Australian unions welcome ICJ ruling affirming workers’ right to strike

The International Court of Justice has confirmed that workers’ right to strike is protected under international law, a decision unions say could strengthen collective bargaining rights and reopen debate around Australia’s industrial action laws.

Australian unions have welcomed a landmark ruling by the International Court of Justice (ICJ) affirming that workers’ right to strike is protected under international law.

The legal opinion, handed down overnight, confirmed that the right to strike is protected under the International Labour Organisation’s (ILO) Convention 87 on freedom of association and protection of the right to organise.

According to the Australian Council of Trade Unions (ACTU), the decision ends a 14-year "deadlock" within the ILO after employer groups disputed whether international law recognised a right to strike.

The ILO, a United Nations agency made up of governments, employers and trade unions, has recognised the right to strike in its jurisprudence since 1952. However, disagreements between employer representatives and unions in 2012 stalled further progress on the issue.

Employer organisations led by the International Organisation of Employers (IOE) had argued there was no such right under international law. The ACTU noted that the Australian Chamber of Commerce and Industry (ACCI), a member of both the IOE and the ILO, was among those involved.

In response to the ruling, Michele O’Neil, ACTU President said the decision confirmed that the right to strike is protected by international law.

"This will give workers a stronger voice to bargain for better wages, safer workplaces, and fairer and more democratic societies," she noted.

She added that Australian unions welcomed and respected the ruling and looked forward to working within the ILO to ensure the "effective exercise and protection of the right to strike".

O’Neil also said the ruling would be significant for workers in countries with restrictive strike laws or where courts had rejected a general right to strike.

As reported by Financial Review, the decision is expected to have implications for Australia’s industrial relations landscape, with legal experts saying it could place renewed pressure on labour governments to revisit industrial action laws.

Under Australia’s Fair Work Act, protected industrial action is generally limited to enterprise bargaining periods or imminent safety risks. Sympathy strikes, political strikes and industry-wide strikes are largely unprotected, while industrial action can also be suspended if it is considered harmful to the economy.

The ICJ stated that while Convention 87 implies a right to strike, the “precise content, scope or conditions” of exercising that right remain subject to national laws.

Jessica Tinsley, Special Counsel, Kingston Reid and a representative for employers at the ILO, warned that unions may seek to rely on the ruling in future industrial disputes.

In comments further reported by the Financial Review, she said unions could argue that parts of the Fair Work Act should be interpreted consistently with international law, including restrictions around sympathy and political strikes.

“The opinion does not compel change to the Fair Work Act, but it has given Australian unions a new argument,” she said.

The ICJ’s opinion is expected to shape further discussions within the ILO when its governing body next meets in November, potentially reopening debate on how countries interpret and apply workers’ rights to strike within domestic labour laws.

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