prop · GL0382 · 1998-01-01 00:00:00 — each application must be supported by detailed and accurate documentation aiming to show in particular that the has access to authoritative sources of information and is able to carry out the necessary verifications, to obtain appropriate legal opinions, etc., in order to draw up complaint files that meet basic requirements of reliability; all applications are transmitted to , accompanied by an opinion of the Secretary General which reflects the degree of interest and participation shown by the in its normal dealings with ; an application is considered accepted by unless it is rejected in a ballot by a simple majority of votes cast; inclusion on the special list is valid for a period of four years, after which it lapses unless the organisation applies for renewal in the six- month period preceding the expiry date. The procedure described above applies to renewal applications. The inclusion of an on this list does not relieve , when examining admissibility, from the obligation to ascertain that the complaint actually falls within a field in which the concerned has been recognised as being particularly competent (see paragraph 29 below). c. national organisations of employers and trade unions 22. As laid down in paragraph 1 of Article 23 of the Charter, each Contracting Party must forward a copy of its report to certain of its national organisations of employers and trade unions. It is only normal that organisations of this type should be entitled to submit complaints, because they are very well informed of the situation in their country. For this reason those who drafted the Protocol considered that it would be wrong to restrict this right to the national organisations mentioned in Article 23 (that is those which are members of the international organisations referred to in paragraph 2 of Article 27). To ensure the efficient functioning of the procedure established by the Protocol and in view of the very large number of trade unions operating in some states, it was deemed necessary to stipulate that the organisation must be representative . will judge whether the organisation criterion when examining whether the complaint is admissible, in the light of information and observations submitted by the state and the organisation concerned (see Article 6). In the absence of any criteria on a national level, factors such as the number of members and the organisation s actual role in national negotiations should be taken into account. It is also stipulated that, in order to be admissible, a complaint must be submitted by a national organisation within the jurisdiction of the Contracting Party concerned. Article 2 25. The Charter does not refer specifically to national non-governmental organisations (NGOs) other than organisations of employers and trade unions. Nevertheless, for the same reasons as those invoked in respect of international non-governmental organisations (paragraph 18) and national organisations of employers and trade unions (paragraph 22), it was thought that these national NGOs should also be entitled to submit complaints. However, recognition of this right is not mandatory for parties to the Protocol, but optional: NGOs may only submit a complaint against a state if the state in question has previously issued a declaration recognising that NGOs are entitled to do so. In addition, according to paragraph 2, such declarations may be made for a specific period. With the same aim of preserving the efficiency of the machinery for examining collective complaints, NGOs are subject to the same conditions as laid down for international non-governmental organisations and national organisations of employers and trade unions: they must be representative and particularly qualified in issues covered by the Charter. will judge whether these criteria are met when examining whether the complaint is admissible in the light of information submitted by both parties (see Article 6 and paragraph 23 above). As in respect of INGOs (see, paragraph 21 above and paragraph 29 below), the Committee should ascertain that the complaint actually falls within a field in which the NGO concerned is particularly competent. As is the case for national organisations of employers and trade unions, NGOs must come within the jurisdiction of the state against which their complaint is made. Subject to the considerations set out in the previous two paragraphs, when a state makes a declaration on the basis of this article, it recognises the right of all NGOs within its jurisdiction to submit complaints without, for example, drawing up a national list. In similar vein, it may not restrict this right to certain articles or paragraphs of the Charter. Article 3 29. This article specifies that international and national non- governmental organisations may only submit complaints in respect of those matters regarding which they have been recognised as having particular competence. Article 4 30. This article lays down three admissibility conditions which were deemed sufficiently important to be specifically mentioned in a separate article of the Protocol. These conditions complement those laid down in Articles 1 and 2, which specify the organisations entitled to submit complaints. As indicated in paragraph 3 above, may stipulate the conditions governing the admissibility of complaints in its rules of procedure. It must take account of the fact that the following was agreed in the course of negotiations within : a complaint may be declared admissible even if a similar case has already been submitted to another national or international body; the fact that the substance of a complaint has been examined as part of the normal government reports procedure does not in itself constitute an impediment to the complaint s admissibility. It has been agreed to give a sufficient of appreciation in this area; because of their collective nature, complaints may only raise questions concerning non-compliance of a state s law or practice with one of the provisions of the Charter. Individual situations may not be submitted. Article 5 32. This article does not invite any specific comments, but two general remarks can be made. The adverb immediately underlines that one of the advantages of the new procedure is its rapidity. This comment also applies to Atricles 6 and 7, which invite in several instances to prescribe time-limits for the submission of information and explanations. It has been agreed that when takes action under the Protocol, its membership shall be that laid down in Articles 25 and 26 of the Charter, namely with the participation of an representative. Article 6 35. This article concerns the assessment of the admissibility of complaints. The submissions of both parties must be examined: the state concerned and the organisation that lodged the complaint are invited by to submit information and observations, and a complaint can only be declared admissible if the state concerned has had the opportunity to state its case. However, the article does not create an obligation for to request such information, in order to permit it to reject a complaint that is manifestly inadmissible of its own volition. Article 7 This article lays down the main stages in the examination of the merits of complaints. Again, heavy emphasis is placed on the fact that submissions from both parties must be examined and on its corollary, namely the need to work within reasonable time-limits. Paragraph 1 establishes a distinction between information and the possibility of submitting comments. All Contracting Parties to the Charter are notified that a complaint is admissible (first sentence). However (second sentence), only Contracting Parties to the Protocol may submit comments. These provisions reflect the fact that the follow-up to a complaint may be of interest to states other than the one directly concerned, while providing that those states that have not agreed to be bound by the Protocol are not entitled to submit comments. Paragraph 2 takes account of the key role played by international organisations of employers and trade unions in the supervisory machinery provided for by the Charter in giving them the possibility of submitting observations on complaints lodged by other organisations. Paragraph 3 makes provision for each party concerned to react to the other party s comments. Paragraph 4 authorises to organise hearings with representatives of the state concerned and the organisation that lodged the complaint. In view of the fact that the previous paragraphs of this article make ample provision for both parties to make submissions, hearings of this type need not be organised systematically. It is simply an option available to , which is responsible for determining on the basis of the available information whether a meeting with the representatives of the parties is necessary. Meetings of this type can also be arranged at the request of one of the parties. Article 8 41. Paragraph 1 corresponds to the final stage of the consideration of the merits of the complaint by . draws up a report featuring in particular its legal assessment of the complaint. This provision must be read in the light of the new paragraph 2 of Article 24 of the Charter (Article 2 of the Protocol amending the Charter). Paragraph 2 specifies to which bodies the report of is to be sent and lays down rules on its publication. Initially (first sub-paragraph) the report, which is transmitted to , the organisation that lodged the complaint and the Contracting Parties to the Charter, remains confidential (see mutatis mutandis, paragraph 2 of Article 31 of Convention on Human Rights). It should be borne in mind here that the whole of the procedure for considering complaints is confidential. It was not thought necessary to specify this in the Protocol because the rules of procedure of already stated tat its sessions shall be held in private. All working documents shall be confidential . Nevertheless, this does not imply a total lack of information. In line with the procedure used within the framework of Convention on Human Rights, the following may be made public: the fact that a given organisation has lodged a complaint against a given state, the basis of the complaint and the decision on its admissibility. Subsequently (second sub-paragraph) the report is transmitted to the Parliamentary Assembly and made public. This may take place at two different times: either four months after the report has been transmitted to ; or when the resolution referred to in Article 9 is adopted by , if this occurs before four months have elapsed. Article 9 45. This article deals with the role of , which intervenes immediately after . The duties of are similar to those it out as supervisory body in the procedure instituted by the Charter. On the basis of the report of , adopts a resolution, by a majority of those voting. However, if the conclusions of are negative, must adopt a recommendation addressed to the state concerned. In view of the importance of this decision and in accordance with the new rule introduced by the Amending Protocol (Article 5), a two-thirds majority of those voting is required. cannot reverse the legal assessment made by . However, its decision (resolution or recommendation) may be based on social and economic policy considerations. In respect of the resolution as well as the recommendation, only the Contracting Parties to the Charter are entitled to take part in the vote. had foreseen that would not be involved in the procedure for examining complaints, but decided before adopting the Protocol to add a second paragraph to this article, according to which may decide, where the report of raises new issues, by a two-thirds majority of the Contracting Parties to the Charter, to consult . Article 10 49. Once has adopted a recommendation, appropriate follow-up must be ensured. In line with the practice adopted for other international supervisory machinery (European Convention on Human Rights, , , etc.). Article 10 requires the state concerned to provide information on the measures it has taken to give effect to recommendation. This information will be contained in the next report that the state concerned submits to the Secretary General under Article 21 of the Charter. In other words, the state may not wait until the time when it would normally submit a report on the provision(s) concerned by the complaint; it must provide the information required in the report immediately following the decision of . Article 11 51. Throughout the Protocol, only the Charter itself is mentioned. This article specifies that if a state is also bound by the first Additional Protocol (5 1988), complaints may be submitted on the basis of the articles it has accepted. If further protocols to the Charter are adopted in future, they must contain a provision specifying that this Protocol applies to the articles of these other protocols that have been accepted. Article 12 53. In the course of the negotiations, the question arose as to whether the adoption of a system of collective complaints would be fully compatible with the wording of the appendix to the Charter concerning Party III, which states that It is understood that the Charter contains legal obligations of an international character, the application of which is submitted solely to the supervision provided for in Part IV thereof. To avoid any ambiguity, it was decided to include the present Article 12. Articles 13 to 15 55. These articles, which contain the final of the Protocol, conform to the model adopted by . EUROPEAN SOCIAL CHARTER (REVISED) The governments signatory hereto, being members of , Considering that the aim of is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and of facilitating their economic and social progress, in particular by the maintenance and further realisation of human rights and fundamental freedoms; Considering that in Convention for the Protection of Human Rights and Fundamental Freedoms signed at on , and the Protocols thereto, the member States of agreed to secure to their populations the civil and political rights and freedoms therein specified; Considering that in Social Charter opened for signature in on 18 October 1961 and the Protocols thereto, the member States of agreed to secure to their populations the social rights specified therein in order to improve their standard of living and their social wellbeing; Recalling that the Ministerial Conference on Human Rights held in on stressed the need, on the one hand, to preserve the indivisible nature of all human rights, be they civil, political, economic, social or cultural and, on the other hand, to give Social Charter fresh impetus; Resolved, as was decided during the Ministerial Conference held in on 21 and 22 October 1991, to update and adapt the substantive contents of the Charter in order to take account in particular of the fundamental social changes which have occurred since the text was adopted; Recognising the advantage of embodying in a Revised Charter, designed progressively to take the place of Social Charter, the rights guaranteed by the Charter as amended, the rights guaranteed by the Additional Protocol of 1988 and to add new rights, agreed as follows: The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised: 1 Everyone shall have the opportunity to earn his living in an occupation freely entered upon. 2 All workers have the right to just conditions of work. 3 All workers have the right to safe and healthy working conditions. 4 All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families. 5 All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests. 6 All workers and employers have the right to bargain collectively. 7 Children and young persons have the right to a special protection against the physical and moral hazards to which they are exposed. 8 Employed women, in case of maternity, have the right to a special protection. 9 Everyone has the right to appropriate facilities for vocational guidance with a view to helping him choose an occupation suited to his personal aptitude and interests. 10 Everyone has the right to appropriate facilities for vocational training. 11 Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable. 12 All workers and their dependents have the right to social security. 13 Anyone without adequate resources has the right to social and assistance. 14 Everyone has the right to benefit from social welfare services. 15 Disabled persons have the right to independence, social integration and participation in the life of the community. 16 The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development. 17 Children and young persons have the right to appropriate social, legal and economic protection. 18 The nationals of any one of the Parties have the right to engage in any gainful occupation in the territory of any one of the others on a footing of equality with the nationals of the latter, subject to restrictions based on cogent economic or social reasons. 19 Migrant workers who are nationals of a Party and their families have the right to protection and assistance in the territory of any other Party. 20 All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex. 21 Workers have the right to be informed and to be consulted within the undertaking. 22 Workers have the right to take part in the determination and improvement of the working conditions and working environment in the undertaking. 23 elderly person has the right to social protection. 24 All workers have the right to protection in cases of termination of employment. 25 All workers have the right to protection of their claims in the event of the insolvency of their employer. 26 All workers have the right to dignity at work. 27 All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities. 28 Workers representatives in undertakings have the right to protection against acts prejudicial to them and should be afforded appropriate facilities to carry out their functions. 29 All workers have the right to be informed and consulted in collective redundancy procedures. 30 Everyone has the right to protection against poverty and social exclusion. 31 Everyone has the right to housing. The Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs. Article 1 The right to work With a view to ensuring the effective exercise of the right to work, the Parties undertake: 1 to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment; 2 to protect effectively the right of the worker to earn his living in an occupation freely entered upon; 3 to establish or maintain free employment services for all workers; 4 to provide or promote appropriate vocational guidance, training and rehabilitation. Article 2 The right to just conditions of work With a view to ensuring the effective exercise of the right to just conditions of work, the Parties undertake: 1 to provide for reasonable daily and weekly working hours, the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit; 2 to provide for public holidays with pay; 3 to provide for a minimum of four weeks annual holiday with pay; 4 to eliminate risks in inherently dangerous or unhealthy occupations, and where it has not yet been possible to eliminate or reduce sufficiently these risks, to provide for either a reduction of working hours or additional paid holidays for workers engaged in such occupations; 5 to ensure a weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest; 6 to ensure that workers are informed in written form, as soon as possible, and in any event not later than two months after the date of commencing their employment, of the essential aspects of the contract or employment relationship; 7 to ensure that workers performing night work benefit from measures which take account of the special nature of the work. Article 3 The right to safe and healthy working conditions With a view to ensuring the effective exercise of the right to safe and healthy working conditions, the Parties undertake, in consultation with employers and workers organisations: 1 to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. The primary aim of this policy shall be to improve occupational safety and health and to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, particularly by minimising the causes of hazards inherent in the working environment; 2 to issue safety and health regulations; 3 to provide for the enforcement of such regulations by measures of supervision; 4 to promote the progressive development of occupational health services for all workers with essentially preventive and advisory functions. Article 4 The right to a fair remuneration With a view to ensuring the effective exercise of the right to a fair remuneration, the Parties undertake: 1 to recognise the right of workers to a remuneration such as will give them and their families a decent standard of living; 2 to recognise the right of workers to an increased rate of remuneration for overtime work, subject to exceptions in particular cases; 3 to recognise the right of men and women workers to equal pay for work of equal value; 4 to recognise the right of all workers to a reasonable period of notice for termination of employment; 5 to permit deductions from wages only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreements or arbitration awards. The exercise of these rights shall be achieved by freely concluded collective agreements, by statutory wagefixing machinery, or by other means appropriate to national conditions. Article 5 The right to organise With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this article shall apply to the shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations. Article 6 The right to bargain collectively With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: 1 to promote joint consultation between workers and employers;