Compilation of decisions of the Committee on Freedom of Association

Right to strike10

Prerequisites

1. The conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations.

1. The legal procedures for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike.

1. Economic consideration should not be invoked as a justification for restrictions on the right to strike.

1. According to the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), voluntary conciliation machinery, appropriate to national conditions, should be made available to assist in the prevention and settlement of industrial disputes between employers and workers. Provision should be made to enable the procedure to be set in motion, either on the initiative of any of the parties to the dispute or ex officio by the voluntary conciliation authority.

1. Legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not compulsory and does not, in practice, prevent the calling of the strike.

1. In general, a decision to suspend a strike for a reasonable period so as to allow the parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of the principles of freedom of association.

1. Conciliation and mediation machinery should have the sole purpose of facilitating bargaining and should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness.

1. In cases of mandatory conciliation, it is desirable to entrust the decision of opening the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute.

1. In cases of mandatory conciliation, it is necessary to entrust the decision of opening the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute.

1. The Committee has emphasized that, although a strike may be temporarily restricted by law until all procedures available for negotiation, conciliation and arbitration have been exhausted, such a restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.

1. The obligation to give prior notice to the employer before calling a strike may be considered acceptable, as long as the notice is reasonable.

1. Prior notice of 48 hours is reasonable.

1. The requirement that a 20-day period of notice be given in services of social or public interest does not undermine the principles of freedom of association.

1. The legal requirement of a cooling-off period of 40 days before a strike is declared in an essential service, in so far as it is designed to provide the parties with a period of reflection, is not contrary to the principles of freedom of association. This clause which defers action may enable both parties to come once again to the bargaining table and possibly to reach an agreement without having recourse to a strike.

1. The information asked for in a strike notice should be reasonable, or interpreted in a reasonable manner, and any resulting injunctions should not be used in such a manner as to render legitimate trade union activity nearly impossible.

1. The right of the Ministry of Civil Service Affairs and Housing to determine the time and the place of the strike could further excessively hinder the exercise of the right to strike.

1. With regard to the majority vote required by one law for the calling of a legal strike (two-thirds of the total number of members of the union or branch concerned), non-compliance with which might entail a penalty by the administrative authorities, including the dissolution of the union, the Committee recalled the conclusions of the Committee of Experts on the Application of Conventions and Recommendations that such legal provisions constitute an intervention by the public authorities in the activities of trade unions which is of such a nature as to restrict the rights of these organizations, contrary to Article 3 of the Convention.

1. The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.

1. The requirement that an absolute majority of workers should be obtained for the calling of a strike may be difficult, especially in the case of unions which group together a large number of members. A provision requiring an absolute majority may, therefore, involve the risk of seriously limiting the right to strike.

1. The Committee requested a government to take measures to amend the legal requirement that a decision to call a strike be adopted by more than half of the workers to which it applies, in particular in enterprises with a large union membership.

1. The obligation to observe a certain quorum and to take strike decisions by secret ballot may be considered acceptable.

1. The observance of a quorum of two-thirds of the members may be difficult to reach, in particular where trade unions have large numbers of members covering a large area.

1. The Committee considered that the condition requiring the agreement of the majority of member organizations for calling a strike in federations and confederations and a vote in favour of the strike by the absolute majority of the workers of the undertaking in the other cases may constitute a serious limitation on the potential activities of trade unions.

1. The Committee has considered to be in conformity with the principles of freedom of association a situation where the decision to call a strike in the local branches of a trade union organization may be taken by the general assembly of the local branches, when the reason for the strike is of a local nature and where, in the higher-level trade union organizations, the decision to call a strike may be taken by the executive committee of these organizations by an absolute majority of all the members of the committee.

1. In a case in which the national legislation provided that a majority trade union organization and an absolute majority of the workforce in an enterprise may call a strike and end a strike that is under way, as well as request the appointment of an arbitration tribunal, the Committee considered that in the specific circumstances the majority vote in favour of putting an end to strike action and regulating the appointment of an arbitration tribunal was not contrary to the principles of freedom of association.

1. The obligation to hold a second strike vote if a strike has not taken place within three months of the first vote does not constitute an infringement of freedom of association.