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Situations and conditions under which a minimum operational service could be required (Right to strike)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:1008 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320061008 Situations and conditions under which a minimum operational service could be required 606. 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. (See the 1996 Digest, para. 556; 316th Report, Case No. 1985, para. 324; 320th Report, Case No. 2057, para. 780; 329th Report, Case No. 2174, para. 795; 333rd Report, Case No. 2251, para. 990; 336th Report, Case No. 2300, para. 383; 337th Report, Case No. 2355, para. 630; and 338th Report, Case No. 2364, para. 975.) 607. 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.(See 299th Report, Case No. 1782, para. 324; and 300th Report, Case No. 1791, para. 346.) 608. Measures should be taken to guarantee that the minimum services avoid danger to public health and safety.(See 309th Report, Case No. 1916, para. 100.) 609. 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 defi ning the minimum service.(See the 1996 Digest, para. 557; 308th Report, Case No. 1923, para. 222; 316th Report, Case No. 1985, para. 324; 337th Report, Case No. 2249, para. 1478; and 338th Report, Case No. 2364, para. 975.) 610. 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.(See the 1996 Digest, para. 558; 308th Report, Case No. 1923, para. 222; 317th Report, Case No. 1971, para. 57; and 330th Report, Case No. 2212, para. 751.) 611. 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.(See the 1996 Digest, para. 559; 308th Report, Case No. 1921, para. 573; and 330th Report, Case No. 2212, para. 751.) 612. 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 over-generous and unilaterally fixed minimum services.(See the 1996 Digest, para. 560; 299th Report, Case No. 1782, para. 325; 302nd Report, Case No. 1856, para. 436; 308th Report, Case No. 1923, para. 222; 320th Report, Case No. 1963, para. 231, and Case No. 2044, para. 453; 324th Report, Case No. 2078, para. 617; 325th Report, Case No. 2018, para. 88; and 338th Report, Case No. 2373, para. 381.) 613. 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.(See the 1996 Digest, para. 561; 299th Report, Case No. 1782, para. 325; 308th Report, Case No. 1923, para. 222; 320th Report, Case No. 2044, para. 453; and 330th Report, Case No. 2212, para. 751.) 614. 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.(See the 1996 Digest, para. 562; 302nd Report, Case No. 1856, para. 437; and 304th Report, Case No. 1866, para. 114.) |
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