CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

Cross-border social dialogue and agreements
instances strictly prohibited in national legislation. 12 On that subject, the
ILO Committee of Experts and Committee on Freedom of Association
have taken a somewhat mixed approach. Their general rule on solidarity
strikes is enunciated in the Committee of Experts’ 1994 General Survey
on Freedom of Association: “A general prohibition on 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” (ILO, 1994,
para. 168). In a study of statements and jurisprudence from the Committee
of Experts and Committee on Freedom of Association — the tripartite
committee of the ILO Governing Body responsible for the examination
of complaints alleging violation of the principles of freedom of
association — on the matter, Paul Germanotta has noted that:
… while they are not prepared to tolerate outright prohibitions, the committees
contemplate accepting significant restrictions on the solidarity
action workers “should be able to take”, quite apart from the one resulting
from the condition of legality of the primary action, set forth in the
explicit proviso of the basic principle (Germanotta, 2002, p. 17).
The legality of the primary action as a requirement for sympathy
strikes appears as a hindrance to the development of cross-border solidarity.
As Bob Hepple has stressed:
The main problem with the CE’s [Committee of Experts’] approach is that
it makes lawful sympathy or secondary action dependent upon the lawfulness
of the primary dispute. If the law applied is that of the country in
which the primary dispute occurs, this limitation may make it impossible
to take solidarity action with workers in a country where strikes are prohibited
or severely restricted. Testing the legality of the primary dispute by
the law of the country in which the sympathy action occurs is also beset
with difficulties because of the different institutional arrangements and
collective bargaining in each country (Hepple, 2003, p. 24; see also
Hepple, 2002, pp. 253-255).
12
International solidarity action is seldom the topic of national labour regulation. One must therefore
refer to rules establishing conditions for intra-national sympathy action to assess the lawfulness of sympathy
strikes, also referred to as secondary action. Some authors have noted that under national systems of
labour law, the legality of solidarity action is usually determined by two main conditions, “the lawfulness of
the action by workers involved in the original dispute and a direct ‘connection’ with the original dispute
itself”. See Germanotta (2002), p. 4, quoting A. Pankert (1977); and Morgenstern (1984). A further question
concerning the legality of solidarity strikes under national law relates to the determination of which country’s
regulation is to be used to decide on the legality of the supported action.
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