The Committee of Experts and the Right to Strike: a historical perspective

Abstract

REPORT□ EMPLOYERCHALLENGE TO ILO PRINCIPLES The Committee of Experts and the Right to Strike: a historical perspective I increasing, the the changed stance right the the At strength employers the lobby employer Cold to end on strike their War, was and the of of the ColdWar, the strength of the employer lobbywas increasing,and the employers changed their stance on the right to strike TONIA NOVITZ isProfessor of Labour Law atthe University of Bristol. During challenge Conference, the the a 2012 serious jurisprudence International attempt was regarding made Labour to Conference, a seriousattempt was madeto challenge the jurisprudenceregarding industrial action established by the ILO Committee of Expertson the Applicationof Conventionsand Recommendations (CEACR). The challengeto theCEACR'sjurisprudence and rolewas putforward bytheemployers' groupin theConference Committee on theApplication of Standards (CCAS). Therearevariousstrands totheemployer position ,buttheessenceofthechallengeis thatthe Committee ofExperts hassomehowexceededits mandateby interpreting ILO Convention 87 on Freedomof Associationand Protection of the Right to Organise(1948) as encompassing protection oftheright to strike. Froma historical perspective, itis arguedhere thattheemployers' grouphas madecertain fundamental errors. Inthisarticle, I explainthework of the Committee of Experts, its function, and howthebodycameintobeing.I also lookatthe evolutionof recognition of the rightto strike through ILO supervisory systems, and howithas gradually come to be acceptedthroughout the ILO. The CommitteeofExperts The experttechnicalCEACR was established alongsidetheCCASon an initial trialbasisbya Resolutionof the 1926 International Labour Conference1. Thattrial turned outtobe extremely successful, so much so thatthissystemof supervision was retained andhassincebeenimitatedby drafters of otherinternational instruments , suchas theEuropeanSocialCharter 1961 and the International Covenanton Economic, Socialand Cultural Rights 1996.Yet,as in these systems, authoritative findings arenottobe confused with thosethat arelegally binding. Itiswell established thatthe ILO Committee of Experts does nothave 'judicialcapacity', norhas ithad anypretence to thisrole. The intention was onlythata quasi-independentpaneloflegally qualified experts wouldprovide technicaladvice on compliancewithILO Conventions andRecommendations. Thatadvice, taking theform of'observations' on formal compliance ,is thenconsideredby a tripartite body (theCCAS)representing employers, workers, and governments, which takes a more pragmatic, politically orientated view of theapparentlegal violations and makesitsown recommendations. Itis ultimately fortheannualILO Conference as a wholeto reacha viewon violations highlighted inrespect ofthecountries concerned2. Neither thereports oftheCEACRnortheconclusionsoftheCCAShaveeverbeenexpectedto havelegaleffect; thisis solelytheprerogative of theInternational CourtofJustice3. Nevertheless, sincethecollective expertise oftheCommittee of Experts is suchthatthisbodyproduceswell-reasoned assessments ofthemeaning ofprovisions contained inILO instruments, they havecometo be regarded as compelling in CCASdebatesand inthebroaderConference atlarge,regardless of theirlegal status.Additionally, as the CEACR reports are publishedby theILO, theymaybe referred toinother supervisory proceedings4, and even prompt remedialactionby theStateconcernedso as to avoid further embarrassment5. Theemployers' groupobjectstosuchpublication (Report oftheCCAS,Part1/13), butitmight also be notedthatthe views of the CCAS are also made publiclyavailable and rarely(if ever) inducesucha response. The Committee of Experts'jurisprudence on matters offreedom ofassociation is designedto reflect thatadoptedin thedecisionsand principles of an entirely tripartite consensualprocess, the Freedomof AssociationCommittee of the GoverningBody of the ILO (CFA). The CFA decides cases on thebasis of theguarantee of freedom of association under the ILO Constitution. It does so regardless ofratification ofeither Convention 87 orany other ILO instrument 6. Itsjurisprudence relating to theright to strike hasbeendevelopedbyconsensus overthe pastsixty yearsbetweenthetenmembers ofthe CFA (threeemployer, threeworkerand three government representatives, alongsidean independent chair). TheCFAwas established in1951, and began hearingcomplaints relating to freedomofassociation thefollowing year. Recognitionofthe right to strike By 1956, in cases concerning Poland and the USSR,theCFAindicated 'theimportance of the right to strike' (Case 148 (Poland)) such thatit constituted 'anintegral partofthegeneral right of workers and theirorganisations to defendtheir economicinterests' (Case 111 (USSR)).By 1958, theCommittee was making theveryclearassertionthat 'allegations relating to prohibitions of theright tostrike arenotoutsideitscompetence whenthequestionof freedom of association is involved (Case 163 (Burma) and Case 169 (Turkey)). By I960, thetripartite committee was determined toassessthemerits ofanyrestrictions on industrial action,regardless of whether this was otherwise consideredlawfulin a Member State.I have arguedelsewherethatthiswas an approachwhichis defensible in thelight ofthe 'ordinary meaning'of 'freedomof association' (under Articles31 and 32 of the Vienna Convention on the Law of Treaties1969),the context in whichthetermis used and thepurpose ofILO Convention 877. INTERNATIONAL union rights Page 20Volume 19Issue 22012 ILO Convention 87 does notexplicitly refer to a right to strike. Thispointwas thesubjectof controversy at the 1948Conference at whichit was adopted.Nevertheless, it would be rather peculiar toassert that thisentitlement arisesonly byvirtue of theILO Constitution and bearsno relation to Article 3 of Convention 87, which makesprovision (amongotherentitlements) for workers' organisations to 'organise their administration and activities and formulate theirprogrammes...