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Prerequisites (Right to strike)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:1004 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320061004 Prerequisites 547. 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. (See the 1996 Digest, para. 498; 300th Report, Case No. 1799, para. 207; 318th Report, Case No. 2018, para. 514; 325th Report, Case No. 2049, para. 520; 327th Report, Case No. 2118, para. 635; and 333rd Report, Case No. 2251, para. 995.) 548. The legal procedures for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike.(See the 1996 Digest, para. 499; and 316th Report, Case No. 1989, para. 189.) 549. Legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not compulsory and does not, in practice, prevent the calling of the strike.(See the 1996 Digest, para. 500; 307th Report, Case No. 1899, para. 83, and Case No. 1898, para. 324; 309th Report, Case No. 1912, para. 364; 324th Report, Case No. 2092/2101, para. 731; and 336th Report, Case No. 2369, para. 212.) 550. In general, a decision to suspend a strike for a reasonable period so as to allow the parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of the principles of freedom of association.(See 338th Report, Case No. 2329, para. 1274.) 551. The Committee has emphasized that, although a strike may be temporarily restricted by law until all procedures available for negotiation, conciliation and arbitration have been exhausted, such a restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.(See the 1996 Digest, para. 501.) 552. The obligation to give prior notice to the employer before calling a strike may be considered acceptable.(See the 1996 Digest, para. 502; 325th Report, Case No. 2049, para. 520; and 333rd Report, Case No. 2251, para. 996.) 553. The requirement that a 20-day period of notice be given in services of social or public interest does not undermine the principles of freedom of association.(See the 1996 Digest, para. 504; and 309th Report, Case No. 1912, para. 365.) 554. The legal requirement of a cooling-off period of 40 days before a strike is declared in an essential service, in so far as it is designed to provide the parties with a period of refl ection, is not contrary to the principles of freedom of association. This clause which defers action may enable both parties to come once again to the bargaining table and possibly to reach an agreement without having recourse to a strike.(See the 1996 Digest, para. 505.) 555. With regard to the majority vote required by one law for the calling of a legal strike (two-thirds of the total number of members of the union or branch concerned), non-compliance with which might entail a penalty by the administrative authorities, including the dissolution of the union, the Committee recalled the conclusions of the Committee of Experts on the Application of Conventions and Recommendations that such legal provisions constitute an intervention by the public authorities in the activities of trade unions which is of such a nature as to restrict the rights of these organizations, contrary to Article 3 of the Convention.(See the 1996 Digest, para. 506.) 556. The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.(See the 1996 Digest, para. 507.) 557. The requirement that an absolute majority of workers should be obtained for the calling of a strike may be difficult, especially in the case of unions which group together a large number of members. A provision requiring an absolute majority may, therefore, involve the risk of seriously limiting the right to strike.(See the 1996 Digest, para. 508; and 316th Report, Case No. 1989, para. 190.) 558. The Committee requested a government to take measures to amend the legal requirement that a decision to call a strike be adopted by more than half of the workers to which it applies, in particular in enterprises with a large union membership.(See the 1996 Digest, para. 509.) 559. The obligation to observe a certain quorum and to take strike decisions by secret ballot may be considered acceptable.(See the 1996 Digest, para. 510; 316th Report, Case No. 1989, para. 190; and 332nd Report, Case No. 2216, para. 912.) 560. The observance of a quorum of two-thirds of the members may be difficult to reach, in particular where trade unions have large numbers of members covering a large area.(See the 1996 Digest, para. 511; 332nd Report, Case No. 2216, para. 912; and 333rd Report, Case No. 2251, para. 987.) 561. A provision requiring the agreement of the majority of the members of federations and confederations, or the approval by the absolute majority of the workers of the undertaking concerned for the calling of a strike, may constitute a serious limitation on the activities of trade union organizations.(See the 1996 Digest, para. 512.) 562. The Committee has considered to be in conformity with the principles of freedom of association a situation where the decision to call a strike in the local branches of a trade union organization may be taken by the general assembly of the local branches, when the reason for the strike is of a local nature and where, in the higher-level trade union organizations, the decision to call a strike may be taken by the executive committee of these organizations by an absolute majority of all the members of the committee.(See the 1996 Digest, para. 513.) 563. The obligation to hold a second strike vote if a strike has not taken place within three months of the first vote does not constitute an infringement of freedom of association.(See the 1996 Digest, para. 514.) |
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