Example Strike action is one of the fundamental means available to workers and their organizations to promote their economic and social interests. It is the most visible and controversial form of collective action in the event of a labour dispute and is often seen as the last resort of workers’ organizations in pursuit of their demands.
But strikes should not be seen in isolation from industrial relations as a whole. They are expensive and disruptive for workers, employers and society alike, and when they occur they are due to a failure in the process of fixing working conditions through collective bargaining. Indeed, more than any other aspect of industrial relations, they are often a symptom of broader and more diffuse issues, with the result that even if a strike is prohibited by national legislation or a judicial order, this will not prevent it from occurring if the economic and social pressures are sufficiently strong.
The right to strike is recognized by the ILO’s supervisory bodies as an intrinsic corollary of the right to organize protected by Convention No. 87, deriving from the right of workers' organizations to formulate their programmes of activities to further and defend the economic and social interests of their members. However, the right to strike is not absolute. It may be subject to certain legal conditions or restrictions, and may even be prohibited in exceptional circumstances (Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Article 3; General Survey on Freedom of Association and Collective Bargaining, para. 151).
The right to strike is also recognized in international and regional instruments, including the International Covenant on Economic, Social and Cultural Rights of 1966 (Article 8(1)(d)), the Inter-American Charter of Social Guarantees of 1948 (Article 27), the European Social Charter of 1961 (Article 6(4)) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (Article 8(1)(b)).
The right to strike is explicitly recognized in the constitutions and/or laws of a great many countries. In some cases, it takes the form of an individual right attaching to individual workers. In others, it is recognized as a collective right of workers. In the latter case, individual workers only benefit from the protection of the law when they participate in a strike if the strike is called officially by a trade union.
If industrial action in defence of the interests of workers is to be protected (that is, if the participants are not to be held liable for its consequences, and particularly its economic effects), it has to be covered by the definition of a protected strike or similar industrial action. Other acts, such as violence or interruptions of work that do not fall within such a definition, are not protected.
In most cases, a work stoppage is deemed to be a strike. Other forms of action which paralyse or reduce the economic activity of an enterprise, such go-slows or work-to-rules, may or may not be assimilated to strike action and be protected under the law. The ILO’s supervisory bodies consider that legal restrictions on such forms of action can be justified only where they cease to be peaceful.
In some countries, all workers enjoy the right to strike, in both the public and private sectors and irrespective of the impact on the public interest of a work stoppage in their establishment. In other countries, the right to strike is denied to public servants or to employees in essential services. In many countries, strikes can be prohibited in emergency situations.
Public servants, like other workers, are entitled to exercise the right to organize. However, it is recognized in the principles of freedom of association that high-level public servants, that is those exercising authority in the name of the State, may be denied the right to strike (General Survey, para. 158.). This prohibition of the right to strike may include members of the judiciary and officials working in the administration of justice, but may not be extended to cover public servants in general or public employees engaged in state-owned commercial or industrial enterprises (Digest of decisions and principles of the Freedom of Association Committee of the Governing Body, paras. 537, 532).
In view of the above distinction, any legislative restrictions should define as clearly and narrowly as possible the class of public servants whose right to strike is restricted. The determination of such public servants should be made on the basis of:
National legislation frequently places some form of limitation on the right to strike in certain activities, usually defined as essential services. In this respect, the ILO’s supervisory bodies have taken the position that it is admissible to limit or prohibit the right to strike in essential services, defined as those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (General Survey, para. 159).
In this connection, legislation may establish a general definition of essential services and leave its interpretation in specific cases to a public authority or the courts. Or it may establish a procedure for determining whether an activity should be deemed to be an essential service, sometimes with the participation of employers' and workers' organizations. In some cases, the legislation includes a list of activities deemed to be essential services in which work stoppages are not permitted.
The determination of which services are to be considered essential in each case is a delicate matter. For example, the interruption of a specific activity in many countries might not be considered such as to endanger the life, personal safety or health of the whole or part of the population, while such a service may be essential in other countries in view of their particular conditions. By way of illustration, port or maritime transport services might be considered essential on an island that is heavily dependent on them for basic supplies, whereas they would not be considered essential in most countries. Moreover, the impact of a strike may depend on its length. A stoppage of a few days may pose few problems, while one of several weeks or months may cause serious prejudice to the population concerned (for example, in household refuse collection services). In view of the above, in some countries a specific authority is entrusted with the power to declare a service to be essential or to prohibit a strike in a service or activity when its length has created a situation that is akin to an emergency for the whole or part of the population.
The ILO’s supervisory bodies have taken the position that where the right to strike is subject to restrictions or a prohibition, the workers concerned should be afforded compensatory guarantees, such as conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. In such cases, it is essential that the parties are able to participate in determining and implementing the procedure, which should provide sufficient guarantees of impartiality and rapidity. Moreover, arbitration awards should be binding on both parties and once issued should be implemented rapidly and completely (General Survey, para. 164).
With a view to ensuring that the basic needs of the population are met during a strike in a public utility, an interruption of which would not be so prejudicial to the public as to justify a total ban on strikes, provision may be made for the maintenance of a minimum service. A minimum service could also be required, instead of a total ban on strikes, in essential services in the strict meaning of the term (General Survey, paras. 160-162).
The ILO’s supervisory bodies have considered that this can be an appropriate alternative in such services, provided that it is not such as to call into question the right to strike of the large majority of workers. Such minimum service provisions have to meet at least two requirements:
It is highly desirable in this respect that:
Disputes over rights set out in the law, collective agreements or contracts of employment are often not considered to justify recourse to strike action. This is because the parties are expected to have recourse to adjudication by the relevant judicial or other body to resolve the dispute, following any conciliation procedure that may be applicable.
National legislation frequently lays down a number of conditions that must be met by workers and their organizations before they can exercise the right to strike. However, in view of the danger that such conditions may limit the freedom of workers and their organizations to organize their activities and formulate their programmes, a they should not unduly prevent recourse to strikes in defence of the interests of workers. In this respect, the following conditions are often found in legislation:
The legislation in many countries requires that conciliation and mediation procedures must be exhausted before a strike is called. Such a requirement is in accordance with the principles of freedom of association and the right to strike as it may encourage further negotiation. However, the procedure should not be so slow or complex that a lawful strike becomes impossible in practice or loses its effectiveness (General Survey, para. 171).
In some cases, the legislation directly provides that a strike may not be called before conciliation and or mediation procedures are exhausted. In others, this is the resultof a legislative requirement to notify disputes to the conciliation services and the authorization of strikes only where a dispute is unresolved after the respective procedures have been followed.
The requirement to hold a strike ballot before calling a strike is intended: to ensure that labour relations, including industrial action, are carried out in an orderly fashion; to reduce the likelihood of wildcat strikes; and to ensure democratic control over an important decision for the workers concerned. Often, whether or not the legislation sets out this requirement, provision is made in trade union rules for the holding of strike ballots.
In countries where the right to strike is a collective right, and therefore subordinate to a trade union decision, there is often a legal obligation for a union to hold a strike ballot before a strike is called and for a specific majority of the workers concerned to approve the strike. Provisions of this type are in accordance with the principles of freedom of association where they are not such as to make the exercise of the right to strike very difficult or even impossible in practice. In particular, legislative provisions on this subject should ensure that:
In many countries, the law requires workers and their organizations to give a certain period of notice of their intention to strike. In so far as this requirement is conceived as an additional stage in the bargaining process and is designed to encourage the parties to engage in final negotiations before resorting to strike action, it may be seen as a measure taken to encourage and promote the development of voluntary collective bargaining, in accordance with Convention No. 98. However, the required notice period should not be so long as to unduly restrict the right to strike. Moreover, shorter periods of notice should be required where the preceding period of conciliation and mediation is already lengthy and has enabled the remaining matters in dispute to be clearly identified (General Survey, para. 172).
Notice periods that are applicable in general to all types of establishment should be short, whereas those applying in essential services or services of social or public interest may reasonably be longer. The Committee on Freedom of Association has found the following notice periods in such services to be compatible with principles of freedom of association:
Strike picketing is aimed at ensuring the success of a strike by persuading as many persons as possible to stay away from work. While national practice varies in this respect, picketing is generally authorized and is often regarded as a form of the right to strike. In some countries, the legislation places certain conditions on picketing and workplace occupations. To be in accordance with the principles of freedom of association, any such restrictions should be limited to cases where the action ceases to be peaceful (General Survey, para. 174).
The maintenance of the employment relationship during and after strike action is a normal legal consequence of recognition of the right to strike. Indeed, if the legislation does not provide for genuine protection in this respect, the right to strike may be devoid of content (General Survey, para. 139).
Under the law of most countries, in the case of a lawful strike the workers may not be dismissed by the employer for participating in it. Generally, the individual contract of employment of a striking worker is deemed to be suspended for the duration of the strike.