The International Court of Justice has just resolved a 14-year dispute over workers’ right to strike – giving trade unions worldwide a significant win.
In a historic decision late last week, the court issued an advisory opinion that the right to strike is protected by a United Nations treaty, the International Labour Organization’s Freedom of Association and Protection of the Right to Organise Convention (also known as convention 87).
The new court decision does not mean we’ll suddenly see outbreaks of strike action all over the world.
However, it does matter right around the world – particularly in 158 countries that have ratified convention 87, including Australia, Canada, Indonesia and the United Kingdom.
A fight triggered by an employers’ ‘strike’
The International Labour Organization (ILO) is unique among the United Nations’ agencies because of its “tripartite” (three part) membership: with representatives from member states, trade unions and employer groups.
In 1948, the ILO adopted convention 87. All the countries that have since formally adopted the convention (a process called “ratification”) committed themselves to protecting freedom of association and the right to organise in their own domestic laws.
The convention made no explicit reference to the right to strike. Yet for decades the ILO’s supervisory bodies – which supervise the implementation of convention obligations – said that the convention did protect the right to strike.
Why? That view was based on the wording of the convention, stating workers have the right to form their own associations and organise their own programmes and activities. Strike action was interpreted as one of those protected activities.
But in 2012, the ILO’s employer representatives decided that longstanding interpretation was wrong – so they staged a “strike” of their own.
For the past 14 years, the employer representatives have refused to cooperate with ILO supervisory processes considering if countries are complying with convention 87 when the right to strike was involved.
Since 2023, that stalemate has been before the International Court of Justice – which is the court which has the power to interpret ILO conventions.
Last week, the court’s judges voted ten to four in favour of the unions’ argument, concluding “the right to strike of workers and their organizations is protected” under the convention.
What was at stake
While countries aren’t legally bound to follow International Court of Justice’s advisory decisions, like this one, they do still carry significant legal and political weight worldwide.
The ILO is the only place in international law where trade unions can make formal complaints if a country is not respecting its obligations to protect the right to strike.
All of that was at risk if the International Court of Justice had made a different decision. A finding that went the other way – in favour of the employers’ case – would have weakened the right to strike worldwide.
Last week’s court finding was a huge win for the international trade union movement.
Australia shows why it matters
The advisory opinion is particularly significant for the 158 nations that have ratified convention 87. Here’s an example of why.
Australia used to be thought of as a country with high rates of strike action.
However, since Australia legislated for a right to strike in 1993, that has stopped being true. In fact, over recent decades, strike action in Australia has stayed as low as it has ever been.
Strike rates in Australia are so low partially because it is harder than people realise to take lawful strike action here.
Since 1993 when a legislated right to strike was introduced, the laws that say when you can strike legally have got tighter and tighter, and the hurdles unions have to jump have got higher and higher.
Even when unions can satisfy the rules around when they can strike, it is easy to get it wrong. When that happens, they can lose the right to strike altogether.
That may sound like a good thing, especially if you’ve ever been caught in a train worker strike, or had to keep children home during a teachers’ strike.
But not being able to strike significantly weakens all workers’ bargaining power. When the cost of living rises and wages don’t keep up, employees end up financially worse off than before.
Read more:
Real wages have gone backwards. Even earning $100,000 isn’t what it used to be
What it could mean long term
Like a lot of other nations, Australia won’t see any instant impacts of this new international court advisory opinion.
However, the court’s finding does mean the ILO is no longer stuck in a deadlock. The ICJ decision means that the ILO supervisory bodies can start scrutinising Australia’s strike laws again.
It also means Australian unions have a better chance of bringing complaints about our laws to the ILO – and being successful.
That potential for increased international scrutiny may help shift the dial on Australia’s highly restrictive strike laws.
This is a good thing for workers. A healthy industrial relations system needs a well-protected, accessible right to strike.
