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Cases in which strikes may be restricted or even prohibited, and compensatory guarantees (Right to strike)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:1006 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320061006 Cases in which strikes may be restricted or even prohibited, and compensatory guarantees A. Acute national emergency (See also paras. 198, 606, 609, 620, 636 and 637)570. A general prohibition of strikes can only be justifi ed in the event of an acute national emergency and for a limited period of time. (See the 1996 Digest, para. 527; 316th Report, Case No. 1985, para. 320; 327th Report, Case No. 1581, para. 111; 333rd Report, Case No. 2288, para. 829, and Case No. 2251, para. 993; 336th Report, Case No. 2340, para. 645; and 337th Report, Case No. 2244, para. 1268.) 571. Responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confi dence of all parties concerned.(See 335th Report, Case No. 2303, para. 1377; and 338th Report, Case No. 2366, para. 1279.) B. Public service (See also paras. 588, 589 and 590)572. Recognition of the principle of freedom of association in the case of public servants does not necessarily imply the right to strike. (See the 1996 Digest, para. 531; and 304th Report, Case No. 1719, para. 413.) 573. The Committee has acknowledged that the right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees.(See the 1996 Digest, para. 533; 300th Report, Case No. 1791, para. 345; 302nd Report, Case No. 1849, para. 203; and 318th Report, Case No. 2020, para. 318.) 574. The right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State. (See the 1996 Digest, para. 534; 304th Report, Case No. 1719, para. 413; 338th Report, Case No. 2363, para. 731, and Case No. 2364, para. 975.) 575. Too broad a definition of the concept of public servant is likely to result in a very wide restriction or even a prohibition of the right to strike for these workers. The prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State.(See the 1996 Digest, para. 535.) 576. The right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population).(See the 1996 Digest, paras. 526 and 536; and, for example, 306th Report, Case No. 1882, para. 427; 309th Report, Case No. 1913, para. 305; 316th Report, Case No. 1934, para. 210; 320th Report, Case No. 2025, para. 405; 326th Report, Case No. 2135, para. 266; 329th Report, Case No. 2157, para. 191; 330th Report, Case No. 2212, para. 749; 333rd Report, Case No. 2251, para. 993; 335th Report, Case No. 2257, para. 466; 336th Report, Case No. 2383, para. 759; and 337th Report, Case No 2244, para. 1268.) 577. Public servants in state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, enjoy suitable protection against acts of anti-union discrimination and enjoy the right to strike, provided that the interruption of services does not endanger the life, personal safety or health of the whole or part of the population.(See the 1996 Digest, para. 532; and 338th Report, Case No. 2348, para. 997.) 578. Officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition.(See the 1996 Digest, paras. 537 and 538; and 336th Report, Case No. 2383, para. 763.) 579. The prohibition of the right to strike of customs officers, who are public servants exercising authority in the name of the State, is not contrary to the principles of freedom of association.(See 304th Report, Case No. 1719, para. 413.) 580. Action taken by a government to obtain a court injunction to put a temporary end to a strike in the public sector does not constitute an infringement of trade union rights.(See the 1996 Digest, para. 539.) C. Essential services (See also para. 576)581. 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. (See the 1996 Digest, para. 540; 320th Report, Case No. 1989, para. 324; 324th Report, Case No. 2060, para. 517; 329th Report, Case No. 2195, para. 737; 332nd Report, Case No. 2252, para. 883; 336th Report, Case No. 2383, para. 766; 338th Report, Case No. 2326, para. 446, and Case No. 2329, para. 1275.) 582. 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.(See the 1996 Digest, para. 541; 320th Report, Case No. 1963, para. 229; 321st Report, Case No. 2066, para. 340; 330th Report, Case No. 2212, para. 749; 335th Report, Case No. 2305, para. 505; and 338th Report, Case No. 2373, para. 382.) 583. 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.(See the 1996 Digest, para. 542; 308th Report, Case No. 1923, para. 221; 314th Report, Case No. 1787, para. 32; 320th Report, Case No. 1963, para. 229; 328th Report, Case No. 2120, para. 540; and 336th Report, Case No. 2340, para. 645.) 584. 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. (See the 1996 Digest, para. 543.) 585. The following may be considered to be essential services: the hospital sector (see the 1996 Digest, para. 544; 300th Report, Case No. 1818, para. 366; 306th Report, Case No. 1882, para. 427; 308th Report, Case No. 1897, para. 477; 324th Report, Case No. 2060, para. 517, and Case No. 2077, para. 551; 329th Report, Case No. 2174, para. 795; 330th Report, Case No. 2166, para. 292; and 338th Report, Case No. 2399, para. 1171); electricity services (see the 1996 Digest, para. 544; 308th Report, Case No. 1921, para. 573; 309th Report, Case No. 1912, para. 365; 318th Report, Case No. 1999, para. 165; and Case No. 1994, para. 458); water supply services (see the 1996 Digest, para. 544; and 326th Report, Case No. 2135, para. 267); the telephone service (see the 1996 Digest, para. 544; 314th Report, Case No. 1948/1955, para. 72; and 318th Report, Case No. 2020, para. 318); the police and the armed forces (see 307th Report, Case No. 1898, para. 323); the fire-fighting services (see 309th Report, Case No. 1865, para. 145; and 321st Report, Case No. 2066, para. 336); public or private prison services (see 336th Report, Case No. 2383, para. 767); the provision of food to pupils of school age and the cleaning of schools (see 324th Report, Case No. 2037, para. 102); air traffic control (see the 1996 Digest, para. 544; and 327th Report, Case No. 2127, para. 191). 586. 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.(See 327th Report, Case No. 2127, para. 191.) 587. The following do not constitute essential services in the strict sense of the term: radio and television (see the 1996 Digest, para. 545; 302nd Report, Case No. 1849, para. 204; 306th Report, Case No. 1865, para. 332, and Case No. 1884, para. 688); the petroleum sector (see the 1996 Digest, para. 545; 302nd Report, Case No. 1849, para. 204; 306th Report, Case No. 1865, para. 332; 337th Report, Case No. 2355, para. 630, and Case No. 2249, para. 1478); ports (see the 1996 Digest, para. 545; 318th Report, Case No. 2018, para. 514; 320th Report, Case No. 1963, para. 229; and 321st Report, Case No. 2066, para. 340); banking (see the 1996 Digest, para. 545; 303rd Report, Case No. 1810/1830, para. 62; and 309th Report, Case No. 1937, para. 450); computer services for the collection of excise duties and taxes (see the 1996 Digest, para. 545); department stores and pleasure parks (see the 1996 Digest, para. 545); the metal and mining sectors (see the 1996 Digest, para. 545); transport generally (see the 1996 Digest, para. 545; 302nd Report, Case No. 1849, para. 203, and Case No. 1695, para. 248; 303rd Report, Case No. 1810/1830, para. 62; 316th Report, Case No. 1989, para. 191; 317th Report, Case No. 1971, para. 56); airline pilots (see 329th Report, Case No. 2195, para. 737); production, transport and distribution of fuel (see 307th Report, Case No. 1898, para. 325); railway services (see 308th Report, Case No. 1923, para. 221); metropolitan transport (see the 1996 Digest, para. 545); postal services (see the 1996 Digest, para. 545; 307th Report, Case No. 1898, para 325; 316th Report, Case No. 1985, para. 321; and 318th Report, Case No. 2020, para. 318); refuse collection services (see 309th Report, Case No. 1916, para. 100; and 338th Report, Case No. 2373, para. 382); refrigeration enterprises (see the 1996 Digest, para. 545); hotel services (see the 1996 Digest, para. 545; 324th Report, Case No. 1890, para. 58; 326th Report, Case No. 2116, para. 356; and 328th Report, Case No. 2120, para. 540); construction (see the 1996 Digest, para. 545; and 338th Report, Case No. 2326, para. 446); automobile manufacturing (see the 1996 Digest, para. 545); agricultural activities, the supply and distribution of foodstuffs (see the 1996 Digest, para. 545; and 308th Report, Case No. 1900, para. 183); the Mint (see the 1996 Digest, para. 545; and 306th Report, Case No. 1865, para. 332); the government printing service and the state alcohol, salt and tobacco monopolies (see the 1996 Digest, para. 545); the education sector (see the 1996 Digest, para. 545; 310th Report, Case No. 1928, para. 172, and Case No. 1943, para. 226; 311th Report, Case No. 1950, para. 457; 320th Report, Case No. 2025, para. 405; 327th Report, Case No. 2145, para. 302, and Case No. 2148, para. 800; 329th Report, Case No. 2157, para. 191; and 330th Report, Case No. 2173, para. 297); mineral water bottling company (see 328th Report, Case No. 2028, para. 475.) 588. 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. (See 311th Report, Case No. 1951, para. 227.) 589. 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.(See 277th Report, Case No. 1528, para. 288; and 311th Report, Case No. 1950, para. 458.) 590. The possible long-term consequences of strikes in the teaching sector do not justify their prohibition.(See 262nd Report, Case No. 1448, para. 117; and 327th Report, Case No. 2145, para. 303.) 591. The refuse collection service might become essential if the strike affecting it exceeds a certain duration or extent so as to endanger the life, personal safety or health of the population.(See 309th Report, Case No. 1916, para. 100.) 592. 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.(See 320th Report, Case No. 1963, para. 230.) 593. Within essential services, certain categories of employees, such as hospital labourers and gardeners, should not be deprived of the right to strike.(See 333rd Report, Case No. 2277, para. 274; and 338th Report, Case No. 2403, para. 601.) 594. 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.(See the 1996 Digest, para. 476.) D. Compensatory guarantees in the event of the prohibition of strikes in the public service or in essential services595. Where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services. (See the 1996 Digest, para. 546; and, for example, 300th Report, Case No. 1818, para. 367; 306th Report, Case No. 1882, para. 429; 310th Report, Case No. 1943, para. 227; 318th Report, Case No. 1999, para. 166; 324th Report, Case No. 2060, para. 518; 327th Report, Case No. 2127, para. 192; 330th Report, Case No. 2166, para. 292; 333rd Report, Case No. 2277, para. 274; 336th Report, Case No. 2340, para. 649; and 337th Report, Case No. 2244, para. 1269.) 596. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented.(See the 1996 Digest, para. 547; and, for example, 300th Report, Case No. 1818, para. 367; 306th Report, Case No. 1882, para. 429; 308th Report, Case No. 1897, para. 478; 310th Report, Case No. 1943, para. 227; 318th Report, Case No. 2020, para. 318; 324th Report, Case No. 2060, para. 518; 330th Report, Case No. 2166, para. 292; 333rd Report, Case No. 2277, para. 274; 336th Report, Case No. 2340, para. 649; and 337th Report, Case No. 2244, para. 1269.) 597. The reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by the compulsory arbitration tribunal. Any departure from this practice would detract from the effective application of the principle that, where strikes by workers in essential services are prohibited or restricted, such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery, the awards of which are binding on both parties.(See the 1996 Digest, para. 548.) 598. In mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned.(See the 1996 Digest, para. 549; 310th Report, Case No. 1928, para. 182, and Case No. 1943, para. 240; 318th Report, Case No. 1943, para. 117; 324th Report, Case No. 1943, para. 26; 327th Report, Case No. 2145, para. 306; 328th Report, Case No. 2114, para. 406; 333rd Report, Case No. 2288, para. 829; 335th Report, Case No. 2305, para. 507; and 336th Report, Case No. 2383, para. 773.) 599. The appointment by the minister of all fi ve members of the Essential Services Arbitration Tribunal calls into question the independence and impartiality of such a tribunal, as well as the confidence of the concerned parties in such a system. The representative organizations of workers and employers should, respectively, be able to select members of the Essential Services Arbitration Tribunal who represent them.(See the 1996 Digest, para. 550; and 328th Report, Case No. 2114, para. 406.) 600. Employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery.(See the 1996 Digest, para. 551; 306th Report, Case No. 1882, para. 428; 308th Report, Case No. 1902, para. 703; and 309th Report, Case No. 1913, para. 306.) 601. Referring to its recommendation that restrictions on the right to strike would be acceptable if accompanied by conciliation and arbitration procedures, the Committee has made it clear that this recommendation does not refer to the absolute prohibition of the right to strike, but to the restriction of that right in essential services or in the public service, in relation to which adequate guarantees should be provided to safeguard the workers interests. (See the 1996 Digest, para. 552.) 602. Regarding the requirement that the parties pay for the conciliation and mediation/arbitration services, the Committee has concluded that, provided the costs are reasonable and do not inhibit the ability of the parties, in particular those with inadequate resources, to make use of the services, there has not been a violation of freedom of association on this basis.(See 310th Report, Case No. 1928, para. 182.) 603. The Committee takes no position as to the desirability of conciliation over mediation as both are means of assisting the parties in voluntarily reaching an agreement. Nor does the Committee take a position as to the desirability of a separated conciliation and arbitration system over a combined mediation-arbitration system, as long as the members of the bodies entrusted with such functions are impartial and are seen to be impartial.(See 310th Report, Case No. 1928, para. 182.) |
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