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INTRODUCTION

• Purpose and rationale of the Guidelines
• The ILO Declaration of 1998
• Initial focus on the fundamental
• A caveat
• Seeing the law in context
• Making laws accessible
• Scope
• Format

Purpose and rationale of the Guidelines

Labour legislation is vital to the economy of any country and to the achievement of balanced development which emphasizes both economic efficiency and the well-being of the population as a whole. This is a delicate balance to achieve. Experience shows that proposals imposed from above are less effective in taking into account the complex web of interests and needs involved than solutions that have been tested and honed through the process of social dialogue, and which therefore enjoy broad support within society.

The purpose of these Guidelines is therefore to equip those involved in the process of formulating and reviewing labour legislation, as representatives of governments, employers, workers and other interests, with tools to make social dialogue on labour legislation more effective. It is hoped that in so doing, the end product, the labour legislation that is adopted, will be better adapted to national conditions and circumstances and will take more fully into account the fundamental work-related principles endorsed by the ILO.

The ILO Constitution confers upon the International Labour Office a special mandate to provide advice in relation to labour legislation. Article 10, paragraph 2, of the Constitution calls upon the Office to accord to governments at their request all appropriate assistance within its power in connection with the framing of laws and regulations on the basis of the decisions of the Conference.

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The ILO Declaration of 1998

The adoption in 1998 by the ILO’s member States of the Declaration on Fundamental Principles and Rights at Work (hereinafter the ILO Declaration of 1998) is testimony to their attachment to these fundamental rights. The Declaration states that all member States, even if they have not ratified the ILO Conventions recognized as fundamental both within and outside the Organization,

have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely:

1. freedom of association and the effective recognition of the right to collective bargaining;
2. the elimination of all forms of forced or compulsory labour;
3. the effective abolition of child labour; and
4. the elimination of discrimination in respect of employment and occupation.

Furthermore, under the ILO Declaration 1998 (para. 3) the ILO has an obligation

to assist its Members, in response to their established and expressed needs, in order to attain these objectives by making full use of its constitutional, operational and budgetary resources, including by the mobilization of external resources and support, as well as by encouraging other international organizations with which the ILO has established relations, pursuant to article 12 of its Constitution, to support these efforts:

1. by offering technical cooperation and advisory services to promote the ratification and implementation of the fundamental Conventions;
2. by assisting those Members not yet in a position to ratify some or all of these Conventions in their efforts to respect, to promote and to realize the principles concerning fundamental rights which are the subject of these Conventions; and
3. by helping the Members in their efforts to create a climate for economic and social development.

These Guidelines are one means through which the Office seeks to fulfill this mandate. They are intended for use by both ILO officials and experts advising constitutents and by constituents themselves when seeking to revise their labour laws.

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Initial focus on the fundamental

The Guidelines focus initially on legislative approaches to give effect to the fundamental principles and rights at work enshrined in the ILO Declaration of 1998. It is intended in subsequent versions of the Guidelines to extend their substantive content progressively to other principles and rights at work on which the ILO's advice is regularly requested by its constituents.

The Guidelines are intended to contribute to the efforts made by constituents to give effect to these principles and rights by providing concrete, problem-oriented, practical approaches to their implementation. Perhaps their most distinctive hands-on feature is the effort that has been made to support each point with one or several examples from national legislation, which are intended to show how legislators in the various countries have addressed the points in question.

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A caveat

The legislative texts included in these Guidelines are not presented as model texts, or even examples of best practice. Nor are they exhaustive. Rather, they seek to provide a variety of examples of how different countries have legislated to promote the fundamental principles and rights at work. On occasion, they also include texts drawn up by the ILO at the request of constituents, taking into account the needs and circumstances of the countries concerned. The Guidelines highlight considerations that should be taken into account in drafting such legislation, and ways in which this can be done. It is therefore important that the examples are understood in the light of the political, cultural and economic context of the countries concerned, bearing in mind that the approach adopted to protecting particular rights at work in one country may not be the most appropriate for another. The examples provided should therefore be used as no more than comparative reference points. Moreover, it is important to emphasize that the inclusion of a legislative text as an example in these Guidelines does not guarantee that the text is in all respects in conformity with the ILO standards in question.

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Seeing the law in context

Similarly, the fact that the Guidelines focus on labour law is not meant to suggest that legislation is the only means of promoting fundamental principles and rights at work. Legislation is of course necessary in many cases to establish basic legal rights and means of redress. However, in many countries (particularly in Western Europe and North America) certain labour matters, including some relating to fundamental rights, are regulated by collective agreements, usually supplementing a basic legislative enactment, but sometimes in the absence thereof. In view of the need to guarantee these fundamental rights to all workers, and the limited scope of collective agreements in many countries, basic legislative protection would seem to be required in most cases. But it should be emphasized that it is also necessary for legislation to be supplemented by economic, social and institutional measures for the promotion of these rights.

Labour law provides a basic foundation upon which the relationship between the key social and economic actors in the labour market is structured. In so doing, it enables those actors to participate in the regulation of the various aspects of the labour market, principally through collective bargaining and broader social dialogue related to national economic and social policy-making. By giving the social and economic actors, and in particular trade unions and employers’ organizations, a voice in policy formulation at the national, branch and enterprise levels, labour legislation and the industrial relations systems that it establishes serve cardinal democratic functions. The focus of the Guidelines focus on legal regulation of the labour market is therefore intended as a contribution to the promotion of democracy, social cohesion and economic growth.

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Making laws accessible

The primary purpose of the Guidelines is to assist in the drafting process and to improve drafting techniques. This is based on the belief that labour laws should be easily accessible and understood by those to whom they are addressed, as a means of empowering stakeholders to seek respect for their dignity and rights.

The Guidelines are therefore intended to serve as reference materials in the process of drafting labour law in member States. Their potential users are government officials and drafters, trade unions and employers' organizations, and where appropriate other stakeholders in the labour law reform process, as well as ILO officials and consultants who provide advisory services to constituents.

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Scope

The Guidelines contain eleven chapters. Chapter I addresses the theme of labour legislation in the contemporary world. It touches briefly upon the specificity of labour law and raises current concerns that merit particular attention in the process of labour law reform. These include changes in labour market composition, labour market flexibility and deregulation and new forms of working relationships.

Chapters II to VIII address substantive labour legislation in the fields covered by the ILO Declaration of 1998. The first principle, freedom of association and the effective recognition of the right to collective bargaining, is addressed in Chapters II to V. Chapter II deals with the right to establish and join workers' and employer's organizations and the protection that these organizations should be afforded under national law. Chapter III covers the right to engage in collective bargaining and provides examples of how this right can be promoted. Chapters IV and V deal respectively with the settlement of labour disputes and the right to strike. The following Chapters cover the effective abolition of all forms of forced or compulsory labour (Chapter VI), the elimination of discrimination in respect of employment and occupation (Chapter VII) and the elimination of child labour (Chapter VIII).

Chapters IX to XI deal with the principles, process and techniques of legislative drafting. Chapter IX addresses the process of labour law reform, focusing on the ILO's distinctive approach to tripartism and social dialogue, as well as some of the advantages and disadvantages of the various forms of enactment. Chapter X sets out specific drafting rules that are of particular importance in the context of labour law, with particular emphasis on plain language and gender neutrality. Finally, Chapter XI explains standard drafting techniques.

Appendix I includes a list of all the legal texts that have been taken into consideration in the preparation of the Guidelines.

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Format

In the on-line format of the Guidelines, hyperlinks are provided wherever feasible to relevant ILO texts, national labour laws and industrial relations systems, as well as legislative drafting sites in order to provide efficient and organized access to resources. Once made, a hyperlink is not normally repeated. Instead, the list of all hyperlinks is accessible through the menu.

Finally, while the initial version is in English, it attempts to draw on a wide range of drafting examples available in translation to emphasize the variety of legal traditions in the drafting of labour law.

Comments on the Guidelines are welcome (e-mail: egorov@ilo.org).