The impact of the ILO Supervisory System on the achievement of labour rights and the promotion of social dialogue in the Latin American region

Abstract

The impact of the ILO Supervisory System on the achievement of labour rights and the promotion of social dialogue in the Latin American region Monica V Tepfer (bio) The pronouncements of the supervisory bodies of the International Labour Organisation have had a high degree of influence on the conquest of rights and the promotion of social dialogue in the Latin American region. The ILO’s corpus of standards, characterised by a set of legally binding conventions, recommendations and declarations on various subjects related to the world of work, has its own supervisory system that is unique in the multilateral system. The supervisory system is composed of independent legal experts and tripartite bodies. Monitoring of the body of law is carried out through a regular system and special procedures. The regular monitoring system is based on the examination of reports on implementation by law and in practice sent by Member States, as well as on comments received from workers’ and employers’ organisations. This report is produced by the ILO Committee of Experts on the Application of Conventions and Recommendations1. Its observations constitute assessments of the conformity of a Member State’s national legislation with the conventions it has ratified. Its comments have acquired a high moral standing over the years and their legal value in national realities has become indisputable2. The regular monitoring system is complemented by the work of the Committee on the Application of Standards of the International Labour Conference. This is a standing tripartite committee. Its main objective is, through its analysis of the report submitted by the Committee of Experts, to adopt conclusions, recommending that governments take specific measures to address the challenges at a national level, including ILO missions or technical assistance. The special supervisory procedures3 include, on the one hand, a generally applicable complaints and grievance procedure and, on the other hand, a special procedure on freedom of association. The latter is carried out by a special body called the Freedom of Association Committee of the Governing Body set up in 1951 to examine complaints about violations of freedom of association. The pronouncements of the supervisory bodies and their possible qualification as a source of law or as “soft law jurisprudence” have given rise to much debate and discussion among academics and jurists outside and inside the ILO4. However, its value has always been highlighted by the trade union movement, especially in the Americas region, where, thanks to the pronouncements of the ILO supervisory bodies, it has been possible to celebrate important achievements of rights in the different national realities. In other words, beyond any debate on the legal nature of the supervisory bodies’ pronouncements, the trade union movement has undoubtedly been able to use them to promote the effective recognition of fundamental rights. ■ Recently in Ecuador, the Provincial Court of Pichincha5, following up on the recommendations adopted by the Committee on Freedom of Association and approved by the Governing Body in its report no. 391 of October 20196, ordered that the Association of Banana and Peasant Workers (ASTAC) be registered as a trade union organisation and, in turn, ordered the regulation of the exercise of the right to freedom of association by branch of activity in the country. ■ In Colombia, the Supreme Court of Justice, Labour Cassation Chamber7, in its judgement of June 2020, recognising the pronouncements of the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations as authentic interpreters of the conventions on freedom of association, declared the legality of the strike promoted by the National Health and Social Security Trade Union (SINDESS) and considered the right to strike as a possible instrument for the realisation of the general interest of a society. Both court rulings demonstrate that, on the one hand, from a purely legal analysis, national courts have the capacity to recognise and give binding force to the recommendations of the ILO supervisory bodies8. On the other hand, it clearly demonstrates the effectiveness of the ILO supervisory mechanism in empowering trade union organisations in their countries to achieve effective recognition of their rights. Over the last 20 years, the ILO has witnessed an exponential...