The ILO and the right to strike

• Published date: 01 March 2014
• Author: Janice R. BELLACE
• DOI: http://doi.org/10.1111/j.1564-913X.2014.00196.x
• Date: 01 March 2014

International Labour Review, Vol. 153 (2014), No. 1

Copyright © The author 2014

Journal compilation © International Labour Organization 2014

The ILO and the right to strike

Janice R. BELLACE*

Abstract. The author argues that the June 2012 challenge by the ILO Employ-

ers’ group to the hitherto generally accepted view regarding the right to strike

under the Freedom of Association Convention, No. 87, is at odds with the histor-

ical understanding of the framework in which the Convention is embedded. She

demonstrates how the ILO constituents have consistently recognized that there is

a positive right to strike, which is inextricably linked to – and an inevitable corol-

lary of – the right to freedom of association. The article also analyses the relative

roles of the ILO supervisory bodies in this regard.

T

his article will address several issues that bear directly on international

standards on freedom of association, and on the role of the Inter-

national Labour Organization (ILO) in setting and monitoring this fun-

damental right. These topics have taken on additional relevance in the

light of views expressed by the Employers’ group during the session of

the Committee on the Application of Standards at the June 2012 Inter-

national Labour Conference (ILC). The views enunciated by the Employers’

group surprised many of those involved in the ILO’s activities by appear-

ing to suggest that the meaning of the right to strike under the Freedom

of Association and Protection of the Right to Organise Convention, 1948

(No. 87), was narrower than many understood and, to a large extent, out-

side the purview of the Committee of Experts.1 Furthermore, the Employers’

group attributed a role to the Committee of Experts and its relationship to

the Committee on the Application of Standards that appeared at variance

with accepted wisdom.

* Samuel Blank Professor of Legal Studies and Professor of Management, The Wharton

School- University of Pennsylvania, Philadelphia; Tel: +1-215-8 98-6820 , Fax: +1-215-573-8 585, email:

bellace@wharton.upenn.edu.

Responsibility for opinions expressed in signed articles rests solely with their authors, and

publication does not constitute an endorsement by the ILO.

1 The Employer members “objected in the strongest terms” to what they perceived as “the

interpretation by the Committee of Experts of Convention No. 87 and the right to strike, to the

use of the General Survey with regard to the right to strike and to being placed in such a position

by the General Survey” (ILO, 2012a, Record 19, Part I, p. 22, para. 82).

International Labour Review

30

These views related to matters that had seemed settled for many years,

and had been conrmed in the most recent comprehensive surveys on the topic

dating from the 1990s (ILO, 1994a; Gernigon, Odero and Guido, 1998). How-

ever, the existence of differing views on these subjects does serve to highlight

that the lack of any explicit, declarative statement of the right to strike in an

international instrument can lead to differing views on what the contours of

such a right are. In addition, the relationship of the Committee of Experts to

the Committee on the Application of Standards has not previously been the

subject of extensive discussion.

This article examines three major issues: the right to strike in the con-

text of freedom of association; the driving forces in dening the parameters

of the right to strike; andthe relative roles of the Committee of Experts and

the Committee on the Application of Standards.2

These topics will be examined historically in the light of the ILO Con-

stitution, relevant Conventions, and discussions of the respective roles of

the parts of the ILO (the International Labour Conference, the Governing

Body, and the Ofce). From this, the article will seek to determine what the

tripartite constituents meant when they adopted instruments guaranteeing

freedom of association, and will describe the establishment of the Commit-

tee on the Application of Standards, examining its relationship to the Com-

mittee of Experts.

The analysis will indicate that the comments of the Employers’ group

reect a lack of historical understanding of the process that has provided the

framework for determining the response to these issues. In particular it will

show that:

• Over the past 60 years the ILO constituents have recognized that there is

a positive right to strike that is inextricably linked to – and an inevitable

corollary of – the right to freedom of association;

• The contours of this right have been shaped to a large extent by the Gov-

erning Body’s Committee on Freedom of Association. The Committee of

Experts on the Application of Conventions and Recommendations, in its

technical supervision function, has based the right to strike on Articles 2,

3, 8 and 10 of Convention No. 87, which gives workers full freedom to join

organizations of their own choosing, bestows upon those organizations

the right to organize their own activities and formulate programmes, and

deems the purpose of the organizations to be that of furthering and de-

fending the interests of their members.

• The Committee of Experts has a role within the ILO that is in no sense

subordinate to the Committee on the Application of Standards, but is

designed to provide a different type of analysis and information for the

benet of the tripartite constituents.

2 This article does not examine in depth the mandate of the Committee of Experts. For a

discussion of this issue, see Swepston (2013).

The ILO and the right to strike

31

Historical review

A review of the actions of the International Labour Conference (ILC), the

Governing Body, the Committee on Freedom of Association and the Com-

mittee of Experts does not produce one explicit statement proclaiming that

workers have a right to strike. Nor is there an express statement in the two

Conventions dealing with freedom of association, Convention No. 87 and the

Right to Organise and Collective Bargaining Convention, 1949 (No. 98). While

the lack of an explicit, declarative statement is not conclusive regarding the

existence of such a right, it does necessitate an inquiry to determine whether

a right to strike exists and if so, to identify its origins.

It should come as no surprise that the notion that there is a right to strike

has developed over time, thus requiring a historically based description of its

evolution that goes back to the earliest days of the ILO. To undertake such an

inquiry in a fruitful manner, one must be alert to how terminology was used

at particular times and by persons from different countries. The ILO is nearly

100 years old, and terms that were used in 1919 or 1948 may have a different

connotation today. Because the context for the terminology used reected the

mindset of the day, it is vital to identify correctly the meanings shared by the

tripartite members of the ILO at a given point in time. As a result, it is easiest

and most useful to go back to the beginning and move forward in time, identi-

fying what people understood to be the issue at the time they spoke. The task

of understanding the history of freedom of association is rendered more com-

plex by the differences in terminology between the main languages used by the

ILO, and even between British and American usage of the English language.

The Treaty of Versailles and freedom of association

In March 1919, Part XIII of the Treaty of Versailles, which established the

ILO, 3 was agreed. The preamble to Part XIII, Section I, “Organisation of La-

bour”, points to conditions of labour that exist involving “such injustice, hard-

ship and privation to large numbers of people as to produce unrest so great

that the peace and harmony of the world are imperilled” and declares that

“an improvement of those conditions is urgently required”. Certain terms and

conditions of employment are listed as needing improvement. Included in this

list is “recognition of the principle of freedom of association”.

4

In the Treaty it-

self, there is no amplication of the meaning of this term beyond the reference

in Article 427 relating to General Principles of “the right of association for

3 The Treaty of Versailles established an organization which has as its supreme organ the

International Labour Conference, which currently meets annually in Geneva in June. The Govern-

ing Body, established as the executive arm, meets three times a year in Geneva. The Treaty deemed

the International Labour Ofce (the Ofce) as the organization’s secretariat. It is headquartered

in Geneva. This article describes the subsequent establishment of committees relevant to freedom

of association and the right to strike.

4 The text of Part XIII was published in the Ofcial Bulletin of the ILO, April 1919 to

August 1920 (Geneva, 1923), pp. 332–3 43. It can be accessed online at: http://www.ilo.org/public/

english/bureau/leg/download/partxiii-treaty.pdf.