Right to Strike is inalienable from the Right to Freedom of Association
The Director General of the Employers’ Federation of Ceylon (EFC) Ravi Peiris has instinctively responded to the letter written by me giving cover to a Memorandum submitted to the Minister of Labour and Labour Relations by 29 unions including 11 members of the National Labour Advisory Council (NLAC).
The Memorandum calls for the introduction of new amendments to the Trade Union Ordinance setting out clearly the instances in which the right to strike that is recognized by the TU Ordinance can be restricted in keeping with the requirements laid down by the recommendations of the ILO Governing Body Committee on Freedom of Association Case No. 2519 on Sri Lanka (See ‘Is there a right to strike?’ Business Times 14th October, 2012)
The graveman of Mr. Peiris is that the ‘trade unions proceed to make assumptions and interpretations which are not accurate in line with ILO Conventions and National Laws relating to strike action’. With all humility I invite Mr. Peiris to go through the Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, published regularly to ascertain whether the views of the unions are at variance with official ILO interpretations of its conventions.
In the US the right to strike is statutorily protected subject to limitations and is considered “a key element of a labour relations system designed to encourage productive and peaceful collective bargaining”. It is an effective weapon held in reserve by the unions to encourage employers to negotiate and enter into collective bargaining
Why Strikes?.
Why do unions ask for the right to strike? This right is bound up with the conception of employment as a civil contract between equals. But the notion of a free contract between equals has little relevance to the real world. In practice, the ownership of capital represents concentrated economic power, a legal entitlement to dominate. Hence the employer can virtually dictate the broad outlines of the employment contract. The right to strike is the main weapon of the worker to redress the balance of inequality implicit in his relationship with the employer. Strikes constitute the chief weapon in the armoury of the workers inasmuch as the lock-out is the chief weapon of the employers.
What seems to have particularly irked Mr. Peiris is the proposal of the unions “to recognise and expressly provide that regardless of whether the action in question is a work to rule or actually a go-slow, it should always be recognised that a right to strike by workers is a legitimate means of defending their economic and social interests, and that various types of strike action (strikes, tools down, go-slow, working to rule and sit-down trikes) fall within the scope of this principle; restrictions regarding these various types of strike action may be justified only if the strike ceases to be peaceful” (ILO Committee on Freedom of Association; 348th Report adopted by the Governing Body of the ILO at its 300th session, November, 2007 Para 1143). As Mr. Peiris seemed to have mixed up the ILO Governing Body Committee on Freedom of Association (CFA) with that of the Committee of Experts on the Application of Conventions and Recommendations
(CEACR) some explanation of these ILO supervisory bodies need elucidation for the benefit of readers. The CEACR is the creation of the Governing Body of the ILO and came into being in 1927 and 20 independent persons of the highest standing, with eminent qualifications in the legal and social fields drawn from all parts of the world constitute the CEACR. This Committee has had occasions to make observations and directives to the government of Sri Lanka relating to application of ratified ILO Conventions including the right to strike. The Committee on Freedom of Association (CFA) is appointed by the Governing Body of the ILO and has a tripartite character and was established in 1951.
Its task is to examine complaints alleging violations of Conventions on Freedom of Association regardless of whether or not the countries concerned have ratified those conventions. The nod of the government concerned is not necessary for the examination of the complaints. The ILO Constitution and the Declaration of Philadelphia bound member-countries to respect the fundamental principles contained in the ILO Constitution particularly those concerning Freedom of Association even though they have not ratified the relevant convention. It is the report of this Committee’s (CFA) on Case No. 2519 that had the unanimous endorsement of the ILO Governing Body that comprises elected representatives of employers, workers and government. At the time this report was adopted Sri Lanka happened to chair the Governing Body.
Employers boycott
What happened at the Employers boycoott International Labour Conference in Geneva this year at which both the writer and Mr. Peiris were participants and members of the Committee on Application of Standards was that the employers boycotted and crippled the work of the Committee by taking high ground that they cannot be dictated to by a Committee of Experts outside the ILO the mandate of which is to make comments on the application C.87 and not to interpret a right to strike into C.87. As the worker-members emphasized such a situation had never been experienced before in the history of the Committee on the Application of Standards. The employer-members had not raised the issue in the Governing Body which met in March. They waited till June 2012 to assert their position. The issue is not closed and only the Governing Body of the ILO or the International Commission of Jurists can interpret the decisions of the CEACR and no other.
The composition, mandate, the competence or the procedure of the CFA has in no way been called into question. The conclusions of the ILO Case No. 2519 on Sri Lanka on the right to strike had the tacit endorsement of the ILO Governing Body. The Government in its submissions to the ILO in the said case has stated in writing that it would abide by the decision of the ILO in this regard (see Para 1135 of decision of the ILO Case No. 2519). What the unions are seeking is to assist the government to honour its undertaking to the international body. In fact the global employer representatives, the compatriots of Mr. Peiris have endorsed the decision and its interpretation at the CFA and at the Governing Body. Why nibble at it now?
Workmen
In the Rubbarite Company Worker vs Labour Department, Court of Appeal Case No. 104/86 (1990 – 2 SLR Part 2) Justice Sarath Silva, held “….The basic right of workmen to strike to express their grievances and to win their demands is not only consistent with the international obligations undertaken by the Government of Sri Lanka in ratifying the international covenant an Economic, Social and Cultural Rights but also consistent with the accepted standards in other national and regional jurisdictions.
Therefore I hold that under our law, workmen have a basic right to strike as a measure of collective action directed against the employer to express their grievances and to win their demands”. The International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16.12.1966 was acceded to by the Government of Sri Lanka on 27th May, 1980.
At a National Trade Union Workshop on Implementation of ILO Conventions 87 and 98 in law and practice held on 4th /5th August, 1999, the unions having considered the Direct Request (1998) of the CEACR in relation C.87 and observation (1998) with regard to C.98 adopted a series of recommendations one of which reads; Recommends specifically the amendments recommended by the Committee of Experts to bring the Industrial Disputes Act into conformity with Articles (3) and 10 of Convention No. 87 by amendment of sections 4, 40, 41 and 43 of the Industrial Disputes Act, to protect the right of workers to strike for the promotion and protection of their economic social interest. As will be seen the struggle of the trade unions to win the right to strike on the lines recommended by the ILO and agreed to by the government is a fairly long one.
Mr. Peiris labours the point that the Convention on Freedom of Association (C.87) and Convention concerning the right to organize and bargain collectively (C.98) do not define as to what strike action means and there is no reference to strike action. However, the absence of such explicit reference in the conventions referred to should not be construed as ILO’s indifference to the right to strike or willful abstention from providing a protective framework within which it may be exercised. Two resolutions of the International Labour Conference in one way or another emphasised recognition of the Right to Strike in member states.
The “Resolution Concerning the Abolition of Anti-Trade Union legislation in the States Members of the International Labour Organisation” adopted in 1957, called for the adopting of laws . ensuring the effective and unrestricted exercise of trade union rights, including the right to strike by the workers “(ILO, 1957, P.783). Similarly, the “Resolution concerning Trade Union Rights and their relation to Civil Liberties”, adopted in 1970. These resolutions provide guidelines to ILO policy is made clear by calling the Governing Body to instruct the Director-General to take action in a number of ways “with a view to considering further action to ensure full and universal respect for trade union rights in their broadest sense”) with particular attention to be paid, inter-alia to the “right to strike” (ILO, 1970, P.P.735-736)
Fundamental right
Furthermore, though Fundamental right it does not explicitly mention the right to strike C.87 establishes the right of workers’ and employers’ organisations to “organize their administration and activities and to formulate their programmes” (Article 3), and the aims of such organisations as “furthering and defending the interests of workers or of employers” (Article 10).
On the basis of these provisions the ILO supervisory bodies have time and again stated that the right to strike is a fundamental right of workers and of their organisations, and have defined the limits within which it my be exercised, laying down a body of principles in connection with the right to strike giving rise to substantial “case law” in the broadest sense of the term which renders more explicit the extent of the provisions mentioned above. The workers’ group fully supported the approach of the Committee of Experts regarding the right to strike considering it to be inalienable from the Right to Freedom of Association protected by C.87 and by the principles embodied in the ILO Constitution.
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