Editorial: ILO Standards and Precarious Work: Strengths, Weaknesses and Potential

KEYWORDS precarious employment, workers rights, ILO Convention, ILO Recommendation, comment, international labour standards, supervisory machinery, trade union attitudeDo ILO standards provide for the protection of workers who are in pre- carious work? Is this protection effective? If not, can it be made more effective? Are there any lacunas? How should these be addressed? These are some of the questions addressed in this article.In this, consideration is given to the contents of various ILO instru- ments, their relevance and application to particular situations related to pre- carious work and the jurisprudence of the ILO supervisory mechanisms. However, an additional question needs to be raised, and it is essential. Can precariousness be reduced or limited, or should the ILO restrict itself to pro- tecting workers in precarious situations? The article therefore seeks to ad- dress both ends of the equation: protecting workers in precariousness and protecting workers from precariousness. The final section offers recommenda- tions and identifies possible courses of normative action.ILO standards and the protection of precarious workersWhen analysing the relevance of ILO standards in addressing issues related to the protection of workers in precarious situations it may be useful to recall the legal nature of these standards. International labour standards take the form of Conventions and Recommendations adopted by the International Labour Conference. Conventions are treaties in the sense of the Vienna Convention on the Law of Treaties (Art. 2(1) (a))1 and, as such, are binding upon ratifying Members of the ILO. It should therefore be stressed that ILO member States are legally bound to implement ratified Conventions (Art. 26) and this obligation should be performed in good faith (pacta sunt servanda), including the effective implementation in practice of provisions in the instrument. It might be added that some of the ILO standards may also be binding upon States as international customary law or general principles of law (Thomas, Oelz and Beaudonnet, 2004). This may particularly be the case of Conventions referred to in the ILO's 1998 Declaration on Fundamental Principles and Rights at Work. These are known as ILO core labour stand- ards and include Conventions on freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour, and the elimination of discrimination in respect of employment and occupation.2The use of international labour standards in national jurisdictionsWhile violations of ratified Conventions - or, in cases of freedom of association and the right to collective bargaining, even unratified Conventions - can be reported to the ILO supervisory bodies (see below), it is also important to note from the outset that national courts are often called upon to deal with alleged infringements of labour rights derived from appli- cable ILO Conventions. Indeed, courts frequently apply the provisions of a ratified Convention directly in resolving a dispute, or else they draw on ILO standards, whether binding or not, as a source of interpretation and inspir- ation when applying domestic law.A recent example of such a reference by national courts is that of the Contrat Nouvelles Embauches (CNE) in France. The CNE, established by executive order in France in 2005 (Ordinance No. 2005893), provided that medium-sized businesses with 20 or fewer employees could hire em- ployees subject to a two-year consolidation period, during which the em- ployees could be dismissed without assigning reasons. The law was challenged in the French courts on the grounds that the CNE violated international law binding on France, namely the ILO's Termination of Employment Convention, 1982 (No. 158). In particular, the courts considered that the two-year probationary period provided for under the CNE exceeded the reasonable duration prescribed in Article 2. …