Lloyd's Maritime and Commercial Law Quarterly
The right to strike and re-flagging in the European Union: free movement provisions and human rights
Tonia Novitz *
This article analyses the legality of recourse to the right to strike in re-flagging disputes within the European Union, which has been called into question by recent litigation in
Viking v. International Transport Workers’ Federation and the Finnish Seamen’s Union. The article begins by providing an introduction to key terms relevant to this type of industrial action and then considers how these could be applied to the dispute at issue. The article continues by setting out relevant sources of international and European law and the supervisory bodies responsible for their interpretation. It then goes on to discuss the established scope of the right to strike and the extent of current controversy as to the ways in which its exercise can be restricted. The article ends by suggesting a means by which free movement provisions could be reconciled with international obligations under human rights instruments.
I. INTRODUCTION TO KEY TERMS
Collective action taken by workers in defence of their interests has been a longstanding feature of industrial relations. The legal entitlement of workers to take such action has come to be known as “the right to strike”. Its sources and potential scope are the focus of this article. However, the aim of this introduction is to introduce key terms used in the article, which require understanding of strikes as social phenomena and the reasons for their legal recognition.
A strike consists of the simultaneous and co-ordinated withdrawal of labour by workers, and may involve the total or partial cessation of work. Workers take such action because they appreciate the importance of labour to employers’ financial interests, such that its withdrawal, or even the threat of its withdrawal, can extract concessions which might not otherwise be made. Their action has the potential to curtail or interrupt the supply of goods and services by the employer, thereby reducing the available profit margin. By taking or threatening industrial action, workers can seek to raise or maintain wages, and can even resist an employer’s attempts to make redundancies or sell a business. In this respect, they affect the freedom of capital mobility, but they do so with the intent of sharing in the wealth generated by their labour.
It goes without saying that the collective dimension of a strike is important, in that a joint decision to refuse to work has more influence than that taken by an individual worker