21.

3. Ibid., p. 15; and Héthy, Hungary: Social dialogue within and outside the framework of tripartism, unpublished paper prepared for the InFocus Programme on Social Dialogue, December 1999.

4.  European Industrial Relations Observatory (EIRO), Update 6'98, p. 13. See Constitution of Portugal, Article 54, no. 5, paragraph d; and Article 56, no. 2 paragraph a.

5.  Ibid., Law 16/79 of 26 May 1979.

6.   NEDLAC

7.  Decree of the Minister of Manpower, No. 07 of 1999

8.  ILO, Demystifying the core Conventions of the ILO through social dialogue: The Indonesian experience (Jakartha: 1999).

9.  The CARICOM member States are: Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Montserrat, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname and Trinidad and Tobago.

10.  Angola, Botswana, Democratic Republic of the Congo, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

11.   See, Decent work, Report of the Director-General, ILC, 87th Session, 1999.

12.   Sullivan, op. cit., p. 35.

13.  Specific techniques of drafting amending legislation are addressed, where appropriate, in Chapters X and XI below.

14. For more details, seeThornton, op. cit., pp. 168-173.