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

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.