The Right to Strike and Freedom of Enterprise
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Estonian Central Association of Trade Unions, legal secretary
The right of workers to strike is one of the elements of freedom of association and is inseparably tied to the right to collective bargaining.
In the international context, employee rights, including the right of association, began to be protected actively and in an organized manner in 1919, the year the International Labour Organization was founded. The foundation for the right to strike was laid only in 1952, however, when the Committee on Freedom of Association declared the right to organize strikes to be a worker right. From that time on, the right to strike is recognized as one of the main ways workers and their organizations can legitimately develop and protect their economic and social interests.
In the Estonian legal space, the right to strike is a constitutional right whose more detailed regulation is delegated to legislation. Despite this, disputes broke out due to strikes that occurred in 2003 and 2004, and prompted changes to the regulatory framework for strikes. The two short-term solidarity strikes staged by engine drivers caused such outrage in the management of railway enterprises that they deemed it necessary to take the matter to court and the Chancellor of Justice. Since Estonian law does not define essential services, the main question was whether strikes on the Estonian railways are justified at all.
Unfortunately from the standpoint of democracy, not all rights and freedoms are of the same weight. Some of them, including freedom of association, may be more important than others. Thus we have to take the principle of social statehood into account in addition to other constitutional principles. This principle obliged states to ensure persons freedom of association expressly when the content is to safeguard terms and conditions of employment. Even though the court was relatively laconic in formulating its decision, confirming only the right of employees to strike legally, it also likely proceeded from precisely this in considering the primary rights.
And ultimately, effecting competing rights peaceably is an option that can only be considered if the rights are acknowledged reciprocally. Thus the justified freedom of action of employees whose patience has been exhausted should not be restricted by legislative powers but rather by the wisdom of the relevant employer, applied in dissuading its employees to return to work.