Advisory Opinion on the rights to freedom of association, collective bargaining and strike action
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Judgement date :05/05/2021
Upon receiving a request for an advisory opinion from the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights took the opportunity to discuss the scope and importance of the following human rights, reaching the following conclusions:
The right of trade unions to freely assemble: The Court concludes that freedom of association constitutes, in addition to a right enshrined in the domestic law of States, and in various international human rights instruments, a general principle of international law. [para 70].
The Court further explains the two dimensions of the human right to freedom of association which, in its view and in the framework of the protection of the right to freedom of association in labour matters, is a right with collective and individual connotations. In its collective dimension, it protects the right to form trade union organisations, without intervention by the public authorities limiting or hindering the exercise of the respective right. On the other hand, in its individual dimension, this freedom implies that each person can determine without coercion whether or not to join the association. [para. 71].
The Court reiterates the importance that trade unions and their representatives enjoy specific protection for the proper performance of their functions, since freedom of association is of the utmost importance for the defence of the legitimate interests of workers, and is part of the corpus iuris of human rights. [para. 73].
The right to collective bargaining: The Court considers it pertinent to point out that the right to collective bargaining, as an essential part of freedom of association, is composed of various elements, which include, as a minimum:
a) the principle of non-discrimination of the worker in the exercise of trade union activity, since the guarantee of equality is a prior element for a negotiation between employers and workers;
b) the non-interference, directly or indirectly, of employers in workers' trade unions at the stages of establishment, operation and administration, since this can lead to imbalances in bargaining that go against the objective of workers to improve their living and working conditions through collective bargaining and other lawful means; and
c) the progressive encouragement of voluntary bargaining processes between employers and workers, which make it possible to improve employment conditions through collective bargaining agreements. [Para. 94].
The right to strike: The Court notes that, in addition to being widely recognised in the international corpus iuris, the right to strike has also been recognised in the Constitutions and legislation of the OAS Member States. In that sense, it can be considered as a general principle of international law. [para. 97].
The Court agrees with the definition of “strike” provided by the Committee on Freedom of Association:
"A voluntary temporary stoppage of work (or stoppage) by one or more groups of workers for the purpose of making demands or rejecting demands or expressing grievances or of supporting the demands or grievances of other workers"
and considers that the right to strike is one of the fundamental rights of workers and their organizations, as it constitutes a legitimate means of defending their economic, social and professional interests. [Para. 98].
The full text of the Court’s opinion can be found in Spanish online here or downloaded as Pdf in the ‘related documents’ section below.
The text of the questions referred by the Commission can be found in English online here or downloaded as Pdf in the ‘related documents’ section below.
Other relevant information on the Opinion, such as external observations can be found online here in Spanish.