Right To Strike And Essential Services

Femi Bamisile (1)

Femi Bamisile

By Femi Bamisile

The concept of “essential services” expresses the idea that certain activities are of fundamental importance to the community, and that their disruption will have particularly harmful consequences. It is not possible to provide a uniform list of what constitutes essential services. This will arguably vary from one country to another.

A developed country and a developing one, for example, cannot agree a uniform definition due to their different political, economic and other circumstances. Thus, it is up to each country to determine which services are to be deemed essential in the light of its own circumstances. However, almost all legal systems however seem to agree that certain essential services should be protected.

At first, the Freedom of Association Committee of the International Labour Organization (ILO) defined essential services as those whose interruption may cause public hardship or serious hardship to the community (Freedom of Association and Collective Bargaining: 1985 Digest, Para 393).

The ILO is the United Nations Agency responsible for upholding global labour standards.The ILO’s definition was later revised to read that essential services are “only those which interruption would endanger the life, personal safety or health of the whole or part of the population” (Freedom of Association and Collective Bargaining: 1994 report Part 4B Para 159).

Notwithstanding the lack of a consensus view, the ILO (in ILO 1996 Digest Para 544) has provided a strict list of essential services to include hospitals, electricity services, water supply services, the telephone service, and air traffic control. However, the ILO list is not exhaustive and a country can add other services to its national legislation if it is deemed essential to its particular circumstances.

The ILO’s outright ban on strikes in essential services is based on the argument that public policy demands that such services should be operated without interruption.

The Nigerian definition of “essential services”is somewhat strange as it makes nonsense of the basic concept of essential services. Essential services has as its base-line definition as a service which disruption would endanger human life, public health or safety or cause serious bodily injury or expose any valuable property to destruction or serious damage. While the prohibition on the armed forces, electricity, health, water and telecommunications sectors may seem justified, it is difficult to understandhow ports, petroleum, and private corporate bodies undertaking banking business constitute essential services.

Though inconvenient, such services would not necessarily harm society in terms of posing an immediate threat to public health and safety, and can therefore be tolerated. One must however say that some of these sectors/services are considered “essential” due to the nation’s over-dependence on them. A very good example of this is the Petroleum Sector – a situation that is totally undesirable, as each time that sector sneezes; the whole nation catches flu!

Furthermore, a complete ban on all public sector institutions and agencies is unrealistic because strikes in these areas do not seriously harm society. The Nigerian list of essential services is arguably over-inclusive and strongly questionable. Most of the services or industries included do not seem to merit the special distinction of being treated as an essential service. This seems to be a clear violation of the ILO standards which demands that essential services should be interpreted very strictly.

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The ILO has warned that the principle whereby the right to strike may be limited or even prohibited in essential services would lose all meaning if national legislation defined these services in too broad a manner.

As an exception to the general principle of the right to strike essential services in which this principle may be entirely or partly waived should be defined restrictively, the ILO therefore considers that essential services are only those the interpretation of which would endanger the life, personal safety or health of the whole or part of the population.

THE RIGHT TO STRIKE IN INTERNATIONAL LAW

The right to strike is not only recognized in international law, it is supportedand protected. Article1(d) of the 1996 International Covenant on Economic, Social and Cultural Rights explicitly recognizes the right to strike. Article 8(1)(d) affirms:

“The state parties to the present Covenant undertake to ensure…The right to strike, provided that it is in conformity with the laws of the particular country”.

Accordingly, the right conferred by the Covenant to strike is subjected to the laws of particular countries which can lawfully impose restrictions on its exercise. The Covenant does not provide for specific purposes or the extent of such legal restrictions and limitation, save that Article 8(2) permits restriction of the right to strike of members of the armed forces, or the police or the administration of the State.

Note that international laws usually act as guidelines and, most times, are not enforceable until domesticated in the laws of the parties that subscribe to it. Article 2(1) of the Covenant provides that:

“Each State party to the present Covenant undertakes to take steps, with a view to achieving progressively, the full realization of the rights recognized in the present Covenant by all appropriate means, including the adoption of legislative measures”.

Some other internationallaws also affirm the importance of the right to strike. The European Social Charter,in Article 6 (4), provides that contracting parties undertake to promote, and recognize the right to strike. However,in Article 31, it allows possible limitations and restrictions on this right. Limitations are permissible so long as they are “prescribed by law, and are necessary in a democratic society for the protection of the rights and freedoms of others for the protection of public interest, national security, public health, or morals”.

Other international lawsthat affirm the right to strike are the 1989 Community Charter of Fundamental Social Rights of Workers,  the European Union Charter of Fundamental Rights2000, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights 1988 (Protocol of San Salvador).