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labor Will Fundamental Workers’ Rights also Fall Victim to COVID-19?

"Where human rights are the compass, we will be better placed to overcome this pandemic and build resilience for the future”. This includes the right to freedom of association, and to strike, without fear of retaliation.

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With a global recession on the horizon, workers around the world are at the very beginning of a crisis of unknown proportions and ramifications, AP/Bernat Armangue

The COVID-19 pandemic has exposed in stark terms the fact that our economies are built on the systematic exploitation of workers, whether at our local grocery store or in distant farms, factories and offices producing food, clothing and other necessary goods and services. These workers were already in a difficult situation before the pandemic, working for low pay and often hired through unstable non-standard forms of employment or in the informal economy. Now, tens of millions of workers face layoffs, and many of those who do not have the luxury of teleworking are now in workplaces that are putting their health, and indeed, their life at risk in order that essential goods and services are available to the public. This crisis has also highlighted major shortcomings in labour market institutions in many countries, including national and sectoral collective bargaining coverage – which shrank significantly after the 2008 financial crisis.

Since the global outbreak of COVID-19, workers around the world have resorted to strikes to protect themselves. Self-organised groups of food delivery riders, Instacart shoppers and Amazon warehouse workers have been among those demanding fit-for-purpose personal protective equipment (PPE) and workplace safety measures. Workers like Chris Smalls, an Amazon warehouse worker in Staten Island, New York, organised a work stoppage over the lack of protective gear and hazard pay, and was predictably fired. Indeed, the demand for access to adequate PPE and hazard pay is the major motivation for strikes, including Carrefour workers in Belgium, doctors, nurses and lab technicians in Lesotho and garment workers in Myanmar.

Trade unions are also working to shape national policy. In Italy, for example, the three major national trade union centres unanimously threatened to call a general strike if the government did not drastically reduce the number of economic activities deemed ‘essential’, which led to the government significantly cutting the list following negotiations with the social partners.

At the same time, many governments are enacting emergency measures to restrict the right to speech, assembly and association – including the right to strike. Portugal became the first country in Europe to prohibit strikes in economic sectors vital to the production and supply of essential goods and services to the population and indeed ordered striking dockers at Lisbon’s port back to work on 18 March. In April, Cambodia issued a far-reaching law that gives the prime minister sweeping powers which could certainly be used to prohibit strikes. In Myanmar, while workers are still riding packed transportation to report for work in factories, the government passed an indefinite measure to ban meetings of more than five people which, like in Cambodia, threatens to be less about protecting public safety and more about limiting rights. And, several countries have formally registered derogations from their treaty obligations to respect freedom of association, including Ecuador and Estonia (to Article 22 of the International Covenant on Civil and Political Rights, ICCPR) and Albania (to Article 11 of the European Convention on Human Rights, ECHR).

Workers’ right to strike in emergencies under international law

The right to strike has been firmly established in international and regional legal instruments for decades. These include Convention 87 of the International Labour Organization (ILO), the International Covenant on Economic, Social and Cultural Rights (Article 8) and the ICCPR (Article 22) at the global level, and the ECHR (Article 11) and the American Convention on Human Rights (Article 16) at the regional level. Indeed, the right to strike is now recognised as customary international law. While governments can derogate from certain legal obligations during public emergencies “threatening the life of a nation,” they can do so only to the extent strictly required by the exigencies of the situation.

The ILO’s tripartite Committee on Freedom of Association (CFA) has held that a general prohibition of strikes can only be justified in the event of an “acute national emergency” and then only for a limited period and to the extent strictly necessary to meet the requirements of the situation. This means a genuine crisis, such as those arising as a result of a serious conflict, insurrection or natural, sanitary or humanitarian disaster, in which the normal conditions for the functioning of society are absent. Even in such situations, responsibility for suspending a strike on the grounds of public health should not lie with the government, but with an independent body which has the confidence of all parties concerned.

While the COVID-19 public health crisis may qualify as an acute national emergency, it is also evident that outright strike prohibitions would not be strictly necessary to meet the requirements of the situation, especially where other restrictions, such as minimum operational services or limits on physical gatherings and picketing, are available. Further, freedom of association provisions in other international instruments already provide exceptions to maintain public order or public health making derogations unnecessary and disproportionate. Indeed, the inability of trade unions to easily call their members out on strike in situations where they are compelled to work in unsafe work environments may even exacerbate the public health crisis.

Having concluded that blanket prohibitions of strikes during a public health crisis are likely to be disproportionate even where the aim is legitimate, it is important to look at what types of strike actions and restrictions are permissible under international law.

The CFA has consistently held that strikes are “essential means available to workers and their organizations to protect their interests”. This would necessarily mean that strikes to demand adequate PPE, a safe workplace or the closure of non-essential businesses would fall well within this scope of protection. The right to take collective action over occupational safety and health issues is also intrinsically linked to the right of workers to remove themselves from dangerous work without fear of retaliation. This right, enshrined in ILO Convention 155 is especially important for workers in non-standard forms of employment who may not enjoy the right to freedom of association and are in any event 50 per cent less likely to be in a union than workers in open-ended contracts.

In terms of strikes to put pressure on governments to introduce fiscal and monetary support packages, the CFA has held that workers may engage in collective action, including protests and strikes over matters beyond the traditional ambit of wages and conditions of work. So long as the strike is not “purely political” in nature, such as an insurrection, the CFA has stated that, “organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and all workers in general, in particular as regards employment, social protection and standards of living.” While it has not yet had occasion to consider a strike over economic and workplace responses to a pandemic, it is clear that the CFA is likely to find such strikes to be protected.

The right to strike in essential services

Governments around the world have been publishing lists of workers who provide ‘essential services’ and can therefore continue to go to work despite general lockdown measures. While the aim of such lists is to ensure the functioning of critical supply chains and public services during the pandemic, key workers risk having their right to strike restricted for the duration of the designation period. The ILO has held that strikes could be restricted or even prohibited in essential services “whose interruption would endanger the life, personal safety or health of the whole or part of the population”. What is meant by essential services in the “strict sense of the term” will depend on the particular circumstances prevailing in a country.

However, any restriction on the right to strike in essential services should be accompanied by compensatory guarantees, including adequate, impartial and speedy conciliation and arbitration proceedings. Alternatively, minimum operational requirements may also be negotiated or required in essential services in the strict sense of the term. The CFA has previously found that the decision adopted by a government to require a minimum service in the Animal Health Division, in the face of an outbreak of a highly contagious disease, did not violate the principles of freedom of association. It is nevertheless paramount that workers’ and employers’ organisations must be able to participate in determining the minimum services which should be ensured. Administrative authorities regulating strikes in essential services should also not overstep their mandates in a time of crisis, especially where the law permits unions to dispense with notice requirements in the event of a serious threat to the health and safety of workers.

The UN Special Rapporteur on the rights to peaceful assembly and of association, Clément Voule, has explained in a recent statement that: “Where human rights are the compass, we will be better placed to overcome this pandemic and build resilience for the future”. This includes the right to freedom of association, and to strike, without fear of retaliation. We agree.

We fully recognise the severity of the COVID-19 public health crisis and acknowledge that international law permits governments to exercise emergency powers, within limits, in response to such situations. However, governments simply cannot prohibit outright the right to strike or enact other disproportionate restrictions, which will certainly have a chilling effect on the right to freedom of association. Indeed, the right to strike is perhaps more important during this emergency, in order to be recognised as a worker, to hold employers to account over failures to provide protective equipment, to contest sweeping layoffs or, as a last resort, to demand wages owed and other benefits. And, we need the right to strike to press governments to enact laws extending social protection, including wage and income support. None of this will happen on its own, without working people organising to make it happen.

Ruwan Subasinghe is Legal Advisor to the International Transport Workers’ Federation (ITF).

Jeff Vogt is the director for the Solidarity Center’s Rule of Law department and was previously the legal director of the International Trade Union Confederation (ITUC).