An SA delegation has pushed back against narrowing the reading of an International Labour Organisation convention ruling the right to strike, telling the International Court of Justice (ICJ) that it is an intrinsic corollary of the freedom of association.
After years of institutional friction and a breakdown that stalled ILO supervision, the governing body referred the dispute about the convention to the ICJ, the principal judicial organ of the UN, for a definitive advisory ruling.
The ICJ is holding public hearings from Monday to Wednesday at the request of 20 countries and five international organisations for an advisory opinion on whether the right to strike is protected in terms of convention 87.
A favourable advisory opinion would rebuke states and employer groups that have sought to exclude strike rights from the convention, entrench SA’s postapartheid labour model in international law and limit domestic efforts to criminalise industrial action.
While the convention does not expressly refer to “strike”, it guarantees that workers may freely form and join trade unions to further and defend their interests, while respecting the law of any country.
It guarantees that workers and employers can establish and join organisations of their choosing. It defines “organisation” as any body of workers or employers formed to further and defend their interests.
“Each member of the ILO for which this convention is in force undertakes to take all necessary and appropriate measures to ensure workers and employers may freely exercise the right to organise,” the convention reads.
Protected under the convention
In its oral presentation on Monday, the SA delegation made the case that the right to strike was protected under the convention, specifically under article 3, which broadly protects the organisational autonomy of workers’ and employers’ bodies and bars state interference.
University of Cape Town professor of public law Halton Cheadle told the court the principle of freedom of association, which was recognised in the convention’s preamble, “forms the bedrock of a modern democratic state”.
Inherent in the principle of freedom of association, he said, was that it was regulated freedom that allowed associations to pursue their legitimate activities without liability or penalty.
“Collective bargaining without the right to strike is collective begging,” Cheadle said. The convention had to be interpreted in light of the evolving international framework. The right to strike was explicitly guaranteed in constitutions and legislation worldwide.
“SA submits that strikes, lockouts and protests are legitimate and protected activities contemplated in article 3 of convention 87,” Cheadle said.
In his opening remarks, SA’s ambassador to the Netherlands, Vusi Madonsela, said SA was a founding member of the ILO in 1919 but was later expelled due to its apartheid policy. It rejoined the ILO, a tripartite UN special agency dealing with social justice and setting international labour standards, in 1994.
“The first democratic SA government introduced labour rights in the constitution … including the right to strike,” Madonsela said.
In his submission on behalf of SA, international law expert Prof John Dugard said the right of workers to organise their activities and defend the interests of workers “implies the right to strike. It’s an essential activity in the primary right to freedom of association.”
The freedom of association included the “essential right to strike”, he said. SA has argued previously that upholding the right to strike is “essential for national stability and the ILO’s effectiveness”.
Employment & labour minister Nomakhosazana Meth, who is leading the SA delegation, said, “The right to strike is not only a cornerstone of our own constitutional democracy, as enshrined in section 23 of our constitution, but it is also a vital component of freedom of association globally.”
She said SA was a consistent and vocal supporter of referring the matter to the ICJ for a definitive legal resolution.
“Our postapartheid labour laws were deliberately crafted to align with the very ILO jurisprudence now under review. A favourable advisory opinion from the ICJ will affirm the foundations of SA’s progressive and equitable labour relations framework and provide crucial legal certainty for the entire ILO community,” Meth said.
“My presence here as a government minister of employment & labour of our country highlights the profound importance the SA government places on this case.
“The delegation will argue that upholding this right is essential for the stability of national systems and for the continued effectiveness of the ILO in promoting social justice worldwide. We can now only wait for the court’s advice and hope that the court will agree with our presentation.”
Besides SA, the other countries set to make oral presentations at the ICJ include the UK, Germany, Australia, Egypt, Somalia and Iraq.
• In 2019, the employment & labour department, led by former minister Thulas Nxesi, was criticised for sending a 62-member delegation to a 12-day ILO conference in Geneva.
The delegation, which included President Cyril Ramaphosa and trade union and business leaders, was considered the largest delegation from any country and cost the department R3.5m.
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