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International and European Protection of the Right to StrikeA Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union$

Tonia Novitz

Print publication date: 2003

Print ISBN-13: 9780198298540

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198298540.001.0001

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Existence and Exercise of the Right to Strike

Existence and Exercise of the Right to Strike

Chapter:
(p.270) (p.271) 11 Existence and Exercise of the Right to Strike
Source:
International and European Protection of the Right to Strike
Author(s):

Tonia Novitz

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198298540.003.0011

Abstract and Keywords

This chapter examines the international and European jurisprudence concerning the existence of the right to strike and the basic constraints that may be placed on its exercise. It focuses on the decisions taken under the International Labour Organization (ILO) and European Social Charter (ESC) supervisory mechanisms. It also explores the few observations made by the United Nations (UN) Committee on Economic, Social, and Cultural Rights under the International Covenant on Economic, Social, and Cultural Rights 1966 (ICESCR) relevant to these issues.

Keywords:   jurisprudence, right to strike, International Labour Organization, ILO, European Social Charter, ESC, United Nations

Supervisory bodies in the International Labour Organization (ILO) have been adamant that, in every State, a ‘right to strike’ should be protected under domestic laws. In this, Contracting Parties to the International Covenant on Economic, Social, and Cultural Rights 1966 (ICESCR) and the Council of Europe’s European Social Charter 1961 (ESC) concurred. This chapter examines the international and European jurisprudence concerning the existence of the right to strike and the basic constraints that may be placed on its exercise. Its focus is on decisions taken under the ILO and ESC supervisory mechanisms, but attention will also be paid to the few observations made by the United Nations (UN) Committee on Economic, Social, and Cultural Rights under the ICESCR relevant to these issues.

The chapter begins by outlining the types of industrial action covered by this entitlement and the kind of legal protection which is to be considered acceptable. It emerges that States are given considerable discretion concerning how such protection is provided. Legal protection of industrial action may be phrased in terms of either a ‘right’ or a ‘freedom’, as long as workers and organizers are not unduly penalized for their actions. There is, in this sense, some attention paid to the principle of ‘subsidiarity’ and respect for the particularities (and peculiarities) of national systems of industrial relations.1

The question whether the right to strike is an individual or a collective right is more controversial.2 The text of Article 8(1) of the ICESCR and Article 6(4) of the ESC seems to indicate that it should be regarded as an individual right which can be exercised collectively. This has been the view of the European Committee of Social Rights (ECSR) which, as a ‘Committee of Independent Experts’, provides a technical assessment of ESC implementation. In the past, ECSR views had little impact, given the resistance of the Governmental Committee to any criticism of State conduct on this issue. This was an instance of State control, which was to limit the efficacy of the ESC supervisory process. However, since the reforms undertaken in 1991, the Governmental Committee has altered its position and the Council of Europe Committee of Ministers has issued recommendations on this matter.3

(p.272) ILO supervisory bodies initially took a cautious view, accepting the choice made by some States to give to established trade unions the sole entitlement to call industrial action. Nevertheless, States may not allocate this function only to trade union federations or confederations, as this may limit the ability of smaller groupings of workers to initiate industrial action. Moreover, persons who call a peaceful ‘wild-cat’ strike should receive protection from dismissal. On this (and other issues) the principles stated by ILO supervisory bodies have developed over time, such that there is protection of the worker’s entitlement to strike at least equivalent to that available under the ESC.

No international or European supervisory body has commented in any detail, or at length, on what is understood to be the justificatory basis of the right to strike. Determining the views of supervisory bodies involves ‘detective work’ and careful analysis of their decisions. What we do know is that they do not consider that the right to strike can be rendered unnecessary by the existence of compulsory arbitration mechanisms.4 These are permissible only in exceptional circumstances, such as, for example, when the provision of essential services is at risk. It is arguable that this principle can be linked to the ILO view that the right to strike is based on more than an entitlement to fair wages and working conditions; but it is also possible that this principle merely reflects general scepticism about whether compulsory arbitration can secure fair wages and working conditions.

Compulsory mediation may, however, be considered permissible, within limits.5 International and European supervisory bodies agree that certain preconditions may be placed on the exercise of the right to strike. A conciliation, mediation, or ‘cooling off’ period will be considered acceptable where this is designed to encourage the parties to reach agreement without recourse to industrial action. A balloting requirement may also be imposed where this would promote democratic decision-making within a trade union. Such procedural requirements should not, however, be such as to preclude access to collective action entirely. Where the delays involved in compulsory mediation or a ‘cooling off’ period are too lengthy or the thresholds for a successful strike ballot are too high, national legislation will be criticized.

Collective agreements have been known to contain provisions which, for the term of the agreement’s duration, impose a binding ‘peace obligation’. This is a subject on which ILO supervisory bodies appear to differ from the ECSR. Both accept that such an obligation can be introduced through agreement by employers and workers. However, they disagree on the scope of its effect. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) considers that such a provision should not operate to prevent ‘protest strikes’, aimed at changing (p.273) government policy on economic and social issues. By contrast, the ECSR considers that a ‘peace obligation’ can apply to any industrial action for the period in question, taken for any reason. This may be due to the wording of Article 6(4) of the ESC, which provides a more restrictive formulation of the right to strike than that adopted within the ILO.

One key difference between ILO and ESC supervisory processes has been the efficacy of the former when compared to the latter, largely owing to the refusal of the ESC Governmental Committee to endorse the findings of the ECSR. However, over the past decade reforms to the ESC control mechanism have led to a more cohesive approach by the supervisory bodies. Today, it is more likely to be the textual limitations inherent in Article 6(4) which are the significant source of discrepancies between ESC and ILO jurisprudence, as we shall see here and in later chapters.

I. Definition of a Strike

For the definition of a ‘strike’, it makes sense to look first at those international instruments which recognize the right to strike. The difficulty is that political compromise between State Parties to international instruments can lead to the inclusion of broad, general provisions, which then fall for interpretation by supervisory bodies. For example, Article 8(1)(d) of the ICESCR refers only to ‘the right to strike’ and does not expressly state whether this should extend to a partial stoppage of work, such as a go-slow, work-to-rule, or sit-in, The view has been expressed that these should therefore also be regarded as being encompassed within the more narrowly worded ‘right to strike’, even though the Committee on Economic, Social, and Cultural Rights has yet to express an opinion on this point.6 By contrast, Article 6(4) of the ESC clearly covers ‘collective action’ generally, of which the right to strike is only one instance.7 There is no doubt that partial work stoppages fall within the coverage of that, provision, if not within ‘the right to strike’ per se.

There is no ILO Convention which explicitly guarantees the right to strike; instead, ILO supervisory bodies derive this entitlement from the broad provision for freedom of association and the right to organize set out in the ILO Constitution and ILO Conventions Nos. 87 and 98.8 On this basis, they advocate that ‘any work stoppage’, ‘however brief and limited’, should be considered a strike. This is because, whatever its form, the aim of the withdrawal of labour is an activity designed to further workers’ interests (p.274) in accordance with Articles 3 and 10 of ILO Convention No. 87. ‘Restrictions as to the forms of strike action can only be justified if the action ceases to be peaceful,’9 Moreover, even in the absence of a work stoppage per se, respect for freedom of association is said to entail protection of workers’ rights to assemble peacefully, so as to protest against the conduct of an employer or government.10 ILO bodies have, therefore, been prepared to apply the same principle of protection to pickets and workplace occupations, that is, that restrictions should be limited to cases where the action ceases to be peaceful.

The UN Committee on Economic, Social, and Cultural Rights has taken its obligations to promote protection of the right to strike fairly literally. It has advocated the establishment of such a right in either domestic legislation or the national constitution. In particular, it has questioned the utility of a ‘freedom to strike’ for workers. This is evident from its observations on the UK in 1997 and 2002. On both, occasions the Committee said that it considers ‘failure to incorporate the right to strike into domestic law’ to constitute a breach of Article 8 of the ICESCR.11 It has been observed that the Committee ‘was taking an excessively strict line on this question’,12 for it should not matter whether there is a ‘right’ or ‘freedom’ to strike, as long as there is adequate protection of those who organize and participate in industrial action. This may be the principle that the Committee intended to promote for, in the case of the UK, it observed that the legal position is unacceptable, since industrial action is regarded as a breach of contract, which makes workers vulnerable to dismissal.13

This is closer to the position taken by ILO CFA, which accepts that the protection of industrial action may take the form of an immunity rather than a right, as long as ‘no one is penalized for carrying out or attempting to carry out a legitimate strike’.14 In doing so, the Committee has shown itself willing to defer to decisions taken at the national level on the most appropriate way in which to provide for this entitlement. All that the CFA views as a matter for concern is the extent to which workers’ ability to take industrial (p.275) action is limited. This involves careful scrutiny of national laws and their application, so as to ensure that they are consistent with the principle of freedom of association and the collective promotion of workers’ economic and social interests. The ECSR also considers that the form that domestic legal protection takes is unimportant; what is crucial is that any limitations placed on the right to strike do not contravene the guarantees contained in Articles 6 and 31 of the ESC.15

II. An Individual or a Collective Right?

One fundamental question posed by Otto Kahn-Freund was: ‘does the right to strike vest in unions, individuals or both?’16 The answer to this question is likely to turn on what one understands to be the justificatory basis for the right to strike. In Chapter 3, I noted that where a right to strike is viewed in terms of its role in collective bargaining it is often seen as a collective right to be exercised by trade unions. This, however, assumes that trade unions are sufficiently representative of all those parts of the workforce who may wish to take industrial action; or, in the alternative, that there are no insuperable barriers to the swift formation by workers of a trade union so that they can exercise such a right effectively, should they wish to do so. Where these conditions are not met, or if the right to strike is regarded as a legitimate means of voicing political protest, then it may make more sense to regard this as an individual right linked to a person’s conscience.17 Different States have taken different views of this matter. Germany, for example, treats the right to strike solely as a collective right to be exercised by trade unions for collective bargaining purposes. Italy recognizes workers’ entitlement to ‘protest strikes’ on matters concerning economic and social policy.18 The issue for international and European supervisory organs is the extent to which they should try to alter national regimes which determine the character of the right to strike.

Article 8(1) of the ICESCR refers to the rights of ‘everyone’ to form and join trade unions, as well as the right of ‘trade unions’ to form federations and function freely, but does not state who is entitled to exercise the right to strike. It has been suggested that this indicates that the right is to be regarded as individual in nature.19 However, it should be noted that there is no statement made by the Committee on Economic, Social, and Cultural Rights which would definitively establish this principle.

(p.276) In 1977, Kahn-Freund stated that the right to strike contained in Article 6(4) ESC ‘must be considered as being conferred on an individual and not as a member of a trade union’. This followed from the fact that the right to bargain collectively, guaranteed under Article 6, was an individual right and not confined to employees’ or employers’ organizations.20 The ECSR has also found that States which prohibit strikes on the ground that they are not organized by a trade union are in breach of Article 6(4).21 ‘All workers must be allowed to call a strike, even outside a trade union framework.’22 Just as ‘an ordinary group of workers’ without any special legal status may engage in such bargaining, ‘it can and should be given the right to strike…so that it can effectively exercise its right to bargain collectively’.23 For example, under French law, if a strike has been called by a representative trade union, each worker may, individually, decide to join all or part of the strike; but the very requirement that the strike must be initiated by a representative trade union is considered by the ECSR to amount to a restriction of the right to collective action that is not compatible with Article 6(4) of the ESC.24 It seems, however, that there will be no breach of the individual right to strike, if workers can ‘easily and without undue delay form a trade union for the purpose of calling a strike’.25

The notion that the right to strike should not be the sole prerogative of trade unions was, in the past, questioned by the Governmental Committee. For example, when the ECSR criticized Iceland’s restrictions on the right to strike, on the ground that the power to call a strike lay entirely with a trade union, the Governmental Committee commented that:

Iceland was not the only country to restrict the right to initiate strikes to trade unions. It appeared indeed that this applied to all the Nordic countries and possibly others as well, and it would therefore be unjust to single Iceland out for criticism.26

The Governmental Committee decided to take no further action until the ECSR had been able to ascertain the situation in other Contracting Parties. This response of the Governmental Committee illustrates the way in which government representatives were able to obstruct the dissemination of standards by independent experts, until in 1991 changes were made to the (p.277) enforcement procedure.27 There has been no further comment on Icelandic law,28 but the Governmental Committee has since been prepared to issue a warning to Germany on the basis that the right to call a strike should not be the sole prerogative of a trade union; and a Recommendation has since been issued by the Committee of Ministers in this regard.29 It now seems that the principle initially stated by the ECSR will stand as a basis for criticism of the conduct of Contracting Parties.

By contrast, the ILO initially refused to find that States breached the principle of freedom of association by ‘making a right to strike the sole preserve of a trade union organisation’.30 The CFA did not require that this constraint be placed upon the right to strike, but allowed States to do so. This was because, early on, the CFA appears to have accepted that the right to strike serves only a limited social function, namely assisting workers in collective bargaining;31 or it may be that this follows from the derivation of the right to strike from Convention No. 87 which relates to protection of ‘workers’ organizations’ and their activities.32 However, in practice it seems that the ECSR and ILO supervisory bodies endorse similar principles.

In the 1994 General Survey, the Committee of Experts observed that strike action is a collective right exercised by a group of persons who decide not to work in order to have their demands met. Yet the interests and agency of the workers who make up that group are to be respected. For this reason, the CEACR has been reluctant to approve the allocation of the decision to call a strike to national trade union federations and confederations. These bodies should not be banned from calling strikes, but should not be the sole organizations authorized to do so.33 This is because taking this decision away from the workers affected could stifle access to industrial action.34

A comparable approach was taken by the CFA in Case No. 1759 (Peru),35 where workers were dismissed for calling a twenty-four-hour work stoppage, without being ‘accredited trade union representatives’. The stoppage was never carried out, although a hunger strike did follow. The CFA found that ‘even though the strike was not decided by a trade union executive representing more than the majority of workers’, the dismissal of the seven (p.278) workers was contrary to the principles of freedom of association.36 It seems that dismissal is not an acceptable response to a call for a strike, even where the requisite trade union consent is absent. To this extent, there will be protection of those who organize wild-cat strikes.37

III. The Potential for Abrogation of the Right: Is Compulsory Arbitration an Acceptable Alternative to Industrial Action?

There is consensus at the international and European level that where there is a dispute over ‘rights’, for example on the appropriate interpretation of a legally binding collective agreement, recourse should be had to the courts rather than industrial action. This is apparent from the wording of Article 6(4) of the ESC which refers to an entitlement to take collective action only ‘in cases of conflicts of interests’. The ILO CFA has also agreed that ‘[t]he solution to a legal conflict as a result of a difference in interpretation of a legal text should be left to the competent courts. The prohibition of strikes in such a situation does not constitute a breach of freedom of association’.38

A separate and distinct question is whether it should be permissible for a government to require conflicts of interests to be referred to compulsory arbitration. Chapter 3 outlined the argument made by Utz, that provision of compulsory arbitration could abrogate the need for protection of a right to strike. This argument is based on the premise that industrial action is merely a means by which to ensure that workers receive fair conditions of employment. If this can be secured by arbitration, there need be no right to strike.39

Cases decided in 1961 and 1962 suggested that the CFA had adopted this position. For example, the Committee stated that ‘utilisation of compulsory conciliation and arbitration in industrial disputes before a strike is called’ and other provisions of this type ‘cannot be regarded as an infringement of freedom of association’.40 In Case No. 274 (Libya), the CFA added only that ‘where strikes by workers are restricted or prohibited, such restriction or prohibition should be accompanied by the provision of conciliation procedures and of independent and impartial arbitration machinery whose awards are in all cases binding on both sides’.41 This might seem to indicate (p.279) that restriction of strike activity is permissible as long as alternative forms of dispute resolution are available.

In Case No. 294 (Spain),42 the Spanish government admitted that it had suppressed a miners’ strike, but argued that conciliation and arbitration procedures would suffice as alternatives to industrial action. At this point, the CFA elaborated upon its earlier position, explaining its earlier recommendation in the following terms:

The Committee must explain in this respect that the recommendation in question refers not to the restriction of the right to strike as such but to the restriction of that right in essential services or in the public service, in relation to which the Committee has stated that adequate guarantees should be provided to safeguard workers’ interests.43

From this date, it became clear that the right to strike is indeed an integral aspect of freedom of association and may be restricted only with good reason, such as in the public service, essential services, or in the event of an acute national crisis.44

The CFA has since indicated repeatedly that States ‘should endeavour to give priority to collective bargaining as the means of determining employment conditions’.45 For example, in its response to a complaint heard by the CFA in 1999, the Chinese government argued that ‘mediation and arbitration systems which preclude the right to strike adequately and appropriately reflect the requirements of Chinese society and the fundamental interests of the broad mass of workers’. The CFA was not convinced and reiterated that ‘it has always considered the right to strike to be one of the essential means through which workers and their organisations may promote and defend their economic and social interests’, recommending that Chinese legislation be amended accordingly.46 A similar principle has been adopted by the CEACR.47

ILO supervisory organs have never explicitly provided the reasons for their antagonism to compulsory conciliation and arbitration as an alternative to protection of industrial action. However, there are at least three reasons why they could choose to adopt this approach. First, there is the argument that compulsory arbitration does not provide useful outcomes for workers or employers, in that it chills negotiations, interferes with market forces, and puts both parties at the mercy of an arbitrator who can never be (p.280) as acquainted with the issues as the parties themselves.48 Secondly, there is the danger that arbitration will allow the State too great control over workers’ wages and conditions of employment. Appreciation of this danger may well have had some impact upon the outcome in the seminal case, Case No. 294 (Spain).49 Finally, if there are other justifications for protection of a right to strike which extend beyond the ambit of collective bargaining, namely to provide workers with a political voice or agency within the workplace, then compulsory arbitration cannot be an acceptable alternative to the right to strike.

Just as ILO bodies have decided that compulsory arbitration will not usually suffice as an alternative to the right to strike, so too the ECSR has concluded that where a government ‘has the power to impose compulsory arbitration and thus to prohibit strikes in an unlimited manner’, it is in breach of its obligations under Article 6(4).50 The imposition of compulsory arbitration is permissible only where the relevant conditions laid down in Article 31 of the Charter are met.51 Otherwise, the imposition of compulsory arbitration is viewed as ‘a restraint on a fundamental trade union prerogative’ in violation of Article 5 as well as Article 6 of the ESC.52

Potentially, Article 31 might seem to provide a rather broad basis for restriction of the right to strike, since industrial action is likely to impinge on the property rights of employers and could be said to damage the ‘public interest’ in the supply of goods and services. Nevertheless, the ECSR has tended to interpret this exception in a restrictive fashion.

For example, the Norwegian government imposed compulsory arbitration to end a strike by oil workers in the North Sea. The government had taken this action only thirty-six hours after the work stoppage began. The ECSR took note of the recommendations of the ILO CFA (Case No. 1576 (Norway)) which had expressed doubts about the compelling need for such arbitration, and found that this intervention was unacceptable.53 The ‘absence of any limitation on the government’s power to intervene in strike action and the consequent absence of any protection of workers’ constituted a breach of Article 6(4), ‘since without such protection there is no real recognition for the right to strike as required by this provision of the Charter’.54 The ECSR findings were, in this case, upheld by the Governmental (p.281) Committee, which took the view that the government could not have had sufficient time ‘to assess the economic and social implications of the strike and to consult the social partners before taking the decision to resort to compulsory arbitration’. This was not a complete refusal to countenance compulsory arbitration as an alternative to industrial action. However, at least the Governmental Committee did not detract from the conclusions of the ECSR and decided to propose that a recommendation be addressed to Norway on this point.55 The Norwegian government has since imposed compulsory arbitration again on oil workers,56 While the ECSR has held that such intervention can potentially be justified under Article 31 of the Charter, it considered that this was not possible in the specific circumstances of this case, where protection of public interest and safety was not truly at stake. The Governmental Committee has now issued another warning to Norway on this basis.57

IV. Preconditions for Exercise of the Right

All supervisory bodies at the international and European levels have accepted that governments may impose some procedural restrictions upon the exercise of the right to strike. These may include compulsory conciliation, a period of notice, and a strike ballot. Such procedures may be required by legislation or a legally enforceable collective agreement. The extent to which they can constrain exercise of the right to strike is considered in this section.

It should be noted at the outset that the imposition of these preconditions is subject to certain limitations. ‘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.’58 For example, strikes should not be rendered illegal on the basis of ‘minor procedural flaws’.59 Nor should the procedural stages ‘be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness’.60 Moreover, the determination whether or not the procedural criterion for lawful industrial action has been met is to be made by the judiciary or some other independent (p.282) authority, not by a government ministry.61 The restrictions to be placed on these procedural preconditions are also discussed below.

First, a strike may be delayed temporarily until procedures for negotiation, conciliation, and mediation have been exhausted.62 The CEACR asserts that this is ‘compatible with. Article 4 of Convention No. 98 which encourages the full development and utilization of machinery for the voluntary negotiation of collective agreements’.63 It is also consistent with the emphasis placed on promotion of such machinery by Article 6(2) of the ESC. If industrial conflict can be resolved by negotiation rather than by means of a strike, this is advantageous to employers, employees, the government, and indeed society at large. Nevertheless, delay for these purposes is not to be used as a means by which to prevent workers’ eventual recourse to industrial action. The period of time set aside must not be too lengthy, reference to conciliation must not be compulsory, and workers must still be able to call a strike once this period of time has expired.64

Secondly, national governments are entitled to lay down a requirement that those who intend to take industrial action provide their employers with a reasonable period of notice,65 This has been said to amount to a ‘cooling off period’, which may encourage the parties to an industrial dispute to reach a settlement without recourse to strike action, with all its potentially harmful effects.66 This period of notice may also minimize some of the harsher disruptive effects of a strike, allowing the management of a business to inform its customers of future inconvenience, and giving other businesses the opportunity to make alternative arrangements.67 However, ‘the period of advance notice should not be an additional obstacle to bargaining, with workers in practice simply waiting for its expiry in order to be able to exercise their right to strike’.68 So, if the period of time allocated for voluntary conciliation is itself lengthy, it may be unreasonable to impose a long notice or waiting period upon workers who wish to strike. The content of the notice given must also be reasonable. For example, the CEACR has found that a requirement that the duration of a strike be announced when giving notice unduly restricts the right of workers’ organizations to organize their activities and formulate their programmes in fall freedom.69

(p.283) Thirdly, national legislation requiring a strike ballot can be regarded as acceptable.70 Strike ballots may be useful to a number of interest groups in different ways. They may be useful to trade unions in that they may strengthen perception of a strike’s legitimacy. They may also protect the majority of workers in a workplace, enterprise, or industry, where such workers do not want to be coerced into taking industrial action desired by a minority. Moreover, such ballots can provide employers with an indication of the strength of worker feeling on a particular issue and thereby provide an incentive to respond with an appropriate settlement before a strike is called, From a more cynical perspective, balloting requirements can be used as a means by which to delay industrial action; and may also provide grounds for an employer to challenge the legality of industrial action so as to acquire an order requiring a return to work.71 International and European supervisory bodies are eager to ensure that such ballots are not used as a crude mechanism to prevent industrial action. Legislative provisions imposing balloting requirements will be criticized when they are too complex or restrictive in nature.72 Moreover, the threshold for approval must not be too high,73 For example, the ILO CFA has criticized the requirement that a decision to strike must be taken by a two-thirds majority; it being more appropriate that this be determined by a bare majority of those who wish to vote.74

Finally, a collective agreement may impose legitimate procedural limitations on the exercise of the right to strike. These may include the requirement that industrial action not be taken for the duration of the collective agreement, However, different views have been taken by the ILO’s CEACR and the Council of Europe’s ECSR on the application of such ‘peace obligations’.

The ILO CEACR has recognized that, in some States, a collective agreement is viewed as a ‘social peace treaty of fixed duration’ and that, during the term of a collective agreement, strikes are prohibited. This is said to be acceptable in so far as the parties have access to ‘impartial and rapid arbitration machinery for individual and collective grievances’.75 Even then, during the term of a collective agreement, workers should always be able to take industrial action aimed at protesting against the social and (p.284) economic policy of the government.76 This principle arguably demonstrates an appreciation of the range of potential reasons for exercise of the right to strike, including arguably its broader ‘political’ function.

The ECSR has said that a moratorium on strike action stemming from a collective agreement should apply only to matters contained in the agreement and to members of the trade union covered by the agreement.77 It is, however, permissible for a collective agreement to contain considerable restrictions on the right to strike, even if they would be unacceptable when imposed directly by legislation. This is because such restrictions are ‘imposed by mutual consent of the parties concerned for the purpose of limiting recourse to such action in the interests of the community or the users of essential services’.78 There is no suggestion that a protest against the economic or social policy of a government could provide the legitimate basis for industrial action while a ‘peace obligation’ is in operation.79

The position taken by the ECSR on this issue may stem from the wording of Article 6(4) of the ESC, which states that the right to strike must be ‘subject to obligations that might arise out of collective agreements previously entered into’. This is phrased as an absolute obligation and seems to be treated by the ECSR as such. Moreover, the title of Article 6 is ‘the right to bargain collectively’ and the provision is concerned only with the ‘effective exercise’ of this right. As we shall see in Chapter 12, the ECSR has construed ‘collective bargaining’ in a broad sense, but has yet to endorse the use of protest strikes to promote and defend workers’ general economic and social interests. In this respect, its jurisprudence can be contrasted with that of ILO supervisory bodies.

Notes:

(1) See Chap. 1 above, at 24 and 26–7.

(2) See Chap. 3 above, at 54–5.

(3) See Chap. 9 above, at 220.

(4) See Chap. 3 above, at 51–3.

(5) Ibid., at 53–4.

(6) Craven, M., The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (2nd revel edn., Oxford: Clarendon Press, 1998), 279.

(7) See, e.g., on use of this provision to protect ‘lock-outs’, which do not necessarily receive the same status as ‘strikes’, Samuel, L., Fundamental Social Rights: Case Law of the European Social Charter (Strasbourg: Council of Europe, 1997), 181–3; and Casey, N., The Right to Organise and Bargain Collectively: Protection within the European Social Charter (Strasbourg: Council of Europe, 1996), 73–6.

(8) See Chap. 8 above, at 192–9.

(9) Committee of Experts on the Application of Conventions and Recommendations, General Survey on Freedom of Association and Collective Bargaining (Geneva: ILO, 1994), hereafter ‘CEACR General Survey’, paras. 173–174; and Gernigon, B., Odero, A., and Guido, H., ‘ILO Principles concerning the Right to Strike’ (1998) 137 ILRev. 441 at 458. See, e.g., Case No. 2082 (Morocco), 328th Report of the CFA (2002), para. 464 at 470, from which it is evident that the CFA considers that a workplace ‘sit-in’ can be covered by the right to strike; and Case No. 2090 (Belarus), 326th Report (2001), para. 210 at para. 242, which concerns a union’s entitlement to picket without the penalty of deregistration.

(10) Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (4th revd. edn., Geneva: ILO, 1996), hereafter ‘CFA Digest of Decisions’, paras. 459–472.

(11) Concluding Observations of the Committee on Economic, Social and Cultural Rights: UK 4 Dec. 1997 E/C.12/1/Add. 19, para. 11; and Concluding Observations: UK 17 May 2002, E/C. 12/1/Add.79, para. 16.

(12) Craven, n.6 above, 280.

(13) See Chap. 14 below, at 319.

(14) CFA Digest of Decisions, n.10 above, paras. 590–597.

(15) Conclusions XII–1, 131; and Conclusions XIV–1, 805.

(16) Kahn-Freund, O., The Right to Strike: Its Scope and Limitations (Strasbourg: Council of Europe, 1974), 5.

(17) See Chap. 3 above, at 54–5.

(18) See Clauwaert, S., Fundamental Social Rights in the European Union: Comparative Tables and Documents (Brussels: ETUI, 1998).

(19) Craven, n.6 above, 278.

(20) Council of Europe, Symposium on the European Social Charter and Social Policy Today (Strasbourg: Council of Europe, 1977), 35–6. See also Prof. Sinay’s comments at 37. Cf. Betten, L., The Right to Strike in Community Law: The Incorporation of Fundamental Rights in the Legal Order of the European Communities (Amsterdam: North Holland, 1985), 198.

(21) ECSR, Conclusions I, 185; Conclusions II, 28–9; Conclusions IV, 48–51; Conclusions VIII, 96; Conclusions XIII–1, 155–6; Conclusions XIV–1, 301.

(22) ECSR, Conclusions XIV–1 662.

(23) ECSR, Conclusions IV, 50; Conclusions XII–2, 115; Conclusions XIII–2, 282; Conclusions XV–1, 201–6.

(24) ECSR, Conclusions XV–1, 254–7.

(25) ECSR, Conclusions XV–1, 475–82; Conclusions XV–1, Second Addendum (Germany), 27–30.

(26) ESC Governmental Committee, Report 13(1), 94, para. 459.

(27) See Chap. 9 above, at 219–20.

(28) Arguably, there has been no need to do so, by virtue of amendments made to the Trade Unions and Industrial Disputes Act in May 1996 by Act No. 75/1996, which, at least in theory, provide scope for individual exercise of the right to strike, as noted in the State Report submitted by Iceland under the ICESCR, 26 June 1997 E/1990/6/Add.15, para. 44.

(29) ESC Governmental Committee, Report-13(2), 41–3, paras. 178–186; and Committee of Ministers Recommendation RChS(98)2.

(30) CFA Digest of Decisions, n.10 above, para. 477.

(31) See Chap. 12 below, at 290–1.

(32) See App. 1 below.

(33) Cf. CFA Digest of Decisions, n.10 above, para. 478.

(34) See, e.g., CEACR, Individual Observation concerning Convention No. 87 (Egypt) (Geneva: ILO, 2002); for a similar view taken by the UN Committee on Economic, Social, and Cultural Rights; see Concluding Observations: Tunisia 14 May 1999, E/C.12/1/Add.36, para. 15.

(35) Case No. 1759 (Peru), 294th Report of the CFA (1994), para. 335.

(36) Ibid., 343.

(37) CFA Digest of Decisions, n. 10 above, para. 497 states that restrictions on wild-cat strikes will be justifiable only if the strike ceases to be peaceful.

(38) CFA Digest of Decisions, n. 10 above, para. 485.

(39) Utz, A.F., ‘Is the Right to Strike a Human Right?’ (1987) 65 Washington University Law Quarterly 732. This argument was considered in Chap. 3 above, at 50–3.

(40) Case No. 208 (Ivory Coast), 46th Report of the CFA (1961), para. 8 at para. 15.

(41) Case No. 274 (Libya), 60th Report of the CFA (1962), para. 281 (g). This case concerned the restriction of strikes in public-sector employment, but it seemed that the principle was of more general application.

(42) Case No. 294 (Spain), 66th Report of the CFA (1963), para. 481.

(43) Ibid., para. 485.

(44) See for confirmation of this principle Case No. 1937 (Zimbabwe), 326th Report of the CFA (2001), para. 171; and Case No. 1845 (Peru), 302nd Report (1996), para. 495 at paras. 511–513. See also Chap. 13 below.

(45) Case No. 1576 (Norway), 279th Report of the CFA (1991), para. 91, at para. 116. See, more recently, Case No. 1973 (Zimbabwe), 327th Report (2002), para. 130 at para. 130.

(46) Case No. 1930 (China), 316th Report of the CFA (1999), para. 341 at para. 361.

(47) CEACR General Survey, n.9 above, para. 153. See, e.g., CEACR, Individual Observations concerning Convention No. 87 (Algeria), (Belarus), (Haiti) and (Jamaica) (Geneva: ILO, 2002).

(48) Benjamin, P., ‘The Big Ban Theory: Strikes in Essential Services’ (1989) 6 Employment Law (South Africa), 44–66. Cf. Chap. 3 above, at 52–3.

(49) Case No. 294 (Spain), 76th Report of the CFA (1964), para. 285.

(50) See for a recent example of the application of this principle to industrial relations in Portugal ECSR, Conclusions XIII–3, 280–1.

(51) ECSR, Conclusions X–1, 74–5.

(52) ECSR, Conclusions XIV–1, 526; Conclusions XV–1, 407–8.

(53) ECSR, Conclusions XIII–1, 158–9. See also Conclusions X–1 7–8; Conclusions XII–1 130. This was also consistent with the findings of the UN Committee on Economic, Social, and Cultural Rights set out in Concluding Observations: Norway, 1 Dec. 1997, E/C. 12/1995/18, para. 224 which expressed concern at the existence of legislative powers to impose compulsory arbitration.

(54) ECSR, Conclusions XIII–3, 141–2.

(55) By 11 votes in favour, one against, and four abstentions. See ESC Governmental Committee, Report 13(1), 98, para. 476.

(56) ECSR, Conclusions XIV–1, 621–3; Conclusions XV–1 430–8.

(57) ESC Governmental Committee, Report 15(1), 66, para. 267.

(58) CFA Digest of Decisions, n.10 above, para. 498.

(59) CEACR, Individual Observation concerning Convention No. 87 (Russian Federation) (Geneva: ILO, 2001).

(60) CEACR, Individual Observation concerning Convention No. 87 (Swaziland) (Geneva: ILO, 2001), citing CEACR General Survey, n.9 above, para. 171. See also Concluding Observations of the Committee on Economic, Social and Cultural Rights: Bolivia, 21 May 2001, E/C.12/1/Add.60, para. 18.

(61) CEACR, Individual Observation concerning Convention No. 87 (Colombia) (Geneva: ILO, 2000).

(62) CFA Digest of Decisions, n. 10 above, para. 501; ECSR, Conclusions I, 38; Samuel, n.7 above, 162.

(63) CEACR General Survey, n.9 above, para. 171.

(64) CFA Digest of Decisions, n. 10 above, para. 500; CEACR General Survey, n.9 above, para. 171.

(65) CFA Digest of Decisions, n. 10 above, para. 502; CEACR General Survey, n.9 above, para. 172.

(66) CFA Digest of Decisions, n. 10 above, paras. 504 and 505. ECSR, Conclusions I, 38. See also Kahn-Freund, O., ‘Labour Relations and International Standards: Some Reflections on the European Social Charter’ in Miscellanea W.J. Ganshof van der Meersch (Paris/Brussels: Librarie Générate de Droit et Jurisprudence/Establissements Emile Bruylant, 1972), 149.

(67) See Chap. 4 above, at 76.

(68) CEACR General Survey, n.9 above, para. 172.

(69) CEACR, Individual Observation concerning Convention No. 87 (Belarus) (Geneva: ILO, 2002); CEACR, Individual Observation concerning Convention No. 87 (Russian Federation) (Geneva: ILO, 2001).

(70) CFA Digest of Decisions, n.10 above, paras. 511 and 514; CEACR General Survey, n.9 above, para. 170; ECSR, Conclusions II, 187.

(71) See Chap. 4 above, at 78; and Chap. 14 below, at 321–2.

(72) CFA Digest of Decisions, n.10 above, paras. 498 and 499; applied in Case No. 1989 (Bulgaria), 316th Report of the CFA (1999), para. 163 at para. 189. In respect of the UK, in particular, see ECSR, Conclusions XII–1, 131.

(73) CEACR, Individual Observation concerning Convention No, 87 (Slovakia) (Geneva: ILO, 2002); ECSR, Conclusions XIII–2, 280–1; and Concluding Observations of the Committee on Economic, Social and Cultural Rights: Dominican Republic, E/C.12/1990/SR.44, para. 73, discussed by Craven, n.6 above, at 282.

(74) CEACR, Individual Observations concerning Convention No. 87 (Honduras) and (Sao Tome) (Geneva: ILO, 2002); CEACR, Individual Observation concerning Convention No. 87 (Mexico) (Geneva: ILO, 2001).

(75) CEACR General Survey, n.9 above, para. 167.

(76) Ibid., para. 166.

(77) ECSR, Conclusions VII, 40; Conclusions XV–1, 430–8.

(78) ECSR, Conclusions VIII, 98; Conclusions XIII–2, 283; and Conclusions XIII–3, 138. See also Casey, n.7 above, 62–3, paras. 185–187.

(79) ECSR, Conclusions XV–1, 149–57.