There can be no compromise on the right to strike
October 23, 2014
by Ruwan Subasinghe
“It is good to finally shake your hand; the last time I saw you, I was in prison”.
Members of the Korean Railway Workers’ Union are facing a maximum of five years in prison and millions of US dollars in damages for “obstructing business” by going on strike.
These were the poignant words Myoung-hwan Kim, President of the Korean Railway Workers’ Union (KRWU), greeted me with when we met at the International Transport Workers’ Federation’s (ITF) 43rd Congress in Sofia earlier this year.
Indeed, the last time we spoke, we had to do it through a prison intercom system as Kim, along with other leaders of the KRWU, was being detained for organising a strike in opposition to rail privatisation. Despite complying with all ‘essential services’ requirements under Korean law, the authorities declared the action illegal even before it began.
Kim and his colleagues are now facing so-called ‘obstruction of business’ charges which carry a maximum sentence of five years in prison or a fine not exceeding 15 million won (US$ 14,000).
Furthermore, the state rail operator is pursuing a damages suit against the union and its leaders for 16.2 billion won (US$16 million) together with separate proceedings for alleged “damage to brand value” amounting to 1 billion won (US$990,000).
These legal actions are just the tip of the iceberg.
Hundreds of strikers have been dismissed or relocated and the union’s assets have been seized by the authorities.
All this simply because the KRWU sought to defend its members from an ill-conceived privatisation drive that would have heavily diluted terms and conditions of employment.
What this example illustrates is that despite being a fundamental human right enshrined in international law, the right to strike is certainly not guaranteed for all workers.
In fact, transport workers are one of the groups increasingly being excluded from the right to strike by way of outright bans or public service, essential services or minimum services requirements that severely limit that right.
The ITF has been called on time and time again to provide solidarity support and legal assistance to affiliates who have had their right to strike curtailed.
Following a fatal train accident in 2009, the State Railway Workers’ Union of Thailand (SRUT) launched an occupational health and safety initiative and called on its members to abstain from driving trains with faulty equipment.
Without even attempting to address the grave issues at hand, the authorities cracked down on the initiative by conveniently labelling it a ‘strike’, a right denied to all public sector workers in Thailand.
Thirteen SRUT leaders were subsequently dismissed and had damages suits filed against them for 15 million baht (US$ 462,000).
In another recent dispute, 316 members of the Turkish Civil Aviation Union were dismissed by text message following a coordinated sick leave action taken in response to the Turkish government’s decision to add aviation services to the list of industries where industrial action was prohibited.
Turkey currently has one of the worst rates in the International Trade Union Confederation’s (ITUC) Global Rights Index.
Convention 87
It is quite clear from these examples that the critical economic role of transport is being used as a pretext to defend the free movement of passengers and goods beyond the rights of people involved in the transportation itself.
This trend is especially concerning as transport workers, including those employed in aviation, trucking and commercial seafaring, have some of the most dangerous jobs in the world.
This is why the protection of the right to strike under Convention 87 of the International Labour Organization (ILO) and its enforcement through the ILO’s supervisory mechanisms is particularly important for transport workers.
For over 60 years the ILO’s Committee of Experts and Committee on Freedom Association have recognised a limited right to strike under Article 3 of Convention 87.
Not only have these supervisory bodies acknowledged the right, they have developed clear principles which have subsequently been relied on by national and regional courts.
For example, it has been unequivocally held that the right to strike may only be restricted or prohibited in the public service for those exercising authority in the name of the state or in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population).
Furthermore, it has also been held that transport generally does not constitute an essential service and that minimum operational services can only be applied to non-essential services in very limited circumstances.
Notwithstanding this extensive jurisprudence, the Employers’ Group at the ILO has since 2012 been doing its best to undermine the authority of the ILO’s supervisory mechanisms. Not only has it questioned the mandate and capacity of the Committee of Experts, it has challenged the very existence of a right to strike under Convention 87.
The Employers’ continued intransigence has left the Workers’ Group no alternative but to call on the ILO’s Governing Body to seek an advisory opinion from the International Court of Justice (ICJ) on the question of the existence of a right to strike.
As elaborated in detail in the ITUC’s excellent briefing on the legal foundations of the right to strike, there is little doubt that the ICJ will recognise the right’s protection under Convention 87.
However, a majority of the Governing Body is required to move the resolution in favour of a referral to the ICJ. It is therefore imperative that we call on all governments to vote accordingly at the next session of the Governing Body in November 2014.
Railway personnel in Korea and Thailand, Turkish flight attendants and workers all around the world depend on it.
There can be no compromise on the right to strike. There can be no compromise on human rights.
To join the ITF Campaign to Defend the Right to Strike, please visit here.
First published at Equal Times