Employers' Handbook on ILO Standards-related Activities

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EMPLOYERS’ HANDBOOK ON ILO STANDARDS-RELATED ACTIVITIES
ernments, …, have nevertheless emphasised, justifiably it would appear, that
the proposed Convention relates only to the freedom of association and not to
the right to strike … In these circumstances, it has appeared to the Office to be
preferable not to include a provision on this point in the proposed Convention
concerning freedom of association”), so that no proposals regarding a “right
to strike” were made during the actual Conference discussions. In the Conference
discussion preceding the adoption of Convention No. 98, two amendments
regarding the inclusion of a “right to strike” were proposed and subsequently
rejected (see Record of Proceedings, 32nd Session of the ILC, 1949,
Appendix VII, pp. 468 and 470: “The Chairman ruled that this amendment was
not receivable, on the ground that the question of the right to strike was not
covered by the proposed text …”. “An amendment … relating to the guarantee
of the right to strike… Was declared not to be receivable for the reasons
already mentioned in connection with the former amendment …”). Therefore,
when the Committee of Experts derived details of a “right to strike” from
these Conventions, it was developing new standards rather than supervising
existing instruments. The employers have conceded that a “right to strike”,
as well as a “right to lock out”, existed in many countries and might even
be acknowledged under international common law. However, the evaluation
of the Committee of Experts had to be based on ratified ILO Conventions
only. Since an ILO Convention regulating the “right to strike” did not exist, it
would first need to be created. The competent body to do this, however, was
the ILC.
Apart from this, the employers have held that the interpretation of the
“right to strike” given by the Committee of Experts was not balanced in that it
has – gradually – extended the “right to strike” to a maximum and thus has not
adequately considered the legitimate rights and freedoms of employers as
well as of others. Although strikes were directed against employers, their inevitable
and sometimes calculated damaging effects were increasingly and
intensively felt by third parties and the general public. For instance, the
Committee’s strict notion of essential services and its broad acceptance of
political and solidarity strikes generally ignored these effects. Its “one size fits
all” approach did not take into account the differing legal contexts and stages
of economic and industrial development. Although elements of its conception
of a “right to strike” existed in individual member States, on the whole it went
beyond the law and practice in most democratic countries and was therefore
politically inopportune.
The employers have the impression that – in response to their arguments
– the Committee of Experts has started to apply a more nuanced approach
in recent years in that it has concentrated on cases where a “right to
strike” was non-existent or, as a result of restrictions, virtually non-existent.
Also in connection with Convention No. 87, the employers disagreed with the
Committee of Experts’ interpretation of freedom of association regarding so-called
“union security clauses”. The Committee of Experts considered that such clauses,
which make trade union membership or payment of union dues compulsory, are in
compliance with Convention No. 87 if they are the result of free negotiations and not
imposed by the law itself (see General Survey, ILC, 81st Session, 1994, paras. 102,
103). The employers, however, have considered “union security clauses” generally as