Compilation of decisions of the Committee on Freedom of Association

Right to strike10

Sanctions

In the event of a legitimate strike

1. Imposing sanctions on unions for leading a legitimate strike is a grave violation of the principles of freedom of association.

1. The closure of trade union offices, as a consequence of a legitimate strike, is a violation of the principles of freedom of association.

1. No one should be penalized for carrying out or attempting to carry out a legitimate strike.

1. Penal sanctions should not be imposed on any worker for participating in a peaceful strike.

1. Penal sanctions should only be imposed if, in the framework of a strike, violence against persons and property or other serious violations of the ordinary criminal law are committed, and this, on the basis of the laws and regulations punishing such acts.

1. Legislative provisions which impose sanctions in relation to the threat of strike are contrary to freedom of expression and principles of freedom of association.

1. The dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98.

1. When trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against.

1. Respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike. Logically, it should also be irrelevant that the dismissal takes place in advance of a strike, if the purpose of the dismissal is to impede or to penalize the exercise of the right to strike.

1. The Committee could not view with equanimity a set of legal rules which: a) appears to treat virtually all industrial action as a breach of contract on the part of those who participate therein; b) makes any trade union or official thereof who instigates such breaches of contract liable in damages for any losses incurred by the employer in consequence of their actions; and c) enables an employer faced with such action to obtain an injunction to prevent the commencement (or continuation) of the unlawful conduct. The cumulative effect of such provisions could be to deprive workers of the capacity lawfully to take strike action to promote and defend their economic and social interests.

1. The announcement by the government that workers would have to do overtime to compensate for the strike might in itself unduly influence the course of the strike.

1. The use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association.

1. Should it be determined by the court or by the information gathered that any of the workers dismissed following a strike were employed in services other than those categorized as essential within the meaning of the collective agreement, necessary measures should be taken to ensure that those workers are fully reinstated in their previous positions.

1. Workers who are dismissed as a result of their participation in a strike should not be deprived of their lawfully acquired retirement benefits accrued over years of working for an enterprise.

Cases of abuse while exercising the right to strike

1. The principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike.

1. Penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike.

1. The Committee considered that some of the temporary measures taken by the authorities as a result of a strike in an essential service (prohibition of the trade unions activities, cessation of the check-off of trade union dues, etc.) were contrary to the guarantees provided for in Article 3 of Convention No. 87. The Committee drew the Governments attention to the fact that the measures taken by the authorities to ensure the performance of essential services should not be out of proportion to the ends pursued or lead to excesses.

1. Fines which are equivalent to a maximum amount of 500 or 1,000 minimum wages per day of abusive strike may have an intimidating effect on trade unions and inhibit their legitimate trade union activities, particularly where the cancellation of a fine of this kind is subject to the provision that no further strike considered as abusive is carried out.

1. The Committee expects that any fines that could be imposed against trade unions for unlawful strikes will not be of an amount that is likely to lead to the dissolution of the union or to have an intimidating effect on trade unions and inhibit their legitimate trade union activities, and trusts that the Government would endeavour to resolve such situations by means of frank and genuine social dialogue.

In cases of peaceful strikes

1. The authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association.

1. No one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike.

1. Criminal sanctions may only be imposed if during a strike violence against persons or property or other infringements of common law are committed for which there are provisions set out in legal instruments and which are punishable thereunder.

1. The peaceful exercise of trade union rights (strike and demonstration) by workers should not lead to arrests and deportations.

1. While emphasizing the importance of conducting legitimate trade union activities in a peaceful manner, the Committee considers that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations.

Large-scale sanctions

1. Arrests and dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve.