GLI PROTECTING WORKER SOLIDARITY ACTION: A CRITIQUE OF INTERNATIONAL LABOUR LAW BY PAUL GERMANOTTA
Paul Germanotta lives in Geneva and works as an attorney and trade union consultant. He is a research associate of the Global Labour Institute. The Global Labour Institute is a labour service organisation established in 1997 in Geneva. Its purpose is to support the efforts of the labour movement to deal with the globalisation of the world economy and its social and political consequences and, to this end, to strengthen links and networks between trade unions and other civil society organisations with similar or converging interests, particularly in the defence of human and democratic rights and social justice in all its aspects. Its Board includes general secretaries of international trade union, labour education and solidarity organisations. It is self-financed through income generated from services provided by its staff. Its address is: Global Labour Institute, Avenue Wendt 12, CH1203 Genève, tel/fax: (+41 22) 344 63 63, email: gli@iprolink.ch, website: http://www.global-labour.org.
ISBN 1 873271 95 6 June 2002 published by the Institute of Employment Rights 177 Abbeville Road London SW4 9RL 020 7498 6919 e-mail ier@gn.apc.org www.ier.org.uk printed by Upstream (TU) 020 7207 1560 £6.50 for trade unions and students £20 others THE
INSTITUTE OF
EMPLOYMENT RIGHTS
This joint publication, like all publications of the Institute, represents not the collective views of the Institute and GLI but only the views of the author. The responsibility of the Institute and GLI is limited to approving its publication as worthy of consideration within the labour movement.
contents
foreword
iv
executive summary
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CHAPTER ONE
international solidarity: an essential tool in a global economy
1
on the need for effective and unfettered worker solidarity action 1 the ILO: worker organisation and international solidarity 2 CHAPTER TWO
restrictions on solidarity action in national laws
4
CHAPTER THREE
ILO standards and worker solidarity action
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the ILO supervisory committees and the right to strike 7 restrictions on solidarity action under ILO jurisprudence 9 the ILO’s basic principle on solidarity action 10
protecting worker solidarity action
CHAPTER FOUR
ii
ILO supervision of standards on solidarity action the exclusive focus on bans and prohibitions inattention or satisfaction? the lack of conceptual development other sources of international law on solidarity action
13 13 15 16 22
CHAPTER FIVE
how should international worker solidarity action be protected? 27 new principles: according broad, expansive protection for worker solidarity action 28 new principles: the question of the legality of the action being supported 29 the critical connection with the primary dispute: the common, and overriding, interest of workers as workers 31 perspectives on the connection between solidarity action and the primary dispute 32 new principles: shielding solidarity action from its impact on commercial contracts and from the constraints of collective labour arrangements 36 summary of proposed principles of international law on solidarity action 37 other models to consider in the elaboration of international principles on solidarity action 39 CHAPTER SIX
building and strengthening trade union capacities for solidarity action 41 on recognition of the need for technical and material resources the ILO: building trade union capacities for solidarity action
41 47
CHAPTER SEVEN
conclusion
49
convention 87, Freedom of Association and Protection of Right to Organise
52
endnotes
55
recent Institute publications
60
contents
APPENDIX
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foreword
It is rare in our time that the right of workers to form unions and to engage in collective bargaining is openly challenged, although it is often voided in fact. In trying to exercise this right, workers in many countries face the imposition of state control, legal obstacles of all kinds and repression in various forms, ranging from punitive dismissal to murder. Yet, the right to organise is internationally recognised as a basic human right. Why should that be? There are two principles involved, one quite specific, the other more general.
protecting worker solidarity action
The first is an issue of natural justice: it is obvious to everyone that the power of the individual worker, compared with that of his or her employer, or of the State, is negligible. Without organisation the individual worker is defenceless. Only if workers are able to form “continuous associations for the purpose of maintaining or improving the conditions of their working lives” can they create, in the best of cases, a more equal balance of power. And with this power, a possibility of effectively defending the freedom and dignity of the individual worker in the only way: through collective action.
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The second principle is that of solidarity, which is rooted in all leading world cultures as a fundamental condition for social cohesion and therefore a universal principle that has to be supported and protected. “All for one, one for all” is as much a principle of the trade union movement as of the Swiss Confederation. Or, as Paul Germanotta puts it: “every struggle faced by workers anywhere has a direct and immediate bearing upon the interests of
workers everywhere, given that they are members of the same economic class in the same global economic system.” For these same reasons, the right to strike has also been internationally recognised as a basic human right, an intrinsic part of union rights. The strike has been described as a continuation of bargaining by other methods. It is an intrinsic part of the bargaining process. People who are talking about prohibiting strikes are really talking about prohibiting collective bargaining and, ultimately, prohibiting unions, at least free and democratic unions owned by the workers themselves. Without the right to strike, collective bargaining is collective begging. It is remarkable, however, that whilst strike action is recognised as a basic human right, one of its forms, the solidarity strike, is not. A basic human right is by definition unconditional. Yet in many countries, including most leading industrial democracies, the right of workers to strike in solidarity with other workers is criminalised, or hedged with so many conditions as to make its exercise practically impossible without breaking the law of the land. Here we have a unique case of a basic human right, which ceases to be basic except in its narrowest applications.
The second problem is pragmatic. In an increasingly globalised world economy the right to form unions and the right to strike must also be global in application. The principle of solidarity applies to all workers in all countries without exception. Today it is no longer possible to correct the huge imbalance of power between national labour and transnational capital unless union
foreword
There are two problems with this. The first is a problem of democratic principle: who imposes these conditions and by what right? If the right to strike, as the ILO has said, is “one of the principal means by which workers and their associations may legitimately promote and defend their economic and social interests”, who defines what these economic and social interests are, if not the workers themselves? And who decides by what means they are to be defended if not the workers themselves? The international community no longer accepts that men should decide the rights of women, nor that cultural majorities should unilaterally define the rights of minorities living in their midst. Yet it accepts that the rights of a majority of the world’s population should arbitrarily be restricted by powerful minorities opposed to its interests.
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organisation and action also becomes global in scope. In a global world economy, it is precisely the ability to engage in international solidarity action that is the most necessary and relevant application of the right to strike. In my experience, two examples stand out. First, in 1973 the IUF organised international solidarity action to protect a union in Peru from a union-busting attempt by Nestlé, backed by the threat of military intervention, which could have lead to bloody confrontation. Although this action involved many countries, it was not before the New Zealand Dairy Workers’ Union threatened to shut down the Nestlé plant which supplied powdered milk to all Nestlé plants on the Latin American Pacific Coast that the company abandoned its attempts to break the union and signed an agreement that continues to this day. Second, in 1980 and 1984, it took solidarity strikes in Australia, Finland, Norway, Sweden and Venezuela, in combination with national boycotts in several countries, to save a union in a Coca Cola bottling plant in Guatemala, where the franchise holder had tried to prevent union organisation by having the union leaders assassinated. The union still exists and has an agreement with the bottling company under a new owner. International union action upholds and enforces basic human rights by compensating for the weakness of local unions faced with the power of a transnational corporation. International union action also saves lives.
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In this booklet Paul Germanotta has made an inventory of the multiple ways in which solidarity action is restricted, and has outlined what needs to be done to protect workers seeking to exercise their right to strike where, in the context of a global economy, it matters most: at international level. The Global Labour Institute and the Institute of Employment Rights are proud to contribute this contribution to a necessary discussion.
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Dan Gallin Chair, Global Labour Institute
executive summary
This paper takes a critical look at the International Labour Organisation (ILO) standards on worker solidarity action. It looks particularly at the body of jurisprudence elaborated through the observations and decisions of the ILO supervisory committees under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and ILO principles of freedom of association, as codified in their digests of decisions and principles and in their general surveys on the position of law and practice of ILO Member States. It also contributes to the discussion about the critical need for technical and material resources to help trade unions and their members develop the capacity to design, develop and put into effect strategic models of international solidarity.
The paper then goes on to consider the more commonly-used restrictions placed on international solidarity action and discusses each in turn. It concludes that it matters not whether a common or single employer is involved; whether targeted companies are related to or connected in some way with one another; whether workers carrying out solidarity action are directly affected by the primary dispute or the matters giving rise to it; or whether they share a common interest or connection with the workers with whom they are extending solidarity. Nor does the extent of the economic impact on companies involved, or the impact on commercial con-
executive summary
The central premise of the booklet is that, in a globally-integrated capitalist economy, workers need strict legal protection for industrial action (sympathy strikes, secondary boycotts, blockades, etc) having international solidarity as its object; that is, action which is offered, sought or carried out by workers in one country (or more) for the purpose of supporting workers in struggle in another.
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tractual relations that may exist between or among them, or the indirect or ancillary effect on the terms or operation of the solidarity strikers’ own collective agreement or contracts of employment, have sufficient importance to warrant a restriction of the legal protection to which solidarity action is entitled. For purposes of this discussion, worker solidarity action is seen as a natural outgrowth of the labour movement, and an essential tool for advancing its social, political, organisational, and ideological objectives in a globally integrated capitalist economy. The terms “solidarity” and “sympathy” are given a plain meaning and are used interchangeably. The terms “workers” and “trade unions” are used interchangeably, although only one or the other may be applicable, depending on how the national law in a given country defines the underlying right to strike and to whom it assigns that right.
protecting worker solidarity action
While it is argued that strikes having solidarity objectives should enjoy strict and unconditional protection, it is the author’s view that industrial action is in other respects entitled to the same overriding legal protection. It is beyond the scope of the present discussion, however, to focus on the question of legal principles as they relate to restrictions on other aspects of strike action (such as methods and forms of action, for example), or on other strike objectives, such as are those that are broadly social or political. These are important questions that need a separate discussion.
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