Fernando Fonseca Senior Programme Officer

1. Making effective Labour Legislation: selected guidelines Fernando Fonseca Senior Programme Officer Social Dialogue, Labour Law and Labour Administration Programme International Training Centre of the ILO (Turin, Italy) Tirana, Albania, 21-22 June 2012

2. ILO Labour Legislation Guidelines (1) • Technical contents: • ILO Declaration 1998 • Drafting process • Drafting techniques • Structure: • Explanatory notes • National examples • Website: www.ilo.org/legacy/english/dialogue/ifpdial/llg/main.htm

3. ILO Labour Legislation Guidelines (2) • Introduction • Chapter I:Labour legislation in the contemporary world • Chapters II-VIII:Substantive provisions of labour legislation • Chapter II:Freedom of association • Chapter III: Effective recognition of the right to collective bargaining • Chapter IV:Settlement of collective labour disputes • Chapter V:The right to strike • Chapter VI:The elimination of all forms of forced and compulsory labour • Chapter VII:The elimination of discrimination in respect of employment and occupation • Chapter VIII: The effective abolition of child labour • Chapter IX:The drafting process • Chapter X:The drafting techniques • Chapter XI:Some drafting rules

4. Selected ILO Web tools • NORMLEX • www.ilo.org/dyn/normlex/en/f?p=1000:1:8473090856189070:::::m • NATLEX • www.ilo.org/dyn/natlex/natlex_browse.home

5. Major drafting stages: clarifying the purpose Indication of the legislature’s purpose(s) to enable all stakeholders, including individual workers and employers, social partners, administrative bodies, and judiciary to better understand, apply and interpret the newly-developed labour legislation provisions. Objectives or goals, motives, policies and principles of the newly-developed legislation should be distinctly understood.

6. Major drafting stages: some basic principles • New labour legislation to respect legal framework of the country • Labour legislation as a harmonious set of correlated rules (spelled out in legislation and developed by the judiciary) based on a number of basic ideas and fundamental principles including these principles: • Overall objective of labour law to protect workers in a subordinate work relationship. • This protection should be ensured with due regard being given to the interests of employers and to economic concerns. • Basic workers’ and employers’ rights and freedoms should be recognized and fully respected. • Social dialogue and collective bargaining should be promoted.

7. Major drafting stages: verifying the relationship with the existing law • If the new legislation addresses a matter that has been already regulated, these approaches are possible depending on the nature of the issue: • To provide, in the new legislation, that the issue is regulated by the cross-referenced legislation • To extend the scope of the existing legislation • To incorporate its provision in the new legislation • Each of these three options have advantages and disadvantages, with regard to the uniformity, consistency, structure of the law.

8. Major drafting stages: ensuring practicability (1) • Any drafting exercise is based on the assumption that the new legislation will be effectively applied. It is important to assess the practicality of the proposed legislation from: • The regulatory point of view, which implies a cost/benefit analysis • The point of view of administrative feasibility • Cost/benefit analysis: not only the impact of the new protection on the workers and enterprises affected, but on the economy and society as a whole from both: • A short-term perspective • A long-term perspective

9. Major drafting stages: ensuring practicability (2) • Although this assessment is not purely the job of drafters, they can try to work with the relevant authorities even if the scope of their collaboration is limited • Verification of administrative feasibility implies the existence of the following elements: • An appropriate normative base to administer the implementation • A sufficiently developed institutional framework • Sufficient human resources capable of ensuring such administration • If these analyses show that the implementation of the proposed legislation is doubtful, it should be discussed with the sponsor(s) for a strategy to be developed to deal with the problem.

10. The role of the ILO (1) • The ILO Constitution confers upon the International Labour Office a special mandate to provide advice in relation to labour legislation (Article 10, paragraph 2) • Policy advice • Drafting assistance • Examination of the drafts • Depending on the region, the involvement of the ILO Headquarters’ technical departments may be sought throughout the process. In particular, comments will be provided by the ILO on the draft legislation prepared.

11. The role of the ILO (2) • Advice to ensure: • Draft is faithful to the fundamental principles and rights at work, as well as other labour standards of particular relevance to the member State and the Conventions that it has ratified • In areas of potential difficulties with chosen solutions, other comparative law experiences are made available to the expert and task force • Draft is written in plain, user-friendly language; it has gender-inclusive approach; any unnecessary ambiguity is eliminated

12. The role of the ILO (3) • ILO may also play a role in the process after the draft legislation has been prepared and commented upon by: • Convening a public symposium to discuss the legislation • Upon request, attending parliamentary sessions introducing the bill • Contributing to the cost of the publication of the newly-adopted legislation • Assisting the parties to disseminate information to the public about the rights and obligations set out in the new legislation

13. The use of comparative labour law Reference to the manner in which the subject matter under consideration has been addressed in the legislation of other countries (or other constituent units of a federal state) is an important legislative drafting tool It can not only facilitate the pre-drafting analysis and design stages, but may also significantly enrich the drafter(s) information base regarding substantive solutions and drafting practice

14. Preparing the legislative plan In some legal traditions, the purpose and object of the legislation is set out in a legislative proposal or plan, prepared at the outset of the formal stage of the legislative process This proposal or plan sets forth the rationale for the proposal and a summary of the substantive provisions that are envisaged The preliminary proposal or plan is generally submitted to the sponsor for approval Once approved, the plan is sent to those responsible for preparing the initial draft legislation

15. Composition of the draft text (1) • The drafting of the proposed enactment should begin with its substantive provisions, which should be • Based on the clearly understood intent of the sponsor • Well adapted to the planned design of the enactment • The substantive provisions of the text of the proposed enactment should be consistent with each other • The preliminary, supplementary and final provisions should be introduced into the draft only after the substantive provisions are completed, unless they are necessary for the substantive provisions (for example, definitions can be developed in parallel to drafting the substantive provisions)

16. Composition of the draft text (2) When each version of the text of the proposed enactment is completed to the satisfaction of the drafter, it should be discussed with the sponsor The design of the proposed enactment should be periodically checked against the materials introduced

17. Review of the draft text • When the process of composition is completed and the body of the proposed enactment takes final shape, the draft needs to be reviewed with regard to the following issues at least: • Whether the intent has been fully realized • Whether it complies with relevant constitutional requirements and international obligations • Whether it is well adapted to the existing legal system • Whether its provisions are harmoniously positioned in the text • Whether the language and form of the enactment are easily comprehensible to those to whom the enactment is addressed

18. Rules affecting the legal contents of an enactment (1) • Constitutionality • Does the Constitution limit what can be included in the proposed enactment? • How can the proposed enactment deal with its subject-matter? • What is the constitutional legal framework for making the proposed enactment? • International obligations • To implement an international obligation directly means giving it the force of domestic law • The text of the international Convention may be set out in a schedule to the proposed enactment • The proposed enactment may refer directly to the international instrument

19. Rules affecting the legal contents of an enactment (2) • To implement an international obligation indirectly means incorporating its substance into the proposed enactment • Substantive provisions of the proposed enactment should be drafted in conformity with the international obligation

20. Rules affecting the style and language of an enactment (1) • Basic style requirements • Write clearly • Draft simply and concisely • Avoid, where possible, the use of legalistic language afford give null and void void prior to before • Do not replace words and terms which have precise and widely accepted legal meanings tell notify get receive • Write legal sentences as simply as possible

21. Rules affecting the style and language of an enactment (2) • Write in the present tense The duties of the board will include • Prefer the active voice to the passive In case of termination of The employer who intends to terminate a contract of employment, must give notice must be given ... • Prefer the positive to the negative • Prefer the singular to the plural • … • Write precisely • Choose the words or phrases that express the intended meaning as precisely as possible

22. Rules affecting the style and language of an enactment (3) • Write consistently • Avoid using different words or phrases to convey the same meaning • Avoid using a synonym or synonymous expressions to indicate a difference in substance • Provisions similar in substance should be similarly structured so that parallel ideas look parallel • Gender-neutral language • Replace gender specific nouns and adjectives with neutral terms craftsman skilled worker, artisan foreman supervisor manpower workforce, personnel • Use "he or she" or "his or her • …