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Right to strike over social dumping backed by key ILO body
4 March 2010
The top legal body of the International Labour Organization (ILO) has ruled that judgements by the European Court of Justice (ECJ) in 2006 were contrary to the most fundamental ILO standard - convention 87 on freedom of association. The ECJ decided that the freedom to strike was overruled by the freedom of employers to establish themselves or provide services in other EU states.
The ILO Committee of Experts on the Application of Conventions and Recommendations in its 2010 report also asked that the UK government review its key industrial relations legislation, following its response to a submission made by the British Airline Pilots’ Association (Balpa), supported by the ITF.
The case referred to planned strike action in 2007 by Balpa against British Airways (BA) which proposed setting up an overseas-based subsidiary with lower standards. The strike was quashed a result of the company’s decision to request a court injunction against the union. BA stated that, based on two recent ECJ decisions - Viking and Laval - the action would be "disproportionate" and therefore illegal. The company threatened to claim damages amounting to £100 million per day if the union took strike action; Balpa decided not go ahead with the action and the matter was taken to court. The ILO committee strongly rejected the idea that proportionality could be used to limit freedom of association.
In its groundbreaking report, the committee also rejected the UK government’s argument that "the impact of ECJ decisions is limited since it only concerns cross border disputes whereas most disputes are purely domestic." It said that: "The Committee would observe in this regard that, in the current context of globalization, such cases are likely to be ever more common, particularly with respect to certain sectors of employment like the airline sector and thus the impact upon the possibility of the workers in these sectors of being able to meaningfully negotiate with their employers on matters affecting the terms and conditions of employment may indeed be devastating. The Committee thus considers that the doctrine that is being articulated in these ECJ judgements is likely to have a significant restrictive effect on the exercise of the right to strike in practice in a manner contrary to the Convention."
ITF general secretary David Cockroft commented: "The idea that industrial action must not be ‘disproportionate’ compared to the economic interests of an employer was devised by the ECJ judges in the Viking case, where the ITF and the Finnish Seamen’s Union were the principal defendants and continued on to Laval, where the target was the Swedish construction union and then to others. The term was used by BA when faced with the Balpa strike and last month by Lufthansa which was facing a similar strike by its pilots against a plan by the employer to set up overseas subsidiaries to undermine negotiated conditions at home. The ITF and its European arm, the ETF, together with our colleagues in other sectors, have been fighting the idea that employers’ freedoms outrank those of workers. It started in Europe but is spreading around the globe. That's why we are very pleased to see our position endorsed by the top ILO legal body and we will now work to see that it is reflected in all global and regional legal standard setting bodies.”
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