International sources of law
The right to strike is either explicitly or implicitly protected by a range of international treaties and conventions.
International Convention on Civil and Political Rights
Article 22(1) of the International Covenant on Civil and Political Rights (ICCPR) confers the right to freedom of association. This includes the right for person(s) to form and join trade unions for the protection of their interests. However there is no express reference to any right to strike.
In the case of JB et al v Canada (1986), the argument was made that article 22(1) of the ICCPR implicitly protected the right to strike. While the majority of the Human Rights Committee Disagreed, there was a strong minority dissent. The interpretation of article 22(1) is unclear at the moment, but may in the future extend to protect the right to strike, give that J.B. is now over thirty years old.
The International Covenant on Economic, Social and Cultural Rights
Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) expressly provides for the right to strike, “provided that it is exercised in conformity with the laws of the particular country.”
Article 8(3) states that “[n]othing in this article shall authorize States Parties to the ILO Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.”
The Committee on Economic, Social and Cultural Rights (“CESCR”), which supervises and monitors implementation of the ICESCR, has said that governments must not impose unreasonable legal impediments to the right to strike. Governments are also required to protect strikers from penalties imposed by employers. CESCR has also criticised legal provisions that allow for replacement of employees.
Under Article 8(2) of the ICESCR, lawful restrictions may be placed on the rights to join trade unions of members of the armed forces, the police or of the administration of the State.
CESCR has also stated that reasonable procedural restrictions on the right to strike are acceptable (e.g. voting requirement within relevant union, prior notice) but time limits are not. Substantive restrictions on the right to strike are acceptable in four circumstances:
National emergency (e.g. natural disaster)
Where essential services would be disrupted, resulting in danger to life, health or safety of part of the population (e.g. hospitals)
where minimum operational services are necessary (e.g. requirements for a minimum number of employees to continue to provide public services during strike action may be acceptable)
where members of the armed forces, police, or those in the administration of the State are involved (this only extends ‘to those responsible for keeping order’, and not, for example, civil servants or teachers)
The International Labour Organisation
The International Labour Organisation (“ILO”) has enshrined the right to freedom of association within two treaties: The Freedom of Association and Protection of the Right to Organise Convention 1948 (No 87) and the Right to Organise and Collective Bargaining Convention 1949 (No 98). Although neither treaty expressly recognises the right to strike, International Labour Organisation supervisory bodies (the Committee of Experts on the Application of Conventions and Recommendations (CE) and the Committee on Freedom of Association (CFA)) have stated that the right to strike is linked to the freedom of association and the right to organise activities for promotion and protection of their interests.
Regional Sources of Law
Article 11(1) of the European Convention on Human Rights protects the right to freedom of association and assembly. In 2009 the European Court of Human Rights held that Article 11(1) protects the right to collective bargaining, including the right to strike, in Enerji Yapi-Yol Sen v Turkey (2009).
Article 11(2) of the Convention limits the scope of Article 11(1). These restrictions may only be imposed in circumstances where they serve to preserve national security or public safety, prevent crime and disorder, protect health or morals, or protect the rights and freedoms of others. The court held in Enerji Yapi-Yol Sen v Turkey (2009) that these restrictions were to be strictly interpreted: a ban on strikes should only be imposed in circumstances of pressing social need.
The right to strike is expressly protected in Article 6(4) of the European Social Charter as part of the right to collectively bargain.
Despite international recognition of a broad right to strike, many States impose undue restrictions on the right. Australia is probably one such State.
In 1993, the Commonwealth Parliament passed the Industrial Relations Reform Act 1993 (Cth) (the Act), which amended the Industrial Relations Act 1988 (Cth). For the first time, the right to strike was explicitly mentioned and statutorily protected by federal legislation.
The Fair Work Act 2009 (Cth) currently protects strikers from certain legal liabilities, but only for “protected industrial action”, which is defined in s. 408 of that Act. However, that protection arguably falls short of conformity with international human rights law – for example, protection is only provided if the strike occurs during a formal period of collective bargaining between the relevant parties. If strike action is not protected under the Act, strikers are liable for penalties in legal claims by employers.