«Department for Government and Labour Law and Administration Document No. 5 Comparative study of contents of civil service statutes Jane Hodges ...»
Department for Government
and Labour Law and Administration
Document No. 5
Comparative study of contents
of civil service statutes
Jane Hodges Aeberhard
International Labour Office, Geneva
This is the fifth working paper in the Document Series of the Department for
Government, Labour Law and Administration (GLLAD), and represents the first to focus
on issues of concern in the field of labour law formulation and revision. It responds to the
2000-01 Programme and Budget work item – and operational objective (No. 4cb) of strengthening the partners to social dialogue – which calls for research and advocacy regarding the regulatory framework in which social dialogue takes place in the civil service. It is hoped that this comparative study of a number of recently adopted laws, from all the various legal systems in the world, will enable States – as employer – to realize the challenges inherent in leaving out-of-date texts on the statute book and the dangers to healthy industrial relations of not reviewing civil service laws at a time when the private sector labour laws have undergone so many changes in most countries.
Employment in the civil service at the beginning of the twenty-first century is a far cry from the classic civil service framework of the last century. While the overall objective of the civil service – the part of government machinery which is entrusted with the task of serving the people by implementing government policy – remains the same, almost all surrounding conditions have changed.
In this new environment, the role of the International Labour Organization, and GLLAD, is therefore particularly important. GLLAD’s mandate is to give balanced advisory services to administrations in areas of labour relations and participatory restructuring. That mandate follows the strategic orientation of the ILO, using research, advocacy and service to achieve the ultimate aim of its constituents – decent work. The ILO’s expertise in legislative reform, legal training and labour administration have been called upon regularly, during the globalization era’s privatization and restructuring exercises and as part of good governance programmes.
Social dialogue is not only a key element to feature in the content of the laws. It is also the vital process through which an acceptable, workable, modern legislative framework should be reached and implemented. That is why this study forms part of a comprehensive package of GLLAD research into the processes available in t e public h service and dovetails with the Sectoral Activities Department’s work on the public sector generally. One example of the parallel work in this field, assisting in promoting social dialogue as a means of attaining the ILO’s strategic objectives, is the Study on the use of social dialogue in the public service. This document – soon to appear in this series – will focus on the different forms that social dialogue is taking between the central government (and its executive agencies or state authorities in federal countries) and public employees covered by civil service statutes; the role of the public authorities involved; and the outcomes and practical results of social dialogue. Another example is the publication Labour law drafting guidelines – available on-line through GLLAD’s website – which contains practical advice on both content and drafting techniques for private and public sector laws.
This comparative study constitutes a user-friendly reference tool to guide legislative amendments, full revis ions or additions to the legal framework in which the State is the employer. The chapters cover the general status and contractual situation of public servants, recruitment/appointment, remuneration, other terms and conditions of employment, training, disciplinary procedures, termination of employment at the initiative of the employer, anti-discrimination and industrial relations provisions. The paper concludes with an analysis of the major current challenges facing the public service and proposals on how the legislative framework can face up to them.
3. Why the ILO?
4. Characteristics of modern public service structures
5. Institutions (ministries, departments, agencies, commissions, boards) responsible for administering the laws governing the public service
II. Themes present in the laws
1. Contract of service and legal status of public servants
4. Other terms and conditions of employment
6. Disciplinary procedures
8. Anti-discrimination and gender equality provisions
9. Industrial relations and negotiation procedures
III. Major current challenges facing the public service
IV. Future ILO work
DEPTS/2000-10-0434-1-En/v4 The countries specifically studied were Australia (Commonwealth federal jurisdiction only), Brazil, Botswana, Bulgaria, Costa Rica, Dominica, Ecuador, Jordan, Mali and Sri Lanka. The national monographs are available for direct perusal in GLLAD’s secretariat.
In addition, major new public service statutes and regulations from an equal number of other countries were consulted through the ILO’s labour legislation database, NATLEX and the Equal Employment Opportunity database. Use was made of certain specific studies carried out by the ILO in the framework of more general research, such as civil service reform, labour relations in the public service, pay determination in the public sector generally, or equality for women in public sector employment. The materials developed by the ILO’s International Training Centre, Turin, for its “Managing Civil Service Reform” course were also perused. The Study takes into consideration the important work undertaken by other international organizations, such as the Organization for Economic Cooperation and Development (OECD) and UNDP.
A note on coverage. This study focuses on statutes of the civil service, composed in most systems of budgeted or “established” posts approved by Parliament when it adopts the national budget. It does not look at the public sector broadly speaking, for example, where services are not included in the public service, such as, local government, the education and health services, the judiciary and public utilities.
There is no standard definition of civil servant or the civil service; domestic laws and practice vary considerably. Most countries recognize, at an overall level, the difference between the public sector (which includes state-owned enterprises) and the private sector, but nuances appear at the next level down. Some countries, for example, make a semantic distinction between “civil service” and “public service”. In some languages, like the French “fonction publique”, that generic term covers all permanent State personnel and municipal staff, whereas “le service public” describes public utilities of general benefit to the population, controlled by the administration. A trend in terminology seems to be towards the general term “public employee”. The dominant characteristic – whatever the terms used – is that the State is the employer, and pays for the service from tax revenues in the form of budgeted posts. The research for this study did, however, take into account the useful guidance on definitions which exists in the only specific international labour standards on this subject, namely the Labour Relations (Public Service) Convention, 1978 (No. 151) and Recommendation (No. 159). They cover the fundamental labour rights of civil servants (the right to organize, to participate in consultations or negotiations in relation to their terms of employment and to settlement of disputes). Article 1 of the Convention states that its provisions apply to “all persons employed by public authorities” but permits exemptions for “high-level employees whose functions are normally considered as policy-making or managerial, or … employees whose duties are of a highly confidential nature”. Article 2 defines “public employee” to mean any person covered by the Convention in accordance with Article 1.
The study does not cover private sector labour laws, alt hough, as will be seen in section II, in several countries the legal status of workers in the public service may result in certain of them being covered by the general labour law framework. It should also be noted that the study only covers statutory law, and not case law (although, here again in later sections, there are references to national courts’ interpretation of certain civil service provisions where this has marked a new trend). Moreover, the study does not cover state pension and social security l ws and retirement issues, since these are aspects of labour a law that differ widely from system to system and the details of which are in constant flux.
Another important preliminary remark is that the study examines the legislation itself, and not the practice of implementing the laws. While the final section raises questions of practical hurdles facing the regulation of civil service employment, which in many cases note problems of application, there exist other ILO procedures for assessing practical application and plotting successes (the regular supervisory mechanisms, for example,
Apart from the numerous new Constitutions (most of which include provisions on the creation of the public administration as part of the state institutions) or new Labour Codes (which might cover both private and public sector employment), a NATLEX search of new civil service laws (excluding purely pensions issues) or related regulations, decrees, orders, resolutions and rules or codes of conduct adopted during the last decade shows over 500 texts, emanating from over 70 countries DEPTS/2000-10-0434-1-En/v4 In preparing a comparative study of the contents of new statutes, it is useful to know the background to the reform. For example, emphasis on broader organizational rights for civil servants might reflect new-found democracy; changes in technical provisions on employment might be a response to new economic policies. So what are the reasons why governments decide to reform laws generally, including public service laws? The
following list is, obviously, only indicative:
to introduce a more client-oriented public service;
n to respond to new constitutional values following democratisation or the end of n repressive regimes;
to achieve balance between rights and responsibilities when outside contexts have n changed, for example due to globalization pressures;
to ensure a just industrial relations climate that promotes efficiency and productivity;
n to remove archaic, obsolete laws and outmoded practices;
to introduce areas that might never have been treated in past labour laws, such as n discrimination at work based on HIV/AIDS;
to introduce user-friendly wording and streamlined presentation;
n to reflect a gender analysis and, introduce gender-neutral language;
n to codify various diverse texts thus avoiding a plethora of subtexts and amendments;
n to comply with ratified ILO Conventions, the 1998 ILO Declaration on Fundamental n Principles and Rights at Work, and regional standards, such as the CARICOM example;
The ILO’s role through various units has been to track developments through research, to advocate good practices and to provide services especially through training and assistance in drafting. Here we could list examples such as ACTRAV’s work with PSI, SECTOR’s support of the five meetings of the Joint Committee on the Public Service (1970, 1975, 1983, 1988, 1994), other Sectoral Meetings (1995 and 1998) and its (bold indicates major new Acts): Albania, Antigua and Barbados, Argentina, Australia, Austria, Belarus, Benin, Brazil, Burkina Faso, Canada, Chad, Chile, China, Costa Rica, Côte d’Ivoire, Croatia, Cyprus, Dominican Republic, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Gabon, Germany, Ghana, Greece, Guatemala, Hungary, Iceland, Ireland, Islamic Republic of Iran, Italy, Japan, Jordan, Kazakhstan, Kuwait, Latvia, Lesotho, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Mauritania, Mali, Morocco, Nepal, Netherlands, Niger, Norway, Pakistan, Panama, Poland, Portugal, Romania, Qatar, Sao Tome and Principe, Saudi Arabia, Singapore, Slovak Republic, Slovenia, South Africa, Spain, Sudan, Sweden, Switzerland, Tunisia, Turkey, Ukraine, United States, Vanuatu, Yemen, Zimbabwe.
DEPTS/2000-10-0434-1-En/v4 Table 2. Current (2001) observations by the ILO’s Committee of Experts on the Application of Conventions and Recommendations concerning Convention No. 151
Other intergovernmental organizations have assisted governments in the skills and techniques of drafting civil service statutes and secondary legislation. 2 The checklists prepared by OECD/SIGMA were intended to give guidance when a civil service bill and secondary instruments are in preparation in a Central and Eastern European country, but they are useful for all jurisdictions. The advice on secondary instruments begins with a narrative section describing the types of instruments that are typically used for this purpose in OECD member countries and factors that are widely taken into account when such instruments are being prepared and drafted. It then contains a checklist of questions which law drafters in particular may find useful in the actual drafting process. The OECD publications make the point that final choices as to content of the laws will reflect local circumstances.
The OECD/SIGMA paper on “European Principles for Public Administration” describes the philosophy of and gives guidance to, modern democracies governed by the rule of law on principles of reliability and transparency, as well as administrative law principles.