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Back-to-work orders, the hiring of workers during a strike, requisitioning orders (Right to strike)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:1012 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320061012 Back-to-work orders, the hiring of workers during a strike, requisitioning orders 632. The hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association. (See the 1996 Digest, para. 570; 302nd Report, Case No. 1849, para. 217; 306th Report, Case No. 1865, para. 336; 307th Report, Case No. 1899, para. 81; 311th Report, Case No. 1954, para. 406; 327th Report, Case No. 2141, para. 322; 333rd Report, Case No. 2251, para. 998; and 335th Report, Case No. 1865, para. 826.) 633. If a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights.(See the 1996 Digest, para. 571; 306th Report, Case No. 1865, para. 336; 318th Report, Case No. 2005, para. 183; and 333rd Report, Case No. 2251, para. 998.) 634. Whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association. (See the 1996 Digest, para. 572; 320th Report, Case No. 2044, para. 452; 329th Report, Case No. 2195, para. 737; 332nd Report, Case No. 2252, para. 883; and 333rd Report, Case No. 2281, para. 634.) 635. The use of the military and requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services in circumstances of the utmost gravity, constitutes a serious violation of freedom of association.(See the 1996 Digest, para. 573; 308th Report, Case No. 1921, para. 575; 320th Report, Case No. 2044, para. 452; and 333rd Report, Case No. 2288, para. 831.) 636. The employment of the armed forces or of another group of persons to perform duties which have been suspended as a result of a labour dispute can, if the strike is lawful, be justified only by the need to ensure the operation of services or industries whose suspension would lead to an acute crisis. (See the 1996 Digest, paras. 528 and 574; 321st Report, Case No. 2066, para. 340; 324th Report, Case No. 2077, para. 551; and 328th Report, Case No. 2082, para. 475.) 637. Although it is recognized that a stoppage in services or undertakings such as transport companies, railways and the oil sector might disturb the normal life of the community, it can hardly be admitted that the stoppage of such services could cause a state of acute national emergency. The Committee has therefore considered that measures taken to mobilize workers at the time of disputes in services of this kind are such as to restrict the workers’ right to strike as a means of defending their occupational and economic interests.(See the 1996 Digest, paras. 530 and 575; 317th Report, Case No. 1971, para. 56; 335th Report, Case No. 1865, para. 826; and 337th Report, Case No. 2249, para. 1478.) 638. The requisitioning of railway workers in the case of strikes, the threat of dismissal of strike pickets, the recruitment of underpaid workers and a ban on the joining of a trade union in order to break up lawful and peaceful strikes in services which are not essential in the strict sense of the term are not in accordance with freedom of association.(See the 1996 Digest, para. 576.) 639. Where an essential public service, such as the telephone service, is interrupted by an unlawful strike, a government may have to assume the responsibility of ensuring its functioning in the interests of the community and, for this purpose, may consider it expedient to call in the armed forces or other persons to perform the duties which have been suspended and to take the necessary steps to enable such persons to be installed in the premises where such duties are performed.(See the 1996 Digest, para. 577.) |
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