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1. In the event of a legitimate strike
590. No one should be penalized for carrying out or attempting to carry out a legitimate strike.
(See 295th Report, Case No. 1755, para. 343.)
591. The dismissal of workers because of a strike, which is a legitimate trade union activity, constitutes serious discrimination in employment and is contrary to Convention No. 98.
(See 239th Report, Case No. 1271, para. 274.)
592. When trade unionists or union leaders are dismissed for having exercised the right to strike, the Committee can only conclude that they have been punished for their trade union activities and have been discriminated against.
(See the Digest of 1985, para. 443.)
593. Respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike. Logically, it should also be irrelevant that the dismissal takes place in advance of a strike, if the purpose of the dismissal is to impede or to penalize the exercise of the right to strike.
(See 277th Report, Case No. 1540, para. 90.)
594. The Committee could not view with equanimity a set of legal rules which: (i) appears to treat virtually all industrial action as a breach of contract on the part of those who participate therein; (ii) makes any trade union or official thereof who instigates such breaches of contract liable in damages for any losses incurred by the employer in consequence of their actions; and (iii) enables an employer faced with such action to obtain an injunction to prevent the commencement (or continuation) of the unlawful conduct. The cumulative effect of such provisions could be to deprive workers of the capacity lawfully to take strike action to promote and defend their economic and social interests.
(See the Digest of 1985, para. 363; and 277th Report, Case No. 1511, para. 236.)
595. In cases in which deductions of pay were higher than the amount corresponding to the period of the strike, the Committee has recalled that the imposition of sanctions for strike action is not conducive to harmonious labour relations.
(See 283rd Report, Case No. 1479, para. 99.)
596. The announcement by the government that workers would have to do overtime to compensate for the strike might in itself unduly influence the course of the strike.
(See 268th Report, Case No. 1466, para. 150.)
597. The use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association.
(See the Digest of 1985, para. 444.)
2. Cases of abuse while exercising the right to strike
598. The principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike.
(See 294th Report, Case No. 1719, para. 668.)
599. Penal sanctions should only be imposed as regards strikes where there are violations of strike prohibitions which are themselves in conformity with the principles of freedom of association. All penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed and the authorities should not have recourse to measures of imprisonment for the mere fact of organizing or participating in a peaceful strike.
(See 265th Report, Case No. 1490, para. 241(b); 277th Report, Case No. 1549, para. 445; and 293rd Report (Measures taken by the Government of the Republic of South Africa to implement the recommendations of the Fact-Finding and Conciliation Commission on Freedom of Association), para. 47.)
600. The Committee considered that some of the temporary measures taken by the authorities as a result of a strike in an essential service (prohibition of the trade union's activities, cessation of the check-off of trade union dues, etc.) were contrary to the guarantees provided for in Article 3 of Convention No. 87. The Committee drew the Government's attention to the fact that the measures taken by the authorities to ensure the performance of essential services should not be out of proportion to the ends pursued or lead to excesses.
(See 234th Report, Case No. 1179, para. 299(a).)
3. In cases of peaceful strikes
601. The authorities should not resort to arrests and imprisonment in connection with the organization of or participation in a peaceful strike; such measures entail serious risks of abuse and are a grave threat to freedom of association.
(See 281st Report, Case No. 1574, para. 221.)
602. No one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike.
(See 230th Report, Case No. 1184, para. 282; and 240th Report, Case No. 1304, para. 99.)
603. The peaceful exercise of trade union rights (strike and demonstration) by workers should not lead to arrests and deportations.
(See 246th Report, Case No. 1378, para. 138.)
4. Large-scale sanctions
604. Arrests and dismissals of strikers on a large scale involve a serious risk of abuse, and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve.
(See the Digest of 1985, para. 442.)