§ 13. Mr. RHYS DAVIES
asked the Minister of Labour whether the appeal of the employers' organisation to the international Court on the issue as to the title of the International Labour Organisation to legislate over employers as well as workpeople has now been heard; and, if so, what is the decision arrived at?
§ Sir A. STEEL-MAITLAND
On 23rd July, 1926, the Permanent Court of International Justice delivered an advisory opinion in the following terms:The Court is of opinion That it is within the competence of the International Labour Organisation to draw up and to propose labour legislation which, in order to protect certain classes of workers, also regulates incidentally the same work when performed by the employer himself.In order that the full bearing of this opinion may be understood. I am circulating in the OFFICIAL REPORT a copy of the statement published in the Monthly Summary of the League of Nations for July, 1926.
Following is the statement promised:At a public hearing, held on 23rd July, the Permanent Court of International Justice delivered its advisory opinion on the following question, transmitted to it for this purpose by the Council of the League of Nations:Is it within the competence of the International Labour Organisation to draw up and to propose labour legislation which, in order to protect certain classes of workers, also regulates incidentally the same work when performed by the employer himself?
§ The origin of this question was as follows:
§ On the agenda of the Sixth Session of the International Labour Organisation held in 1924 was included, amongst other subjects, "Night Work in Bakeries." On this question the International Labour Office had prepared a draft convention, according to 1061 which no work might be done in bakeries at night; thus no distinction of persons was made. The report of the committee instructed by the Conference to examine the draft arrived at the same conclusion; but this report was accompanied by a minority report raising serious objections to the application of the prohibition of night work to the employer himself. The version expressing the view of the majority was provisionally adopted at a full meeting of the Conference, and was referred to the Seventh Session of the Conference for a final vote. In the course of that session, in 1925, the preceding decision was confirmed in spite of the strenuous opposition of members of the Employers' Group. The version finally adopted expressly states that the prohibition of night work in bakeries "applies to the work of all persons, including proprietors as well as workers."
§ At the Thirtieth Session of the Governing Body of the International Labour Office, held, in January, 1926, the Employers' Group proposed that the Court should be consulted on the question whether "the International Labour Organisation was competent to draw up and propose regulations applying to the work of the employer himself." In the course of the discussion, the question was restricted to the competence of the International Labour Organisation "to draw up and propose regulations which, whilst primarily and essentially intended to deal with the work of employed persons, incidentally affected the work of an employer considered himself as a worker." The wording of the question finally put to the Court by the Council of the League at the request of the Governing Body was doubtless intended to express the same idea.
§ In its opinion, the Court first of all analysed the terms of the question upon which its opinion had been asked. It was thus led to observe that the question, being general, did not relate to any particular branch of industry; the Court therefore did not specifically consider the conditions of the baking industry. It went on to show that it was not called upon to deal with the work of the employer in general—competence to regulate this had not been claimed on behalf of the International Labour Organisation—but, only in so far as work done by the employer was the same as that of the worker, and as its regulation was incidental to a regulation proposed in order to protect certain classes of workers. Under the terms of reference, the proposed regulation of the work of the employer was to be assumed to be really incidental to labour legislation for the protection of wage-earners, admittedly within the competence of the International Labour Organisation. The question was: Could the International Labour Organisation exercise this competence in a case where the legislation proposed for the protection of the wage-earner would incidentally regulate the same work done by the employer himself, seeing that the employer, when performing the same work which was performed by the wage-earner, did not normally fall within the competence of the International Labour Organisation?1062
§ This question was, in the Court's opinion, a question of law, the answer to which depended on the terms of Part XIII (Labour) of the Peace Treaty of Versailles. The Court therefore proceeded to analyse the provisions of this part, especially those defining the programme and objects of the international Labour Organisation. This led to the observation that the measures adopted for the attainment of these objects might affect the rights and interests of employers as well as of the employed, and also that the competence of the Organisation was very wide, but, at the same time, limited to proposing the adoption of national or international labour legislation. Again, by means of provisions in regard to the right of Governments to object to the inclusion on the agenda of Conferences of a particular item, and in regard to the majority of two-thirds required for the adoption of any draft, the High Contracting Parties had, quite apart from the reference of any question or dispute to the Court, taken precautions against the undue extension of the sphere of activity of the International Labour Organisation. Nevertheless, it was not conceivable that the High Contracting Parties intended to prevent the International Labour Organisation from proposing measures essential to the protection of wage-earners; but, in the Court's opinion, it would be prevented from doing so if it were not competent to propose regulations which, in order to attain their legitimate object, must necessarily apply to some extent to work done by employers. Moreover, in the treaty were to be found special provisions in the application of which the incidental regulation of the personal work of the employer was potentially involved. The Court mentioned as a contemporary and practical interpretation of the limits placed by Part XIII on the competence of the International Labour Organisation, the inclusion in the agenda of the First Labour Conference, under the actual terms of Part XIII, of the extension and application of the convention concerning white phosphorus; this convention prohibited the use of white phosphorus in the manufacture of matches without making any distinction as to persons. The Court also considered in a similar connection the convention prohibiting the use of white lead in painting; it did so in virtue of the principle that, in determining the extent of a particular governmental power, resort might be had to practice, national and international. Lastly, the Court referred to some of the arguments developed by it in Advisory Opinion No. 3, which, applied to the present question, would seem to prove that the International Labour Organisation could not be precluded from proposing regulations for the protection of workers on the ground that such regulations might have the effect of incidentally regulating, at the same time, the work of the employer.
§ No doubt the question whether, in a particular case, the regulation of the personal work of the employer were primary rather than incidental, might give rise to controversy.1063
§ The Court allowed it to be understood that the International Labour Organisation had, in regard to this point, discretionary powers to exercise judgment in the circumstances of each case; these powers, however, were not unlimited, but existed subject to the right of recourse to the Court itself provided for in regard to "any question or dispute relating to the interpretation" of Part XIII. For this reason, moreover, the Court, while replying to the question put in the affirmative, abstained from considering "controversial cases" in regard to which its opinion had not been sought and from indicating how such cases should be dealt with.