Emergence of Ilo

3/18/2019 EMERGENCE OF INTERNATIONAL LABOUR ORGANISATION AND INTERNATIONAL LABOUR STANDARDS
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CHAPTER-3
EMERGENCE OF INTERNATIONAL LABOUR

ORGANISATION AND INTERNATIONAL
LABOUR STANDARDS
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CHAPTER -3 *
EMERGENCE OF INTERNATIONAL LABOUR ORGANISATION

AND INTERNATIONAL LABOUR STANDARDS
The history of any country begins with the study of evolution of man as a
human being. The primitive society is engraved with the principle of Taw of might’
which was the only right prevailing among the humanity. The trend has ripened the
system of slavery all over the world. The class struggle which had started initially
among individuals living in a society, in turn, led to national and international
struggles causing disturbance to universal peace and happiness. The same holds good
to Indian conditions.1 2
The British colonial rule had changed the various facets of Indian way of life.
During their regime the Indian workers were deprived of all basic human rights and
put to work under abnormal and inhuman conditions. Establishment of the ILO in
1919 had, no doubt brought about a ray of hope amongst the Indian working class in
improving their lot and relieving them from the clutches of their masters. Indeed the
Constitution of India appears to bear a close resemblance to that of the ILO’s, since
both these Constitutions enshrine the universal principles of freedom, dignity of
individuals, quality in living, social justice and peace.
There can be no true social and economic freedom without certain civil
liberties. In the words of Universal Declaration of Human Rights, “recognition of the
1 Dr. N.Swamy Maheshwara, Impact of ILO standards on Indian Labour Law, (Hyderabad: Asia Law
Book House, 2007), p. 480.
2 Ibid.
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inherent dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace”. In the present day highly
industrialised world fiill recognition and effective respect for human rights assume
great importance and labour standards become necessary corollary of human rights;
and both human rights and labour standards tend to become increasingly international
in character.
The present labour legislation either in India or elsewhere is the result of the
impact of the ILO Conventions. Keeping in view the speedy and world-wide
industrial development stimulating scientific and technological research and
innovations, liberalization and globalisation of labour markets it would not have been
possible for the national governments to enact the required beneficial legislation to
meet the internationally agreed labour standards without the guidance and assistance
from an international organisation like the ILO.3 4
Thus, the role played by the ILO in setting International Labour Standards
(ILS) is very important. ILS are set in the form of conventions and recommendations
for promotion of industrial harmony in the member countries and also by identifying
and encountering impediments in the ratification process of these conventions and
recommendations. Hence it is proposed to study in this chapter the important
Conventions and Recommendations of the ILO relating to protection of wages and
3 Wilfred C Jenks, Human Rights and International Labour Standards, London, 1960, pp 4-5.
4 Supra note 1, at p. 481.
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tenure in industrial employments and the impact they have created in the labour
legislations in India.
3.1 Establishment of International Labour Organisation
The International Labour Organisation (ILO) was established on April 19,
1919 by Versailles Peace Conference as an autonomous body. It was the labour wing
of the League of Nations. It was bom as a result of the peace conference at the end of
World War I at Versailles. India joined as one of the founder-members of ILO in
1919, as an original signatory to the treaty of peace.5 The ILO was the only
international organisation that survived the Second World War even after the
dissolution of its parent body the League of Nations. It became specialized agency
of the United Nations in 1946. The ILO is a new social institution trying to make the
world conscious that world peace may be affected by unjust conditions of its working
population. It deals with international labour problems. The unique feature of ILO is
that it is a tripartite body consisting of representatives of employers, labour and
government.6 7
The work of International Labour Organisation has been shaping a system of
international industrial jurisprudence which commands a special consideration. The
work consists of “obtaining a wide measure of agreement on basic labour standards
5 G. Ramanujam, Indian Labour Movement, (New Delhi: Sterling Publishers Private Limited, 1990),
p. 10.
° Mamoria, Mamoria, Gankar, Dynamics of Industrial Relations, (Mumbai: Himalaya Publishing
House Private Ltd., 2008), p. 755.
7 S.R.Samant, Industrial jurisprudence-A Treatise on the Theory and Practice of Industrial Law with
Special Reference to India,(Bombay: N M Tripathi Private Ltd., 1961), p. 48.
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and of providing guiding principles of policy and administration”8 throughout the
world. It consists of securing for all the workers in all the nations around the world
better economic and social conditions of industrial life by promoting beneficial
national industrial legislation. In other words, it consists of creating a better industrial
world by means of formulating an ideal international Code of employer-employee
relationship. “In recent years the issues of greatest concern to the ILO have been
related to three central objectives of social policy; the raising of living standards, the
promotion of social security and welfare, and the pursuit of human rights and equality
of opportunity.9 The setting up of ELO in 1919 had significant impact on both shaping
of the labour law and policy and trade union movement in India.10
3.2 Factors responsible for the Growth of International Labour Organisation
The driving forces for ILO’s creation arose from security, humanitarian,
political and economic considerations. Summarizing them, the preamble to the
Constitution of ILO says the high contracting parties were moved by sentiments of
justice and humanity as well as by the desire to secure permanent peace of the world.
There was keen appreciation of the importance of social justice in securing peace,
against a background of exploitation of workers in the industrializing nations of that
time. There was also increasing understanding of the world’s economic
interdependence and the need for cooperation to obtain similarity of working
conditions in countries competing for markets.
8 International Labour Organisation, The ILO in a Channing World, 1958, p.6.

9 Supra note 8, at p 9.
10 Sankaran Kamala, Freedom of Association in India and Labour Standards, (Nagpur: Lexis Nexis
Butterworths Wadhwa,, 2009), p.l.
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The ILO a specialized agency of the United Nations though owes its creation
to ‘Treaty of Versailles’ at the end of the World War I in 1919, its birth is not merely
the result of a resolve made by a particular group of people at a particular time and
place. It fact, it was the culmination of efforts made for over a century.
The idea of international labour regulation can be traced back to Robert Owen,
a Welshman who had introduced new methods of industrial management in his
Textile Mills at New Lanark in Scotland. Robert Owen, who has risen from poverty,
had seen the birth of modem industrialisation and the exploitation of human labour in
the early years of 19th century. He was the first philanthropist to highlight the evils of
child labour, longer hours of work and envisaged the possibility of international
agreement to regulate labour conditions.11
Charles Hindley who managed a cotton spinning factory was another early
advocate of international action to combat industrial exploitation.12 In 1839 Villerme
in France directed his attention to the abuses which existed in the textile industry and
argued for international agreement. At the same time the French liberal economist
Jerome Blanqui, in his Treatise on Industrial Economics written in 1838-39, proposed
for international treaties to regulate the conditions.13 Of all early Pioneers the most
important was Daniel Legrand, a Swiss from Basle, who managed a Ribbon making
factory. He appealed to French and Prussian governments for factory reforms
11 Preetha Joshi, International Labour Organisation and its Impact on India, (Delhi: B R Publishing
Corporation,1985), p. 9.
12 Johnston G. A., The International Labour Organisation, (London: Europe Publications,1970), p.5.
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suggesting them that “men were men and not producing machines”.1* Efforts were
also made by Karl Marx, the German Sociologist and Engels in 1848 in their book,
“Communist Manifesto”. Many other supporters of labourers suggested for
establishing an international organisation of labour to protect the interests of
labourers. ±-
Interestingly and indeed valuable as the ideas of the early pioneers are, their
significance in the history of origin of the ELO is not to be overestimated. Although
they are of different national background but, were alike in their ideas. Thus, before
the actual establishment of ILO there are many efforts made at international level for
international regulation of labour conditions. The first private initiative was taken in
the form of International Benevolent Congress which met in the year 1856 and
adopted a resolution to draft common international measures for the regulation of
industrial workers and ameliorating their working conditions by some of the intending
leading industrialists for the protection of workers.15 In 1890 the then German
emperor convened the ‘First International Labour Conference’ in Berlin. Then
another conference was held in 1897at Brussels. In 1900 a voluntary organisation
called “the International Association for Labour Legislation” held its first conference.
Two more official labour Conferences were convened at Berne by the Swiss
government in 1905 and 1906 at the instance of the “International Association for
Labour Legislation”. Two Conventions relating to prohibiting the night work for
14 S.N.Dhyani, International Labour Organisation and India, (New Delhi: National Publishing
House, 1977), p. 5.
15 Khan Ahmedullha, Commentary on the International Labour Organisation and the Indian
Response, (Hyderabad: Asia Law House, 2005), p. 4.
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women and prohibiting the use of phosphorous in the manufacturing of matches were
approved in the Berne Conference.16 Several other propositions were generally
agreed upon for the protection of labour during 1800 to 1920.
The World War I brought in to prominence the share taken by working class in
national defense and national life. It brought in to prominence the role of the
industrial workers in the task of maintaining world peace and order. But, actually
there existed industrial oppression and unfair competition all over the world at the
close of the war. Conditions of labour existed involving such injustice, hardship and
privation to large number of people as to produce unrest so great that the peace and
harmony of the world were imperiled. Also the failure of some of the nations to
adopt human conditions of labour was an obstacle in the way of other nations which
desired to improve the conditions in their own countries.
Under these circumstances it was realised that the permanent world peace
cannot be assured by the establishment of political and economic justice alone, and
that the establishment of social justice, ensuring equitable conditions of labour was
absolutely essential for the purpose. It was also recognised that the well-being,
physical, moral and intellectual, of the industrial workers was of supreme
international importance in this connection and, therefore, the improvement of their
conditions was urgently required by methods like the regulation of the hours of work,
including the establishment of maximum working day and week, the regulation of
16 India and International Labour Organisation - Fifty Years in Retrospect (Government of India,
Department of Labour and Employment, 1969) p. 68
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labour supply, the prevention of unemployment, the provision of an adequate living
wage, the protection of the worker against sickness, disease and injury arising out of
his employment, the protection of children, young persons and women, provision for
old age and injury, protection of the interest of workers when employed in countries
other than their own, recognition of the principle of freedom of association, and the
organisation of vocational and technical education.17
All these factors led to the establishment of the ILO in the year 1919, as part of
the organisation of ‘League of Nations’ which survived even after the dissolution of
League of Nations has a specialised agency of the United Nations.18 There are three
constituents of ILO, namely, the governments which finance it, the workers for whose
benefit it is created and the employers who share responsibility for the welfare of
workers.19
3.3 Aims and Objectives of International Labour Organisation
The aims and objectives of ILO are enumerated in the preamble to its
Constitution and in the Declaration of Philadelphia (1944) supplemented by Ar. 447
of the Peace Treaty of Versailles (1919). The Preamble affirms:
“whereas universal and lasting peace can be established only if it is based

upon social justice and whereas conditions of labour exist involving such
injustice, hardship and privation to large number of people as to produce
unrest that the peace and harmony of the world is imperiled, and an
improvement of those conditions is urgently required; Whereas also the failure

18 A.M.Srma, Industrial Jurisprudence and Labour Legislation, (Bombay: Himalaya Publishing
House, 1996), p.45.
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of any nation to adopt humane conditions of labour is an obstacle in the way
of other nations which desire to improve the conditions in their own
countries”.
During the Second World War a Conference was convened at Philadelphia and
the aims of ILO were redefined. This is known as ‘Declaration of Philadelphia’.
This was incorporated in the Constitution of ILO. The Conference reaffirmed the
principles of ILO, namely, (i) Labour is not a commodity; (ii) freedom of expression
and of association are essential to substantial progress; (iii) poverty constitutes a
danger to prosperity everywhere; (iv) the war against want requires to be carried on
with unrelenting vigour within each nation, and by a continuous and concerted
international effort in which the representatives of workers and employees enjoying
equal status with those of governments in free discussion and democratic decision
with a view to the promotion of the common welfare.20
The Declaration of Philadelphia enunciated 10 objectives which the ILO was
to further and promote among the nations of the world. These are:
(i) Full employment and raising of standards of living
(ii) The employment of workers in the occupation in which they can have
the satisfaction of giving the fullest measure of their skill and make their
contribution to the common well-being.
20 G.M.Kothari, A Study of Industrial Law, (Nagpur: Wadhwa and Company, 2000), p. 6.
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(iii) The provision, as a means to the attachment of this end and under
adequate guarantees for all concerned, of facilities for training and the
transfer of labour including migration for employment and settlement.
(iv) Policies in regard to wages and earnings, bonus and other conditions of
work calculated to ensure a just share of the fruits of progress to all and
a minimum living wage to all employed and in need of protection.
(v) The effective recognition for the right of collective bargaining, the co
operation of management and labour in continuous improvement of
productive efficiency and the collaboration of workers and employers
in social and economic measures.
(vi) The extension of social security measures to provide a basic income to
all in need of such protection and comprehensive medical care.
(vii) Adequate protection for the life and health of workers in all
occupations.
(viii) Provision for child welfare and maternity protection.
(ix) The provision of adequate nutrition, housing and facilities for recreation
and culture.
(x) The assurance of educational and vocational opportunity.
3.4 Organizational Structure of International Labour Organisation
The ILO consists of three principal organs. These are, the International Labour
Conference of national tripartite delegations which meets annually, The Governing
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Body - a tripartite executive council, and The International Labour Office -
permanent secretariat.
3.4.1 The international Labour Conference
International Labour Conference (ILC) is the policy making organ of the ILO.
ILC holds its sessions once in a year. It comprises three groups representing
Governments, employers and workers in the ratio of 2:1:1. Every member nation
nominates four delegates of whom two are government officials and one each
representing employers and workers. Non-government delegates are nominated in
agreement with the most representative organisations of employers and work-people

as the case may be. Each delegate may be accompanied by advisors who are not to
exceed two in number for each item on the agenda of the meeting. When questions
specifically affecting women are to be considered, at least one of the advisors is to be
a woman. Every delegate entitled to vote individually on all matters which are taken
in to consideration.
The International Labour Conference, which is the supreme body of the
organisation directs and supervises the work of the Governing Body and the
International Labour Office. It also elects the members of the Governing Body and
functions as a World Parliament of labour. One of the most important tasks which the
ILC has undertaken is to create world-wide uniform standards of labour in the form of
Conventions and recommendations.
The ILC with the establishment of different Committees is empowered to
perform the following functions:
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1) To formulate international labour standards
2) To fix amount of contribution by the member states.

3) To decide the expenditure budgeted estimate proposed by the Director
General and submitted to the Governing Body.
4) To make amendments to the Constitution subject to subsequent ratification
of the amendments by 2Ard member states including 5of the 10 states of
industrial importance.
5) To consider the report of the Director General giving labour problems and
assist in their solution.
6) To appoint Committees to deal with different matters during each session.
7) To select once in 3 years members of the Governing Body.
8) To elect its President.
9) To seek advisory opinion from the International Committee of Justice.
10) To confirm the powers, functions and procedure of Regional Conference.
3.4.2 The Governing Body
The Governing Body, at present is composed of 56 members, 28 representing
government, 14 representing employers and 14 representing workers. Of the 28
government seats 10 are permanently allotted to the ten states of chief industrial
importance. The 10 permanent members are Canada, China, France, India, Italy,
Japan, Soviet Union, the United Kingdom, the USA and Germany. Except for the
first two years of establishment of the ILO India has been enjoying the privilege of
having a permanent seat on the Governing Body. The representatives of employers
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and workers are elected respectively by the employers’ and workers’ delegates to the
International Labour Conference. At least two representatives each of the employers
and workers are to be from non-European states.
The period of office of the Governing Body is three years. The method of
filling vacancies and of appointing substitutes and other similar questions are decided
by the Governing Body subject to the approval of the conference. The Governing
Body is required to elect, from its members, a Chairman and two Vice-Chairmen so as
to ensure representation of government, employers and workers, each. The procedure
and the time of meetings are regulated by the Governing Body itself, but a special
meeting can be convened only on a written request made by at least 16 representatives
of the Governing Body. The Governing Body functioning under the general direction
of the International Labour Conference, appoints the Director General of the
International Labour Office, supervises its functioning, prepares the agenda to be
placed before the International Labour Conference and discharges such other duties as
are assigned to it by the Conference.
3.4.3 The International Labour Office
The International Labour Office acts as the secretariat of ELO, a world
information centre and a publishing house. The administrative head of the
International Labour Office is its Director General. The Director General, appointed
by the Governing Body, is “responsible for efficient conduct of the International
Labour office and for such other duties which may be assigned to him”. He or his
deputy is required to attend all meetings of the Governing Body. The staff of the
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International Labour Office is appointed by the Director General under regulations
approved by the Governing Body. As far as possible the staffs is to be appointed for
different nations and a certain percentage of them are to consist of women.
The functions of the International Labour Office include “the collection and
distribution of information on all subjects relating to the international adjustment of
the conditions of industrial life and labour, and particularly the examination of subject
which it proposes to bring before the Conference with a view to the conclusion of
International Conventions, and the conduct of such special investigations as may be
ordered by the Conference of the Governing Body”. Subject to the directions of the
Governing Body, the International Labour Office is required to, prepare documents on
the various items of the agenda for the meeting of the Conference; accord to
Government 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 and the improvement of administrative practices and systems of
inspection; edit and issue publications dealing with problems of industry and
unemployment of international interest; and carryout the duties required of it in
connection with the effective observance of Conventions.
Generally, the International Labour Office exercises such powers and
discharges such duties as are assigned to it by the Conference of the Governing Body.
3.5 ILO and International Labour Standards
One of the important activities of the ILO is the formulation of International
Labour Standards—a compendious term to describe Conventions and
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Recommendations. The idea of international standard-setting was first considered in
the 19* century among the Western countries, both for reasons of providing human
conditions of work and also for preventing unfair advantage to employers in countries
whose municipal laws did not regulate working conditions. Thus the impetus to set
standards governing working conditions was bom of both the bourgeoning workers’
movement and the interests of capital to prevent a ‘race to bottom.’ Similar
arguments continue to be present in the debates over international standards today. A
human rights based discourse that bases itself on the dignity of the worker and the
need to provide for a decent life are voiced in defense of ILS together with those who
also point out that there are economic, social and moral advantages of adhering to a
system of ILS. On the question whether observance of ILS hinders economic
progress, the ILO has sponsored studies to show how labour standards do not restrict,
but on the contrary, through regulation, can assist in economic development.21 The
relevance of standards is under attack in recent years as it is seen to be a factor
responsible for increasing labour costs and thus reducing competitiveness in
international trade. The ILO has rejected this view and taken the view that labour
standards are enabling devices for superior economic outcomes.22
3.5.1 International Labour Standards
International Labour Standards are legal instruments drawn up by the ILO’s
constituents (governments, employers and workers) setting out basic principles and
21 Guy Caire, Freedom of Association and Economic Development, 1977, p. 25.

22 Supra note 10, at p. 8-9.
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rights at work. They are either conventions, which are legally binding international
treaties or recommendations which serve as non-binding guidelines. In many cases a
Convention lays down the basic principles to be implemented by ratifying countries,
while a related recommendation supplements the convention by providing more
detailed guidelines on how it could be applied. Recommendations can also be
autonomous, i.e. not linked to any convention.23 In the Globalised era, the
International labour standards have come to be categorized as Core Labour Standards
and other Labour Standards,
i) Core Labour Standards
Core standards consist of protections against forced labour, slavery and child
labour; non-discrimination in employment practices; the right to unionise; and the
right to engage in collective bargaining. ILO by now, has adopted 196 international
Conventions on labour standards on variety of issues, however, some of them are
considered more fundamental than other. The adoption of 1998 ILO Declaration on
Fundamental Principles and Rights at Work recognised the core labour standards.
These labour standards have been further recognised as universal standards to be
applied by all member countries of the ILO. The core labour standards identified in
the declaration are as follows:
1. The first and foremost core standard relates to collective bargaining and
freedom of association. There are two important conventions to ensure the
23 International Labour Organisation, Rules of the Game: A Brief Introduction to International Labour
Standards, 2009, p. 14.
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freedom of association which enables the workers to bargain collectively with
the employer and meet their genuine demands. They are, Freedom of
Association and Protection of the Right to Organise Convention, 1948 and
Right to Organise and Collective Bargaining Convention, 1949.
2. With the object of eliminating die worst practices of exploitation of workers in
systems like forced labour, slavery and human trafficking standards evolved
include Forced Labour Convention,1930 and Abolition of Forced Labour
Convention, 1957.
3. To ensure equal pay for equal work without discriminating between the
workers on the basis, only of sex, the standards evolved are, Equal
Remuneration Convention,1951 and Discrimination (Employment and
Occupation) Convention, 1958.
4. To protect the tender age, youth and to ensure the health, safety and future of
children the conventions seek to mitigate the child labour, which include,
Minimum Age Convention, 1973 and Worst Forms of Child Labour
Convention, 1999.
The application of above core labour standards before globalisation and the
impact of globalisation on these standards are considered in detail in chapter 5.
ii) Other Labour Standards
Other Labour standards include health and safety conditions in workplace,
minimum wages, and government provision of unemployment insurance, old age and
survivor benefits, and health care. Since inception the ILO has adopted many
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conventions for the welfare of working class. However, the Conventions relating to
wages and tenure of employment alone are considered as the focus of the thesis is to
study the impact of globalisation on these aspects. Some of these standards include
Labour Clauses (Public Contracts) Convention, 1949, Protection of Wages
Convention, 1949, Minimum Wage Fixing Convention, 1970, Protection of Workers’
Claims (Employers Insolvency) Convention, 1992, and Termination of Employment
Convention, 1982. The details of theses standards are also discussed again in detail in
the forthcoming chapters.
3.5.2 Procedure
Conventions and Recommendations are drawn up by representatives of
governments, employers and workers and are adopted at the ILO’s annual
International Labour Conference by at least 2/3rds of the delegates present at the
Conference. Once a standard is adopted, member states required under the ILO
Constitution to submit them to their competent authority (normally the Parliament) for
consideration. In the case of conventions, this means consideration for ratification. If
it is ratified a convention generally comes in to force for that country one year after
the date of ratification. Ratifying countries commit themselves to applying the
convention in national law and practice and to reporting on its application at regular
intervals. Technical assistance is provided by the ILO if necessary. In addition
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representation and complaints procedure can be initiated against countries for
violations of a Convention they have ratified.24

3.5.3 Nature of Standards - Normative Character
Universality of the ILS remains a central feature of the system of international
regulation of labour. However, flexibility devices incorporated in some standards to
facilitate their gradual realization depending on the stage of development of a member
state have not brought about universality in ratification or application. ILS takes the
form of Conventions and recommendations. Conventions become binding on them
only upon formal ratification by the government. A recommendation is only a guide
to national action and cannot have any binding force. The point to note is, while the
adoption of standards is a tripartite exercise, the decision to ratify is purely that of the
government. In this respect ILO Conventions and recommendation partakes the
nature of all other international treaties, the ratification of which is open only to
governments.25 Over the past 90 years, 188 Conventions and 199 Recommendations
have been adopted by the International Labour Conference. They cover a variety of
subjects including Freedom of Association and collective bargaining, equality of
treatment and opportunity, freedom from forced labour, employment, social policy,
labour administration, labour relations, conditions of work, social security,
employment of women, employment of children and young persons, older workers,
migrant workers, indigenous workers and tribal populations, Particular occupational
24 Ibid
25 Supra note 10, at p. 10
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sectors such as sea farers, fishermen, dock workers, tenants, share croppers and
nursing personnel.
3.6 International Labour Organisation and India
The Indian approach to labour problems has undoubtedly been fashioned by
the developments with in India. However, the development of Indian labour policy
and the bulk of labour legislation have taken place during a period when the ILO has
also been in existence. The ILO has been one of the factors that have contributed and
helped shape policy in India from amongst the numerous other factors influencing
policy formulation and legislation. Once ILO adopts Conventions and
recommendations these standards become part of international labour law, which
constitutes an international bench mark that national policy makers seek to attain.
The existence of these standards exerted influence upon the judiciary also.26
The Indian legal system has been subject to various influences in the past The
present day legal system in India has been largely fashioned by British following then-
entry in to the country in 1600 and the long period of their colonial rule. Several
writers have noted the impact of the English law in India, often at the cost of
traditional laws and legal institutions.27 The 20th century especially the period during
the framing of India’s Constitution (1946-49) has seen other influences operating on
Indian law and policy. It had the influence of American, Irish, and Australian
constitutions in the framing of India’s Constitution. The late 19th and 20th centuries
26 Supra note 10, at pp. 8-9

27 See Upendra Baxi, Crisis of the Indian Legal System, 1982, p. 41-57; M.P. Jain, Outlines of Indian
Legal History, 5th ed., 1990.
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have witnessed the growth of modem industry, which has served as a catalyst for the
development of labour legislation and enunciation of labour policy. The uninterrupted
functioning of the ILO for 90 years has influenced in several ways, the legal system
and policies of both industrialised and developing countries. India’s interaction with
the ILO is as old as ILO itself. India has been a founding member and member of the
Governing Body of the ILO since 1922. India’s uninterrupted role in the ILO has
meant that access to the ILO standards has been available at all times while
formulating her labour legislation and labour policy. The ILO has played a vital role
in influencing to varying degrees over time, the form, and substance of not only
specific laws and policies but also on legal ideas and institutions as they evolved in
India. This influence goes hand in hand with the influence of member state in
determining the direction of die ILO itself.28 The development of labour law and
policy in India has taken place in the period of the development of the international
labour standards of ILO at the world level. The presence of ILO has been influential
in shaping the growth of Indian law and policy in this area. The impact of MK
Gandhi in the area of labour matters and the settlement of disputes between capital
and labour has also played a crucial role in the out look of labour legislators,
administrators, employers and trade unionists in this period.
The ILO was established to secure fair and humane conditions of labour and to
promote better relationship between the employers and the employees all over the
28 Supra note 10, at pp. 14-25.

29 Government of India, Report of the National Commission on Labour, 1969, p.46-66.
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world. It was established to bring about a better international order in the industrial
legislation of the world and to give to the worker his just and proper place in the law
of the nations. India as a founding member of ILO has been taking active part in its
deliberations. By the end of 1982 ILO had adopted 173 Conventions and 180
Recommendations. Out of 173 Conventions India had ratified 35 by the end of 1992.
The Conventions ratified by India have been incorporated in the existing labour
legislations. Conventions not ratified by India have been indirectly guided and
shaped the Indian labour legislation in a far reaching manner. The ILO standards
have decisive impact on the factory, mines, social security and wage legislations.31
ILO has adopted several Conventions and recommendations related to subjects
like employment of women, children, young persons, holidays, weekly rest, hours of
work, night work, industrial safety, health, social security, wages and wage fixation,
obligation and duty of the government of the member nations to reform the labour
legislation.32 A study of labour laws passed in India since 1919 would certainly
reveal what a considerable impact the ILO’s Conventions had in the field of Indian
labour legislation. The impact on Indian labour legislation before 1932 was direct and
tangible as they have played a significant role in initiating Indian labour legislation.33
The modus operandi was to ratify a convention and with this ratification the
consequential labour legislation would follow.

32 S.N.Dhyani, International Labour Organisation and India, (New Delhi: National Publishing
House, 1977), p. 166.
33 India and ILO - Fifty Years in Retrospect, (Government of India, Department of Labour and
Employment, 1969), p. 34-35.
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84
Many principles of ILO are also reflected in the Constitution of India in the
form of ‘Directive Principles’ of State Policy. The existence number of ILO
Conventions and recommendations are not an adequate measurement of the ILO’s
impact on the Indian labour legislation. As most of the basic aims, objectives and
principles of the ILO’s Conventions and recommendations have found then-
acceptance in the Indian labour legislation. Even the unratified Conventions and
recommendations have this impact on the Indian labour laws and policies in the form
of Indian Labour Acts. The standards set with the ILO have always taken in to
consideration before any labour legislation is undertaken in India.
The ratification of Conventions and recommendations by the member nations
is important, but their implementation is also very essential. As after ratification the
nation is legally bound to implement the convention although the recommendations
only serve as the guides for national action. Generally the Conventions and
recommendations ratified by India so far, deals with the improvement in the working
and living conditions of the Indian workers in our country. Due to the impact of DLO
Conventions on Indian labour legislation many industrial Acts have been enacted.
Some such Acts are the Factory Act, 1922; the Ports Act, 1908, the Employment of
Children Act, 1938; the Mines Act, 1952; the Indian Dock Labourers Act, 1934; the
Workmen’s Compensation Act, 1923; the Indian Railways (Amendment) Act, 1930
and the Maternity Benefit legislations etc.
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85
3.7 International Labour Organisation Standards Relating to Security in
Respect of Wages and Tenure
In all industrial employments adequate wages for the services rendered and
assurance of work without the risk of sudden casualty is the most important protection
which the workers always look for. There are national and international attempts to
secure these needs of the workers.
3.7.1 Wages
Work and wages are interdependent things. Workers’ work determines their
wages. Wages, in turn, determine the work and welfare of workers, the welfare of
their families, and also the welfare of the whole society. Wages must guarantee,
therefore, a fair and just return for the worker’s work.34
Among all the conditions of work, the most important factor in the welfare
workers is wages. Yet they are least amenable to legislation. The amount or quantum
of wages depend on variety of factors such as worker’s skill, efficiency, training,
nature of work, seniority etc. It is beyond the capacity of law to lay down proper
amount or quantum of wages for every individual worker. It is therefore left to be
determined by individual employer subject to certain general restrictions.
The general problem of wages relates to, (1) the amount or quantum of wages
and (2) the tender or payment of wages. The first relates to the topic of adequacy of
wages and various concepts about the adequacy of wages, such as living wage, fair
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wage and minimum wage and the later relates to the mode of payment, the period of
payment, the time of payment and deductions from payment of wages.
Most people work in order to earn money. Yet in many parts of the world,
access to adequate and regular wages is not guaranteed. In numerous countries, non
payment of wages has led to huge wage arrears, and wages are sometimes paid in
bonds, manufactured goods or even alcohol. Large wage arrears have been linked to
debt bondage and slavery. In other countries, workers face problem when their
employer goes bankrupt. ILO standards on wages address these problems by
providing for regular payment of wages, the fixing of minimum wage levels, and the
settlement of unpaid wages in case of employer insolvency.
3.7.2 Security of Term
We must investigate the obligations of employer and employee under the
contract of employment in order to understand the ways in which the contract can
come to an end and the consequences of its termination. Those obligations may, as in
other contracts be either expressly stated or implied, and any breach gives to the other
party a claim for damages as compensation for his loss or, in the case of a very serious
breach, a right to end the contract by ‘accepting’ the breach as a termination. This is
what happens in a case of summary dismissal. More usually notice of dismissal will
be given by to party to the other to terminate the contract. But the legislation has
surrounded this common law perception, where termination is either a dismissal with
35 Rules of the Game- A Brief Introduction to International Labour Standards, (Geneva: International
Labour Organization 2009), p. 50.
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notice or a summary ‘wrongful dismissal’ in breach of the contract, with a complex
web of new and quite separate rules, not least those relating to ‘unfair dismissal’ and
redundancy, on which the industrial tribunals began their work as recently as 1971
and 1965 respectively. Paradoxically, however, experience has shown that the
contract of employment now needs even closer inspection. For the employment
protection legislation has used its common law concepts, and has therefore both been
influenced by them and, in turn, reached back to influence the moulding of their very
shape.36
The termination of an employment relationship is likely to be a traumatic
experience for a worker and the loss of income has a direct impact on his family’s
well-being. As more countries seek employment flexibility and globalization
destabilizes traditional employment patterns, more workers are likely to face
involuntary termination of employment at some point in their professional lifetime. At
the same time, the flexibility to reduce staff and to dismiss unsatisfactory workers is a
necessary measure for employers to keep enterprises productive. ILO standards on
termination of employment seek to find a balance between maintaining the
employer’s right to dismiss workers for valid reasons and ensuring that such
dismissals are fair and are used as a last resort, and that they do not have a
disproportionate negative impact on the worker.37
36 Lord Wdderbum, The Worker and the Law, (London: Sweet and Maxwell Publications, 1986),
p.172.
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Thus, worker shall always be assured of the work in which he is engaged for
some length of time. He shall not be denied work without his fault. Even the forced
removal of employment for reasons like lay-off, retrenchment and closure shall be
regulated so that the worker is not sent-off without any social security.
3.7.3 Relevant International Labour Organisation Instruments
The ILO, since its very inception, has undertaken the task of creating
international level minimum standards of labour in the form of conventions and
recommendations which constitute the international labour code. They cover a wide
range of subjects including wages, conditions of work, employment of women and
young persons, maternity protection, industrial health, safety and welfare, social
security, freedom of association, right to organise and bargain collectively, protection
against exploitation and victimization, etc.
Since 1919, ILO has adopted 187 Conventions and 198 Recommendations up
to 2006 and that the same are categorized in to various 12 groups based upon their
nature.38 Among them, the group of ‘basic human rights of workers’ stands first.
Under this head, ILO has adopted as many as 11 Conventions and 7
Recommendations, which are in turn categorized as,39 Freedom of Association: 6
Conventions and 3 Recommendations, Forced Labour: 2 Conventions and 1
Recommendation and Equality of Opportunity and Treatment: 3 Conventions and 3

Recommendations.
38 Dr. N Maheshwar Swamy, Impact of ILO Standards on Indian Labour Law, (Hyderabad: Asia Law
House Publications, 2007), p. 101.
39 Ibid at p. 355.
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The ILO Conventions and Recommendations relating to basic human rights
have brought new hopes and aspirations among the working class of the world. They
have opened new vistas for the protection of basic human rights of working people.
The ILO Conventions and Recommendations on basic human rights are said to be the
harbingers of the Universal Declaration of Human Rights, 1948, embodiment of
Freedom of Association in the said Declaration and its adoption on December 10th,
1948 by the General Assembly had gained National and International recognition and
importance in the promotion of Freedom of Association, abolition of forced labour,
elimination of discrimination and protection against unemployment, right to equal pay
for equal work, right to just and favorable remuneration and the right to rest and
leisure. If viewed in the perspective, majority of the ILO standards promoted,
directly or indirectly the rights of labour world over.40

The following Conventions and recommendations relating to industrial
relations in general and relating to wages and security in tenure in particular are
noteworthy.
(i) Freedom of Association and Protection of the Right to organise Convention,
1948
The Freedom of Association and Protection of the Right to organise
Convention, 1948 is considered very important and its adoption very significant. The
Convention seeks to guarantee all workers and employers’ “without distinction
40 N Vidyanathan, ILO Conventions and India, (Calcutta: Minerva Associates Publications,1975),

pp.96-97
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whatsoever, the right to establish and, subject only to rules of the organisation
concerned, to join organisation of their own choice, without previous authorization”.
The Convention further envisages that “workers’ and employers’ organisations shall
not be liable to be dissolved or suspended by administrative authority”. The
Convention also says that “workers and employers organisation shall have the right to
draw up their constitutions and rules to elect their representatives with full freedom,
and precludes public authorities from interference which would restrict this right or
impede the lawful exercise thereof. The workers and employers organisation shall
also have the right to establish and join federation and confederations shall have the
right to affiliate to international organisation of workers and employers”. It further
envisages that “the law of the land shall not be such as to impair the guarantees
provided in it”. The extent to which this Convention will be applied to the armed
forces and the police shall be determined by the national laws or regulations. Part II
of the Convention requires that each member undertakes to take all necessary and
appropriate measures to ensure that workers and employers exercise freely the right to
organise themselves.41
Workers organisation cannot insist workers to join them, to work for them and
to remain in them. This is a fundamental right, a civil liberty, which appears in the
catalogues of fundamental rights in a number of constitutions, including that of India.
Article 19(l)(c) of the Indian Constitution grants the Freedom Association to all the
41 N.Vidyanathan, ILO Standards for Social Justice and Development of Labour, (New Delhi: Deep
and Deep Publications, 1992), p.92.
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citizens subject to such reasonable restrictions as may be imposed by the state in the
interest of public order or morality. The Trade Unions Act, 1926 contains the
provisions similar to this Convention. The Trade Unions Act, 1926 legalizes the
formation of a trade union by the industrial workers; allows the right of registration of
trade union and provides immunities to the registered trade union from civil, criminal
and tortious liabilities. However, the Act, places certain pre-conditions with regard
to the executive of a trade union.
(ii) Right to Organise and Collective Bargaining Convention, 1949
The Right to Organise and Collective Bargaining Convention, 1949 stipulates
that “workers shall enjoy adequate protection against the act of anti-union
discrimination” in respect of their employment and that workers and employers
organisation shall enjoy adequate protection against any act of interference by each
other or each others’ agents or members in their establishments, functioning or
administration, and that appropriate machinery should be established to secure such
protection. Article 4 of the Convention specifies that “measures appropriate to
national conditions shall be taken to encourage and promote the full development and
utilization of machinery for voluntary negotiation between employers and employers’
organisation and workers’ organisation, with the view to the regulation of terms and
conditions of employment by means of collective agreements”. The extent to which
this convention shall be applied to the armed forces and the police is left to be
determined by national laws and regulations. The Convention states “....this
Convention does not deal with the position of public servants engaged in the
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administration of the state, nor shall it be construed as prejudicing their rights or
status in any way”.42
(iii) Collective Bargaining Convention and Recommendation, 1981
The Collective Bargaining Convention and Recommendation, 1981 applies to
all branches of economic activity. Under this Convention, collective bargaining
extends to all negotiations which take place between an employer group or employers
or one or more employers organisations on the one hand and one or more workers
organisations on the other for determining working conditions and regulating relations
between employers and workers or their organisations. The provisions of this
convention shall be given effect by national laws or regulations. Measures adopted
for national conditions shall be taken to promote collective bargaining. These
conventions should not preclude conciliation and/or arbitration machinery or
institutions engaged in the existing industrial relations systems, in which the parties to
collective bargaining voluntarily participate.43
Collective bargaining recommendation, 1981 calls for steps that would
facilitate establishment and growth of free and independent representative
organisation of workers and employers and provision for their recognition for the
purpose of collective bargaining, which may take at all levels - establishment,
undertaking, industry, region or national levels.44

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(iv) Labour Clauses (Public Contracts) Convention, 1949
Labour Clauses (Public Contracts) Convention, 1949 aims at ensuring
minimum labour standards in the execution of public contracts. It provides that the
contracts to which this Convention applies shall include clauses ensuring to the
workers concerned wages (including allowances), hours of work and other conditions
of labour which are not less favorable than those established for work of the same
character in the trade or industry concerned in the district where the work is carried
on.
(v) Protection of Wages Convention, 1949
The Protection of Wages Convention, 1949 provides that the wages shall be
paid in legal tender and regular intervals; in cases where partial payment of wages is
in kind, the value of such allowances shall be fair and reasonable. Workers shall be
free to dispose of their wages as they choose. In cases of employer insolvency, wages
shall enjoy a priority in the distribution of liquidated assets.
(vi) Equal Remuneration Convention, 1951
The Equal Remuneration Convention, 1951 lays down the principle of equal
remuneration for men and women workers for work of equal value. It provides that
each member shall by means appropriate to the methods in operation for determining
rates of remuneration, promote and, in so far as is consistent with such methods,
ensure the application to all workers of the principle of equal remuneration for men
and women workers for work of equal value. This principle may be applied by means
of national laws or regulations; legally established or recognised machinery for wage
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determination; collective agreement between employers and workers; or a
combination of these various means.45
(vii) Minimum Wages Fixing Convention, 1970
The Minimum Wage Fixing Convention, 1970 requires ratifying states to
establish a minimum wage fixing machinery capable of determining and periodically
reviewing and adjusting minimum wage rates having the force of law. The
Convention further provides that the elements to be taken in to consideration in
determining the level of minimum wages shall, so far as possible and appropriate in
relation to national practice and conditions, include, the needs of workers and their
families, taking in to account the general level of wages in the country, the cost of
living, social security benefits, and the relative living standards of other social groups,
and economic factors, including the requirements of economic development, levels of
productivity and the desirability of attaining and maintain a high level of
employment.46
(viii) Protection of Workers’ Claims (Employer’s Insolvency) Convention, 1992
The Protection of Workers’ Claims (Employer’s Insolvency) Convention,
1992, provides for the protection of wage claims in insolvency and bankruptcy
proceedings, by means of privilege or through a guarantee institution. A ratifying
member nation is required under the convention to provide protection of wage claims
45 Article 2, Equal Remuneration Convention, 1951.

46 Articles 1-3, Minimum Wage Fixing Recommendation, 1970.
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against the insolvency of employer by means of privilege or through a guarantee
institution, which shall be indicated at the time ratification.
Thus ILO has adopted various conventions and recommendations laying down
the principles and methods of wage payment and fixation. The General Conference
adopted the Minimum Wage Fixing Machinery Convention, 1928 for the creation of
the minimum wage fixing machinery in certain trades. India ratified this convention
in 1955. To implement the Convention No. 26 of 1926, the government of India had
enacted the Minimum Wages Act, 1948. The Equal Remuneration Convention, 1951
was ratified by India in 1958. The Equal Remuneration Act, 1976, was enacted to
give effect to this convention.
The Protection of Wages Convention, 1949 was also adopted by ILO. It is
applicable to all persons to whom wages are paid and deductions from wages shall be
permitted only under certain conditions i.e., wages are to be paid regularly and in cash
on working days and also near the work place only. Accordingly the Payment of
Wages Act, 1936 was enacted in India to protect wages of industrial labour against
unauthorised deductions.
(ix) Termination of Employment Convention, 1982
The Termination of Employment Convention, 1982 sets forth the principle that
the employment of a worker should not be terminated unless there is a valid reason
for such termination connected with the worker’s capacity or conduct or based on the
operational requirements of the undertaking, establishment or service. Reasons for
dismissal which shall be not be considered valid include those based on union
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membership or participation in union activities, filing of a complaint against an
employer, race, colour, sex, marital status, family responsibilities, pregnancy,
religion, political opinion, national extraction or social origin, temporary absence due
to illness, or absence from work during maternity leave. If an individual worker is
dismissed, he or she shall have the right to defend him or herself against any
allegations. In cases of collective dismissals, governments should aim at encouraging
employers to consult workers’ representatives and to develop alternatives to mass lay
offs (such as hiring freezes or working time reductions). The Convention also covers
matters related to severance pay, period of notice, appeal procedures against
dismissal, and unemployment insurance, and advance warning to be given to
authorities in cases of mass dismissals.47
Thus, the efforts made at the international level for the protection of wages
played a vital role in ensuring decent wages for the work done by workers.
International instruments adopted under the auspices of ILO, relating to protection of
wages, equal pay for equal work and minimum wages have been instrumental in
legislative enactments on those matters and the interpretations of the courts while
interpreting these laws have led to a new labour jurisprudence. These matters have
become the minimum standards every employer shall without any lapses to observe to
carry out an economic activity in the country.
Premature termination of employment at the whims of the employer is a
perennial problem of the industrial society. As the state has moved far from the
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erstwhile laissezfaire days and assumed the role of welfare state, it cannot remain a
mute spectator for such issues and problems. Efforts made at the international level
under the auspices of ILO have helped enormously in enacting strict laws on ensuring
the continuity of employment of workers and avoiding premature and whimsical
terminations. The international instruments in this regard, such as, termination of
employment convention have played vital role in removal of the menace and
emancipation of workers.
However, unfortunately, the present trend in the era of LPG seemingly is that
these standards like any other labour standards are eroding gradually bringing the
situation close to the erstwhile laissezfaire under the new banner of ‘neo-liberalism.’
The trend and its ill effects are studied in detail in the forth coming chapters.

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3/18/2019 EMERGENCE OF INTERNATIONAL LABOUR ORGANISATION AND INTERNATIONAL LABOUR STANDARDS

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EMERGENCE OF INTERNATIONAL LABOUR

EMERGENCE OF INTERNATIONAL LABOUR ORGANISATION

among individuals living in a society, in turn, led to national and international

both these Constitutions enshrine the universal principles of freedom, dignity of

individuals, quality in living, social justice and peace.

liberties. In the words of Universal Declaration of Human Rights, “recognition of the

industrial development stimulating scientific and technological research and

from an international organisation like the ILO.3 4

and encountering impediments in the ratification process of these conventions and

recommendations. Hence it is proposed to study in this chapter the important

Conventions and Recommendations of the ILO relating to protection of wages and

3.1 Establishment of International Labour Organisation

The International Labour Organisation (ILO) was established on April 19,

World War I at Versailles. India joined as one of the founder-members of ILO in

that it is a tripartite body consisting of representatives of employers, labour and

The work of International Labour Organisation has been shaping a system of

international industrial jurisprudence which commands a special consideration. The

work consists of “obtaining a wide measure of agreement on basic labour standards

and of providing guiding principles of policy and administration”8 throughout the

better economic and social conditions of industrial life by promoting beneficial

national industrial legislation. In other words, it consists of creating a better industrial

world by means of formulating an ideal international Code of employer-employee

3.2 Factors responsible for the Growth of International Labour Organisation

political and economic considerations. Summarizing them, the preamble to the

against a background of exploitation of workers in the industrializing nations of that

time. There was also increasing understanding of the world’s economic

interdependence and the need for cooperation to obtain similarity of working

conditions in countries competing for markets.

8 International Labour Organisation, The ILO in a Channing World, 1958, p.6.

a Welshman who had introduced new methods of industrial management in his

agreement to regulate labour conditions.11

advocate of international action to combat industrial exploitation.12 In 1839 Villerme

Jerome Blanqui, in his Treatise on Industrial Economics written in 1838-39, proposed

factory. He appealed to French and Prussian governments for factory reforms

“Communist Manifesto”. Many other supporters of labourers suggested for

establishing an international organisation of labour to protect the interests of

significance in the history of origin of the ELO is not to be overestimated. Although

adopted a resolution to draft common international measures for the regulation of

emperor convened the ‘First International Labour Conference’ in Berlin. Then

another conference was held in 1897at Brussels. In 1900 a voluntary organisation

approved in the Berne Conference.16 Several other propositions were generally

agreed upon for the protection of labour during 1800 to 1920.

desired to improve the conditions in their own countries.

physical, moral and intellectual, of the industrial workers was of supreme

international importance in this connection and, therefore, the improvement of their

labour supply, the prevention of unemployment, the provision of an adequate living

organisation of vocational and technical education.17

3.3 Aims and Objectives of International Labour Organisation

Constitution and in the Declaration of Philadelphia (1944) supplemented by Ar. 447

of the Peace Treaty of Versailles (1919). The Preamble affirms:

“whereas universal and lasting peace can be established only if it is based

17 Supra note 7, at p. 49.

of any nation to adopt humane conditions of labour is an obstacle in the way

of other nations which desire to improve the conditions in their own

the aims of ILO were redefined. This is known as ‘Declaration of Philadelphia’.

and of association are essential to substantial progress; (iii) poverty constitutes a

international effort in which the representatives of workers and employees enjoying

with a view to the promotion of the common welfare.20

The Declaration of Philadelphia enunciated 10 objectives which the ILO was

(i) Full employment and raising of standards of living

contribution to the common well-being.