The ILO’s Committee on Freedom of Association - Some Important Decisions on the Right to Strike
Metin Orhan KutalFounded in 1951 on the proposal of the ILO Administrative Council, the Committee on Freedom of Association examines and concludes complaints about member states based on conventions 87 and 98. The CFA recognizes the right to strike as an integral part of trade union freedom.
Some of the issues that come to the forefront in CFA’s decisions regarding the right to strike are as follows:
- All employees have the right to strike.
- The right to strike may be restricted or even banned concerning basic services in cases of severe crisis.
- In order to balance the rights of strikers, independent, impartial and peaceful institutions should be utilized.
- The authority of governments to suspend a legal strike for national security and general health reasons is not contrary to trade union freedom. However, governments should use these two concepts objectively and in good faith.
- The basic services that closely affect the health or safety of the whole or a part of the public have been determined by the CFA. In services other than these, the spread of the strike to a very wide area and its excessive prolongation can be intervened if the necessities of the people cannot be met. In such cases, peaceful organs should be utilized.
ILO Sendika Özgürlüğü Komitesi’nin Grev Hakkına İlişkin Önemli Bazı Kararları
Metin Orhan KutalILO İdare Konseyi’nin önerisi üzerine 1951 yılında kurulan Sendika Özgürlüğü Komitesi, 87 ve 98 sayılı sözleşmeleri esas alarak, üye devletlerle ilgili şikayet anılarını incelemekte ve karara bağlamaktadır. SÖK, grev hakkını sendika özgürlüğünün ayrılmaz bir parçası olarak kabul etmektedir.
SÖK’ün grev hakkı ile ilgili kararlarında ön plana çıkan hususlardan bazıları şunlardır:
- Tüm çalışanlar grev hakkına sahiptirler.
- Grev hakkı ağır kriz hallerinde, temel hizmetlerde sınırlanabilir, hatta yasaklanabilir.
- Grev yasağına girenlerin haklarını dengeleyebilmek için bağımsız ve tarafsız, tarafların güvenini sağlamış barışçıl kurumlardan yararlanılmalıdır.
- Hükümetlere ulusal güvenlik ve genel sağlık nedeniyle yasal bir grevi askıya alma yetkisi sendika özgürlüğüne aykırı değildir. Ancak hükümetlerin bu iki kavramı objektif ve iyi niyet kuralları çerçevesinde kullanmaları gerekir.
- Halkın bütününü ya da bir kısmının sağlığını veya güvenliğini yakından etkileyen temel hizmetler SÖK tarafından belirlenmiştir. Bunların dışında kalan hizmetlerde de grevin çok geniş bir alana yayılması ve aşırı biçimde uzaması şayet halkın zorunlu ihtiyaçlarını karşılayamayacak düzeye ulaşmışsa greve müdahale edilebilir. Bu durumlarda da barışçıl organlardan yararlanılması gerekir.
After the international norms of trade union freedom were determined by ILO Convention 87 (1948), a rapid increase in complaints about member states was observed. Since 1951, the ILO Administrative Council has used the Committee on Freedom of Association (CFA) for assistance in investigating these complaints.
The Committee on Freedom of Association has also explained what procedures and principles it considers when reviewing and resolving complaints about member states: the first of its decisions is that it is not a judicial decision that compels the member state. According to the statement, a decision which is made is not intended to condemn a member state or a trade union organization; on the contrary, it aims to make trade union freedom valid in all countries by making use of the trilateral structure, which is the most prominent feature of the ILO.
While making decisions, the second principle of the CFA is that it does not, as a rule, take into account the level of development of the complained country. The third principle is that the change of political regime or political power in a member state will not affect the previous decisions. The new political regime or the new government is under the obligation of producing solutions based on the decisions of the Committee in terms of trade union freedom.
Lastly, the CFA requires that, in accordance with the decision of the Administrative Council with respect to multinational companies, the existence of a provision contrary to trade union freedom among the conditions of investment in another country shall never be tolerated.
The reason why we choose the issue of strike is that employers’ associations in the ILO and in our country argue from time to time that the right to strike does not have a legal relationship with trade union freedom. The most important justification of the allegations in this regard is that there is no direct provision regarding the right to strike in Convention 87 or other legislation of the ILO regulating trade union freedom.
For many years, the CFA has advocated a totally opposite view. According to them, the right to strike is an integral part of trade union freedom. In this case, it is not possible for trade unions to exclude the right to strike while freely regulating their activity programs.
Based on this basic view, the CFA does not accept all actions where employees collectively agree to stop working as a legal strike within the framework of trade union freedom. For example, according to the CFA, a strike initiated by a trade union for purely political purposes does not fall within the framework of trade union freedom. As such, the CFA does not accept the strike which is done in order to prove that the trade union is the authority in collective bargaining. The CFA acknowledges that the issue of authority is a problem that needs to be examined separately.
As such, the committee acknowledges that the right to strike may be restricted or even banned in basic services that threaten the health and safety of society. In the case of government officials in public service, the CFA accepts that high level bureaucrats who use public power on behalf of the state can be included in the scope of the ban on strikes. The Committee tries to clarify the concept of basic services in its decisions and gives examples from various business lines.
The CFA has also made important decisions on peaceful solutions to ensure that workers do not lose their rights in the event of restrictions or prohibitions on the right to strike. According to the CFA, the peaceful solutions that are put into action in such a situation should definitely have gained the trust of parties through their impartiality and independence.
It is determined that an independent body should decide for such strikes which are delayed for a certain period due to national security and general health, and if the government is the decision body, this postponement should be made with a good faith interpretation considering the narrow meaning of the words ‘national security’ and ‘general health’.
If serious health and safety problems arise in society due to the prolongation of the strike and its widespread nature, it may be decided to meet the minimum needs of society by the decision of an independent body; however, as a result of this decision, the effect of the decision to strike should not diminish and the public image of the union should not decrease.
