26 June 2015 #Employment
Back in February of this year, we reported on the highly controversial issue of whether there is an internationally recognised legal standard guaranteeing a right to strike.
This is an issue which could have a major bearing on the UK’s strike laws which the new Conservative Government are seeking to reform. The issue remained very live at this month’s annual conference of the UN’s employment standard’s agency, the International Labour Organisation in Geneva, which Clarkslegal attended in support of the CBI.
International trade unions maintain that there is an international standard in respect of the right to strike and rely on an international convention passed in 1948 by the UN’s employment standard’s agency, the International Labour Organisation. This is Convention 87 concerning rights of association. This is a widely ratified and respected fundamental convention of the ILO which guarantees the right for workers and employers organisations to formulate their own programmes free from government interference and for workers and employers to freely join these organisations. However, it makes no reference at all to any right to take strike action, nor does any other ILO Convention.
The unions point to the opinions and recommendations of the Committee of Experts within the ILO Standards Committee who are legal experts tasked with determining the scope of all ILO conventions and who have in the past expressed opinions tending to support the position of the unions, which is that the right to strike can be inferred from the wording of Convention 87.
The International Organisation of Employers, however, have a strongly held opposing view to the unions and those Experts who say a right to strike can be implied.
The difficulty has been that the work of the ILO is based on consensus being reached by the Employers and Workers and in the absence of agreement on this key issue, there have been some difficult governance issues for the ILO to resolve.
In February, a tripartite agreement was reached between the Workers and Employer’s Groups in the ILO, with the involvement of Government members, representing a compromise position and allows the ILO to fulfil its mandate in enforcing labour standards for as long as the consensus remains. The concern was how well this agreement would hold up in practice. However, the news from this year’s ILO Conference is that the agreement held up well and allowed the ILO to get on with its job of dealing with enforcing labour standards on key issues such as rights to join a union, forced labour and child labour.
Importantly, this month the ILO Standards Committee reached conclusions on individual cases concerning Convention 87, such as in the case of Bangladesh for example, without making conclusions concerning the right to strike.
The substance of the agreement is that whilst it is agreed that a right to take industrial action is mutually recognised, there is no agreement that is protected under Convention 87. The Employers continue to strongly assert the position that the right is something regulated only at national level. The agreement is supported by the Government Group who whilst they recognise that the right to strike is linked to freedom of association, they accept that it is not an absolute right and it scope is regulated by national governments.
This means that the whole issue will not now, at least, be referred to the International Court of Justice.
That is not the end of the story however. The fundamental argument as to whether and how the right to take industrial action should be protected in future at international level has not been resolved. For now, the Employers and Workers must agree to disagree and continue to find a constructive way forward within the structures of the ILO.