At the International Labour Conference (ILC) in June 2014, during the discussions in the Committee on Application of Standards, the Employers’ Group persisted to deny that the right to strike forms part of the ILO Convention 87, thus undermining the decades’ long practice of international law application.
The Conference Committee on the Application of Standards (CAS) is a tripartite body of the ILC consisting of employers, workers and governments. It has the mandate to scrutinize measures taken by member countries to observe ILO Conventions and make recommendations to governments, aiming to improve the implementation of the Conventions they have ratified. Each year, the Employers’ Group and the Workers’ Group negotiate a shortlist of 25 countries to examine during the ILC, which must come to consensual conclusions on the recommendations it makes.
The attack on the right to strike started at the International Labour Conference in June 2012, when the spokesperson of the Employers’ Group unexpectedly announced that the Employers would refuse to agree to a negotiated short list of countries that included any case where the right of strike was involved. This intransigent statement provoked a deadlock and completely blocked the discussion of cases in the CAS.
The Employers’ Group argues that in the absence of any explicit reference to the right to strike in the actual text of ILO Convention 87 on Freedom of Association and Protection of the Right to Organize, the internationally accepted rules of interpretation require Convention 87 to be interpreted without a right to strike.
“The Employers’ Group’s argument relies on a deeply-flawed understanding of the right to freedom of association. They take a deeply conservative view, where freedom of association is a self-contained, individual right, wholly divorced from the context of industrial relations,” argues Jeff Vogt, legal advisor for the International Trade Union Confederation (ITUC). “However, the right to Freedom of Association has long been understood as a collective right, particularly in the context of industrial relations, and indeed is a bundle of rights, which includes the right to strike.”
Unfortunately after the Workers’ Group agreed to make a one-time concession in 2013 in order to prevent the recurrence of the 2012 failure, the Employers’ Group again demanded in 2014 that a disclaimer outruling the right to strike be added to the conclusions relating to three countries (Algeria, Cambodia and Swaziland) where C87 was under examination. But this time the Workers’ Group unanimously refused to accept this demand, which compromises the work of the Committee.
As the Workers’ Group explained to the plenary, the CAS conclusions need to provide clear guidelines to governments to adjust and improve implementation of ILO Conventions - today there is disagreement on three cases, but tomorrow these could become four, five or six depending on the number of cases relating to C87 under discussion. As no agreement was reached at the ILC in June 2014, all 19 cases under examination by the CAS remain without approved conclusions.
The Workers’ Group’s main concern is that the employers are now increasingly disputing other major Conventions such as C98 “Right to Collective Bargaining”; these insidious and persistent disagreements on the interpretation of fundamental ILO Conventions are undermining and paralysing the work and credibility of the Committees.
The conflict over the right to strike has been referred to ILO’s Governing Body, which could call on the International Court of Justice to produce an advisory opinion and put an end to the dispute. A decision is expected in November 2014.
The Workers’ Group is standing firm and trade unions have pledged to defend the right to strike as one of the major instruments of workers worldwide.