Labour Law Reforms & ILO Standards on Termination of Employment

1. Angelika MULLERLabour Law OfficerSocial Dialogue, Labour Law and Labour Administration Branch, ILO Labour Law Reforms & ILO Standards on Termination of Employment Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

2. Outline • Labour Law Reforms • Termination of Employment Issues • ILO Standards • Comparative Law and Practice Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

3. Origin of Labour Law and Reasons for Reforms • Imbalance in bargaining power between employer and worker • National Labour Law Reforms • constant process worldwide • to adapt to changing social and economic conditions • internal and external pressure Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

4. Main Features of Labour Law Reforms • Based on national legislative context • Involvement of social partners • ILO technical assistance • Comparative law and practice Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

5. Labour Law Reforms in Your Countries • Date on the main Labour Act in force • On-going reforms • Tripartite discussions • ILO assistance • World Bank’s influence • Any interesting information? Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

6. Country Labour Act (date) Reforms 3te ILO WB Bangladesh 2006 Labour Act + + + China 2007 Emp. Contracts Egypt 2003 + + + Fiji 2007  + + India 1948 + +  + + Indonesia 2003 +   + + Malaysia 1955/2000 2007  + + Nepal 1992 + + + + Pakistan 1976 + + + Philippines 1974/1989 + + + + Vietnam 1994/2003 + +  + Labour Law Reforms in Your Countries Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

7. Why Discussion on Termination of Employment ? • Sensitive issue because of social and economic implications • Flexibility for labour markets Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

8. Termination of Employment Legislation: Terminology • Employment Protection Legislation (EPL) • Dismissal, termination of employment at the initiative of the employer • Dismissals for economic reasons • redundancy, lay-off, retrenchment, downsizing • collective (mass) dismissals Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

9. ILO Standards on Termination of Employment • History • 1963: Termination of Employment Recommendation No. 119 • 1982: Termination of Employment Convention 158 & Recommendation 166 • influence on national legislations worldwide Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

10. ILO Convention 158 • Implementation • law, collective agreements, court decisions • Exclusions authorized • contracts for a fixed-term or a specified task • during a period of probation • others (e.g. enterprise size), after consultation with social partners Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

11. ILO Convention 158 • Valid reasons for dismissals • capacity or conduct of the worker • operational requirements of the enterprise • Prohibited reasons • union membership or activities • filing of a complaint against the employer • race, colour, sex, family and marital status, religion, political opinion, maternity • temporary absence for illness (in principle) Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

12. ILO Convention 158 • Notice period • reasonable duration • compensation in lieu of notice • Loss of right in case of serious misconduct • Time off for seeking a new job (R166) • reasonable amount of time off, without loss of pay, taken at times convenient to the worker and the employer Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

13. ILO Convention 158 • Dismissal for worker’s conduct or performance • worker’s right to defend him/herself • Appeal to an impartial body • Burden of proving the existence of a valid reason rests on the employer Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

14. ILO Convention 158 • Dismissed worker should be entitled to: • severance allowance paid by the employer, or • benefits from unemployment insurance, or • combination of both Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

15. ILO Convention 158 • Sanctions for unjustified dismissal • worker’s reinstatement • adequate compensation / damages Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

16. ILO Standards on Collective Dismissals • Operational requirements • economic, technological, structural reasons • Definition of collective (mass) dismissals • specified number of workers • percentage of the workforce • Twofold obligation of the employer Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

17. ILO Standards on Collective Dismissals • Consultation of workers’ representatives • relevant information in good time • on measures to minimize terminations and to mitigate their adverse effects • ILO Committee of Experts: between information and codetermination Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

18. ILO Standards on Collective Dismissals • Notification to the competent authority • as early as possible • relevant information by written • reasons • number and categories of workers likely to be affected, • period of dismissals Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

19. ILO Standards on Collective Dismissals • Selection of workers to be dismissed • objective criteria established in advance • determination by law or collective agreements • respect of interests of both enterprise and workers • length of service, occupational skills, family circumstances Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

20. World Bank’s Influence on Labour Law Reforms • Doing Business • Employing Workers Indicators • Performance Standards (International Finance Corporation) • reference to ILO C158 and R166 in “Good Practice Note: Managing Retrenchment” Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

21. Research on Employment Protection Legislation • Rigidity of employment protection legislation & labour market performance • no strong and direct correlation • ILO: Termination of Employment Legislation Digest • on-line database on 77 countries www.ilo.org/public/english/dialogue/ifpdial/info/termination/ Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

22. Use of ILO Standards by Domestic Courts • Reference to C158 in national jurisprudence • direct application • to fill a gap in domestic law • to replace domestic provision not in conformity with ILO standards or less protective • source of inspiration • guide for interpretation of domestic law • to strengthen a solution based on domestic law • even in the absence of ratification Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

23. ILO Debates on Convention 158 • 2001: Study on C158 for labour flexibility • an appropriate balance between job security for workers and need of flexibility for employers • Tripartite discussions in the ILO • No consensus of the status of C158 & R166 • Governing Body in November 2008 Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin

24. Concluding Remarks • ILO standards as reference for national Labour Law reforms to promote decent work and social justice Labour Law Reforms: ILO Standards on Termination of Employment by Angelika MULLER Training for Asian Trade Unions, 16 July 2008, ILO Training Centre, Turin