International Aviation Labour Law

Andrea Trimarchi

• Editorial: Routledge
• Año: 2022
• ISBN:
  9781000625332
• Edición: 1
• Categoría: Diritto
• Categoría: Teoria e pratica del diritto

International Aviation Labour Law explores the status quo of the international regulation of labour and employment within the air transport industry and provides a detailed analysis of the regulatory endeavours undertaken at the international, European and domestic level to harmonise aviation labour regulations and ensure adequate labour standards for aircrew members.

Offering an original insight into the regulation of labour in the aviation sector and airline industry, it analyses regulatory endeavours undertaken at the international, European and domestic level, exploring the main challenges arising from non-uniform and fragmented regulation of labour standards in the air transport sector. In particular, it investigates whether aviation labour regulations are sufficiently harmonised at an international level to ensure adequate labour standards for aircrew members. Key concerns relating to aviation labour are dealt with from a regulatory and practical perspective, and the current normative gaps are examined in view of potential future regulatory trends and solutions via a thorough analysis of the applicable legislation, landmark court decisions and the use of practical examples, to provide an overview of the various nuances of the topic.

The book identifies and explore the main implications and repercussions of regulatory asymmetry and highlights the critical role of labour for air transport and how discrepancies in labour regulation may affect the practice of flying and the essence of aviation safety. It emphasises a strong need for international regulatory coordination and is a key reference for a varied audience of students, academics, professionals and rule-makers involved in the air transport arena and for all those who have an interest in the regulation of labour and employment in aviation.

1 The Law of Labour

DOI: 10.4324/9781003288107-2

1. International Labour Law

1.1 Historical Background

The international regulation of labour and the concerns relating to workers’ conditions and standards date back to the first decades of the twentieth century. Notably, the Peace Treaty of Versailles,¹ which was signed at the end of the First World War in 1919, was greatly concerned with labour issues and with the establishment of a permanent international labour organisation.

While the Treaty of Versailles listed some principles, which have then formed the basic core of international labour law until today,² its preamble highlights that the spirit of labour regulation shall aim to balance “conditions of labour … involving injustice, hardship and privation to large numbers of people”.³

1.2 The Declaration of Philadelphia 1944 and the Establishment of the International Labour Organization

The fundamental starting point in modern international labour law is represented by the Declaration Concerning the Aims and Purposes of the International Labour Organization, signed at Philadelphia in 1944 (hereinafter also referred to as the ‘Philadelphia Declaration 1944’).⁴ This document has a remarkable status. Not only is it the magna carta of international labour law, as it sets forth the basic principles of this area of international law, but it also constitutes the modern constitution of the ILO.

However, the ILO’s foundation goes back to 1919, when a permanent Organisation was established, as an independent agency of the League of Nations, with the purpose to exchange ideas, knowledge, experience and future views on labour and social matters. As observed above, this was formally one of the outcomes of the Peace Conference and the Treaty of Versailles, which comprise the Constitution of the ILO, namely, its part XIII.⁵

Due to its crucial role and responsibility in social and economic policy-making and its long-standing tradition, the ILO has become one of the most successful UN’s agencies. The Organisation, at the time of writing, comprises 187 members.⁶ As a matter of fact, all UN member States are members of the ILO, with the only exception of North Korea, Bhutan, Liechtenstein, Andorra, Nauru, Monaco and Micronesia.⁷

The Philadelphia Declaration 1944 spells out four fundamental criteria, according to which the ILO shall act and focus:

• labour is not a commodity;
• freedom of expression and of association;
• war on poverty; and
• principle of ‘tripartism’.⁸

In particular, the latter, which outlines the special tripartite structure of the Organisation, which will be addressed in detail in the next section, represents a unique feature where representatives from governments, employers and employees (unions) jointly coordinate and create social policies, as well as labour standards.

The Declaration is applicable to “all peoples everywhere”.⁹ It places special emphasis on human rights, equality of opportunity and treatment and forced labour. Section III identifies the mutable long-term agenda of the ILO, which is under the obligation of promoting and fostering social goals in a large number of sub-fields.¹⁰ These objectives still decisively characterise and influence the ILO’s activity and international labour law, at large, and, as will be shown, have been reaffirmed and consolidated on numerous occasions.¹¹ The Philadelphia Declaration 1944 was solemnly appended to the ILO Constitution.¹²

1.3 The Declaration on the Fundamentals Principles and Rights at Work of 1998 and the Pillars of International Labour Law

On 18 June 1998, at the margins of the 86th meeting of the International Labour Conference, in Geneva, the ILO adopted the Declaration on Fundamental Principles and Rights at Work.¹³ The adoption of this Declaration marked a significant contribution towards the safeguard and promotion of basic workers’ rights. As its preamble explicitly acknowledges, the Declaration is conceived to “maintain the link between social progress and economic growth”.¹⁴ In other words, the ILO makes it clear that the Declaration’s aim is to reconcile the desire to stimulate national efforts to ensure that social progress goes hand in hand with economic progress and the need to respect the diversity of circumstances, possibilities and preferences of individual countries.¹⁵

This Declaration is undoubtedly the most solemn and important in international labour law’s recent times. It contains four core policies, namely:

• freedom of association and effective recognition of the right to collective bargaining;
• the elimination of all forms of force or compulsory labour;
• the effective abolition of child labour; and
• the elimination of discrimination in respect of employment and occupation.

The four main principles of the Declaration effectively allowed the identification of fundamental areas in which the assistance of the ILO is considered critical through its technical cooperation with member States.¹⁶

Even more importantly, the ILO expressly recognises the binding and superior status of the Declaration insofar as: “all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realise … the principles concerning the fundamentals rights”.¹⁷ In other words, it is the ILO itself to assert that its Members are under an international obligation to work towards fully respecting the above principles.¹⁸ This is also confirmed in practice, as the ILO conventions, which notably embody these fundamental principles, have been largely ratified.

1.4 The Structure of the International Labour Organization

The ILO mainly distinguishes itself from other specialised agencies of the UN for its tripartite governing structure. Although some scholars do argue that most UN bodies embrace a tripartite scheme, somewhat resembling the canonical State threefold allocation of powers,¹⁹ the ILO shows an even more peculiar nature.

ILO’s tripartite structure is primarily intended to ensure the views of all groups involved in labour matters, namely, governments, employers and employees. This is particularly because the norms or standards of labour law are direct to both parties of a contractual relationship, namely, the employers and the employees. The views of all three categories are reflected into labour standards, ILO Conventions and Recommendations, policies and programmes, though governments maintain twice as many representatives as the other two categories.

The Organisation comprises of three permanent organs:

• A General Conference, which comprises representatives of all Members. This goes under the denomination of International Labour Conference. The Conference meets once every year at the ILO’s headquarters, in Geneva, Switzerland, to set the main policies, work programmes and the budget of the Organisation. The Conference also elects the Governing Body of the ILO. Also known as the ‘International Labour Parliament’, it adopts Conventions and Recommendations, thereby exercising the Organisation’s rule-making function. Representation within the Conference is ensured through delegations, which “shall be composed of four representatives of each of the Members, of whom two shall be Government delegates and the two others shall be delegates representing respectively the employers and the workpeople …”.²⁰ Notably, each delegate has the right to vote individually and independently.²¹
• The Governing Body is the secretariat – or the government – of the ILO. It has extensive powers, including the authority to decide on the Organisation’s broad policies, to decide on the agenda of the International Labour Conference, as well as to elect the Director General. The Governing Body’s internal structure shows some significant similarities with that of, among others, the ICAO Council,²² with ten of the represented gov...