On 18 February, the International Trade Union Confederation (ITUC), Education International and other global union federations and trade union centres, are mobilising their members to defend the right to strike.
The right to strike is a cornerstone of democracy and social justice which has been recognized internationally for over 50 years and incorporated in the constitution of more than 90 countries. In recent years , however, the employers' representatives at the ILO have challenged the very legal foundation of the right to strike at international level and its transposition into national law, to the point of disrupting the functioning of the Organisation's supervisory mechanisms.
In June 2012, the ILO Committee on the Application of Standards (CAS) was for the first time in the ILO history unable to fulfil its constitutional mandate of considering the measures taken by Member States to give effect to the provisions of ratified conventions. As a result workers were deprived from the opportunity to discuss cases related to the violation of their rights in their homes countries. This situation arose from the ILO employers' group challenge of a right to strike protected by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). For them a right to strike only exists at national level and it is up to each country to legislate on its scope and modalities without referring to ILO standards and the guidance provided by the ILO supervisory system.
Specifically, employers contested the views of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) that the right to strike is an intrinsic corollary of the right to organise. The expressed their disagreement with the jurisprudence developed over the last 50 years by the CEACR and the Freedom of Association Committee (a tripartite body) that although not specifically mentioned in Convention 87, the right to strike is protected by Convention 87 based on its articles 3 and 10 which recognize the rights of workers to set up organisations in order to further and defend their occupational interests, and to formulate their own programmes and activities. Such challenge led employers to refuse to discuss right to strike cases unless a disclaimer was to be included in the CEACR General Survey stating that it is "not an agreed or determinative text of the ILO tripartite constituents". Workers could not agree to such a sentence as it would have undermined the legal authority of the CEACR. All alternative solutions that were proposed to employers were rejected.
The Employers' Group denies that the right to strike is protected by Convention 87 and seems intent on finding ways to prevent national and regional courts from using ILO jurisprudence in the matter of industrial action while the increasing use of ILO jurisprudence in courts , precisely demonstrates the relevance of ILO standards.
Since 2012, several attempts have been made to try and reach a solution including several discussions in the ILO Governing Body, three tripartite consultations and a mediation between workers and employers under the auspices of the Swiss Government. Despite an agreement in March 2014 over the mandate of the Committee of Experts, the employers continued with their challenges over the right to strike and the jurisprudence developed by the experts thus disrupting once again the 2014 Committee on the Application of Standards which was only able to reach consensus on double foot-noted cases (that is cases identified by the experts as deserving a discussion at the Conference in light of the persistence, urgency or seriousness of the problem at stake).
In light of this deadlock at the November 2014 Governing Body the International Trade Union Confederation and the ILO Workers' Group identified the recourse to the International Court of Justice (ICJ) as a key element to address the dispute. Such a referral is envisaged by the ILO constitution in its article 37.1 which states that any question or dispute relating to the interpretation of a Convention shall be referred for decision to the International Court of Justice. An advisory opinion of the International Court of Justice on whether the right to strike is protected under Convention 87 was seen as a solution in line with the rule of law and one conducive to recreate trust between the parties and ensure that the ILO supervisory system remained relevant and continued to function.
Several governments supported such a referral, while others called for more tripartite social dialogue to try and address the dispute. Although this was not its preferred option in light of the failed attempts to reach a solution through tripartite dialogue, the Workers' Group in a spirit of compromise agreed to the holding of an ILO Tripartite Meeting on the right to strike to be held in Geneva in February 2015. Should there be no consensus out of this meeting that the right to strike is protected by Convention 87, the March 2015 session of the Governing Body will have to decide to refer the dispute to the ICJ for an advisory opinion. This is why ITUC and other global unions have called a Global Day of Action on 18 February, whereby national member organisations will be mobilised to lobby national governments on this issue.
The right to strike – protected by Convention 87 - is an essential element for the exercise of freedom of association. Without the ability of withdrawing their labour in an employment relationship where they are the weakest part, workers will become the subject of the very abuses that nations wanted to prevent when they created the ILO. Without this right protected at international level, millions of workers will simply fall victims of abuses that should not have their place in the 21st century.
We are confident that governments do not want a return to the 19th century model of industrial development and its related labour exploitation and that they will agree to refer the dispute to the ICJ should the February meeting not achieve a consensus that the right to strike exists in and is protected by Convention 87.