Compilation of decisions of the Committee on Freedom of Association

Right to strike10

Importance of the right to strike and its legitimate exercise

1. While the Committee has always regarded the right to strike as constituting a fundamental right of workers and of their organizations, it has regarded it as such only in so far as it is utilized as a means of defending their economic interests.

1. The Committee has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests.

1. The right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests.

1. The right to strike is an intrinsic corollary to the right to organize protected by Convention No. 87.

1. Strikes are by nature disruptive and costly; strike action also calls for a significant sacrifice from those workers who choose to exercise it as a last resort tool and means of pressure on the employer to redress any perceived injustices.

1. It does not appear that making the right to call a strike the sole preserve of trade union organizations is incompatible with the standards of Convention No. 87. Workers, and especially their leaders in undertakings, should however be protected against any discrimination which might be exercised because of a strike and they should be able to form trade unions without being exposed to anti-union discrimination.

1. The prohibition on the calling of strikes by federations and confederations is not compatible with Convention No. 87.

Objective of the strike (strikes on economic and social issues, political strikes, solidarity strikes, etc.)

1. The occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers.

1. Organizations responsible for defending workers socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living.

1. Strikes of a purely political nature and strikes decided systematically long before negotiations take place do not fall within the scope of the principles of freedom of association.

1. Strikes of a purely political nature do not fall within the protection of Conventions Nos. 87 and 98.

1. If a national civic work stoppage is exclusively political and insurrectional, the Committee would not have competence in the issue.

1. While purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a governments economic and social policies.

1. There is a distinction between a strike and a lockout, but in this case refers to a peaceful demonstration and a suspension of services, which do not come within the scope of employer-worker relations, it is rather a protest and suspension of activities by the employer. Under these circumstances, employers, like workers, should be able to have recourse to protest strikes (or action) against a governments economic and social policies, which can be restricted only in the case of essential services or public services of fundamental importance, in which a minimum service could be established.

1. In one case where a general strike against an ordinance concerning conciliation and arbitration was certainly one against the governments policy, the Committee considered that it seemed doubtful whether allegations relating to it could be dismissed at the outset on the ground that it was not in furtherance of a trade dispute, since the trade unions were in dispute with the government in its capacity as an important employer following the initiation of a measure dealing with industrial relations which, in the view of the trade unions, restricted the exercise of trade union rights.

1. The right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members interests.

1. The solution to a legal conflict as a result of a difference in interpretation of a legal text should be left to the competent courts. The prohibition of strikes in such a situation does not constitute a breach of freedom of association.

1. If strikes are prohibited while a collective agreement is in force, this restriction must be compensated for by the right to have recourse to impartial and rapid mechanisms, within which individual or collective complaints about the interpretation or application of collective agreements can be examined; this type of mechanism not only allows the inevitable difficulties which may occur regarding the interpretation or application of collective agreements to be resolved while the agreements are in force, but also has the advantage of preparing the ground for future rounds of negotiations, given that it allows problems which have arisen during the period of validity of the collective agreement in question to be identified.

1. A strike aimed at an increase in wages and payment of wage arrears clearly falls within the scope of legitimate trade union activities.

1. A general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful.

1. By excluding sympathy strikes, secondary boycotts and industrial action in support of multiple-enterprise agreements from the scope of protected industrial action, legal provisions could adversely affect the right of organizations to seek and negotiate multi-employer agreements, as well as unduly restrict the right to strike.

1. The fact that a strike is called for recognition of a union is a legitimate interest which may be defended by workers and their organizations.

1. A ban on strikes related to recognition disputes (for collective bargaining) is not in conformity with the principles of freedom of association.

1. A claim for recognition for collective bargaining purposes addressed to the subcontracting company does not render a strike illegal.

1. Protest strikes in a situation where workers have for many months not been paid their salaries by the Government are legitimate trade union activities.

1. A ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association.

1. Provisions which prohibit strikes if they are concerned with the issue of whether a collective employment contract will bind more than one employer are contrary to the principles of freedom of association on the right to strike; workers and their organizations should be able to call for industrial action in support of multi-employer contracts.

1. Workers and their organizations should be able to call for industrial action (strikes) in support of multi-employer contracts (collective agreements).

1. The Committee has stated on many occasions that strikes at the national level are legitimate in so far as they have economic and social objectives and not purely political ones; the prohibition of strikes could only be acceptable in the case of civil servants acting on behalf of the public authorities or of workers in essential services in the strict sense of the term, i.e. services whose interruption could endanger the life, personal safety or health of the whole or part of the population.

1. A declaration of the illegality of a national strike protesting against the social and labour consequences of the governments economic policy and the banning of the strike constitute a serious violation of freedom of association.

1. As regards a general strike, the Committee has considered that strike action is one of the means of action which should be available to workers organizations. A 24-hour general strike seeking an increase in the minimum wage, respect of collective agreements in force and a change in economic policy (to decrease prices and unemployment) is legitimate and within the normal field of activity of trade union organizations.

1. A general protest strike demanding that an end be brought to the hundreds of murders of trade union leaders and unionists during the past few years is a legitimate trade union activity and its prohibition therefore constitutes a serious violation of freedom of association.

Types of strike action

1. Generally, a strike is a temporary work stoppage (or slowdown) wilfully effected by one or more groups of workers with a view to enforcing or resisting demands or expressing grievances, or supporting other workers in their demands or grievances.

1. Regarding various types of strike action denied to workers (wild-cat strikes, tools-down, go-slow, working to rule and sit-down strikes), the Committee considers that these restrictions may be justified only if the strike ceases to be peaceful.

1. The Committee has considered that the occupation of plantations by workers and by other persons, particularly when acts of violence are committed, is contrary to Article 8 of Convention No. 87. It therefore requested the Government, in future, to enforce the evacuation orders pronounced by the judicial authorities whenever criminal acts are committed on plantations or at places of work in connection with industrial disputes.

1. In a case where the justice system qualified the act of reporting to work with shaved heads or cropped hair styles as a strike action and a violation of the grooming standards of the hotel, the Committee, while taking into account the concerns expressed by the hotel management with regard to its image, considered that equating the mere expression of discontent, peacefully and lawfully exercised, with a strike per se resulted in a violation of the freedom of association and expression.

Employer side during the strike

1. In the framework of a collective labour dispute, it is neither realistic nor necessary to always deal on the employer side with the entity bearing the ultimate financial or economic responsibility or with the highest employer representative, be it in the public sector (for example, the competent minister) or in the private sector (for example, the parent company).

1. In view of the obligation of both the employer and the trade union to negotiate in good faith and make every effort to reach an agreement as well as the importance of the right to strike as one of the essential means for workers and their organizations to defend their economic and social interests, it should be ensured that the party to a collective labour dispute on the employer side has the authority to make concessions and take decisions concerning wages and terms and conditions of employment, so that the pressure brought to bear during the various stages of a collective labour dispute is effectively directed to an appropriate entity.

Prerequisites

1. The conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations.

1. The legal procedures for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike.

1. Economic consideration should not be invoked as a justification for restrictions on the right to strike.

1. According to the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), voluntary conciliation machinery, appropriate to national conditions, should be made available to assist in the prevention and settlement of industrial disputes between employers and workers. Provision should be made to enable the procedure to be set in motion, either on the initiative of any of the parties to the dispute or ex officio by the voluntary conciliation authority.

1. Legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not compulsory and does not, in practice, prevent the calling of the strike.

1. In general, a decision to suspend a strike for a reasonable period so as to allow the parties to seek a negotiated solution through mediation or conciliation efforts, does not in itself constitute a violation of the principles of freedom of association.

1. Conciliation and mediation machinery should have the sole purpose of facilitating bargaining and should not be so complex or slow that a lawful strike becomes impossible in practice or loses its effectiveness.

1. In cases of mandatory conciliation, it is desirable to entrust the decision of opening the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute.

1. In cases of mandatory conciliation, it is necessary to entrust the decision of opening the conciliation procedure in collective disputes to a body which is independent of the parties to the dispute.

1. The Committee has emphasized that, although a strike may be temporarily restricted by law until all procedures available for negotiation, conciliation and arbitration have been exhausted, such a restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.

1. The obligation to give prior notice to the employer before calling a strike may be considered acceptable, as long as the notice is reasonable.

1. Prior notice of 48 hours is reasonable.

1. The requirement that a 20-day period of notice be given in services of social or public interest does not undermine the principles of freedom of association.

1. The legal requirement of a cooling-off period of 40 days before a strike is declared in an essential service, in so far as it is designed to provide the parties with a period of reflection, is not contrary to the principles of freedom of association. This clause which defers action may enable both parties to come once again to the bargaining table and possibly to reach an agreement without having recourse to a strike.

1. The information asked for in a strike notice should be reasonable, or interpreted in a reasonable manner, and any resulting injunctions should not be used in such a manner as to render legitimate trade union activity nearly impossible.

1. The right of the Ministry of Civil Service Affairs and Housing to determine the time and the place of the strike could further excessively hinder the exercise of the right to strike.

1. With regard to the majority vote required by one law for the calling of a legal strike (two-thirds of the total number of members of the union or branch concerned), non-compliance with which might entail a penalty by the administrative authorities, including the dissolution of the union, the Committee recalled the conclusions of the Committee of Experts on the Application of Conventions and Recommendations that such legal provisions constitute an intervention by the public authorities in the activities of trade unions which is of such a nature as to restrict the rights of these organizations, contrary to Article 3 of the Convention.

1. The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.

1. The requirement that an absolute majority of workers should be obtained for the calling of a strike may be difficult, especially in the case of unions which group together a large number of members. A provision requiring an absolute majority may, therefore, involve the risk of seriously limiting the right to strike.

1. The Committee requested a government to take measures to amend the legal requirement that a decision to call a strike be adopted by more than half of the workers to which it applies, in particular in enterprises with a large union membership.

1. The obligation to observe a certain quorum and to take strike decisions by secret ballot may be considered acceptable.

1. The observance of a quorum of two-thirds of the members may be difficult to reach, in particular where trade unions have large numbers of members covering a large area.

1. The Committee considered that the condition requiring the agreement of the majority of member organizations for calling a strike in federations and confederations and a vote in favour of the strike by the absolute majority of the workers of the undertaking in the other cases may constitute a serious limitation on the potential activities of trade unions.

1. The Committee has considered to be in conformity with the principles of freedom of association a situation where the decision to call a strike in the local branches of a trade union organization may be taken by the general assembly of the local branches, when the reason for the strike is of a local nature and where, in the higher-level trade union organizations, the decision to call a strike may be taken by the executive committee of these organizations by an absolute majority of all the members of the committee.

1. In a case in which the national legislation provided that a majority trade union organization and an absolute majority of the workforce in an enterprise may call a strike and end a strike that is under way, as well as request the appointment of an arbitration tribunal, the Committee considered that in the specific circumstances the majority vote in favour of putting an end to strike action and regulating the appointment of an arbitration tribunal was not contrary to the principles of freedom of association.

1. The obligation to hold a second strike vote if a strike has not taken place within three months of the first vote does not constitute an infringement of freedom of association.

Limitation of the duration of a strike

1. The Committee has expressed its concern at the imposition of a limit on the duration of a strike which, due to its nature as a last resort for the defence of workers interests, cannot be predetermined.

Recourse to compulsory arbitration

1. Compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

1. Compulsory arbitration is acceptable in cases of acute national crisis.

1. In as far as compulsory arbitration prevents strike action, it is contrary to the right of trade unions to organize freely their activities and could only be justified in the public service or in essential services in the strict sense of the term.

1. It is difficult to reconcile arbitration imposed by the authorities at their own initiative with the right to strike and the principle of the voluntary nature of negotiation.

1. A provision which permits either party unilaterally to request the intervention of the labour authority to resolve a dispute may effectively undermine the right of workers to call a strike and does not promote voluntary collective bargaining.

1. The right to strike would be affected if a legal provision were to permit employers to submit in every case for compulsory arbitral decision disputes resulting from the failure to reach agreement during collective bargaining, thereby preventing recourse to strike action.

1. The Committee considers that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association.

1. In order to gain and retain the parties confidence, any arbitration system should be truly independent and the outcomes of arbitration should not be predetermined by legislative criteria.

Cases in which strikes may be restricted or even prohibited, and compensatory guarantees

Acute national emergency

1. A general prohibition of strikes can only be justified in the event of an acute national emergency and for a limited period of time.

1. Responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of all parties concerned.

Public service

1. Recognition of the principle of freedom of association in the case of public servants does not necessarily imply the right to strike.

1. The Committee has acknowledged that the right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees.

1. The right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State.

1. Too broad a definition of the concept of public servant is likely to result in a very wide restriction or even a prohibition of the right to strike for these workers. The prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State.

1. The right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population).

1. Public servants in state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, enjoy suitable protection against acts of anti-union discrimination and enjoy the right to strike, provided that the interruption of services does not endanger the life, personal safety or health of the whole or part of the population.

1. Officials working in the administration of justice and the judiciary are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions, such as its suspension or even prohibition.

1. The prohibition of the right to strike of customs officers, who are public servants exercising authority in the name of the State, is not contrary to the principles of freedom of association.

1. Employees performing tasks related to the administration, audit and collection of internal revenues also exercise authority in the name of the State.

1. Action taken by a government to obtain a court injunction to put a temporary end to a strike in the public sector does not constitute an infringement of trade union rights.

Essential services

1. To determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population.

1. What is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population.

1. The principle regarding the prohibition of strikes in essential services might lose its meaning if a strike were declared illegal in one or more undertakings which were not performing an essential service in the strict sense of the term, i.e. services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

1. It would not appear to be appropriate for all state-owned undertakings to be treated on the same basis in respect of limitations of the right to strike, without distinguishing in the relevant legislation between those which are genuinely essential and those which are not.

1. The following may be considered to be essential services: the hospital sector, electricity services, water supply services, the telephone service, the police and the armed forces, the fire-fighting services, public or private prison services, the provision of food to pupils of school age and the cleaning of schools and air traffic control

1. The principle that air traffic control is an essential service applies to all strikes, whatever their form go-slow, work-to-rule, sick-out, etc. as these may be just as dangerous as a regular strike for the life, personal safety or health of the whole or part of the population.

1. The following do not constitute essential services in the strict sense of the term: radio and television, the petroleum sector and oil facilities, distribution of fuel to ensure that flights continue to operate the gas sector, filling and selling gas canisters, ports, banking the Central Bank, insurance services, computer services for the collection of excise duties and taxes, department stores and pleasure parks the metal and mining sectors, transport generally, including metropolitan transport, airline pilots, production, transport and distribution of fuel rail services, metropolitan transport, postal services, refuse collection services, refrigeration enterprises, hotel services, construction, car manufacturing, agricultural activities, the supply and distribution of foodstuffs, tea, coffee and coconut plantations, the Mint, the government printing service and the state alcohol, salt and tobacco monopolies, the education sector, mineral water bottling companies, aircraft repairs, elevator services, export services, private security services (with the exception of public or private prison services), airports (with the exception of air traffic control), pharmacies, bakeries, beer production and the glass industry

1. While the impact which the declaration of a full lockout in the oil and gas sector may have upon the assessment of the consequences of such collective action upon daily life is no doubt a relevant national circumstance to be taken into account by the Committee, it is necessary for such impacts to go beyond mere interference with trade and commerce and to have endangered the life, personal safety or health of the whole or part of the population for resort to compulsory arbitration to have been warranted.

1. While the Committee has found that the education sector does not constitute an essential service, it has held that principals and vice-principals can have their right to strike restricted or even prohibited.

1. Arguments that civil servants do not traditionally enjoy the right to strike because the State as their employer has a greater obligation of protection towards them have not persuaded the Committee to change its position on the right to strike of teachers.

1. The possible long-term consequences of strikes in the teaching sector do not justify their prohibition.

1. The Committee considers that in appropriate cases in which the imposition of minimum services is permissible, such as in the sector of refuse collection service, measures should be taken to guarantee that such minimum services avoid danger to public health and safety of the population.

1. By linking restrictions on strike action to interference with trade and commerce, a broad range of legitimate strike action could be impeded. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service essential, and thus the right to strike should be maintained.

1. Within essential services, certain categories of employees, such as hospital labourers and gardeners, should not be deprived of the right to strike.

1. The exclusion from the right to strike of wage-earners in the private sector who are on probation is incompatible with the principles of freedom of association.

1. Although it has always been sensitive to the fact that a prolonged interruption in postal services can affect third parties who have no connection with the dispute and that it may, for example, have serious repercussions for companies and directly affects individuals (in particular recipients of unemployment benefits or social assistance and elderly people who depend on their pension payments), the Committee nevertheless considered that, whatever the case may be, and however unfortunate such consequences are, they do not justify a restriction of the fundamental rights of freedom of association and collective bargaining, unless they become so serious as to endanger the life, safety or health of part or all of the population.

1. In a case in which a collective agreement included the classification of several services as essential, the Committee observed that, generally speaking, the list in the collective agreement, which went far beyond the mining sector to cover the provision of services to the community at large, corresponded to its notion of essential services. Although some of the services set out in the agreement, such as those concerning sanitation and transport, fell outside the scope of essential services in the strict sense of the term, these restrictions on the right to strike were the result of an agreement freely entered into by the two parties.

Compensatory guarantees in the event of the prohibition of strikes in the public service or in essential services

1. Where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services.

1. In the event that an intervention would be necessary for safety reasons, the parties to the dispute should be given every opportunity to bargain collectively, for a sufficient period of time, with the help of independent facilitators and machinery and procedures designed with the foremost objective of promoting collective bargaining.

1. Based on the premise that a negotiated agreement, however unsatisfactory, is to be preferred to an imposed solution, the parties should always retain the option of returning voluntarily to the bargaining table, which implies that whatever disputes settlement mechanism is adopted, it should be possible to suspend the compulsory arbitration process, if the parties wish to resume negotiations.

1. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented.

1. The reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by the compulsory arbitration tribunal. Any departure from this practice would detract from the effective application of the principle that, where strikes by workers in essential services are prohibited or restricted, such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery, the awards of which are binding on both parties.

1. In mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned.

1. The appointment by the minister of all five members of the Essential Services Arbitration Tribunal calls into question the independence and impartiality of such a tribunal, as well as the confidence of the concerned parties in such a system. The representative organizations of workers and employers should, respectively, be able to select members of the Essential Services Arbitration Tribunal who represent them.

1. Employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery.

1. Referring to its recommendation that restrictions on the right to strike would be acceptable if accompanied by conciliation and arbitration procedures, the Committee has made it clear that this recommendation does not refer to the absolute prohibition of the right to strike, but to the restriction of that right in essential services or in the public service, in relation to which adequate guarantees should be provided to safeguard the workers interests.

1. Regarding the requirement that the parties pay for the conciliation and mediation/arbitration services, the Committee has concluded that, provided the costs are reasonable and do not inhibit the ability of the parties, in particular those with inadequate resources, to make use of the services, there has not been a violation of freedom of association on this basis.

1. The Committee takes no position as to the desirability of conciliation over mediation as both are means of assisting the parties in voluntarily reaching an agreement. Nor does the Committee take a position as to the desirability of a separated conciliation and arbitration system over a combined mediation-arbitration system, as long as the members of the bodies entrusted with such functions are impartial and are seen to be impartial.

Situations in which a minimum service may be imposed to guarantee the safety of persons and equipment (minimum safety service)

1. Restrictions on the right to strike in certain sectors to the extent necessary to comply with statutory safety requirements are normal restrictions.

1. In one case, the legislation provided that occupational organizations in all branches of activity were obliged to ensure that the staff necessary for the safety of machinery and equipment and the prevention of accidents continued to work, and that disagreements as to the definition of necessary staff would be settled by an administrative arbitration tribunal. These restrictions on the right to strike were considered to be acceptable.

Situations and conditions under which

a minimum operational service could be required

1. The establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance.

1. A minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users basic needs are met or that facilities operate safely or without interruption.

1. When a service that is not essential in the strict sense of the term but is part of a very important sector in the country is brought to a standstill, measures to guarantee a minimum service may be justified.

1. It would be desirable if, in cases of industrial action which would have brought a service that is not essential in the strict sense of the term but a very important sector in the country in this case the oil and gas sector to a standstill, the concerned parties could reach an agreement on minimum services sufficient to address the concerns of the Government about the consequences of a full shutdown of oil and gas production, while preserving respect for the principles of the right to strike and the voluntary nature of collective bargaining. The Committee therefore encouraged the Government to examine the possibility of introducing a minimum service in that sector in the event of industrial action, the scope or duration of which may result in irreversible damages.

1. Measures should be taken to guarantee that the minimum services avoid danger to public health and safety.

1. A certain minimum service may be requested in the event of strikes whose scope and duration would cause an acute national crisis, but in this case, the trade union organizations should be able to participate, along with employers and the public authorities, in defining the minimum service.

1. The requisition of some striking workers in the petroleum sector to meet the refuelling needs of priority vehicles could be used in the temporary establishment of a minimum service to respond to problems of public order that could impact the life, health or security of the population.

1. A minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population; in addition, workers organizations should be able to participate in defining such a service in the same way as employers and the public authorities.

1. Minimum service should be restricted to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service, while ensuring that the scope of the minimum service does not render the strike ineffective.

1. It would be desirable for actions to be taken wherever convenient so that the negotiations on the definition and organization of the minimum service not be held during a labour dispute so that all parties can examine the matters with the necessary full frankness and objectivity.

1. Negotiations over the minimum service should be ideally held prior to a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. Any disagreement should be settled by an independent body, like for instance, the judicial authorities, and not by the ministry concerned.

1. The Committee requested a government to take the necessary measures to ensure that any determination on the minimum service to be made available in the event of a strike was the result of negotiations between employers and workers organizations of the maritime sector, it being understood that such negotiations could take place, if not before the beginning of a conflict, between the date of the notification of the strike and its possible realization, all the more so in the light of the ongoing civil mobilization.

1. While ideally, a minimum service should be negotiated by the parties concerned, preferably prior to the existence of a dispute, the Committee recognizes that the minimum service to be provided in cases where the need arises only after the declaration of the strike can only be determined during the dispute.

1. In the absence of any agreement by the parties in this regard at the specific enterprise level, an independent body could be set up to impose a minimum service sufficient to address the concerns of the Government about the consequences of the dispute, while preserving respect for the principles of the right to strike and the voluntary nature of collective bargaining.

1. The Committee has pointed out that it is important that the provisions regarding the minimum service to be maintained in the event of a strike in an essential service are established clearly, applied strictly and made known to those concerned in due time.

1. The determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers and workers organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of overgenerous and unilaterally fixed minimum services.

1. The workers and employers organizations concerned must be able to participate in determining the minimum services which should be ensured, and in the event of disagreement, legislation should provide that the matter be resolved by an independent body and not by the administrative authority.

1. Unilateral determination by the employer of minimum service, if negotiation has failed, is not in conformity with the principles of freedom of association. Any disagreement in this respect should be settled by an independent body having the confidence of the parties concerned.

1. As regards the legal requirement that a minimum service must be maintained in the event of a strike in essential public services, and that any disagreement as to the number and duties of the workers concerned shall be settled by the labour authority, the Committee is of the opinion that the legislation should provide for any such disagreement to be settled by an independent body and not by the ministry of labour or the ministry or public enterprise concerned.

1. A definitive ruling on whether the level of minimum services was indispensable or not made in full knowledge of the facts can be pronounced only by the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure and functioning of the enterprises and establishments concerned and of the real impact of the strike action.

Examples of when the Committee has considered that

the conditions were met for requiring a minimum operational service

1. The ferry service is not an essential service. However, in view of the difficulties and inconveniences that the population living on islands along the coast could be subjected to following a stoppage in ferry services, an agreement may be concluded on minimum services to be maintained in the event of a strike.

1. In the maritime sector, the minimum service may relate to the number of crossings carried out per day, instead of the number of staff manning the ship.

1. The services provided by the National Ports Enterprise and ports themselves do not constitute essential services, although they are an important public service in which a minimum service could be required in case of a strike.

1. Respect for the obligation to maintain a minimum service of the underground railways activities to meet the minimal needs of the local communities is not an infringement of the principles of freedom of association.

1. In relation to strike action taken by workers in the underground transport enterprise, the establishment of minimum services in the absence of agreement between the parties should be handled by an independent body.

1. It is legitimate for a minimum service to be maintained in the event of a strike in the rail transport sector.

1. In view of the particular situation of the railway services of one country, a total and prolonged stoppage could lead to a situation of acute national emergency endangering the well-being of the population, which may in certain circumstances justify government intervention, for instance by establishing a minimum service.

1. The transportation of passengers and commercial goods is not an essential service in the strict sense of the term; however, this is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified.

1. The maintenance of a minimum service could be foreseen in the postal services.

1. The Mint, banking services and the petroleum sector are services where a minimum negotiated service could be maintained in the event of a strike so as to ensure that the basic needs of the users of these services are satisfied.

1. While banking services are not essential in the strict sense of the term, the Committee does consider that in order to avoid damages which are irreversible, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authority could have imposed respect for the procedures relating to the minimum services agreed to by the parties rather than impose compulsory arbitration.

1. Given that the petroleum sector is a strategic service, of vital importance to the economic development of the country, nothing prevents a minimum service being imposed in this sector.

1. Minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration.

1. The Committee considered that establishing a minimum service in the education sector is not contrary to the principles of freedom of association.

1. The decision adopted by a government to require a minimum service in the Animal Health Division, in the face of an outbreak of a highly contagious disease, does not violate the principles of freedom of association.

1. The lasting absence of qualified maintenance of elevators and provision of basic services could potentially create a danger to public health and safety.

1. Given that the services provided by the National Institute of Meteorology and Geophysics are essential for air traffic control to be carried out safely, this is an institution in which minimum services can be established when workers have decided to call a strike.

1. In the circumstances of a case concerning the employers determination of a minimum service, the Committee considered that the production of aluminium cannot be viewed as an essential public utility for which a minimum service can be imposed.

1. Certain services, such as licensing of boiler and pressure vessels, licensing of private investigators and security guards, laundry staff and drivers in a community living division attached to public authorities should not be unilaterally declared as essential where minimum services must be maintained.

Non-compliance with a minimum service

1. Even though the final decision to suspend or revoke a trade unions legal status is made by an independent judicial body, such measures should not be adopted in the case of non-compliance with a minimum service.

1. The Committee requested a government to guarantee that civil requisition is only used in cases where the minimum services established in accordance with the principles of freedom of association are not respected.

Responsibility for declaring a strike illegal

1. Responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved.

1. The Committee requested the Government to take the necessary measures, including proposals on legislative measures where necessary, to ensure that the responsibility for declaring a strike legal or illegal did not lie with the Government but with an independent and impartial body.

1. The responsibility for declaring a strike illegal should not lie with the Government, but with an independent and impartial body.

1. To declare a strike or work stoppage illegal, the judicial authority is best placed to act as an independent authority.

1. Final decisions concerning the illegality of strikes should not be made by the government, especially in those cases in which the government is a party to the dispute.

1. It is contrary to freedom of association that the right to declare a strike in the public service illegal should lie with the heads of public institutions, which are thus judges and parties to a dispute.

1. With reference to an official circular concerning the illegality of any strike in the public sector, the Committee has considered that such matters are not within the competence of the administrative authority.

Suspension of a strike

1. The responsibility for suspending a strike should not lie with the Government, but with an independent body which has the confidence of all parties concerned.

1. The Committee requested the Government to take the necessary measures to amend the legislation so as to ensure that the final decision whether to suspend a strike rests with an independent and impartial body.

1. A provision which allows the Government to suspend a strike and impose compulsory arbitration on the grounds of national security or public health is not in itself contrary to freedom of association principles as long as it is implemented in good faith and in accordance with the ordinary meaning of the terms national security and public health.

Back-to-work orders, the hiring of workers during a strike, requisitioning orders

1. Strikers should be replaced only: (a) in the case of a strike in an essential service in the strict sense of the term in which the legislation prohibits strikes; and (b) where the strike would cause an acute national crisis.

1. The hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association.

1. If a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights.

1. Whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association.

1. The use of the military and requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services in circumstances of the utmost gravity, constitutes a serious violation of freedom of association.

1. The employment of the armed forces or of another group of persons to perform duties which have been suspended as a result of a labour dispute can, if the strike is lawful, be justified only by the need to ensure the operation of services or industries whose suspension would lead to an acute crisis.

1. Although it is recognized that a stoppage in services or undertakings such as transport companies, railways and the oil sector might disturb the normal life of the community, it can hardly be admitted that the stoppage of such services could cause a state of acute national emergency. The Committee has therefore considered that measures taken to mobilize workers at the time of disputes in services of this kind are such as to restrict the workers right to strike as a means of defending their occupational and economic interests.

1. The requisitioning of iron and steel workers in the case of strikes, the threat of dismissal of strike pickets, the recruitment of underpaid workers and a ban on the joining of a trade union in order to break up lawful and peaceful strikes in services which are not essential in the strict sense of the term are not in accordance with freedom of association.

1. The Committee permits the hire of non-striking workers in the case of essential services such as the health service.

1. Where an essential public service, such as the telephone service, is interrupted by an unlawful strike, a government may have to assume the responsibility of ensuring its functioning in the interests of the community and, for this purpose, may consider it expedient to call in the armed forces or other persons to perform the duties which have been suspended and to take the necessary steps to enable such persons to be installed in the premises where such duties are performed.

Interference by the authorities during the course of the strike

1. The mere possibility of intervention by the ministry in strikes beyond essential services in the strict sense of the term, which is firmly entrenched in the law, along with the practice of intervening in areas which do not seem, at first sight, to be indispensable to the national interest, and the many modalities required for a strike to become legal as well as the serious penalties incurred in case of recourse to an illegal strike, unavoidably have a bearing on the framework and climate within which negotiations take place.

1. In one case where the government had consulted the workers in order to determine whether they wished the strike to continue or be called off, and where the organization of the ballot had been entrusted to a permanent, independent body, with the workers enjoying the safeguard of a secret ballot, the Committee emphasized the desirability of consulting the representative organizations with a view to ensuring freedom from any influence or pressure by the authorities which might affect the exercise of the right to strike in practice.

1. The intervention of the army in relation to labour disputes is not conducive to the climate free from violence, pressure or threats that is essential to the exercise of freedom of association.

Police intervention during the course of the strike

1. The Committee has recommended the dismissal of allegations of intervention by the police when the facts showed that such intervention was limited to the maintenance of public order and did not restrict the legitimate exercise of the right to strike.

1. The use of police for strike-breaking purposes is an infringement of trade union rights.

1. In cases of strike movements, the authorities should resort to the use of force only in grave situations where law and order is seriously threatened.

1. While workers and their organizations have an obligation to respect the law of the land, the intervention by security forces in strike situations should be limited strictly to the maintenance of public order.

1. While workers and their organizations are obliged to respect the law of the land, police intervention to enforce the execution of a court decision affecting strikers should observe the elementary guarantees applicable in any system that respects fundamental public freedoms.

1. The authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order.

Pickets

1. The action of pickets organized in accordance with the law should not be subject to interference by the public authorities.

1. The prohibition of strike pickets is justified only if the strike ceases to be peaceful.

1. The Committee has considered legitimate a legal provision that prohibited pickets from disturbing public order and threatening workers who continued work.

1. Taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work; such acts constitute criminal offences in many countries.

1. The exercise of the right to strike should respect the freedom to work of non-strikers, as established by the legislation, as well as the right of the management to enter the premises of the enterprise.

1. The requirement that strike pickets can only be set up near an enterprise does not infringe the principles of freedom of association.

Wage deductions

1. Salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles.

1. Additional sanctions, such as deductions of pay higher than the amount corresponding to the period of the strike, amount in this case to a sanction for the exercise of legitimate industrial action.

1. In a case in which the deductions of pay were higher than the amount corresponding to the period of the strike, the Committee recalled that the imposition of sanctions for strike action was not conducive to harmonious labour relations.

1. Non-payment for the days worked by teachers in place of days of work stoppage, in particular as a result of an agreement with the governing bodies of the schools, could constitute an excessive sanction that is not conducive to the development of harmonious labour relations.

1. If the salary deductions are applied to the activists of only one trade union, and all the unions have taken part in the strike, this situation would constitute de facto discriminatory treatment against the union concerned, affecting the principles of freedom of association.

1. With regard to allegations that wage deductions were carried out or threatened to be carried out only in respect of the trade union members and not the other strikers, the Committee emphasized that this would be contrary to freedom of association principles.

1. Obliging the employer to pay wages in respect of strike days in cases where the employer is declared responsible for the strike, apart from potentially disrupting the balance in industrial relations and proving costly for the employer, raises problems of conformity with the principles of freedom of association, as such payment should be neither required nor prohibited. It should consequently be a matter for resolution between the parties.

1. Failure to reply to a statement of claims may be deemed an unfair practice contrary to the principle of good faith in collective bargaining, which may entail certain penalties as foreseen by law, without resulting in a legal obligation upon the employer to pay strike days, which is a matter to be left to the parties concerned.

1. Salary deductions for days of strike should only apply to workers who have taken part in the strike or a protest action.

Sanctions

In the event of a legitimate strike

1. Imposing sanctions on unions for leading a legitimate strike is a grave violation of the principles of freedom of association.

1. The closure of trade union offices, as a consequence of a legitimate strike, is a violation of the principles of freedom of association.

1. No one should be penalized for carrying out or attempting to carry out a legitimate strike.

1. Penal sanctions should not be imposed on any worker for participating in a peaceful strike.

1. Penal sanctions should only be imposed if, in the framework of a strike, violence against persons and property or other serious violations of the ordinary criminal law are committed, and this, on the basis of the laws and regulations punishing such acts.

1. Legislative provisions which impose sanctions in relation to the threat of strike are contrary to freedom of expression and principles of freedom of association.

1. The dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98.

1. When trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against.

1. Respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike. Logically, it should also be irrelevant that the dismissal takes place in advance of a strike, if the purpose of the dismissal is to impede or to penalize the exercise of the right to strike.

1. The Committee could not view with equanimity a set of legal rules which: a) appears to treat virtually all industrial action as a breach of contract on the part of those who participate therein; b) makes any trade union or official thereof who instigates such breaches of contract liable in damages for any losses incurred by the employer in consequence of their actions; and c) enables an employer faced with such action to obtain an injunction to prevent the commencement (or continuation) of the unlawful conduct. The cumulative effect of such provisions could be to deprive workers of the capacity lawfully to take strike action to promote and defend their economic and social interests.

1. The announcement by the government that workers would have to do overtime to compensate for the strike might in itself unduly influence the course of the strike.

1. The use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association.

1. Should it be determined by the court or by the information gathered that any of the workers dismissed following a strike were employed in services other than those categorized as essential within the meaning of the collective agreement, necessary measures should be taken to ensure that those workers are fully reinstated in their previous positions.

1. Workers who are dismissed as a result of their participation in a strike should not be deprived of their lawfully acquired retirement benefits accrued over years of working for an enterprise.

Cases of abuse while exercising the right to strike

1. The principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike.

1. Penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike.

1. The Committee considered that some of the temporary measures taken by the authorities as a result of a strike in an essential service (prohibition of the trade unions activities, cessation of the check-off of trade union dues, etc.) were contrary to the guarantees provided for in Article 3 of Convention No. 87. The Committee drew the Governments attention to the fact that the measures taken by the authorities to ensure the performance of essential services should not be out of proportion to the ends pursued or lead to excesses.

1. Fines which are equivalent to a maximum amount of 500 or 1,000 minimum wages per day of abusive strike may have an intimidating effect on trade unions and inhibit their legitimate trade union activities, particularly where the cancellation of a fine of this kind is subject to the provision that no further strike considered as abusive is carried out.

1. The Committee expects that any fines that could be imposed against trade unions for unlawful strikes will not be of an amount that is likely to lead to the dissolution of the union or to have an intimidating effect on trade unions and inhibit their legitimate trade union activities, and trusts that the Government would endeavour to resolve such situations by means of frank and genuine social dialogue.

In cases of peaceful strikes

1. The authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association.

1. No one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike.

1. Criminal sanctions may only be imposed if during a strike violence against persons or property or other infringements of common law are committed for which there are provisions set out in legal instruments and which are punishable thereunder.

1. The peaceful exercise of trade union rights (strike and demonstration) by workers should not lead to arrests and deportations.

1. While emphasizing the importance of conducting legitimate trade union activities in a peaceful manner, the Committee considers that the criminalization of industrial relations is in no way conducive to harmonious and peaceful industrial relations.

Large-scale sanctions

1. Arrests and dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve.