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Is there a "right to strike"? Unions call for action ahead of ILO meeting

24 February 2015 #Employment


There will be a very important international meeting next week, which could impact on UK strike laws in the longer term, dealing with the key question, “ Is there a right to strike?”  The meeting, at which representatives of various governments, unions and employers organisations will be attending, including the CBI, will be at the United Nations in Geneva, where the UN agency for labour standards, the International Labour Organisation, meets. Clarkslegal attends the ILO’s annual conference on behalf of the CBI.

This week on 18 February, there was a global day of trade union action defending the right to strike. A concerted campaign, including in the social media, can be expected to keep running.

What happens in other countries?

Roughly half of the member states of the United Nations do not make any express legal provision for an individual  right to take strike action, including the UK. Although trade unions in the UK have a long history of having legal immunity in calling industrial action, and there is long (some would say proud) history of workers taking strike action in the UK without legal sanction, there is no individual right for workers to take strike action. In the UK, as in many other countries, we leave such matters to our national parliament, legislation and the courts, albeit, importantly, the UK, as other countries have international obligations affecting employment relations, including under UN Convention, which are much less well known and understood. UK law is also subject to the European Convention on Human Rights and the Human Rights Act, which we are more familiar with and the UK government is subject to the rulings of the European Court of Human Rights.

The other half the member states of the UN (who are also members of the ILO), at least 95 in total, do make express provision for a right to strike, within their constitutional frameworks. There are then countries where whilst there is no express provision for strike action, their courts have recognised some form of constitutional right to strike based on rights of association and collective bargaining, including Germany, Japan and, only last month, Canada. In other words, the right to strike is inferred. On the other hand, in India and Pakistan, their supreme courts have ruled that the right to form and join unions does not infer a right to strike. The picture worldwide is understandably very varied.

Convention 87

The current argument between unions and employers at international level stems from the fact that there is no UN labour convention that makes any express reference whatsoever to a right to strike. The question is whether the right to strike can be inferred from what is ILO convention 87 and which came into being in 1948, just after the war, concerning the rights to join a trade union and for workers to organise their activities.

The tripartite meeting next week will report back to the Governing Body of the ILO next month. The question for the ILO is should the whole issue of the right to strike and ILO Convention 87 be referred to the International Court of Justice , the judicial body of the UN, for an urgent ruling on the matter or should, as the employers say (including the CBI), the matter be resolved internally by the ILO between the various governments, workers groups and employer’s groups.

The meeting next week will bring together participants from 32 governments of ILO member states, 16 employer participants (including the CBI) and 16 worker participants nominated by the Employers’ group and the Workers’ group of the Governing Body respectively, as well as observers from the three groups.

The unions/workers want the matter referred to the International Court of Justice. It is extremely rare for the ICJ to get involved in interpreting ILO conventions.

Employers position

Whatever the outcome, the International Organisation of Employers is opposed to national laws on strike action, which vary hugely on complex matters such as secondary industrial action, strike ballots, strike action by essential services and even the meaning of industrial action itself being subject to matters of deep interpretation of a 1948 international convention by legal experts appointed by the ILO, where there is no express reference to any right to strike or what that should mean.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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