International Labour Standards

International labour standards in the International Trade Union Rights Area

Definition of International labour standards provided by ITUC-CSI-IGB: Principles and norms related to labour matters, primarily codified in the Conventions and the Recommendations of the International Labour Organization (ILO). Include core labour rights such as freedom of association and the right to organise, the right to collective bargaining and the right to strike, which are all covered by ILO Conventions 87 and 98.

See ITUC Guide to international trade union rights.

Core Labour Standards

This section examines analyses the legal issues that the Core Labour Standards and trade debate raises. There is a link between Core Labour Standards and customary international law, the Vienna Convention on the Law of Treaties (VCLT). Further, this section will analize the issues as to whether Core Labour Standards could be considered as jus cogens and whether Core Labour Standards fall within the human rights discussion. The chapter will also review labour standards within the WTO and the process and production method (PPM).

Maritime Labour Convention, 2006: Contents

This part examines the minimum Requirements for Seafarers to Work on Board a Ship.

Minimum Labour Standards in the Shipping Industry

A quick glance at the ILO website reveals that there are over 60 conventions and some 40 recommendations on working conditions in the maritime transport sector. However, these have had different receptions and have had uneven numbers of ratifications, despite the fact that they all enabled an international labour code to be developed; indeed, this code was drafted as a way of avoiding unfair competition stemming from forum shopping. The outcome was MLC, 2006—adopted by the ILO at its 94th Maritime Session—which codifies most ILO Conventions on maritime employment matters and was described as ‘a single, coherent instrument embodying as far as possible all up-to-date standards of existing international maritime labour Conventions and Recommendations, as well as the fundamental principles to be found in other international labour Conventions’ and ‘designed to secure the widest possible acceptability among governments, shipowners and seafarers committed to the principles of decent work, that it should be readily updateable and that it should lend itself to effective implementation and enforcement’.

MLC, 2006, was included in the 1999 ILO Decent Work Agenda and includes four main objectives: full employment, fundamental principles and rights at work, social protection and social dialogue. The deregulation process now prevailing in the international arena has also taken its toll on the ILO, which ought to measure its objectives in accordance with the general and bitter debate between those in favour of promoting employment creation and those who place the focus on improving social and working conditions, which, in turn, may halt the creation of new jobs.
MLC, 2006, was the result of a compromise that acknowledged both goals’ relevance, therefore giving fresh impetus to the debate, which now focuses on the true meaning of the term ‘decent work’, adding a certain flexibility in the application of international labour standards.176 Paradoxically, the first step taken in this direction was to make the Convention’s binding force dependent on ratification by at least 30 ILO members with a total share of not less than 33 % of world gross tonnage of ships. This minimum seeks to ensure that the Convention is complied with, as it imposes obligations that will only be effective when applied by a large number of states. The Convention came into force on 20 August 2013 after being ratified by 30 states representing 60 % of world gross tonnage.

MLC, 2006 contains—amending where appropriate—37 maritime labour conventions, and also includes provisions on welfare and social security protection for seafarers. It comprises three separate but intertwined parts and includes 16 Articles followed by a set of Regulations and a Code, both structured into five Titles dealing with the following issues: minimum requirements for seafarers to work on a ship (Title 1); conditions of employment (Title 2); accommodation, recreational facilities, food and catering (Title 3), and health protection, medical care, welfare and social security protection (Title 4).

Unfortunately, MLC, 2006 does not address workers’ collective rights;181 nevertheless, in accordance with ILO Convention No. 147, ILO Convention No. 87 (1948) on freedom of association and protection of the right to organise and ILO Convention No. 98 (1949) on the right to organise and to bargain collectively are both applicable in this field. Finally, Title 5 deals with compliance with and enforcement of Convention provisions and constituted in itself a highly important breakthrough, for which reason it will be dealt with in a specific section later. Given the significance of this Title, it has been treated as the third pillar of the consolidated Convention. The Code contains two types of rules; Part A regulations and standards are mandatory, whereas Part B guidelines are not, although states have agreed to pay them due attention.

The Convention is self-executing, but if states are unable to apply the principles and rights as provided for in Part A they may resort to ‘any law, regulation, collective agreement or other implementing measure considered to be substantially equivalent’, in accordance with the definition of ‘equivalent’ as laid down in Article VI(4).185 By means of this provision, the Convention aims to give material form to the compromise between promoting job creation and improving working conditions at sea: in this way, states are granted flexibility in applying the Convention in accordance with their particular circumstances and degree of development.

Flexibility in applying the Convention is also manifest in the general formulation of numerous provisions of Part A, leaving member states ample room for manoeuvre in its implementation. As stated in the Explanatory Note to the Regulations and Code of MLC, 2006, guidance on implementing the non-mandatory provisions in Part B is provided, but as they are non-binding, states may always resort to other types of measures.

Despite the flexibility that nations have in implementing MLC, 2006, the Convention stands out as an efficient instrument aimed at harmonising legislation. This can be seen right from the start in the definitions in Article II, which includes such terms as ‘seafarers’, ‘seafarers’ employment agreement’, ‘seafarer recruitment and placement service’, ‘ship’ and ‘shipowner’, continuing with a reference to its broad scope of action, which includes ‘all ships, whether publicly or privately owned, ordinarily engaged in commercial activities’.

Unfortunately though, the Convention excludes many categories of ships, such as warships, naval auxiliaries and those sailing exclusively in inland waters or the equivalent, in addition to other categories that are difficult to label. These exclusions will drive states to initiate consultations to clear up their doubts, as the Convention does not give any clues as to the final answer.188 In order to reduce uncertainty, the ILO has set up a public database and is currently compiling information on complying with MLC, 2006, and national case law interpreting these gaps.

In general terms, the Convention’s proper implementation relies on national legislation, from which interpretative divergences will no doubt arise. Furthermore, these are encouraged inasmuch as some standards are of an open texture, and with this wording MLC, 2006, softened some obligations established in previous Conventions with a mandatory nature. The ILO webpage therefore provides guidelines on certain issues and regulatory models with a view to harmonising the transposing of mandatory and particularly non-mandatory standards in Part B of the MLC, 2006, Code into national law. These guidelines will be referred to in dealing with the Convention’s contents. The guidelines in fact form a handbook providing assistance on implementing MLC, 2006, the most general ones being those that make model national provisions available for states,191 as a kind of model laws.

In addition to the flexible approach that states are granted in implementing the Convention, the Code’s specific amendment procedure should also be mentioned. This innovative procedure does not require the formalities usually applied to the amending of international conventions, offering in turn a speedy response to global challenges. It aims to give all stakeholders a voice: governments, workers’ representatives and employers. However, as they contain core rights and principles and basic member state obligations, the Articles and the Regulations can only be amended in accordance with the procedure laid down in Article 19 of the ILO Constitution,

Source: Piñeiro L.C. (2015) International Maritime Labour Law. Hamburg Studies on Maritime Affairs (International Max Planck Research School for Maritime Affairs at the University of Hamburg), vol 34. Springer, Berlin, Heidelberg

Resources

Trade Union Topics

• Trade Union Act
• Trades Union Congress (TUC)
• Trade Union Density
• Definition of Trade Union
• Socialist Coalition
• Socialist Party
• Legislative Power
• Trade unions in Europe
• Trades Union Act
• Cartism
• Poor Law
• Combination Acts

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