Network member Conor Cradden argues that ILO workers’ representatives have employers on the back foot on the thorny issue of the right to strike.

ILO_snapEmployers’ representatives at the International Labour Organization (ILO) have recently started to worry that freedom of association and collective bargaining rights might mean something more than offering workers a seat at the table and then proceeding to ignore them. They seem finally to have realised what the rest of the world has always known: the point of freedom of association rights is to allow workers to challenge unilateral managerial control over business costs and organization. For the last couple of years the employers have been desperately battling to make sure that freedom of association rights mean as little as possible in practice. However, the 2014 report of the ILO’s independent legal advisory body, the Committee of Experts, suggests that this particular battle is not going their way.

Freedom of association rights? No problem – as long as there’s no right to strike

The problem for the employers is that the freedom of association genie is well and truly out of the bottle. In 1998, the ILO agreed the Declaration on Fundamental Principles and Rights at Work. The first of the four principles it establishes is freedom of association and the right to collective bargaining. The 1998 Declaration has become the globally unchallenged statement of basic labour standards, and has been taken up as the basis of workers’ rights not only in public intergovernmental programmes like the UN Global Compact and development aid conditionality but also in hundreds of private corporate social responsibility initiatives, supply chain codes of conduct and multistakeholder sustainability standards.

The employers know that they can’t now roll back the almost universal recognition that workers must be allowed to unite to express their views. Unable to prevent workers’ organizations getting to the bargaining table, they appear to have decided instead that the best tactic is to try to make sure that employers are never under any obligation to take workers’ views into account once they’re there. This would explain why they are currently challenging the previously undisputed idea that the ILO conventions on freedom of association and collective bargaining guarantee the right to strike.

The employers’ claim is that since the right to strike is not mentioned explicitly in any convention it does not exist. The ILO’s Committee of Experts on the Application of Conventions and Recommendations, however, has consistently argued that without the right to strike, freedom of association and collective bargaining rights are meaningless. The Committee of Experts is a body made up of independent experts in labour law from around the world. Its role is to advise the ILO and its member states on whether national labour law is compatible with ratified ILO conventions. Although its decisions are non-binding, for the last 85 years it has been the single most important interpreter of what ILO conventions mean in practice. The Committee addressed the issue of the right to strike in a report published in 2012, considering the employers’ case in carefully measured and respectful tones, but demolishing it no less comprehensively for that.

Muddying the waters

In a classic next step by a group of people who feel they are entitled to wield power without interference, the employers’ response was to try to prop up their argument by claiming that the Committee of Experts had no right to decide what it has decided. They argued that the Committee had gone beyond its mandate and that it had never had any right to state that the right to strike was guaranteed by ILO conventions. (The argument is reported in this earlier Equal Times piece). All of a sudden, the position that the Committee had first stated explicitly in 1959, and to which no serious challenge had ever been mounted, was not only wrong but — according to the employers — the Committee did not even have the right to take a position on the question.

Without wanting to suggest that the challenge to the right to strike is some kind of global employer conspiracy, it is worrying to see that the ILO employers’ pretence that there is no established policy on the right to strike has been picked up by national-level employers’ associations. Employers in Cambodia, for example, have recently taken out newspaper advertisements claiming the ILO has misled the public by insisting that the right to strike is protected under conventions 87 and 98. The Phnom Penh Post reports that the employers are demanding that the ILO office in Bangkok retract an official statement that says that the guarantee of the right to strike is established ILO policy. With all due respect to the Cambodian employers, this is unlikely to be a line they thought up by themselves.

The employers have said that they would like to see the issue resolved via a big discussion on industrial action at the International Labour Conference, but they know perfectly well that such a discussion would take three or four years to prepare. In the meantime, they aim to carry on exploiting the lack of clarity that they themselves deliberately introduced. If nothing is resolved, we can expect to hear a lot more arguments like that made by the Cambodian employers.

Reasons to be cheerful

Fortunately, the 2014 Report of the Committee of Experts gives good reason to believe that the employers will not win this time. There are two heartening developments. The first is that the Committee of Experts is quietly refusing to be intimidated by the employers and is maintaining its position that the right to strike is protected by existing ILO conventions. Judging by the content of this year’s Report – made up, as always, of comments on the legal situation in member states – the Experts have decided not to heed the employers’ call for them to ‘desist’ from making observations relating to the right to strike.

The second development is that workers’ representatives have rather courageously decided to call the employers’ bluff by indicating that they would be willing to ask the International Court of Justice to rule on whether the right to strike is guaranteed by ILO conventions (the ICJ is the final court of appeal in disputes about the interpretation of conventions). This is a tactically savvy move, but in the long run it is also the best way forward for everyone. It puts the employers on the back foot since it is they who put established ILO jurisprudence into question. Rather than carrying on blocking the issue in ILO procedures, the employers will now either have to accept a reference to the ICJ or explain why they will not. A reference to the ICJ would also be good for the ILO as a whole not only because it would resolve the substantive issue cleanly and within a clear time frame, but also because such a resolution would remove the spurious question mark the employers have put over the procedural competences of the Committee of Experts.

If a reference to the ICJ is ultimately made – and unfortunately it is still much more likely that it will not – the lasting effects could be enormously important. There is always a risk that the Court will find for the employers, but the likelihood is much greater that it will confirm the Committee of Experts’ longstanding line and make it impossible for employers to carry on pretending that freedom of association can exist where the right to strike is significantly restricted.