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The European Social Charter and Its Supervision Opportunities, Concerns, and the Role of the Ioe

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The European Social Charter and Its Supervision Opportunities, Concerns, and the Role of the Ioe INFORMATION PAPER INTERNATIONAL ORGANISATION OF EMPLOYERS THE EUROPEAN SOCIAL CHARTER AND ITS SUPERVISION OPPORTUNITIES, CONCERNS, AND THE ROLE OF THE IOE CONTENTS EXECUTIVE SUMMARY ........................................................... 1 INTRODUCTION ...................................................................... 2 1. THE SUPERVISION OF THE CHARTER .................................. 3 A. REGULAR REPORTING ...............................................................3 B. THE COLLECTIVE COMPLAINT PROCEDURE ...........................5 C. LEGAL VALUE OF THE DETERMINATIONS RELATED TO THE CHARTER ......................................................5 2. IOE ROLE: OPPORTUNITIES AND CONCERNS .....................6 A. THE SUPERVISION OF THE CHARTER ......................................6 B. THE ROLE OF THE ECSR .............................................................6 C. THE ADDED VALUE OF THE IOE TO THE ENTIRE SYSTEM......7 3. CONCLUSIONS ..........................................................................7 ANNEX I: ECSR INTERPRETATIONS THAT NEGATIVELY IMPACT THE BUSINESS COMMUNITY ..................8 Executive Summary THIS INFORMATION PAPER PROVIDES AN INSIGHT INTO THE CONTENT OF THE EUROPEAN SOCIAL CHARTER (ESC), THE WAY IN WHICH IT IS SUPERVISED, AND THE WORKING METHODS OF THE EUROPEAN COMMITTEE OF SOCIAL RIGHTS (ECSR), WHICH IS TASKED WITH THE CHARTER SUPERVISION. IT HIGHLIGHTS THE OPPORTUNITIES AND CONCERNS FOR THE IOE AND ITS MEMBERS ARISING FROM THE SUPERVISION OF THE ESC. The ESC guarantees social and political rights. It is The IOE, while developing its interest and participation a Treaty of the Council of Europe (CoE). Currently, in the work of the CoE, is increasingly concerned by two versions of the Treaty are applied, according to the concrete functioning of the supervisory system the ratification by the CoE Member States: the 1961 and the value given to the Employers’ comments. original Charter (ESC) and the 1996 revised Charter. First, the way in which the Charter is supervised is The Charter’s supervisory system is composed of a quite complex and difficult for the general public two-fold process: regular reporting, based on the to understand. Added to this, the system, does not analysis of the national reports on the application always contribute to adequate implementation of the of the Charter provisions, and the collective Charter. complaint procedure, allowing specified international Second, the exact role and mandate of the ECSR organisations of employers and workers, and NGOs, to is unclear, leading to a situation where the ECSR submit complaints alleging unsatisfactory application has developed a wide range of rigid and one-sided of the Charter. extensive interpretations of the Charter. This has In both processes a central role is played by the ECSR, generated some frustration on the Governments’ side which ascertains whether countries have respected and legal uncertainty as to the exact content of the the provisions set out in the Charter. Charter’s provisions. The Charter provisions have binding force, but not Detailed examples of ECSR interpretations and the ECSR determinations. The ECSR decisions and negative consequences are contained in Annex I conclusions are not enforceable in domestic legal on: systems. However, the ECSR has significant influence • Article 2.1 on working time (for policy makers and the judicial system), which, together with political and diplomatic pressure, are the • Article 4.1 on minimum wage engine of the Charter supervisory system. • Article 6.4 on the right to collective action The IOE has consultative status within the CoE, • Article 24 on termination of employment and which allows it to gain a deeper understanding the probation period of the application of the Charter, and also to play an important role in communicating the business Finally, the IOE is concerned by the relative perspective both in the regular procedure of receptiveness by the ECSR to business views within the supervision and in the collective complaints framework of the regular reporting or the collective procedures. Through the IOE, members have a formal complaint procedure and seeks to redress this opportunity to counter ECSR observations and to situation. prevent diplomatic escalations of Charter violations. 1 THE EUROPEAN SOCIAL CHARTER AND ITS SUPERVISION Introduction THE COUNCIL OF EUROPE (COE) IS A POLITICAL ORGANISATION, FOUNDED IN 1949 TO DEFEND AND PROMOTE THE PRINCIPLES OF DEMOCRACY, HUMAN RIGHTS AND THE RULE OF LAW. THE COE CURRENTLY HAS 47 MEMBER STATES. The European Social Charter (ESC) is a Treaty of the certain provisions and have no obligations vis-à-vis the Council of Europe. It was signed in 1961 in Turin and provisions they have not accepted. revised in 1996; the revision came into force in 1999. The International Organisation of Employers (IOE) The 1961 Charter is still applied in 10 countries, while has a consultative status within the CoE, which the revised Charter has been ratified and it is now allows it to gain a deeper understanding of the applied in 33 countries1. The European Social Charter application of the Charter at national level, but also guarantees social and political rights, such as, inter to play an important role in communicating the alia, the right to work, the right to safe and healthy business perspective within the Charter’s supervisory working conditions; the right to a fair remuneration, procedure. the right to organise and bargain collectively; the right to maternity protection and to social security; This note aims to provide an insight into the content the right of children to social, legal and economic of the Charter’s supervision, the way in which it is protection, the right of migrant workers to protection supervised, and the working methods of the European and assistance; the right to protection in cases of Committee of Social Rights (ECSR), which is tasked termination of employment, and to housing2. Under with the Charter supervision. It will finally highlight certain conditions, the ESC allows for a “menu à la the opportunities and concerns for the IOE and its carte”, as member States may decide not to accept members arising from the supervision of the ESC. 1 For a list of countries and ratifications, see here. 2 The European Social Charter guarantees social and political rights related to seven topics: housing, health, education, employment, legal and social protection, free movement of persons, non-discrimination. 2 THE EUROPEAN SOCIAL CHARTER AND ITS SUPERVISION The Supervision of the Charter THE 1961 CHARTER ESTABLISHES IN PART IV THE WAY IN WHICH ITS PROVISIONS ARE SUPERVISED. The procedure originally established has been establishes a system of complaints) and with the 1996 complemented with the 1991 Protocol (which Charter. While the 1991 Protocol has not entered into focuses exclusively on the reform of the supervisory force (but is applied on a provisional basis3), the 1995 machinery), and with the 1995 Protocol (which Protocol is applicable only by ratifying Member States. THE CHARTER SUPERVISION: A TWO-FOLD PROCESS The REGULAR PROCEDURE, based on The COLLECTIVE COMPLAINT PROCEDURE , allowing the analysis of the national reports on international organisations of employers and workers, the application of the Charter provisions other international NGOs, and national organisations of employers and trade unions to submit complaints alleging unsatisfactory application of the Charter In both procedures a central role is played by the ECSR, Employment, training and equal which ascertains whether countries have respected Group I opportunities the provisions set out in the Charter. It is composed of fifteen independent, impartial members (elected by the Health, social security and social Group II protection Council of Europe Committee of Ministers for a period of six years, renewable once). It is reminiscent of the Group III Labour rights ILO Committee of Experts. Group IV Children, families, migrants A. Regular reporting Each provision of the Charter is reported on once every As from 2007, a new system of regular reporting has four years. The supervision of the provisions is cyclical, been introduced. The Charter has been divided into there is no differentiation between countries: the four thematic groups: legislation and practice of all countries, based on the ECSR decision, is potentially the subject of discussions at a higher level. THE REGULAR SUPERVISION IS CONSTITUTED OF A 3-STEP PROCEDURE INVOLVING GOVERNMENTAL COMMITTEE OF ECSR COMMITTEE MINISTERS 3 Committee of Ministers conclusions, CM/Del/Dec (91) 467, 2 Dec. 1991 3 THE EUROPEAN SOCIAL CHARTER AND ITS SUPERVISION The ECSR examines the reports and publishes its is composed of one representative of each of the Conclusions every year on the application of the Contracting Parties plus two representatives from rights set out in the Charter. The ECSR may identify international organisations of employers and the “non-conformity” of a Member State with the workers, the IOE and the ETUC, with no right to Charter provisions. Those cases of “non-conformity” vote, but with the capacity to participate. are subsequently followed up in a higher political The decisions of the Governmental Committee are procedure, involving representatives of CoE Member then referred to the Committee of Ministers, the States. CoE’s decision-making body, composed of the Foreign After the publication of the ECSR conclusions, the Affairs Ministers of all the member States, which might Governmental
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