Compilation of decisions of the Committee on Freedom of Association

Right to strike10

Cases in which strikes may be restricted or even prohibited, and compensatory guarantees

Acute national emergency

1. A general prohibition of strikes can only be justified in the event of an acute national emergency and for a limited period of time.

1. Responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of all parties concerned.

Public service

1. Recognition of the principle of freedom of association in the case of public servants does not necessarily imply the right to strike.

1. The Committee has acknowledged that the right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees.

1. The right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State.

1. Too broad a definition of the concept of public servant is likely to result in a very wide restriction or even a prohibition of the right to strike for these workers. The prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State.

1. The right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population).

1. Public servants in state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, enjoy suitable protection against acts of anti-union discrimination and enjoy the right to strike, provided that the interruption of services does not endanger the life, personal safety or health of the whole or part of the population.

1. Officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition.

1. The prohibition of the right to strike of customs officers, who are public servants exercising authority in the name of the State, is not contrary to the principles of freedom of association.

1. Employees performing tasks related to the administration, audit and collection of internal revenues also exercise authority in the name of the State.

1. Action taken by a government to obtain a court injunction to put a temporary end to a strike in the public sector does not constitute an infringement of trade union rights.

Essential services

1. To determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population.

1. What is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population.

1. The principle regarding the prohibition of strikes in essential services might lose its meaning if a strike were declared illegal in one or more undertakings which were not performing an essential service in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

1. It would not appear to be appropriate for all state-owned undertakings to be treated on the same basis in respect of limitations of the right to strike, without distinguishing in the relevant legislation between those which are genuinely essential and those which are not.

1. The following may be considered to be essential services: the hospital sector, electricity services, water supply services, the telephone service, the police and the armed forces, the fire-fighting services, public or private prison services, the provision of food to pupils of school age and the cleaning of schools and air traffic control

1. The principle that air traffic control is an essential service applies to all strikes, whatever their form go-slow, work-to-rule, sick-out, etc. as these may be just as dangerous as a regular strike for the life, personal safety or health of the whole or part of the population.

1. The following do not constitute essential services in the strict sense of the term: radio and television, the petroleum sector and oil facilities, distribution of fuel to ensure that flights continue to operate the gas sector, filling and selling gas canisters, ports, banking the Central Bank, insurance services, computer services for the collection of excise duties and taxes, department stores and pleasure parks the metal and mining sectors, transport generally, including metropolitan transport, airline pilots, production, transport and distribution of fuel rail services, metropolitan transport, postal services, refuse collection services, refrigeration enterprises, hotel services, construction, car manufacturing, agricultural activities, the supply and distribution of foodstuffs, tea, coffee and coconut plantations, the Mint, the government printing service and the state alcohol, salt and tobacco monopolies, the education sector, mineral water bottling companies, aircraft repairs, elevator services, export services, private security services (with the exception of public or private prison services), airports (with the exception of air traffic control), pharmacies, bakeries, beer production and the glass industry

1. While the impact which the declaration of a full lockout in the oil and gas sector may have upon the assessment of the consequences of such collective action upon daily life is no doubt a relevant national circumstance to be taken into account by the Committee, it is necessary for such impacts to go beyond mere interference with trade and commerce and to have endangered the life, personal safety or health of the whole or part of the population for resort to compulsory arbitration to have been warranted.

1. While the Committee has found that the education sector does not constitute an essential service, it has held that principals and vice-principals can have their right to strike restricted or even prohibited.

1. Arguments that civil servants do not traditionally enjoy the right to strike because the State as their employer has a greater obligation of protection towards them have not persuaded the Committee to change its position on the right to strike of teachers.

1. The possible long-term consequences of strikes in the teaching sector do not justify their prohibition.

1. The Committee considers that in appropriate cases in which the imposition of minimum services is permissible, such as in the sector of refuse collection service, measures should be taken to guarantee that such minimum services avoid danger to public health and safety of the population.

1. By linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service essential, and thus the right to strike should be maintained.

1. Within essential services, certain categories of employees, such as hospital labourers and gardeners, should not be deprived of the right to strike.

1. The exclusion from the right to strike of wage-earners in the private sector who are on probation is incompatible with the principles of freedom of association.

1. Although it has always been sensitive to the fact that a prolonged interruption in postal services can affect third parties who have no connection with the dispute and that it may, for example, have serious repercussions for companies and directly affects individuals (in particular recipients of unemployment benefits or social assistance and elderly people who depend on their pension payments), the Committee nevertheless considered that, whatever the case may be, and however unfortunate such consequences are, they do not justify a restriction of the fundamental rights of freedom of association and collective bargaining, unless they become so serious as to endanger the life, safety or health of part or all of the population.

1. In a case in which a collective agreement included the classification of several services as essential, the Committee observed that, generally speaking, the list in the collective agreement, which went far beyond the mining sector to cover the provision of services to the community at large, corresponded to its notion of essential services. Although some of the services set out in the agreement, such as those concerning sanitation and transport, fell outside the scope of essential services in the strict sense of the term, these restrictions on the right to strike were the result of an agreement freely entered into by the two parties.

Compensatory guarantees in the event of the prohibition of strikes in the public service or in essential services

1. Where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services.

1. In the event that an intervention would be necessary for safety reasons, the parties to the dispute should be given every opportunity to bargain collectively, for a sufficient period of time, with the help of independent facilitators and machinery and procedures designed with the foremost objective of promoting collective bargaining.

1. Based on the premise that a negotiated agreement, however unsatisfactory, is to be preferred to an imposed solution, the parties should always retain the option of returning voluntarily to the bargaining table, which implies that whatever disputes settlement mechanism is adopted, it should be possible to suspend the compulsory arbitration process, if the parties wish to resume negotiations.

1. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented.

1. The reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by the compulsory arbitration tribunal. Any departure from this practice would detract from the effective application of the principle that, where strikes by workers in essential services are prohibited or restricted, such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery, the awards of which are binding on both parties.

1. In mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned.

1. The appointment by the minister of all five members of the Essential Services Arbitration Tribunal calls into question the independence and impartiality of such a tribunal, as well as the confidence of the concerned parties in such a system. The representative organizations of workers and employers should, respectively, be able to select members of the Essential Services Arbitration Tribunal who represent them.

1. Employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery.

1. Referring to its recommendation that restrictions on the right to strike would be acceptable if accompanied by conciliation and arbitration procedures, the Committee has made it clear that this recommendation does not refer to the absolute prohibition of the right to strike, but to the restriction of that right in essential services or in the public service, in relation to which adequate guarantees should be provided to safeguard the workers interests.

1. Regarding the requirement that the parties pay for the conciliation and mediation/arbitration services, the Committee has concluded that, provided the costs are reasonable and do not inhibit the ability of the parties, in particular those with inadequate resources, to make use of the services, there has not been a violation of freedom of association on this basis.

1. The Committee takes no position as to the desirability of conciliation over mediation as both are means of assisting the parties in voluntarily reaching an agreement. Nor does the Committee take a position as to the desirability of a separated conciliation and arbitration system over a combined mediation-arbitration system, as long as the members of the bodies entrusted with such functions are impartial and are seen to be impartial.