The Internationally Recognized Right to Strike: A Past, Present and Future Basis upon Which to Evaluate Remedies for Unlawful Collective Action?

Abstract

The availability of remedies for unlawful collective action is determined, under international law, by the impact which they have upon the ability of workers to organize collectively to defend their economic and social interests. In this way, the idea of a 'right to strike' operates as the basis for assessment of the legitimacy of remedies. This approach has been taken by the International Labour Organisation (ILO) supervisory bodies and transmitted to the bodies responsible for supervision of Council of Europe human rights instruments. Such an approach has, perhaps unsurprisingly, led to criticism of the potentially far-reaching remedies available to employers following the Court of Justice judgments in the Viking and Laval cases, which extended European Union (EU) free movement principles in ways that allow employers to prevent or penalize what would otherwise be regarded domestically as permissible industrial action and which compromise the right to strike. Two key examples are punitive financial sanctions which can be applied in Sweden and the scope in the UK for injunctive relief and unlimited compensation for employers. The difficulty is that ILO recognition of a right to strike is under threat by the employers' group, which is now objecting to the continuation of ILO jurisprudence which interprets ILO Convention No. 87 so as to link freedom of association and the right to strike. In this manner, the International Organisation of Employers (IOE) seeks to challenge the application of past ILO findings in European and domestic contexts. There would seem to be both a legal and a political battle to be fought in the ILO to defend its normative pedigree. If support for collective action is to be maintained, it may not be sufficient to look only at the past, but towards present challenges and manifold options for the future.

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