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Governing Body 323Rd Session, Geneva, 12–27 March 2015 GB.323/INS/5/Appendix III

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Governing Body 323Rd Session, Geneva, 12–27 March 2015 GB.323/INS/5/Appendix III INTERNATIONAL LABOUR OFFICE Governing Body 323rd Session, Geneva, 12–27 March 2015 GB.323/INS/5/Appendix III Institutional Section INS Date: 13 March 2015 Original: English FIFTH ITEM ON THE AGENDA The Standards Initiative – Appendix III Background document for the Tripartite Meeting on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right to strike and the modalities and practices of strike action at national level (revised) (Geneva, 23–25 February 2015) Contents Page Introduction ....................................................................................................................................... 1 Decision on the fifth item on the agenda: The standards initiative: Follow-up to the 2012 ILC Committee on the Application of Standards .................. 1 Part I. ILO Convention No. 87 and the right to strike ..................................................................... 3 I. Introduction ................................................................................................................ 3 II. The Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) ......................................................................... 3 II.1. Negotiating history prior to the adoption of the Convention ........................... 3 II.2. Related developments after the adoption of the Convention ........................... 5 III. Supervision of obligations arising under or relating to Conventions ......................... 6 III.1. Committee of Experts on the Application of Conventions and Recommendations ..................................................................................... 6 III.2. Conference Committee on the Application of Standards ................................. 9 III.3. Complaints as to the infringement of freedom of association .......................... 14 This GB document is printed in limited numbers to minimize the environmental impact of the ILO's activities and processes, contribute to climate neutrality and improve efficiency. GB members and observers are kindly requested to bring their copies to meetings and to avoid asking for additional ones. All GB documents are available on the Internet at www.ilo.org. GB.323/INS/5/Appendix III III.4. Article 24 representations and article 26 complaints as to the observance of ratified Conventions .................................................................. 17 IV. Rules of international law on treaty interpretation ..................................................... 18 Part II. Modalities and practices of strike action at the national level .............................................. 21 I. Legal and constitutional protection of strike action at the national level ................... 21 1. National legal frameworks for strike action: Constitutions, general legislation, specific legislation, common law recognition .................. 21 2. National definitions of strike action ................................................................. 23 II. Scope and restrictions of strike action at the national level ....................................... 28 1. Categories of workers excluded ....................................................................... 28 2. Determination of essential services at the national level ................................. 33 3. Restrictions on strikes during the term of a collective agreement ................... 34 4. Declaring a strike unlawful or postponing strike action .................................. 35 5. Compensatory guarantees ................................................................................ 36 III. Modalities of strike action at the national level.......................................................... 36 1. Prerequisites ..................................................................................................... 36 2. Strike ballot requirements ................................................................................ 38 3. Minimum service: Conditions, modalities and mechanisms for determining the minimum service .............................................................. 39 IV. The course of the strike .............................................................................................. 41 1. Picketing, occupation of the workplace, access to the enterprise/ prohibition of violence and freedom to work of non-striking workers ............ 41 2. Requisitioning of strikers and hiring of external replacement workers ........... 42 V. Compulsory arbitration .............................................................................................. 43 VI. Consequences of strike action at the national level .................................................... 44 1. Breach or suspension of contract ..................................................................... 44 2. Wage deductions .............................................................................................. 45 3. Sanctions for unlawful strikes .......................................................................... 46 VII. Statistics of strike action over time and countries ...................................................... 47 Appendices I. Modalities and practices of strike action at the national level .............................................. 49 II. Statistical data on strike action and lockouts extracted from the ILO statistical database ................................................................................................... 131 ii GB323-INS_5-Appendix III_[CABIN-150311-1]-En.docx GB.323/INS/5/Appendix III Introduction This document is set out in two parts and has been prepared in the context of the follow-up to the decision taken by the Governing Body at its 322nd Session (30 October–13 November 2014) which is reproduced below. It is intended to assist the tripartite constituents and to facilitate the discussion at the meeting in the context of point 1 of the decision. Decision on the fifth item on the agenda: The standards initiative: Follow-up to the 2012 ILC Committee on the Application of Standards Further to the wide-ranging discussion held under the fifth item on the agenda of the Institutional Section, the Governing Body decided to: (1) convene a three-day tripartite meeting in February 2015, open to observers with speaking rights through their group, to be chaired by the Chairperson of the Governing Body and composed of 32 Governments, 16 Employers and 16 Workers with a view to reporting to the 323rd Session (March 2015) of the Governing Body on: ■ the question of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right to strike; and ■ the modalities and practices of strike action at national level; (2) place on the agenda of its 323rd Session, the outcome and report from this meeting on the basis of which the Governing Body will take a decision on the necessity or not for a request to the International Court of Justice to render an urgent advisory opinion concerning the interpretation of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in relation to the right to strike; (3) take the necessary steps to ensure the effective functioning of the Committee on the Application of Standards at the 104th Session of the International Labour Conference, and to this end reconvene the Working Group on the Working Methods of the Conference Committee on the Application of Standards to prepare recommendations to the 323rd Session of the Governing Body in March 2015, in particular with regard to the establishment of the list of cases and the adoption of conclusions; (4) defer at this stage further consideration of the possible establishment of a tribunal in accordance with article 37(2) of the Constitution; (5) as part of this package, refer to the 323rd Session of the Governing Body the following: (a) the launch of the Standards Review Mechanism (SRM), and to this effect establish a tripartite working party composed of 16 Governments, eight Employers and eight Workers to make proposals to the 323rd Session of the Governing Body in March 2015 on the modalities, scope and timetable of the implementation of the SRM; (b) a request to the Chairperson of the Committee of Experts on the Application of Conventions and Recommendations (CEACR), Judge Abdul Koroma (Sierra Leone), and the Chairperson of the Committee on Freedom of Association (CFA), Professor Paul van der Heijden (Netherlands), to jointly prepare a report on the interrelationship, functioning and possible improvement of the various supervisory procedures related to articles 22, 23, 24 and 26 of the ILO Constitution and the complaints mechanism on freedom of association. (Document GB.322/INS/5(Add.2), paragraph 1, as amended according to the discussion.) Part I of the document provides a factual background on Convention No. 87 and the right to strike starting from the circumstances of its adoption and subsequent experience in its supervision. It then presents relevant elements of the rules of international law on treaty interpretation, in particular the 1969 Vienna Convention on the Law of Treaties. GB323-INS_5-Appendix III_[CABIN-150311-1]-En.docx 1 GB.323/INS/5/Appendix III Part II provides a broad overview of modalities concerning strike action at the national level in both law and practice. The tripartite constituents will be keenly aware of the importance for the ILO of the issues under
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