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A Study On Conventions And Working Methodology Of International Labor Organisation In India With Case Laws

The International Labor Organization (ILO) is the United Nations agency for the world of work. It sets international labor standards, promotes rights at work, and encourages decent employment opportunities, the enhancement of social protection, and the strengthening of dialogue on work-related issues.

The ILO has a unique tripartite structure bringing together governments, employers’ and workers’ representatives. ILO’s mandate of social justice as the basis for peace is expressed today as Decent Work for all. Decent Work is recognized as a global goal, the promotion of which means striving for economic growth with equity, though a coherent blend of social and economic goals, to contribute to opportunities for all women and men to obtain decent and productive work in conditions of freedom, equity, security, and dignity.[1]

ILO in India

India, a Founding Member of the ILO, has been a permanent member of the ILO Governing Body since 1922. The first ILO Office in India started in 1928. The decades of productive partnership between the ILO and its constituents has mutual trust and respect as underlying principles and is grounded in building sustained institutional capacities and strengthening capacities of partners. It has a two-directional focus for socio-economic development: overall strategies and ground-level approaches. India has witnessed rapid economic growth in the last two decades and has emerged as one of the fastest-growing middle-income countries worldwide in recent years. From 2007 to 2016, India’s economy has more than doubled, growing by 112 percent.[2]

India’s share in world GDP increased from an average of 4.8 percent during 2001-07 to 7.5 percent in 2017, in purchasing power terms.[3] The share of workers in the unorganized sector (enterprises with fewer than ten workers, including own-account workers) fell from 86.3 percent in 2004-05 to 84.3 percent in 2009-10, and further to 82.2 percent in 2011-12[4]

Decent Work Country Programs

The ILO's overarching goal is Decent Work, i.e., promoting opportunities for all women and men to obtain decent and productive work in conditions of freedom, equity, security, and dignity. DW is at the heart of ILO's strategies for economic and social progress, central to efforts to reduce poverty and a means to achieve equitable, inclusive, and sustainable development India's 11th Plan's the vision of faster and inclusive growth through a process that yields broad-based benefits and ensures equality of opportunity for all – with a strong emphasis on decent working and living conditions for all. Several India's 11th Plan targets align with the DW agenda.

The DW concept is translated into Decent Work Country Programmes (DWCPs), prepared and adopted by the tripartite constituents and ILO, at country levels. The DWCP-India (2007-12), aligned to the 11th Plan and the United Nations Development Assistance Framework focuses on 3 priorities.

Priority 1: Opportunities enhanced for productive work for women and men, particularly for youth and vulnerable groups, especially through skills development;
Priority 2: Social protection progressively extended, particularly in the context of in formalization;
Priority 3: Unacceptable forms of work progressively eliminated.

The cross-cutting issues are a special focus while implementing the DWCP under the three priority areas are:
  1. Social dialogue and strengthening of partners;
  2. Informal economy; and
  3. Gender equality.
ILO's current portfolio in India centers around child labor, preventing family indebtedness employment, skills, integrated approaches for local socio-economic development and livelihoods promotion, green jobs, value-addition into national programs, micro and small enterprises, social security, HIV/AIDS, migration, industrial relations, dealing with the effects of globalization, productivity, and competitiveness, etc. The Decent Work Technical Support Team (DWT) for South Asia stationed in New Delhi, through its team of Specialists provide technical support at policy and operational levels to member States in the sub-region.[5]

ILO Declaration on Fundamental Principles and its Follow-up (1998)
On 18 June 1998, at its 86th session, the International Labor Conference adopted the Declaration on Fundamental Principles. The declaration reiterates the binding nature of Philadelphia. Declaration and requires compliance of the core conventions covering the following aspects even by those countries that have not ratified the relevant conventions:

  1. Freedom of association (No.87) and the effective recognition of the right to collective bargaining (No. 98).
  2. The elimination of all forms of forced or compulsory labor (Nos. 29 and 105). In 1999 the ILO adopted Convention No. 182 concerning Immediate Action for the Abolition of the Worst Forms of Child Labour. This became the eighth core convention.
  3. The effective abolition of child labor (No. 138).
  4. The elimination of discrimination in respect of employment and occupation (Nos.100 and 111).
All member countries of the ILO are required to submit a report on their progress in implementing the principles enshrined in the above conventions. The ILO, in turn, will prepare a report each year on one of the above four categories of fundamental principles and rights. The report will be based on the information gathered and assessed by established procedures.

In the case of member-states that have not ratified the fundamental conventions, the report will be based on the findings of the annual follow-up. In the case of member countries that have ratified these conventions, the report will be dealt accordance with Article 22 of the ILO Constitution.[6]

International Labour Standards Conventions

The principal means of action in the ILO is the setting up the International Labor Standards in the form of Conventions and Recommendations. Conventions are international treaties and are instruments, which create legally binding obligations on the countries that ratify them. Recommendations are non-binding and set out guidelines orienting national policies and actions.

The approach of India to International Labor Standards has always been positive. The ILO instruments have provided guidelines and a useful framework for the evolution of legislative and administrative measures for the protection and advancement of the interest of labor. To that extent, the influence of ILO Conventions as a standard of reference for labor legislation and practices in India, rather than as a legally binding norm, has been significant. Ratification of a Convention imposes legally binding obligations on the country concerned and, therefore, India has been careful in ratifying Conventions.

It has always been the practice in India that we ratify a Convention when we are fully satisfied that our laws and practices conform with the relevant ILO Convention. It is now considered that a better course of action is to proceed with progressive implementation of the standards, leave the formal ratification for consideration at a later stage when it becomes practicable. We have so far ratified 41 Conventions of the ILO, which is much better than the position existing in many other countries. Even where for special reasons, India may not be in a position to ratify a Convention, India has generally voted in favor of the Conventions reserving its position as far as its future ratification is concerned.[7] Core Conventions of the ILO: -

The eight Core Conventions of the ILO (also called fundamental/human rights conventions) are:
  • Forced Labor Convention (No. 29)
  • Abolition of Forced Labor Convention (No.105)
  • Equal Remuneration Convention (No.100)
  • Discrimination (Employment Occupation) Convention (No.111)
  • Minimum Age Convention (No.138)
  • Worst forms of Child Labour Convention (No.182)
    (The above Six have been ratified by India)
  • Freedom of Association and Protection of Right to Organised Convention (No.87)
  • Right to Organize and Collective Bargaining Convention (No.98)
    (These two have not been ratified by India)
Resulting to the World Summit for Social Development in 1995, the previously mentioned Conventions (Sl.No. 1,5,7 and 8) were classified as the Fundamental Human Rights Conventions or Core Conventions by the ILO. Later on, Convention No.182 (Sl.No.6) was added to the rundown. According to the Declaration on Fundamental Principles and Rights at Work and its Follow-up, every Member State of the ILO is relied upon to offer impact to the standards contained in the Core Conventions of the ILO, independent of whether the Core Conventions have been approved by them.

Under the revealing technique of the ILO, point by point reports are expected from the part States that have confirmed the need Conventions and the Core Conventions like clockwork. Under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, a report is to be made by every Member State each year on those Core Conventions that it has not yet endorsed.

India on ratified conventions

India has been a strong supporter of equality. Article 16 of the Indian Constitution provides equal opportunity in the matters of public employment as a fundamental right.[8] Further, Article 39, which is a part of directive principles of state policy reads “The The state shall, in particular, direct its policy towards securing-……..(d) that there is equal pay for equal work for both men and women;…”[9]

Indian legislatures have now and then attempted to enforce substantive equality at the workplace. Examples of such attempts could be laws regarding sexual harassment of woman at workplace, SC, and ST Prevention of atrocities, etc.[10] Equal Remuneration Act, 1976[11] and Equal Remuneration Rules, 1976[12] provide for penalties in the case, the remuneration of men and women placed at the same level is not equal. There have many more provisions, which move towards equal remuneration as an accepted principle.[13]

The Supreme Court of India in M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D’costa and another[14] substantiated on the principle that equal remuneration has to be considered by the company and no discrimination can exist based on gender.

Similarly, India has also enacted strongly on conventions accepted on bonded labor.

With respect to conventions regarding bonded labor, various legislation enactments like Bonded Labor System Abolition Act of 1976 and rules have been adopted by India.[15] India has adopted five legislations, which directly deal with contract labor.[16] It was held by the Supreme Court in Neeraja Chaudhary v. State of M.P [17], that bonded labor legislation does not only require the abolition of the activity but also, rehabilitation of the bonded laborers and failure on the state’s part to try rehabilitating them would be a violation of Article 21 and Article 23 of Indian Constitution. A similar decision was also given in the Public Union of civil Liberties v. State of Tamil Nadu and Ors [18], where the Supreme Court issued directions to all states to make proper arrangements for the rehabilitation of bonded laborers.

Therefore, it is clear that India lawmakers and adjudicators are acting following the ratified conventions and are implementing them without fail.

India on Non-Ratified Conventions

It is an accepted norm that merely because a convention is not ratified does not mean it will not be followed. In India, Courts on various occasions have relied on International Convention to formulate law when local laws are not sufficient to meet the ends of justice. [19] Paragraph 2 of the ‘ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up’ [20] reads:
“2. Declares that all Members, even if they have not ratified the Conventions in the question, 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 labor;
  3. the effective abolition of child labor; and
  4. the elimination of discrimination in respect of employment and occupation.”[21]
    (Emphasis added)
India has not ratified two of the rights under the convention i.e. Freedom of Association and Abolition of Child labor. However, India does have laws, which concern the same subjects. The right to form an association or union is a fundamental right guaranteed by Article 19(1)(c) of the Indian Constitution.[22] Various other statutes including the Industrial Dispute Act and Trade Union Act provide for, and protect, the right to form associations for workers and employers.[23] However, this freedom has not been absolute. This would be better understood in the next section.

Even for the subject of child labor corresponding laws exist in India. Article 24 of the Indian Constitution prohibits the employment of any child below the age of 14 in any hazardous employment.[24]Child Labor (Prohibition and Regulation) Act 1986 solidifies this constitutional right into law and specifies a schedule in which children could not be employed.

However, this raises an issue of contention that if India was willing to make corresponding laws, then what are the reasons for which India has not ratified the conventions on these two issues. This could only become clear if we can analyze where is the difference between Indian law and International Conventions, for which India refused to ratify the conventions.

ILO India has also been working on:

Current areas of work The ILO’s work in India is carried out within the framework of the Decent Work Country Programme (DWCP) objective of India’s DWCP for 2018 to 2022 is to “create a more decent future of work through better quality jobs, and ensure the transition to formal employment and environment sustainability” and to support India’s march towards “Leaving no one behind and reach the furthest behind first” as articulated in the 2030 UN Agenda.

In the next five years, ILO India will be focusing on - boosting employment opportunities for women in rural areas and youth, protecting migrant workers, promoting employment in sectors that address environmental and climate change, and formalizing India’s large informal economy.
  • Preventing unacceptable forms of work such as bonded labor, labor trafficking, and ensuring the rights and protection of domestic workers.
  • Promoting gender equality at the workplace, preventing sexual harassment, gender-based violence and wage discrimination, and implementing ILO Conventions and national lawson equal remuneration and employment.
  • Conducting evidence-based policy research on areas of national importance including mapping trends in India relating to the future of work.
  • Introducing tools to integrate employment goals in national policies and programs, and promoting Decent Work elements in select governmental programs.
  • Supporting the creation of a national Social Protection Floor through advisory services, and identifying challenges in the implementation of select government schemes.
  • Strengthening tripartite institutions’ ability to carry out social dialogue at both national and state levels and promoting capacities of employers’ and workers’ organizations to provide better services to their members and to influence labor policy formulation.
  • Ratifying and applying international labor standards, providing technical advisory services, policy support, training, research through ILO’s training partnerships (ITC-Turin), facilitating and strengthening social dialogue.[25]

Conclusion
In the course of the last 80-odd years, global work measures have become the bedrock on which the national laws and arrangements on social and work matters were based. During the previous decade, they have become instruments for potential linkage with the universal exchange. India, being an originator individual from the ILO, has relentlessly bolstered the ILO and the universal measures. Its record of approval of shows isn't a sufficient impression of its withstanding pledge to the advancement of work guidelines.

Global work principles have brought about setting up the standard of equivalent compensation in India to an enormous degree yet endeavors are required for receiving an unmistakable equivalent compensation approach. An Employees State Insurance component has additionally been set up for giving security to laborers, which is, obviously, required to be redesigned as per the ILO Standards. Right now, the endeavor has been made to have an examination of the authorization of ILO gauges in India as respects aggregate bartering, limitation on constrained work, equivalent compensation prerequisites, and ESI system.

End-Notes:
  1. International labor origination, who we are <https://in.one.un.org/who-we-are/ilo-india/>
  2. World Bank, World Development Indicators (May 2017)
  3. IMF World Economic Outlook October 2017,
  4. NSS 67th round, Unincorporated Non-Agricultural Enterprises (Excluding Construction), 2015-16; Ministry of Statistics and Programme Implementation
  5. International labor the organization, about the office <https://www.ilo.org/newdelhi/aboutus/WCMS_166809/lang--en/index.htm>
  6. C.S. Venkata Ratnam, Shri Ram Centre for Industrial Relations and Human Resources, JSTOR, (Last accessed 11-04-2020)
  7. Government of India, Ministry of labor and employment,<https://labour.gov.in/lcandilasdivision/india-ilo>
  8. Constitution of India, 1949 Article 16
  9. Constitution of India, 1949 Article 39(d)
  10. India Equality of Opportunity and treatment < http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=IND&p_classification=05&p_origin=COUNTRY&p_sortby=SORTBY_COUNTRY> (last visited 23.03.2014)
  11. Equal Remuneration Act, 1976, < http://pblabour.gov.in/pdf/acts_rules/equal_remuneration_act_1976.pdf> (last visited 23.03.2014)
  12. Equal Remuneration Rules, 1976 <http://pblabour.gov.in/pdf/acts_rules/equal_remuneration_punjab_rules_1976.pdf> (last visited 23.03.2014)
  13. Central Advisory Committee on Equal Remuneration Rules, 1999 <http://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts+Implemented/Details+of+the+Acts+Implemented/The+Equal+Remuneration+Act,+1976/CENTRAL+ADVISORY+COMMITTEE+ON+EQUAL+REMUNERATION+RULES,+1991> (last visited 23.03.2014)
  14. AIR 1987 SC 1281
  15. India Elimination of forced Labor, < http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=IND&p_classification=03&p_origin=COUNTRY&p_sortby=SORTBY_COUNTRY> (last visited 23.03.2014)
  16. Id.
  17. AIR 1984 SC 1099
  18. (2004) 12 SCC 381
  19. Vishaka and Ors. v. State of Rajasthan and Ors., AIR 1997 SC 3011; See also Gaurav Jain v. Union of India and Ors., AIR 1997 SC 3201
  20. ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up: Adopted by the International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998 (Annex revised 15 June 2010), <http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang–en/index.htm> (last visited 24.03.2014)
  21. Id.
  22. Constitution of India, 1949 Article 19(1) All citizens shall have the right
    1. to freedom of speech and expression;
    2. to assemble peaceably and without arms;
    3. to form associations or unions;
    4. to practice any profession, or to carry on any occupation, trade, or business
  23. India Freedom of Association, Collective Bargaining and Industrial relations, <http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=IND&p_classification=02&p_origin=COUNTRY&p_sortby=SORTBY_COUNTRY> (last visited 24.03.2014)
  24. No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or such person is detained following the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7)
  25. International Labor Organization <https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---sro-new_delhi/documents/publication/wcms_673934.pdf>

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