Are we about to witness the end game for the ILO’s right to strike?

Posted: 15/06/2023

The International Labour Organisation’s Declaration on Fundamental Principles and Rights at Work applies to all member states belonging to the ILO, whether or not they have ratified the ILO’s core labour standards.

The declaration covers five main areas for the establishment of a social ‘floor’ in the world of work:

• freedom of association and the effective recognition of the right to collective bargaining;
• the elimination of all forms of forced or compulsory labour;
• the effective abolition of child labour;
• the elimination of discrimination in respect of employment and occupation; and
• a safe and healthy working environment.

Freedom of association

Freedom of association implies a respect for the right of all employers and all workers to freely establish and join groups for the promotion and defence of their occupational interests, without interference from the state. 

When it comes to freedom of association, the declaration provides that states should abide by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention 87) as one of the ILO’s core labour standards. Again, this applies whether or not a state has ratified Convention 87. 

Companies

The ILO’s core labour standards are international treaties, which, upon ratification by a state, become an obligation that is transposed into national legislation, which ultimately binds companies' operation. Companies are expected to respect national law. 

Many international companies have separately agreed to adhere to the declaration in international framework agreements with trade unions, in global codes of conduct, in United Nations initiatives, and in commercial agreements.   

Although only states ratify labour standards, ILO conventions and recommendations contain principles and guidance which can be relevant to companies seeking to improve their workplace practices beyond legal compliance. For example, Coca-Cola HBC’s human rights policy is committed to international human rights principles encompassed in, amongst others, the declaration. The Walt Disney Company commits to utilising the United Nations’ Guiding Principles on Business and Human Rights as the foundation of its human rights commitments, and also recognises the principles referenced in the declaration.

In practice this can mean:

• Respecting the right of all workers to form and join a trade union of their choice without fear of intimidation or reprisal, in accordance with national law.
• Putting in place non-discriminatory policies and procedures with respect to trade union organisation, union membership and activity in such areas as applications for employment, and decisions on advancement, transfer or dismissal.
• Providing worker representatives with appropriate facilities to assist in the development of an effective collective agreement.

In so doing it is understood that adherence to the declaration does bring with it legal uncertainty, because Convention 87 and what it encompasses is controversial. 

Convention 87 controversy

For decades, there has been an unresolved dispute amongst the tripartite constituents of the ILO (governments, trade unions, and employer organisations) because the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) maintains that a right to strike is contained in Article 3 of Convention No. 87, which states that: ‘Workers’ and employers’ organizations shall have the right… to organize their administration and activities and to formulate their programmes’, and Article 10 which defines ‘organization’, within the meaning of the convention, as any organisation ‘for furthering and defending the interests of workers or of employers.’  It is the absence of an express provision on the right to strike in Convention 87 which the CEACR asserts leaves it having to determine the exact scope and meaning of Convention 87.   

In simple terms, the dispute is that the CEACR does not actually have the ILO’s mandate to interpret a right to strike, and all that right entails, into Convention 87 when the tripartite constituents of the ILO agreed not to provide for a right to strike when they originally negotiated and agreed the text for Convention 87. Instead, in the main, it has been at the national level where states have recognised the right to strike.

End game?

However, this controversy may finally be entering the end game. There is a growing consensus within the ILO constituents that when it comes to Convention 87, there needs to be a decisive pronouncement on whether its scope and meaning includes the right to strike so that states, or states considering ratification of Convention 87, can fully appreciate the nature and extent of the obligations arising from ratification, and adapt their national law and practices to comply.  

What to expect?

In accordance with Article 37(1) of the ILO’s constitution, it has always been open to refer Convention 87 to the International Court of Justice (ICJ). Until recently the ILO constituents have agreed to defer such a step, preferring social dialogue to seek a resolution. However, given the time that has passed, it is understandable that the international trade union movement has lost patience that a tripartite resolution can be found to recognise that the right to strike the CEACR has sought to interpret into Convention 87 is legitimate. 

This has led to a consultation exercise in the ILO’s governing body (The Governing Body of the International Labour Office) to seek to agree a framework to refer Convention 87 to the ICJ. Consequently, a draft framework has been proposed and a decision on whether it is to be adopted has been deferred to the Autumn 2023 sitting of the governing body.

If adopted in its current form, then we can expect the following process:

1. A swift request to be filed by at least 20 regular governing body members, or at least 30 states (whether members of the governing body or not) for the referral of Convention 87 to the court for an advisory opinion. The trade unions have 14 regular governing body members and it is apparent from the consultations that a high proportion of government members of the governing body support such a referral.

2. Upon receiving the request, the director general would be obliged to prepare a report to be submitted to the governing body for consideration as expeditiously as possible, but not later than two months from the receipt of the referral request. 

3. To refer the dispute to the ICJ, the governing body has to be satisfied that a serious and persistent disagreement exists concerning the scope or meaning of Convention 87 and that efforts to resolve the dispute through tripartite dialogue amongst the ILO constituents have not produced, and are not likely to produce, conclusive results. This will not be a difficult hurdle to clear.

4. The governing body has to take a decision on the referral request no later than the session following the one at which the director general’s report is considered and debated. In reality, the length and depth of the disputed actions of the CEACR regarding Convention 87 are such that unless one of the ILO’s social partners (trade unions and employer organisations) gives up their position, a consensus to refer to the ICJ should pass. In the absence of consensus, the governing body decision shall be taken by simple majority vote, which, for example, the employer organisations in the governing body could not prevent, as they hold just 14 of the 50 plus seats in the governing body. 

5. Once a decision is made to refer Convention 87 to the ICJ for an advisory opinion, the director general will promptly communicate to the president or the registrar of the ICJ a copy of that decision, including the legal question(s) to be examined by the court. The director general shall also provide a dossier with all relevant background information and shall explain the process that led to the referral and the scope of the legal question(s) put to the court. 

An advisory opinion is binding on the ILO

According to the letter and the spirit of Article 37, any dispute referred for ‘decision’ to the ICJ means that the advisory opinion rendered by the court at the ILO’s request has to be treated as authoritative and as a final pronouncement, and should be implemented as such. It is binding on the ILO. There is no right of appeal.  

A binding decision will have a variety of implications for companies. For instance:

• As the court process works through, campaigning to defend the right to strike will surely increase.
• If the CEACR does indeed have the mandate to interpret a right to strike into Convention 87, then what labour relations implications now arise for those companies adhering to the declaration, and therefore adhering to the CEACR strike law interpretations? The ICJ recognising a right to strike as interpreted by the CEACR will be a significant moment in the global trade union movement, which they will surely want to leverage as part and parcel of collective bargaining. It follows that those companies who have committed to adhere to the declaration may be expected, most likely by their recognised trade unions, to recognise that their adherence to the declaration brings with it an expectation to adhere to ILO strike laws in their international operations.  
• If the CEACR does not have the aforementioned mandate, then there is no right to strike in Convention 87. This would be devastating for the global trade union movement and would surely have serious implications for the ILO itself. Will companies actually then see more, not less, trade union activism to bolster recognition of the right to strike in their international operations?

This issue is highly contentious within the ILO. It follows that there has never been a better time for companies to a) ensure they understand what is at stake, particularly for the international trade union movement, and b) assess what this end game could mean for industrial relations in their operations. 

Chris was appointed employer vice-chair for the ILO’s CAS in 2012; from June 2014 to February 2016, Chris was the employer vice-chair for the ILO’s CFA, and from November 2011 to June 2017 Chris was the UK employer representative in the ILO’s governing body.

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