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Why the ILO must continue to police the right to strike
As deepening economic inequality shows that strong trade unions are needed more than ever, employers are engaged in a ruthless assault on one of the most fundamental labour laws of all. But, as the ITUC holds a global day of action today to rally support, the right to strike is not up for negotiation.
At global level the employers’ organisations, including the CBI in Britain, are attempting to rewrite the world’s labour laws (and history) by refusing to accept decades of consensus that the right to strike is implied by the core conventions of the UN’s labour standards agency, the International Labour Organisation (ILO), and that its institutions should be able to rule on whether government restrictions on that right are fair or reasonable. The employers’ tactics have thrown the regular proceedings of the ILO into disarray, and is sabotaging its ability to criticise some of the world’s worst regimes.
This matters not just because of the principle that workers should be able to withdraw their labour, but, as ILO adviser Sangheon Lee explains, because the best way to address the growth in inequality over recent decades is to give workers the power to bargain collectively through their unions, and thus redress the shift in rewards between capital and labour that redistributive taxes and social provision cannot solve. Without the last resort of a right to strike, the power to bargain collectively is ineffective.
For decades, representatives of workers and employers at the ILO agreed – no matter what else they may have argued about – that the eminent industrial relations lawyers on the ILO Committee of Experts were right to conclude that the right to strike was contained in the two conventions governing freedom of association – the right to organise and join trade unions and to bargain collectively (Conventions 87 and 98). The Experts’ view was that in order to be effective, a union needed the right to strike – any law guaranteeing union freedom without the right to strike, even if it wasn’t explicitly referred to, was essentially like guaranteeing the freedom to eat bread but outlawing baking.
This meant that the ILO’s tripartite mechanisms could bring workers, employers and governments together to assess breaches of labour standards, including those on the suppression of free trade union activity, without controversy for much of the 20th Century. Criticism from the ILO gave support to unions in Eastern European dictatorships, most notably Solidarnosc in Poland, something Western governments and employers were very happy to provide. It also added to the mounting pressure on the Apartheid regime in South Africa, where trade unions representing the non-white majority were repressed.
As communism crumbled in 1989, objections from the employers’ side emerged, though they limited their grumbling initially to the concept of “a comprehensive and unlimited right to strike”, the existence of which had never actually been claimed by the ILO’s Experts. A general right to strike continued to be accepted in practice by the employers right up until the current crisis began in 2012.
In a 2011 video, the CBI’s Chris Syder suggested that employers needed to counter the fearsomely effective international cooperation of the “incredibly well organised trade unions” (thanks Chris) and challenge the “dreaded theme of the right to strike”. The following year, the employers’ spokesperson on the key committee judging adherence to conventions suddenly declared that the employers would refuse to accept consideration of any cases that involved the right to strike, bringing the committee to a halt and letting countries such as Colombia, Fiji, Guatemala and Swaziland go unpunished for their gross abuses of workers’ rights.
As the ITUC put it:
“The Employers’ Group’s hard stance appears motivated in part by the fact that … courts were now turning ever more frequently to the texts of the ILO supervisory system … [and] free trade agreements and trade preference programs are increasingly making explicit reference to the ILO conventions, … slowly converting the ‘soft’ law of the ILO supervisory system to ‘hard’ law.”
In short, while the right to strike could easily be used to attack so-called enemies of the free market it was perfectly acceptable to employers. Now that it was increasingly finding its way into laws and even free trade agreements that might affect them, it wasn’t so appealing.
So, with a huge dollop of irony that I hope isn’t lost on them, they effectively went on strike, rendering an ‘essential service’ of the ILO inoperable.
The workers are, as you’d expect, firmly united in their faith in the ILO’s Experts to interpret the relevant conventions and the right to strike that they have for decades concluded lies within them. The employers, too, have maintained a united front, possibly as an experiment to see how far aping the international solidarity of trade unions will get them. The governments, which in situations like this inevitably hold the balance of power, are fairly evenly split, and unless that changes, the impasse will probably continue for some time.
While the ILO’s supervisory function is stuck in limbo, the confusion is creating space for moves against workers’ rights. In Cambodia, where strikes and protests are regularly met by violence and persecution from authorities, employers distributed an ‘educational’ document relying on the absence of the right to strike and asserting the right of employers to use Cambodia’s national laws – considerably less sympathetic to workers – against strike leaders. Similar examples have been reported in Burma and even Spain, despite the fact the right to strike is also written into the European Convention on Human Rights.
A number of highly controversial Free Trade Agreements are in negotiation, most notoriously the USA-EU agreement known as TTIP (Transatlantic Trade & Investment Partnership). The current dispute casts doubt on whether one of the few possible benefits of TTIP – enshrining labour rights based on ILO standards – would contain genuine trade union rights for American and European workers.
In the UK, Conservative proposals to introduce new legal restrictions on strike activity have been savaged by Vince Cable, labeling them “entirely ideologically-led” and “a brutal attempt to strangle the basic rights of working people in this country.”
The allies of the employers grow thin. Last week the European Parliament debated the ILO situation, and the only friends that the Conservatives could find in their espoused denial of an international right to strike were from UKIP and Greece’s extreme right party Golden Dawn. The rest of Europe’s political spectrum – including the centre-right European People’s Party and Vince Cable’s allies in the ALDE group, as well as socialists, greens and communists – lined up to offer their support for the workers’ position.
In the ILO’s constitution, it says that when there is a deadlock like this, a matter can be referred to the International Court of Justice, to provide a definitive interpretation of the Conventions in question. Although employers originally suggested going to the ICJ for a ruling, when the workers’ group called their bluff and agreed, the employers quickly changed tack. Instead they have proposed a number of options all of which again ignore the 60 years of consensus in their search for some new agreement.
Some governments – including the Latin Americans and the Europeans, even the UK – agree with the idea of reference to the ICJ as a last resort. African and Asian governments are not persuaded, which is why the ITUC is running a day of action today, to persuade them to back our case at the ILO Governing Body meeting next month. TUC General Secretary Frances O’Grady has today written to Vince Cable as Business Secretary urging him to maintain the UK government’s helpful approach.
Until this issue is settled, rotten employers and complicit governments around the world continue to take comfort from the absence of supervision. As workers’ rights are ignored in countries such as Colombia, Qatar, Cambodia and Swaziland, the employers’ desperate attempt to rewrite history is giving them a free pass.