The historical development and rationale at international law of international

labour organization (ILO) framework for collective bargaining.

BENARD ONYINKWA(onyinkwabenard@yahoo.co.uk)

The International Labour Organization (ILO) is a specialized body of the United Nations (UN);

with the special characteristic of a tripartite structure, meaning a joint decision-making between

governments, employers' and workers' organizations, focusing on labour, promoting social

justice and internationally recognized human and labour rights.1This is In line with Article 3 of

the ILO Constitution; which makes the ILO is the world‟s only international organisation with a

tripartite structure representing governments, employers and workers.2 The ILO was created to

“promote social progress and overcome social and economic conflicts of interest through

dialogue and cooperation”. As a tripartite organisation, employers and workers‟ representatives

take part in its work on an equal status with those of governments.3

It was established in the wake of the First World War by the Treaty of Versailles, which

recognised the imperative to meet social needs, and in response to a fear of bolshevism and the

socialist movement spreading across Europe.4 Furthermore, the driving force for the creation of

the ILO arose from security, humanitarian, political and economic considerations. The ILO

Constitution‟s preamble provides that the high contracting parties were moved by the sentiments

of Justice and humanity as well as by the desire to secure the permanent peace of the world.

1
Helfer, L.R., „Understanding Change in International Organizations: Globalization and Innovation in the ILO‟
(2006) 59 Vanderbilt Law Review, 649-726.
2
International Training Centre of the International Labour Organisation, International Labour Law and Domestic
Law, A training manual for judges, laywers and legal educators, Turin: International Training Centre of the
International Labour Organisation, (1st ed. 2010).
3
Rodgers, G., Lee, E., Swepston, L. and Van Daele, J. The ILO and the Quest for Social Justice, 1919-2009,
Geneva: International Labour Office, 2009. P. 2
4
GUY STANDING, „The International Labour Organization: GLOBAL MONITOR‟ (2010) 15 New Political
Economy 2

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Moreover, there was keen importance of social justice in securing peace against a background of

exploitation of workers in the industrialization nations of the time. There was also increasing

understanding of the world‟s economic interdependence and the need for corporation to obtain

similarity of working conditions in countries competing for markets.5

In light of the above, The ILO was established through Article XIII of the Treaty of Peace

between the Allied and Associated Powers and Germany, commonly called the Treaty of

Versailles, which ended the First World War in 1919, in an effort to secure lasting peace through

the pursuit of social justice. “The ILO Constitution, incorporated into Part XIII of the Treaty of

Versailles, for the first time established a link between peace and social justice, stating that

universal and lasting peace can be established only if it is based upon social justice”.6

The following are the principles; essential for collective bargaining, which gave birth to the

I.L.O and these principles were incorporated in Part XIII of the Treaty Versailles: (1) Universal

peace can be established only if it is based on social justice and social justice implies the

working of the equitable conditions of labour. (2) Regulation of labour conditions must be

accomplished internationally because “the failure of any nation to adopt human conditions for

labour is an obstacle in the way of the other nations which desire to improve the conditions of

labour in their own countries. (3) Examples of methods for improving conditions of labour are

indicated as below :- a. Establishment of maximum working days and week; b. Prevention of

unemployment; c. Provision of adequate living wage; d. Protection of labourers against sickness,

disease and injury arising out of his employment; e. Protection of children women and young

persons; f. Provision for odd-age.

5
www.ilo.org/global/about-the-ilo/history/lang-en/index.htm accessed on 11th June 2017
6
International Training Centre of the International Labour Organization, Guide to International Labour Standards.
Turin: International Training Centre of the International Labour Organization, 2008, P. 249

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To achieve above mentioned objectives and to implement these principles, the Peace Treaty

prescribed that a permanent organization should be established and thus, the I.L.O came into

existence in the year 1919.

The ILO was later expanded in 1946 through the Declaration of Philadelphia of 1944, which was

incorporated in the ILO constitution in 1946, reaffirming the basic principles of the organisation.

According to the Declaration, these principles are that labour is not a commodity, that freedom

of expression and of association and the right to collective bargaining are essential to sustained

progress and that poverty anywhere constitutes a danger to prosperity everywhere.7

In addition, the principle of collective bargaining was embodied in the Right to Organise and

Collective Bargaining Convention, No. 98, which was adopted by the international labour

organization, five years later in 1949, and which since has achieved near-universal acceptance.

In June 1998, the ILO took another step forward by adopting the Declaration on Fundamental

Principles and Rights at Work and it‟s Follow up.8 This provides that all Members, even if they

have not ratified the fundamental Convention, 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 fundamental Convention.9 These principles include the effective recognition of

the right to collective bargaining, along with freedom of association and the elimination of

7
M.N. Shaw, International Law, Cambridge: Cambridge University Press, (6th ed. 2008). P. 338
8
Kellerson, Hilary, „The ILO Declaration of 1998 on fundamental principles and rights:
A challenge for the future‟ (1998) 137 International Labour Review (Geneva) 223- 227
9
ILO, Freedom of association: An annotated bibliography. Geneva. 1999. P.51

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forced or compulsory labour, the effective abolition of child labour and the elimination of

discrimination in employment and occupation.

Furthermore, during its existence, the ILO has sought to promote social justice, and one of its

chief tasks has been to advance collective bargaining throughout the world.10 Moreover, the

Declaration of Philadelphia, 1944; part of the ILO Constitution, states that the solemn obligation

of the International Labour Organization is to further among the nations of the world

programmes which will achieve the effective recognition of the right of collective bargaining”. 11

Throughout its history, the ILO‟s principal means of action has been the establishment of

international labour standards. The two main forms of International Labour Standards developed

by the ILO are conventions and recommendations.

However, the ILO conventions are only binding on the ILO members only on ratification and the

ratified conventions can be directly applicable in individual litigation in a monist system while

domestication is required in a dualist system. Conventions are therefore instruments which create

legal obligations upon ratification and entry into force, whereas recommendations are not open to

ratification but contain guidance on policy, legislation and practice.12

10
Valticos, Nicolas, „International labour standards and human rights: Approaching the
year 2000‟ (1998) 137 International Labour Review (Geneva),135-147.
11
ILO, Constitution of the International Labour Organisation and Standing Orders of the
International Labour Conference. Geneva, 1998, p. 23-24
12
A. Bronstein, International and Comparative Labour Law: Current Challenges, Geneva: Palgrave Macmillan and
International Labour Office, 2009.

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