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Here the issue for assessing compliance is to evaluate whether the state is permitting workers to execute these rights.
At the same time, however, A government that affords negative rights to workers cannot be considered in compliance if private actors are allowed to violate workers’ rights with impunity.
In concept, it is a negative right—workers can freely exercise the right to strike if the state did not restrict their behavior.
So an assessment of compliance must begin by examining whether a government bans strikes outright or uses military or police force to break strikes.
One such complexity is how to handle a “closed shop”—laws that allow collective agreements that make it compulsory for employers to recruit only workers who are members of trade unions and who must remain union members and pay union dues in order to keep their job (International Labour Organization, 1994).
In conventional economic analysis of labor markets, the closed shop is considered an infringement of the freedom of workers who are not union members to be employed wherever they choose.
Workers’ councils and labor-management councils can be consistent with freedom of association if workers are also free to join trade unions and to engage in collective bargaining.
The ILO Committee on Freedom of Association and the ILO Committee of Experts have concluded that the possibility of hiring permanent strike replacements poses a risk to freedom of association but is not necessarily a violation of Convention No. Some countries laws provide for elected “workers’ councils” or labor-management councils, distinct from unions.
As discussed below, they may also include the right to strike (Swepston, 1998).
In the human rights tradition of analysis, these are considered “negative rights” in that, for the rights to be respected, the state initially need not do anything except allow workers to exercise them, without harassment or arrest (or worse).
Like freedom of association, collective bargaining can first be viewed as a negative right that workers can exercise on their own as long as the government does not interfere. The assessment of compliance must include whether a government permits collective bargaining in general and also whether a government channels collective bargaining into narrowly defined arenas.
But workers may have to take political action to achieve a legal framework that allows them to bargain collectively without excessive exceptions and restrictions and that punishes employers This chapter draws heavily from Compa (2002) and also draws on Polaski (2002a, 2002b). The assessment thus moves from an area in which there is widespread agreement into an area that is much more problematic. law is weaker than the ILO standard in that it fails to promote bargaining for workers who desire it, but who are not a majority in their workplace.