Compilation of decisions of the Committee on Freedom of Association

Right to strike10

a minimum operational service could be required

1. The establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance.

1. A minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users basic needs are met or that facilities operate safely or without interruption.

1. When a service that is not essential in the strict sense of the term but is part of a very important sector in the country is brought to a standstill, measures to guarantee a minimum service may be justified.

1. It would be desirable if, in cases of industrial action which would have brought a service that is not essential in the strict sense of the term but a very important sector in the country in this case the oil and gas sector to a standstill, the concerned parties could reach an agreement on minimum services sufficient to address the concerns of the Government about the consequences of a full shutdown of oil and gas production, while preserving respect for the principles of the right to strike and the voluntary nature of collective bargaining. The Committee therefore encouraged the Government to examine the possibility of introducing a minimum service in that sector in the event of industrial action, the scope or duration of which may result in irreversible damages.

1. Measures should be taken to guarantee that the minimum services avoid danger to public health and safety.

1. A certain minimum service may be requested in the event of strikes whose scope and duration would cause an acute national crisis, but in this case, the trade union organizations should be able to participate, along with employers and the public authorities, in defining the minimum service.

1. The requisition of some striking workers in the petroleum sector to meet the refuelling needs of priority vehicles could be used in the temporary establishment of a minimum service to respond to problems of public order that could impact the life, health or security of the population.

1. A minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population; in addition, workers organizations should be able to participate in defining such a service in the same way as employers and the public authorities.

1. Minimum service should be restricted to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service, while ensuring that the scope of the minimum service does not render the strike ineffective.

1. It would be desirable for actions to be taken wherever convenient so that the negotiations on the definition and organization of the minimum service not be held during a labour dispute so that all parties can examine the matters with the necessary full frankness and objectivity.

1. Negotiations over the minimum service should be ideally held prior to a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. Any disagreement should be settled by an independent body, like for instance, the judicial authorities, and not by the ministry concerned.

1. The Committee requested a government to take the necessary measures to ensure that any determination on the minimum service to be made available in the event of a strike was the result of negotiations between employers and workers organizations of the maritime sector, it being understood that such negotiations could take place, if not before the beginning of a conflict, between the date of the notification of the strike and its possible realization, all the more so in the light of the ongoing civil mobilization.

1. While ideally, a minimum service should be negotiated by the parties concerned, preferably prior to the existence of a dispute, the Committee recognizes that the minimum service to be provided in cases where the need arises only after the declaration of the strike can only be determined during the dispute.

1. In the absence of any agreement by the parties in this regard at the specific enterprise level, an independent body could be set up to impose a minimum service sufficient to address the concerns of the Government about the consequences of the dispute, while preserving respect for the principles of the right to strike and the voluntary nature of collective bargaining.

1. The Committee has pointed out that it is important that the provisions regarding the minimum service to be maintained in the event of a strike in an essential service are established clearly, applied strictly and made known to those concerned in due time.

1. The determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers and workers organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of overgenerous and unilaterally fixed minimum services.

1. The workers and employers organizations concerned must be able to participate in determining the minimum services which should be ensured, and in the event of disagreement, legislation should provide that the matter be resolved by an independent body and not by the administrative authority.

1. Unilateral determination by the employer of minimum service, if negotiation has failed, is not in conformity with the principles of freedom of association. Any disagreement in this respect should be settled by an independent body having the confidence of the parties concerned.

1. As regards the legal requirement that a minimum service must be maintained in the event of a strike in essential public services, and that any disagreement as to the number and duties of the workers concerned shall be settled by the labour authority, the Committee is of the opinion that the legislation should provide for any such disagreement to be settled by an independent body and not by the ministry of labour or the ministry or public enterprise concerned.

1. A definitive ruling on whether the level of minimum services was indispensable or not made in full knowledge of the facts can be pronounced only by the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure and functioning of the enterprises and establishments concerned and of the real impact of the strike action.