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Sanctions (Right to strike)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:1017 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320061017 Sanctions A. In the event of a legitimate strike (See also paras. 57, 77, 269 and 853)658. Imposing sanctions on unions for leading a legitimate strike is a grave violation of the principles of freedom of association. (See 302nd Report, Case No. 1849, para. 207.) 659. The closure of trade union offices, as a consequence of a legitimate strike, is a violation of the principles of freedom of association.(See 302nd Report, Case No. 1849, para. 215.) 660. No one should be penalized for carrying out or attempting to carry out a legitimate strike.(See the 1996 Digest, para. 590; and, for example, 302nd Report, Case No. 1849, para. 211; 307th Report, Case No. 1890, para. 372; 310th Report, Case No. 1932, para. 515; 311th Report, Case No. 1934, para. 127; 316th Report, Case No. 1934, para. 211; 318th Report, Case No. 1978, para. 218; 321st Report, Case No. 2056, para. 137; 324th Report, Case No. 2072, para. 587; 326th Report, Case No. 2091, para. 154; 331st Report, Case No. 1937/2027, para. 105; and 333rd Report, Case No. 2164, para. 608.) 661. The dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98.(See the 1996 Digest, para. 591; 306th Report, Case No. 1904, para. 596; 326th Report, Case No. 2116, para. 356; 333rd Report, Case No. 2164, para. 608; 334th Report, Case No. 2267, para. 658, and Case No. 2211, para. 678; and 338th Report, Case No. 2046, para. 104.) 662. When trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against.(See the 1996 Digest, para. 592; 306th Report, Case No. 1904, para. 596; 318th Report, Case No. 1978, para. 218; 326th Report, Case No. 2116, para. 356; and 334th Report, Case No. 2267, para. 658.) 663. Respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike. Logically, it should also be irrelevant that the dismissal takes place in advance of a strike, if the purpose of the dismissal is to impede or to penalize the exercise of the right to strike.(See the 1996 Digest, para. 593; 305th Report, Case No. 1870, para. 144; 308th Report, Case No. 1934, para. 132; and 327th Report, Case No. 2141, para. 324.) 664. The Committee could not view with equanimity a set of legal rules which: (a) appears to treat virtually all industrial action as a breach of contract on the part of those who participate therein; (b) makes any trade union or offi cial thereof who instigates such breaches of contract liable in damages for any losses incurred by the employer in consequence of their actions; and (c) enables an employer faced with such action to obtain an injunction to prevent the commencement (or continuation) of the unlawful conduct. The cumulative effect of such provisions could be to deprive workers of the capacity lawfully to take strike action to promote and defend their economic and social interests. (See the 1996 Digest, para. 594.) 665. The announcement by the government that workers would have to do overtime to compensate for the strike might in itself unduly infl uence the course of the strike.(See the 1996 Digest, para. 596.) 666. The use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association.(See the 1996 Digest, para. 597; 311th Report, Case No. 1954, para. 406; 329th Report, Case No. 2195, para. 738; and 333rd Report, Case No. 2281, para. 633.) B. Cases of abuse while exercising the right to strike 667. The principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike. (See the 1996 Digest, para. 598; 320th Report, Case No. 2007, para. 281; 332nd Report, Case No. 2187, para. 719; and 338th Report, Case No. 2363, para. 734.) 668. Penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike. (See the 1996 Digest, para. 599; and, for example, 303rd Report, Case No. 1810/1830, para. 62; 304th Report, Case No. 1851, para. 281; 310th Report, Case No. 1930, para. 354; 311th Report, Case No. 1950, para. 460; 320th Report, Case No. 2048, para. 718; 329th Report, Case No. 2195, para. 738; 331st Report, Case No. 1937/2027, para. 105; 332nd Report, Case No. 2252, para. 886; 336th Report, Case No. 2153, para. 174; and 338th Report, Case No. 2363, para. 734.) 669. The Committee considered that some of the temporary measures taken by the authorities as a result of a strike in an essential service (prohibition of the trade union’s activities, cessation of the check-off of trade union dues, etc.) were contrary to the guarantees provided for in Article 3 of Convention No. 87. The Committee drew the Government’s attention to the fact that the measures taken by the authorities to ensure the performance of essential services should not be out of proportion to the ends pursued or lead to excesses.(See the 1996 Digest, para. 600.) 670. Fines which are equivalent to a maximum amount of 500 or 1,000 minimum wages per day of abusive strike may have an intimidating effect on trade unions and inhibit their legitimate trade union activities, particularly where the cancellation of a fi ne of this kind is subject to the provision that no further strike considered as abusive is carried out.(See 306th Report, Case No. 1889, para. 175.) C. In cases of peaceful strikes (See also para. 77)671. The authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association. (See the 1996 Digest, para. 601; 299th Report, Case No. 1687, para. 457; 302nd Report, Case No. 1825, para. 493; 304th Report, Case No. 1712, para. 378; 320th Report, Case No. 2048, para. 716; and 327th Report, Case No. 1581, para. 111.) 672. No one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike.(See the 1996 Digest, para. 602; 302nd Report, Case No. 1825, para. 493; 304th Report, Case No. 1712, para. 378; 306th Report, Case No. 1884, para. 686; 308th Report, Case No. 1773, para. 446; 320th Report, Case No. 2007, para. 283; and 332nd Report, Case No. 2234, para. 782, and Case No. 2252, para. 886.) 673. The peaceful exercise of trade union rights (strike and demonstration) by workers should not lead to arrests and deportations.(See the 1996 Digest, para. 603.) D. Large-scale sanctions674. Arrests and dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve. (See the 1996 Digest, para. 604; 304th Report, Case No. 1719, para. 414; 326th Report, Case No. 2105, para. 445; and 338th Report, Case No. 2364, para. 977.) |
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