By Dr. Gyan Pathak
The workers’ ‘right to strike’ is being dragged to the scaffold to be guillotined, if possible, by 112thSession of the International Labour Conference (ILC) to be held in June 2024. The Governing Body of the International Labour Organisation, being uncomfortable by the dispute brought by its 14 regular Employer members, has to refer it to the International Court of Justice. The workforce and the trade unionism has just been pushed to a crossroad.
It is a matter of grave concern that the ILO Governing Body could not defend the Freedom of Association and Protection of the Right to Organise Convention of 1948 no. 87 even in the special two-day session held on November 10-11, 2023, held outside the governing body meeting concluded on November 9. It was a rare event, only the fourth in the history of ILO’s existence since 1919, the three others were held in September 1932, October 1935, and May 1970.
The very decision, by vote, of the Governing Body to refer the dispute to the International Court of Justice shows that a number of influential members overtly or covertly were in support of clipping the workers ‘right to strike’ or altogether guillotine it, and it was not a simple request of merely 14 Employer members. The Governing Body decided that it would consider appropriate follow-up action after receiving the advisory opinion of the International Court of Justice.
The special session was convened on the request of 14 Employer members of the Governing Body who had made a request on September 12, 2023, in order to decide on the urgent inclusion of the issue on the agenda of 112th Session of LIC. It was proposed that ILC adopt a Protocol to the ILO Convention no. 87, which would concern the right to strike or more broadly, industrial action. The adoption of the Protocol would authoritatively determine the scope and limits of the right to strike in the context of the 1948 convention.
The decision to refer the dispute to the International Court of Justice was a surprise since the 349th Session (30 October – November 9, 2023) of the Governing Body had just endorsed the proposed ILO integrated strategy for the promotion and implementation of the right to collective bargaining and requested the DG ILO to take into account its guidance in implementing the strategy and submit a progress report at its 352nd Session in November 2024.
What went wrong within 48 hours, that incapacitated the Governing Body to take decision on Convention no.87 of 1948 that deals with right to association and right to strike? The Composition of the Governing Body suggests that the 14 Employers were supported by a background lobby that wants curtailment of the rights of workers, including the right to association and right to strike.
The Governing Body is composed of 56 titular members and 66 deputy members. Titular members included 28 Governments, 14 Employers, and 14 Workers while deputy members include 28 Governments, 19 Employers and 19 workers. Ten of the titular government seats are permanently held by States of chief industrial importance – Brazil, China, France, Germany, India, Italy, Japan, the Russian Federation, the United Kingdom and the United States. The other Government members are elected by the Conference every three years, at least as per the rule book. However, no election has been held since June 2014, which shows a grave callousness prevailing the ILO. The Employer and Worker members are elected in their individual capacity.
It should be noted that for many years, the ILO Committee of Experts on the Application of Conventions and Recommendations, consisting of independent experts responsible for monitoring the application of ratified Conventions by Member States, has taken the view that the right to strike is a corollary to the right to freedom of association, and that, as such it is reorganized and protected by the Freedom of Association and Protection of the Right to Organise Convention, 1948, (no.87).
However, the Employers’ group began increasingly questioning Committee of Experts’ interpretation of Convention No. 87. The controversy gradually intensified and in 2012 gave rise to a major institutional crisis, with the Conference Committee on the Application of Standards being prevented for the first time from exercising its supervisory functions.
Under article 37 of the ILO Constitution, any question or dispute relating to the interpretation of Conventions can be referred for decision to the International Court of Justice. The article also provides for the possible appointment of a tribunal for the resolution of such disputes.
The issue of collective bargaining had come in May 2022 before the tripartite screening group, which had decided to place the strategy for promotion and implementation of the right to collective bargaining on the agenda of the Governing Body. It was included in March 2023 meeting, and now discussed in detail in the latest 349th Session of the Governing Body.
This is an important issue since trade unionism all over the world is in a great crisis, and increasingly being made ineffective by informalization of work in both the organized and unorganized sectors. Workers are increasingly losing their right to collective bargaining and becoming victim to exploitation by employers in numerous ways.
Workers have won the ‘right to strike’ after a great struggle and loss of lives. The first strike action in recorded history of humanity was recorded on November 14, 1152 BC under Pharao Ramses II in ancient Egypt. The artisans walked off their jobs because they had not been paid. Workers were made slaves for centuries until the Industrial revolution in 1830s when a true and widespread ‘workers consciousness’ emerged in Britain.
In 1842, the demands for fairer wages and conditions culminated into first modern general strike in England. Strikes became an important tool for collective bargain in the hands of workers in the 19th century across the industrialized world. In many parts of the globe, it was still considered criminal act, and the several theorists supported criminalization of strike action. However, in 20th century strike got legal recognition a tool but only through a recognized trade union, such as the US Steel recognition strike of 1901 and the subsequent coal strike of 1902.
In the first half of 20th century, about 40 per cent of the strikes were just for getting recognition for trade unions. ILO adopted the Convention No.87 in 1948 to protect the workers’ right to association and the right to strike, which is now under threat of being guillotined. Workers and trade unionism are under attack by anti-labour forces throughout the world including India. Since India is one of the 10 permanent members of the ILO Governing Body, it has a historical responsibility to protect workers of the world and within our country from unbridled exploitation by employers. (IPA Service)
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