Right to strike
Although Article 151 of the Treaty on the Functioning of the European Union (TFEU) states that ‘[t]he Union and the Member States (…) shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained (…)’, Article 153(5) TFEU explicitly excludes the right to strike from the provisions over which the Union has competence to legislate. Yet strike action is one of the fundamental means available to workers and their organisations to promote their economic and social interests. It is the most visible and controversial form of collective action in the event of industrial dispute and is often seen as the last resort of workers’ organisations in pursuit of their demands. The right to strike is explicitly recognised in the constitutions and/or laws of many countries. It can take many forms, from the complete withdrawal of labour for an indefinite period to more restricted forms of protest.
At EU level, the right to strike is enshrined in Article 28 of the Charter of Fundamental Rights of the European Union (139Kb PDF) (entitled ‘Right of collective bargaining and action’):
Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.
All workers, regardless of the nature of the employer, whether public or private, are entitled to this right to take collective action. This formulation can be read as recognising the right to strike. If collective action includes strike action, and the former is qualified as a right, then the latter must also be a right. However, the right to strike is not without limits. In the cases of Viking (88Kb PDF) and Laval (99Kb PDF), the European Court of Justice (ECJ) held that while recognising the right to strike, this may still represent a restriction on the freedom to provide services and thus could only be conducted under EU law where it was to pursue a legitimate aim and was justified by overriding reasons of public interest. However, a less restrictive position was taken in a case heard before the European Court of Human Rights (ECHR) in 2008. In Enerji Yapi-Yol Sen v. Turkey (Application No. 68959/01), the court held that while the right to strike was not absolute and might be subject to certain restrictions, a law that banned strikes would represent too wide a restriction.
The issue is thus not whether the right exists, but how it is exercised and whether there are limits on the modality of engaging in the conflict of interests. An outright prohibition of strike action in the totality of public services could not be in conformity with the right declared in Article 28, particularly given the decision in Enerji Yapi-Yol Sen v. Turkey. Those laws which forbid strikes by certain categories of civil servants are not likely to meet the standard set out by the ECHR.
A right to strike is not explicitly provided nor regulated in the ILO Constitution nor in any of the ILO Conventions. The Committee of Experts on the Application of Conventions and Recommendations (CEACR), composed of 20 legal experts appointed by the Governing Body for three year terms, supports the ILO via a preliminary technical examination of the compliance with ILO standards. The annual report of the CEACR is tabled to the Committee on Application of Standards (CAS). The CAS is a tripartite body made up of government, employer, and worker representatives which examines the CEACR report and then introduces a number of issues for general discussion. The CAS also draws up conclusions and recommendations addressed to governments and inviting them to take specific actions. In 2013, the employer representatives in the CAS explicitly stated that they did not concur with the recommendations of the CEACR, since they did not agree that there was a right to strike recognised in Convention 87.
The constitutions of some Member States have explicitly recognised the right to strike. In others, it is not explicit but implied, and in several it is not possible to speak of a right but only of a freedom to strike. The combined effect of Article 28 and the ECHR ruling may lead to a fundamental change in those national legal orders where this right is not given constitutional value or is not expressed at a constitutional level.
See also: Charter of Fundamental Rights of the European Union; collective industrial relations; European Social Charter; EU system of industrial relations; fundamental rights; Laval case; Monti Regulation; strike action at EU level; transnational industrial action; Viking case.