Reasons for recognizing collective labour rights for police officers in some countries and denying them in others

Police forces were first established in most Western countries during the middle of the nineteenth century, following the Industrial Revolution and the development of Fordism.Footnote ²⁴ The establishment of the police force was mainly intended to deal with unrest in the poor neighbourhoods of the proletarians. When police departments were first established, police officers were considered part of the working class, and enjoyed the right to organize in trade unions. Nevertheless, their belonging to the proletariat and their solidarity with it raised a conflict with their duty to handle disorders during strikes.Footnote ²⁵

Denying the right of police officers to organize and strike was intended to detach the police officers from the general working class by avoiding representation by trade unions, hence enabling them to ensure industrial piece among the working class.Footnote ²⁶ Thus, while trade unions were intended to strengthen blue-collar workers, the police force operated in attempt to help the capitalist class maintain order and the continuity of the workers’ regular activity. After World War I, due to economic depletion, police officers in many countries found themselves earning very small salaries and frustrated over poor working conditions, so police strikes occurred. The major police strikes that occurred in Western countries were followed by a tendency to place restrictions on the strike action of police officers. Some countries also placed a ban on the organization of police officers in trade unions. In this regard, it should be noted that the role of the police was originally intended to protect the public, and therefore the reversal of the roles – so that the police officers themselves are given the opportunity to use force in an unregulated manner – has been perceived throughout history in different countries as problematic and as a violation of public safety.Footnote ²⁷Yet, in many countries, the right of police officers to organize is recognized and, in different countries, police officers were also granted the right to strike. For instance, in Croatia,Footnote ²⁸ SwedenFootnote ²⁹ and Slovenia,Footnote ³⁰ a right to strike is recognized in addition to a right to organize. There were a few reasons for denying collective rights from police officers in some countries. First, a major reason for denying their possibility to organize was a willingness to preserve security. Second, countries restricted police officers’ freedom of association and right to strike in order to preserve the ability to determine working conditions or establish police reforms without intervention from police organizations.

A third reason for denying the right to organize was the attempt to emphasize the unique role and duty of the police officers as a body with unusual organizational characteristics. The police officers themselves often wished to refrain from being understood as part of the regular civil service (which was granted a right to organize) and preferred to preserve their image as a separate body with special authority.Footnote ³¹ The police officers wished to preserve their image as a capable, efficient body, always on guard, which led to restrictions on their right to stop service during strikes.

On the other hand, there were reasons for recognizing the right of police officers to organize, and many countries did grant police officers collective labour rights. First, with regard to the argument for the need to preserve security, it should be noted that in European countries in which the right of police officers to organize was granted, such as Germany, and even in those countries recognizing a right of police officers to strike, such as SwedenFootnote ³² and Croatia,Footnote ³³ the security of citizens has still been preserved over the years. Moreover, part of the duties of the police in the last few decades have not been linked to preserving the personal safety of citizens but rather concerned with other tasks, such as the parking of cars in unauthorized places. Therefore, police strikes could not cause severe consequences regarding the defence of citizens’ lives. Second, regarding the need to prevent the intervention of police organizations in drawing up policies regarding the police force, it should be noted that giving police officers a voice on policies and reforms advances the effective implementation of such policies and ensures the cooperation of the police officers with them.

Third, it should be noted that police reforms in recent years in many countries have included New Public Management ideas, aimed at creating a community police force and decentralization of power from the police departments to local community police stations.Footnote ³⁴ The attempt to establish a community police force that is closer to the general public leads to a tendency to recognize the right to organize and to understand police organizations as an integral part of civil society. It leads to considering police officers as part of the public service. Fourth, liberal states recognized collective rights of police officers as part of the general tendency to advance human rights. Police unions in countries where such associations have been considered legitimate have contributed to the welfare of police officersFootnote ³⁵. Fifth, the fear of creating a politicized police force led to an attempt to refrain from a tight linkage between police officers and the state and political actors who determine their salaries.Footnote ³⁶ In this sense, countries recognized collective rights of police officers as a way to create an independent professional organization of a police force detached from the political arena and from irrelevant pressures.

The developments regarding freedom of association of Israeli police officers

The Israeli police force was founded a few years before the independence of the state at the end of the British colonial regime, known as the ‘Mandate’.Footnote ³⁷ The political and military conditions in the first years of the state and the constant threat of invasions from the border created a hierarchical organization with military-like characteristics that was not captured as part of public service.Footnote ³⁸ Hence, the Israeli police was initially a semi-military nationwide centralized organization. The military situation necessitated the continuation of the Mandate police organization, accompanied by the absence of police trade unions. After the Six Day War, the police developed a central role in internal defence, since they assumed new roles of policing the occupied territories and the mission to fight terror.

In the 1970s, the salaries of police officers were very low, and they were affected by growing inflation. The poor salary and hard-working conditions were followed by a phenomenon of vast resignations among police officers and an attempt to establish an association of police officers.Footnote ³⁹ The struggle over the right to organize during the 1970s was unsuccessful and resulted in the a ban on police officers organizing in the police internal procedures. Soon afterwards, in 1979, the ban on the freedom of association was included in Article 93(b) of the Police Act. Denying police officers the right to organize and strike was not accompanied by the establishment of a parallel mechanism for resolving disputes regarding police officers’ interests at work.

Yet, while the law bans police officers’ organization and collective actions without any other mechanism for representing their interests, their salaries were linked to the well-paid military personal through a government decision. Nevertheless, police officers have still received unfair wages over the years and have experienced difficult work conditions. Israeli police officers often work very long hours – even during weekends and holidays – without overtime, and they are exposed to dangerous situations. The difficult working conditions were apparent during the COVID-19 pandemic, when officers worked twelve-hour shifts. Their attempts to struggle for fair wages over the years have often been unsuccessful, due to the inability to strike or take other kind of collective action through trade unions.

Police officers are dependent on state decisions within the political arena for their salaries and working conditions. In some cases, governmental decisions to grant them specific benefits were not fulfilled or were withdrawn a short time later. Hence, despite a government decision in 1979 to link police salaries to those of military personal,Footnote ⁴⁰ the decision has not been implemented properly.Footnote ⁴¹ Hence, different additional increments to the salaries of military personal, such as risk payments and payments for fieldwork outside the office, have not been given to police officers.Footnote ⁴² Police officers have struggled for fifteen years to receive a specific increment of pay (related to employment security) that was given to army personnel.Footnote ⁴³ In some of these cases, the police officers turned to the courts, which occasionally accepted their petitions. For instance, in the Gershon caseFootnote ⁴⁴ in the 1980s and the Zruya caseFootnote ⁴⁵ in 2017, it was held that the government acted unfaithfully in not implementing past governmental decisions to link police officers’ salaries to the salaries of army personal.

The inability for police officers to struggle for an adequate salary over the years raises the need to recognize collective labour rights for them. Acknowledging the collective rights of police officers in Israel would result in cancelling the linkage to the salaries of army personal. This would lead to avoiding the current method of payment, which is not connected directly to the working conditions of police officers but rather dictated by the different terms of work of army personnel.

Furthermore, the tight links between the salaries of the policeman and partisan politics creates a fear of a politicized police force. This requires adopting a new arrangement that grants collective labour rights to police officers while avoiding linkages between their working conditions and the political arena.

The growing need to recognize collective rights for police officers in times of global scrutiny and other recent developments

The police force has played a central role in democracies, and advancing the rights of police officers is of importance in any attempt to maintain the capability of the police to operate well. Organizational justice has always been an important element of police officers’ work-related perceptions and conduct. Research indicates that police officers who believe their agencies treat them fairly operate more effectively.Footnote ⁴⁶ It also shows that fairly treated police officers hold more favourable views towards the public and are less likely to engage in misconduct. Hence, recognition of a professional union for police officers could lead to an improvement in the efficiency and effectiveness of police work due to an increase in police satisfaction.

The debate over global labour constitutionalism vis-à-vis militaristic labour constitutionalism has gained particular importance. The need to protect police officers’ rights has gained special importance due to a number of developments that have occurred in recent years. First, the global movement against police violence and mass protests against the police force that started in Minneapolis in 2020 have raised a special need to consider police officers’ rights. Following George Floyd’s death while in the custody of Minneapolis police in May 2020, thousands of protests swept across the United States, which in turn ignited a global protest movement against police violence, including in Israel, in which demonstrations occurred in 2019 following the death of a young man, a member of the Ethiopian new immigrants community, caused by a police officer.Footnote ⁴⁷ Nationwide protests against the police also occurred in Israel in the winter of 2021 over the same police officer’s return to the force.

The social protests reflect a phenomenon of widespread, global opinion mobilized against the police.Footnote ⁴⁸ As a result, the institution of policing found itself enrolled for reform and under attack as much of the rhetoric surrounding policing since 2020 has been characterized by negative criticism of the police.Footnote ⁴⁹ Following the wave of protests against the police force since 2019–21, the large police departments have experienced an increase in voluntary police resignations and increased turnover.Footnote ⁵⁰ The change in the sociopolitical climate following the large protests also affected police officers’ satisfaction and potential officers’ motivation to join the police force.Footnote ⁵¹

The implications of the crisis regarding police personnel may lead to a decline in the police departments’ occupational capacity to carry out their expected responsibilities.Footnote ⁵²

The crisis calls for proactive efforts to improve workplace organizational justice for police officers in attempt to moderate officers’ perceptions of police hostility following the protests against the police. The change in the socio-political environment in nation-states regarding policing also calls for the application of international labour norms rather than domestic ones, and compels us to care about the debate over global constitutionalism. Furthermore, applying policies established in international organizations is advantageous since international organizations are not subject to local pressures, which could be very influential in the current special context of police strikes.

Second, the rise of the phenomenon of global and national terror, where police officers played a central role in critical and dangerous situations, strengthened the need to protect police officers’ rights and also strengthened their ability to cope with stress and motivation. The last decade has witnessed an increase in police officers’ deaths in terror attacks, in what has been termed the cluster killing of police officers.Footnote ⁵³ For instance, in the 9/11 terrorist attack, police officers were especially impacted. Hundreds of police officers were rushed to the scenes of the attack, particularly the World Trade Center, and many were killed.

Third, the COVID-19 pandemic has emphasized the centrality of the police force. The special role played by police officers during the pandemic globally has stressed the need to discuss a new approach towards the collective rights of police officers. In countries such as Israel, where police officers were burdened with the enforcement of COVID-19 regulations and a variety of challenging security issues, addressing such issues is particularly important. In Israel, the security forces were largely involved in many new civil tasks during the COVID-19 crisis.Footnote ⁵⁴ An organizationally just policy within the workplace regarding police officers has secondary effects that may help police departments to retain officers during times of crisis with lower levels of depression and lower work-related burnout among police officers. The attempt to preserve a high level of conduct of police officers during times of crisis stresses the need to advance their work-related rights.

Fourth, there has been a development of attempts to bypass the ban on organization. In Israel, there were attempts to establish militaristic regime police associations which would bypass the restrictions on police officers’ rights within the militaristic constitutionalism. In this respect, an association of police officers’ wives was established in Israel in an aim to represent their interests. This organization has been active in demonstrations and political activity, but naturally its influence is quite limited so enabling police officers to organize is important.

The critique over the recognition of collective rights of police officers and the justification for applying the right to organize and strike

There are some arguments and critiques that could be raised against the recognition of the right to organize and the right to strike for police officers. The arguments and the reasons for rejecting them are discussed below, along with the justification for recognizing collective rights for police officers.

First, it can be argued that police strikes might affect security and the personal safety of citizens. Moreover, a ban on the right of police officers to organize and strike is often derived from a willingness to create a unique security organization with discipline and a hierarchy that would be considered different from a regular public service in which the right to organize is automatically granted. In this respect, one of the purposes of denying the right of police officers to organize and strike was to maintain the internal organizational order of the police force itself. Furthermore, it can be claimed that police officers are not regular employees in the public sector, but rather should be understood as unique civil servants who are not entitled to collective rights.

This first claim should be rejected. Although the police force indeed started out as a hierarchical organization with a military character, later processes that took place in relation to the police force – such as the development of community police – affected its character.Footnote ⁵⁵ These reforms, including decentralization and privatization, changed the organizational structure of the police force, which was no longer the hierarchical organization it had previously been. The new structure of the police force in many countries also reflects a distinction between the police and other security forces, such as the army and the secret services, which still have a hierarchical character of command and control. For instance, one of the reforms in Israel is the development of municipal policing, by virtue of which police functions are transferred to local municipalities. Moreover, a significant portion of the police force includes volunteers, and some of their powers are like those of regular police officers. The conclusion we can reach from these changes is that, even if it is still at the base a hierarchical organization, the police force is increasingly becoming a diverse organization that also uses outsourcing, volunteers, external service providers, municipal police officers who are employed through the municipalities and the like. Therefore, the logic on which the denial of the right to organize and strike was based is gradually losing its significance. In this vein, it should be considered that the police force is indeed different from other defence bodies, such as the army and the secret security services, in a way that enables recognition of collective rights, including the right of police officers to strike. While the army and secret services are concerned with securing the borders of the country against military attacks and wars, the police force is concerned with many civil tasks, such as handling requests to open new businesses. Hence, while strikes of soldiers are problematic and could pose a threat to the very existence of the country and its sovereignty, strikes of police officers do not pose a similar threat.

Moreover, the duties of many police officers nowadays – such as officers in a human resources department – are very similar to those of regular public employees, and there is no justification for depriving them of their basic rights as employees. In this regard, police officers in most countries could today be understood as regular employees rather than civil servants, based on their terms of employment, recruitment procedures and the fact that, contrary to army service – which might be the duty of citizens in some countries – joining the police force is always voluntary.

It should also be considered that one of the justifications for recognizing the right of police officers to strike is based on the need to ensure a dignified existence. Recognizing the possibility of allowing an independent struggle through the exercise of a right to organize alongside the right to strike would allow for proper pay and appropriate conditions for police officers.Footnote ⁵⁶ This justification stems from the nature of the right to organize and strike, the recognition of which is intended to bridge the gap in the bargaining power between workers and their employer – in this case, the state. In countries in which legislation includes a ban on the organization and striking of police officers, their working conditions are set by the state itself. Setting the salary and terms of employment by the state as an employer could be problematic.

Another justification stems from the concept of social citizenship, according to which the protection of social rights at work is part of the entitlement of citizens in every country. Likewise, the entitlement includes the composition of this citizenship in several dimensions, including a social dimension relating to rights at workFootnote ⁵⁷. Moreover, according to the concept of decommodification, the workplace is based on human capital.Footnote ⁵⁸ Recognizing a right to collective representation and a collective struggle in trade unions can also advance the cooperation between police officers.Footnote ⁵⁹

Second, it could be claimed that strikes in essential services in general, and police strikes in particular, affect the interests of citizens in receiving service.Footnote ⁶⁰ Thus, governments are concerned to eliminate any harmful repercussions to third parties and preserve the ability of the government to supply essential services.Footnote ⁶¹ Moreover, it could allegedly be argued that the possibility of recognizing the right of police officers to strike raises concerns over public order.

Regarding the latter claim, the harm based justification that is the rationale for denying the right to strike in essential services exists only in relation to tasks whose interruption might pose substantial harm on the population at large.Footnote ⁶² In this respect, it should be considered that some of the functions and duties of police officers (such as handling parking in forbidden places or attending noisy parties) are not essential, and work stoppages regarding these kind of police tasks would have only a minor effect on the public.

Furthermore, it is possible to adopt specific mechanisms within future legislation providing arrangements for maintaining the public order. For instance, a specific arrangement within future legislation could demand a minimum supply of essential services and a requirement that part of the police officers would stay on duty even during a strike. The use of proportionality tests could be another mechanism enabling the performance of a balance of the right to strike with other public interests. The mechanism of proportionality is used by the courts in various countries, such as Germany, as a tool to balance the right to strike and essential services with other interests.Footnote ⁶³ The European Court of Human Rights (ECtHR) also adopted proportionality tests regarding strikes in public services, and such mechanisms could also be used in relation to police strikes.Footnote ⁶⁴ The Israeli model for strikes in essential services in general also enables the application of proportionality tests. The labour relations model adopted in Israel includes the possibility of the court striking a balance between the right to collective action and the ability to provide essential services, according to the circumstances of the specific case.

The use of proportionality tests in case of an essential services strike leads to permitting only partial strike activity, demanding a minimum service supply or issuing an injunction against the strike. Thus, although the right to strike is granted even to essential service workers, such as employees involved in water supply, in practice there may be restrictions on the right while ensuring the public interest and the needs of citizens in the continued supply of essential services. Such a model, which includes the application of proportionality tests, could as well be used for police strikes. Thus, even if the right of police officers to strike is recognized, the court could allow only a partial strike in a specific case and demand a minimum service supply or issue an injunction against a strike as result of performing balances in a particular case. Moreover, in Israel, firemen – although considered part of the security forces –have always had a regular right to organize and to strike. Cases of strikes in Israel’s fire departments are handled ad hoc by the labour courts, which can issue injunctions in specific cases of firefighter strikes. The proportionality tests could be also used by the courts concerning strikes of police officers while enabling the balancing of collective rights of police officers with the interests of the public in general. Applying proportionality tests would enable flexibility and the preservation of the rights and interests of all the parties involved, according to the circumstances of each case. The recognition of the right of police officers to strike could be also accompanied by a demand to settle in advance via collective agreements in which police officers, whose duties are essential and needed, would be required to continue working during a strike in such a way that substantial harm to the public would be prevented. Another consideration is the fact that recognizing a right to organize and strike in public services could be beneficial in cost-benefit terms and improve efficiency, since a union is more efficient in leading central negotiations regarding police reforms and advancing new policies. A union could also ensure the compliance of individual employees with the ethics and code of conduct that an officer would be expected to follow.

It should also be considered that strikes in public services might have positive consequences, since the granting of the possibility to strike might improve the police officers’ salary and thus improve the quality of their service.Footnote ⁶⁵ Enabling police officers to fight for their economic interests would then prevent their employment in poor working conditions. Consequently, the police force would avoid vast resignations of police officers and would be able to attract the best possible professional personnel, highly equipped for the task to benefit the public.

Third, a ban on police organizations and strikes is usually derived from the desire of governments to maintain tight control over the police force. It should be noted that granting police officers the right to organize and strike is advantageous since it would lead to the establishment of an independent professional police force that would be detached from political pressures. Hence, a fear of political policing establishes a need to recognize the collective rights of police officers, who would no longer be dependent on the political arena for their salary, enabling them the opportunity for collective action and an independent struggle for decent work. An independent police union could also oppose and lead a public struggle regarding problematic policies of the government, such as policies that infringe on the human rights of women or minorities who don’t follow the religious ideologies of the regime. The organization of trade unions is also advantageous in terms of the ability of the union to advance important ideas, such as avoiding racism and improving equality.

Fourth, it could be argued that recognizing the right of police officers to organize could raise a concern over politicization of the police force following the involvement of a regular union in police actions and a fear that police organizations would use the police force as a political bargaining tool to accumulate power. This argument should also be rejected. Recognizing the right to organize in unions would not in itself create politicization of the police force. It is precisely the current situation in which working conditions of police officers are set by politicians and the state. This raises difficulties and creates a fear that the police officers will be dependent on the goodwill of the political actors. The current situation in which the police officers’ salary is set by politicians may lead to arrangements that are inconsistent with the public interest.

A government decision on the salaries and working conditions of police officers may be the result of a certain political setting and political pressures alongside an assessment by some of the political actors that choosing a certain way will lead to gaining political power. Therefore, the policy formulated by the government regarding working conditions of police officers depends on the ad hoc power relations and sometimes could even be a result of pressure that police officers exert on the political system. This may lead at a certain point in time - in which these groups have a particular pressure point - to an unnecessary wage increase that would lay a burden on the state budget. In other cases, justified claims of police officers regarding working conditions could be met by the politicians’ refusal due to political reasons that are inconsistent with a genuine need to improve working terms. Apart from this, the involvement of a union in determining policy regarding police officers entails advantages. The organization could focus on subjects that are not usually dealt with and turn the spotlight onto important issues such as work safety, the environment and the needs of citizens and communities.

Fifth, it might be argued that police strikes could also affect the reputation of the police force in the eyes of the public and the public trust in the police force as an organization that is always on the alert. However, the use of proportionality tests or other mechanisms that include a demand for a minimum service supply would also ensure that the image of the police would not be harmed. It would allow for a proportionate and reasonable strike. Hence, it would allow necessary functions to continue while avoiding the effect on the organization’s image.

Sixth, it could be argued that there is a public fear of police officers who are in control of weapons. This claim should also be rejected on the basis of the possibility to apply a proportionality instrument during strikes in essential services. Using the mechanism of proportionality ensures that even the force exerted by police officers on strikes would be reasonable.

Seventh, it could be argued that there is a difference in various professional aspects between police officers at different ranks, in a way that makes it difficult to uniformly represent the interests of all the police officers by one union. This claim should also be rejected. We should bear in mind that recognizing the right to organize and take collective action generally leads to strengthening the lines and the solidarity of workers. Furthermore, when it comes to differences between different ranks within the police force, it is possible to separate the representation of police officers in different ranks by enabling organization in distinct cells, thus overcoming the gap in needs between ranks and preventing multiple conflicting targets.

The supervisory and complaint mechanisms of ILO committees and the legal authority and importance of the committees

Collective freedoms were stated in the UN International Convent of Economic, Social and Cultural Rights.Footnote ⁶⁶ Article 8 of the Convent includes the right to organize – the right to form and join trade unions and the right of trade unions to function freely. It also includes the right to strike.

ILO Convention (No. 87) on Freedom of Association and Protection of the Right to Organize 1948 (hereinafter Convention 87)Footnote ⁶⁷ recognized the freedom of association of employees. The right to organize in trade unions and the associated right of collective bargaining was also recognized in the ILO Convention on the Right to Organize and Collective Bargaining 1949 (No. 98) (hereinafter convention 98).Footnote ⁶⁸

Following the adoption of the two conventions, the ILO set up supervisory and complaint procedures regarding the principle of freedom of association to pursue compliance with them, including in countries which had not ratified the conventions. Two ILO institutions are responsible for the supervisory mechanisms of protecting the right to organize and other rights related to organization in trade unions: the Committee on Freedom of Association (hereinafter CFA) and the Committee of Experts on the Application of Conventions and Recommendations (hereinafter CEACR).

All ratified ILO conventions, including conventions 87 and 98, are dealt with by the CEACR, which is an independent body charged with examining the application of conventions and recommendations. Governments report on a regular basis to the CEACR and the committee makes any comment that may be called for and establishes labour standards.Footnote ⁶⁹

In 1951, the ILO established the CFA as a fact-finding independent body that has been able to examine complaints, and it has examined over three thousand complaints over the years.Footnote ⁷⁰ Complaints may be submitted by governments or employers, or by employees’ organizations, alleging that the right to organize and associated rights have been infringed upon.

If the CFA decides to receive the case, it establishes the facts in a dialogue with the government concerned. If it finds that the principles of the right to organize have been violated, it issues a report and makes recommendations on how the situation could be resolved. In cases where the country involved ratified the convention, legislative aspects of the case may also be referred to by the committee of experts. The principles contained in convention 87 and 98 have thus been subject to intense scrutiny over the years by both committees, which issued recommendations and decisions regarding the right to organize, even though strike action by itself is not included directly in the ILO conventions. Yet the ILO committees have recognized in their decisions and resolutions a right to strike,Footnote ⁷¹ which is derived from the right to organize.Footnote ⁷² The importance of the complaint procedure of the CFA in establishing recommendations and its legal authority stems from the special structure of the CFA. It is based on its unique characteristics and the fact that it is composed of impartial and experienced members nominated from the governing body, reflecting its tripartite composition.Footnote ⁷³ Furthermore, the importance of the recommendations of the committee stems from establishing recommendations on a process of examining facts of real-time disputes. The CFA’s structure and setting standards in a tripartite dialogue between the three social partners of labour relations creates legitimacy. According to the organization’s constitution of 1919, the committee on freedom of association is authorized to interpret conventions 87 and 98 and set standards for the right to organize.Footnote ⁷⁴

The legal authority of the CFA enables it to examine complaints whether or not the country concerned has ratified the ILO convention on freedom of association, and its legal authority to operate is derived directly from the ILO constitution, so complaints may be filed against any member state of the ILO.

The moral authority and legitimacy of the decisions and opinions of the CEACR are based on its professionality and impartiality as it is composed of high-level legal experts. The committee consists of independent experts who represent the different member states and their judicial and socio-economic diversity and variety of ideas.Footnote ⁷⁵

The 2012 challenge of the employers’ group regarding the right to strike and the implications of the ILO standards

The freedom of association in trade unions and the right of trade unions to collective bargaining were both recognized in ILO conventions on freedom of association. The right to organize was also included as part of the principles recognized in the Declaration of Fundamental Principles and Rights 1998 (hereinafter 1998 declaration)Footnote ⁷⁶ as one of the core labour rights.Footnote ⁷⁷

The question arises as to the right to strike, which was not included in the ILO conventions. Even though the right to strike by itself is not explicitly included in ILO conventions, the CFA and CEACR in their recommendations acknowledged the right to strike as a fundamental right, derived from the right to organize. The CEACR recognized the right to strike as an essential element of the right to organize in 1959.Footnote ⁷⁸ The CFA recognized the right to strike under convention 87 as an essential element of its economic and social interests.Footnote ⁷⁹ In the following decades, the CFA elaborated very detailed case law on the right to strike, dealing with many concrete questions of this right and its limits, including the issue of essential services.Footnote ⁸⁰

Despite the importance of the right to strike as a means for employees to fulfil their right to organize, the last decade has seen controversy over the status of ILO standards and the recognition of the right to strike within ILO institutions.Footnote ⁸¹ In June 2012, a crisis occurred within the ILO when the ILO employers’ group dramatically challenged the recognition of the right to strike and interrupted the proceedings of the annual international conference.Footnote ⁸² The debate caused the ILO’s operation within the ILO’s tripartite international conference to screech to a halt for the first time since its establishment in 1919.Footnote ⁸³

The employers’ group challenged the existence and the scope of the right to strike and the status of the recommendations and decisions of the supervisory bodies regarding the right to organize. The main argument of the employers’ group was that the CEACR did not have a mandate for interpreting the conventions, and hence did not have the authority to interpret the convention in a way that acknowledged the existence of a right to strike as a fundamental right. In this respect, it was claimed by the employers’ group that according to the ILO’s Constitution, the only bodies authorized to interpret conventions 87 and 98 were the International Court of Justice, located in the Hague (hereinafter ICJ)Footnote ⁸⁴ or a tribunal, which had never been established.Footnote ⁸⁵ Nevertheless, different concerns could be raised regarding the proposition that the interpretation authority is reserved to the ICJ, including the fact that the ICJ has only dealt with one case of interpretation of the conventions over the years: the claim that it is ill-equipped to deal with the task, and the need of participation and representation of the three social partners in the process of interpreting. In the absence of interpreting bodies, the existing committees evolved into bodies that set ILO standards and interpreted the conventions.

Following the challenge of the employer-group over the right to strike in 2012, scholars emphasized that the employers’ argument was problematic.Footnote ⁸⁶ Different scholars showed that the employers’ claim was an unsuccessful political attempt to challenge the legitimacy of ILO supervisory bodies in an attempt to weaken ILO institutions while undermining the rule of law, which was not legally based.Footnote ⁸⁷ Other authors emphasized the de facto agreement of the social partners within the ILO to preserve the in-house ability of the committees to set ILO standards while interpreting the conventions, and not to enable the operation of other institutions.Footnote ⁸⁸

The claims of the employers regarding the right to strike were contrary to the constant recognition of the right to strike over the years as a fundamental right by the ILO institutions. The ILO constituents themselves recognized a positive right to strike over the years which was considered an inevitable corollary of the freedom of association of Convention 87.Footnote ⁸⁹ Even though the ILO conventions did not explicitly recognize a right to strike, Convention 87 acknowledged in Article 3 the full freedom of workers not only to join trade unions but also to organize their activities and formulate their programs, which was considered over the years as granting a right to strike to workers.

It should be noted that since the 2012 challenge to the right to strike, the opinion of employers has not been accepted by the institutions of the ILO, and the ILO principles regarding the right to strike have not been changed in response to this challenge. The ILO institutions have also chosen to keep the interpretation of the convention and supremacy mechanisms as they were within the ILO rather than submitting them to external organs, such as the ICJ, as a response to the employers’ claims.Footnote ⁹⁰

In 2015, the governing body of the ILO set up a tripartite meeting as a response to the employers’ challenge regarding the right to strike.Footnote ⁹¹ In the 2015 meeting, a joint statement agreed by the three social partnersFootnote ⁹² – which acknowledged the right to strike – was issued.Footnote ⁹³ The joint statement declared that the right to take industrial action by workers and employers was recognized by the constitutes of the ILO. In the years after 2012, the committee of experts emphasized that the right to strike was indeed a fundamental right arising from the right to form trade unions and collective bargaining.Footnote ⁹⁴

Israeli jurisprudence

Israeli jurisprudence has adopted militaristic labour constitutionalism, according to which the right to strike is not recognized as a constitutional right and Article 93(B) of the Police Act 1971 prohibits police strikes and any organization of police officers.

In Israel in 1992, two basic laws of human rights were enacted: the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. These two Basic Laws were declared by the Supreme Court as having a constitutional status in what has been known as the ‘constitutional revolution’. Hence, the Supreme Court might perform a judicial review regarding legislation that infringes upon human rights.Footnote ¹³⁷ The Basic Laws do not explicitly include a right to organize, engage in collective bargaining or strike.

Even though social and labour rights were not included in the Basic Laws, the court has not treated them as a closed list of constitutional rights. Hence, the Supreme Court has recognized over the years several social rights as constitutional rights derived from statutory constitutional rights, and mainly from the right to dignity. For instance, the right to a minimum standard of living was recognized as having a constitutional status as a derivative right of the statutory right to dignity.Footnote ¹³⁸

Nevertheless, the right to strike has not been recognized as having a constitutional status. The right to strike was not explicitly enshrined in the Basic Laws, and a proposal of a Basic Law: Social Rights that was supposed to include collective rights has never been enacted. Shortly after the enactment of the Basic Laws regarding human rights, Judge Dov Levin noted in the Bezeq case that there was a need to recognize the freedom to strike as a constitutional right but his position remained a single opinion and was not accepted by the majority.Footnote ¹³⁹ The normative status of the right to strike was again discussed in the Bar Ilan case.Footnote ¹⁴⁰ Although one of the judges noted that it was possible to think of recognizing the constitutionality of the right to strike as a derivative of the right to dignity, the majority did not recognize a constitutional status of the freedom to strike. In this case, the court refrained from deciding on the status of the right to strike, in part because the case did not involve a judicial review of a law. Yet in the Bar Ilan case, the court recognized the right to organize as a constitutional right derived from the right to dignity.

In general in Israel, there is no ban or formal restriction within the legislation on strikes in essential services, such as health or water and electricity. An exception to this principle of a lack of a statutory restriction on strikes in essential services is the ban on strikes and the organization of security forces. Israeli legislation includes a ban on the organization and striking of police officersFootnote ¹⁴¹ as well as of soldiers,Footnote ¹⁴² prison guardsFootnote ¹⁴³ and secret service personnel. Thus, the militaristic character of Israel, with a history of constant military threats and terror and its focus on defence issues, has led to adopting a ban on strikes and even organization of police officers, who were deprived of the ability to organize in unions. Israel’s public policy has been shaped by strong militaristic tendencies as a country in constant military struggle.Footnote ¹⁴⁴ Having militaristic nationalism in Israel has also affected the labour relations of police officers and has led mainly to advancing the public interest in defence. The ban on the organizing of police officers and on strikes within the police force has been anchored in the past only in internal police orders. In the 1970s, following a petition against these internal orders, the Police Act 1971 was amended, and the ban on the organizing of police officers was anchored in the law itself.Footnote ¹⁴⁵ In the Ofek case, the Israeli Supreme Court held that a ban on the right to organize and strike by police officers would be legitimate if it were included in the legislation. The Supreme Court emphasized the legitimacy of imposing restrictions on collective rights to organize and strike by police officers within the Police Act.Footnote ¹⁴⁶

In the Metrodan case, the Israeli labour court held that even though the state could not deny the right to organize in trade unions for bus drivers, imposing a ban on the right to organize by police officers was legitimate.Footnote ¹⁴⁷ Chief Judge Adler held, referring to the Ofek case, that a denial of a right to organize and strike by police officers was justified.

The general model in Israel regarding strikes in essential services includes performing ad hoc balances of the right to strike with other rights, while applying the proportionality demand. Despite the lack of legislative restriction on strikes in essential services, the court could consider the importance of a particular service and issue an injunction against the strike. In the Mekorot case,Footnote ¹⁴⁸ which involved a strike in water supply, it was held that the labour relations model adopted in Israel allowed the performance of balances between the right to strike and the ability to provide essential services and issuing restraining orders or allowing only partial strikes when necessary.Footnote ¹⁴⁹ Thus, although the right of workers to strike in essential services was not restricted, in practice restrictions may be placed on the right by courts. Courts might issue restraining orders in an effort to advance the public interest in the continued provision of the service while considering the needs of citizens. Hence the court could allow only a partial strike in a specific case or require the supply of a minimum service. In Israel, the complete denial of the right of police officers to strike seems inappropriate while firefighters and workers in other essential services have the right to strike for all intents and purposes alongside the right to organize. Moreover, it would be possible to distinguish among those police officers and those who hold a vital and required position in a way that the right to strike would be denied only from those holding an important and required position. It should be noted in this respect that with the outbreak of the global COVID-19 pandemic, the police reduced the number of workers and only vital workers remained on duty.

There are various aspects of the existing arrangement regarding police strikes in Israel that raise concern when considering the ILO principles. First, a total denial of the right of police officers to organize within Israeli law is contrary to the ILO standards, which consider the right to freedom of association as a fundamental right included in ILO conventions 87 and 98. Having included the right to organize as a core labour right in the 1998 Declaration of Fundamental Rights casts a shadow on restricting this right.

Second, the existing law did not provide for alternative arrangements to represent the interests of the police officers despite the denial of the right to strike. The salaries and conditions of the police officers are unilaterally regulated by the state, and there is no consideration of the police officers’ positions. In this respect, it has been determined in cases before the ILO that a restriction on public service strikes is possible only if the employees enjoy an impartial dispute-resolution process, designed to safeguard their interests.Footnote ¹⁵⁰

Third, according to ILO principles, states can deny the right of security forces to strike to some extent, but a sweeping denial of the right of all officials in certain essential service raises difficulties. Having considered the status of the right to strike as a fundamental right led to the conclusion that a total denial of the right regarding all ranks and all positions of a certain essential service is not appropriate, especially when it is not necessary. According to internationally based constitutionalism, imposing a blanket ban on strikes in essential services as opposed to imposing restrictions on certain positions or areas means violating the right to organize and the right to strike as fundamental rights.

In Israel, the constitutional judicial review over legislation includes a two-phase test. The first phase checks whether a human right is infringed upon and the second phase checks whether it is justified while balancing this right with other rights and interests. The second phase is performed according to the lines of the limitation clause, which is part of the Basic Law: Dignity and Liberty, and includes a demand for a just aim for infringing a human right and proportionality test.

In Israel, the international labour law could be applied through the limitation clause included in the Basic Laws while considering the local public interests and values. Hence, within Israeli law, it would be possible to implement the international principles regarding strike action while applying the proportionality tests, which are part of a regular judicial review process. Within the tests of proportionality, it would be possible to adapt the principles of international law to local circumstances and to balance other public interests that characterize the local reality with the right to strike.

The trend in the Israeli Supreme Court in recent years has been to accept a broad definition of international law, including statements of interpretation by international bodies on conventions, even if these were not binding formal documents. Among other things, interpretation by committees has been used by the Israeli Supreme Court as a basis for recognizing social rights that are not enshrined in the Israeli Basic LawsFootnote ¹⁵¹. Hence the same pattern could be justified also regarding the right of police officers to organize and strike.

The presumption of interpretation says that regarding ordinary Israeli legislation, local laws should usually be interpreted according to international law unless the legislation itself includes a contradicting arrangement. The Israeli High Court in the Adam case did not accept the petitioners’ claim that the presumption of interpretation also applied to the Basic Laws, yet it did not hold a positive discussion on the issue and did not rule.Footnote ¹⁵² The ruling does not just mean that the principles of international law are not automatically binding in Israel; in appropriate cases, they can be used by the courts. Hence, ILO principles could be used to determine whether legislation restricting the right to strike is proportionate.

Although the Israeli High Court has not yet accepted the presumption of interpretation regarding the Basic Laws, it seems appropriate to accept the approach that the courts should apply ILO principles when interpreting the Basic Laws, due to the special status of these principles. ILO principles could be used in operating the mechanisms of the restriction clause within the Basic Laws in such a way that the principles would become relevant to the reality of things in Israel. The ILO principles can be used in examining whether there is a justification for infringing upon a human right in a way that would be possible take local circumstances into account within the test of proportionality.

The legal status of ILO standards in Israeli jurisprudence of the labour courts

Israel has ratified conventions 87 and 98 of the ILO, but the act of ratifying does not mean an automatic implementation of the standards in Israeli law. Ratifying the conventions means they are binding in international law and therefore could reflect upon the interpretation of domestic laws.

As for the recommendations of the ILO committees, even though they are not binding, the question that arises is whether they could be considered as having a special status in Israeli law as a part of international customary law. In the Abu Atiya case,Footnote ¹⁵³ the Israeli Supreme Court stated that some international rules that are largely approved of and treated as consistent by many states could be recognized as a custom within customary international law and thus as having a special status in domestic Israeli law. The ILO recommendations could indeed be considered as having a special status as a custom, and thus considered as a tool in the interpretation of legislation.

Israeli labour courts have a unique authority of handling labour disputes and a combination of a strong labour judicial system along with a tradition of activism. Most of the collective labour law has been developed by the labour courts themselves, and they tend to be activist in shaping labour rights in a common law manner.Footnote ¹⁵⁴ Nevertheless, the Israeli labour courts have not imported the specific ILO principles regarding the right to organize and strike in general, and regarding disputes in public and essential services specifically. The Israeli labour courts have implemented the local constitutional documents and existing labour legislation, such as the Collective Agreements Act 1957 regarding the issue of labour rights.Footnote ¹⁵⁵

For instance, in the Mekorot case, the court emphasized that, in principle, the regular domestic strike law, including the demand of proportionality, should also apply to strikes in essential services.Footnote ¹⁵⁶ Even though the Israeli national labour court briefly mentioned ILO conventions and recommendations in the Mekorot case, it did not apply the specific ILO standards regarding strikes in essential services and concluded that the regular strike law applied as well as demands of balancing different rights, operating in good faith and applying proportionality tests.

In some cases, the labour court issued an injunction against strikes in services that the court considered essential even though these services had not been considered essential according to the ILO standards. For instance, in the Teachers Strike case,Footnote ¹⁵⁷ the court rejected the claim that the strike, which involved a suggested reform in the education system, was illegitimate. Even though education services are not classified as essential services, according to the ILO principles, the court emphasized that education services are considered essential and issued an injunction in attempt to avoid the damages of such a strike.Footnote ¹⁵⁸ Occasionally the labour court issues an injunction that totally prevents strikes in public services in cases in which, according to ILO standards, there is only a possibility of imposing a minimum service demand. According to ILO principles in public services that have not been considered essential, such as rail or port services, only requirements for a minimum service demand could be placed.Footnote ¹⁵⁹ The Israeli labour court has not imported the ILO standards regarding strikes in public non-essential services. Instead of posing a demand for a minimum service requirement, the labour court has in some cases issued an injunction preventing the strike in railway services or in the ports altogether. For instance, in the Train case in 2012, even though the court classified the collective action as a regular economic strike, the court issued an injunction against the strike while using proportionality tests.Footnote ¹⁶⁰ ILO principles regarding strikes in cases of reorganization of the workplace and undertakings tend to consider such strikes legitimate, even though they do not concern pure economic interests of salary.Footnote ¹⁶¹ The Israeli labour court has not imported the ILO standards regarding strikes in reorganization cases and undertakings, and when involving a governmental policy, these strikes are not considered as a legitimate case of a right to strike but rather as a political or semi-political illegitimate strike. For instance, in the Ports case,Footnote ¹⁶² an injunction was issued in a strike in a case of reorganization of the Israeli ports and the separation of the governmental cooperation to three different companies, even though the interests of employees were to be affected by the reform.

ILO principles also consider socio-economic strikes against policy that involve the social interests of employees to be legitimate.Footnote ¹⁶³ With regard to this, the Israeli labour courts have also not imported ILO principles and considered such strikes as an illegitimate political strike – for instance, the strike against a reform in the pension funds and the change both in the age of retirement and pension payments through legislation. The strike against the legislation that intervened in existing collective agreements and involved the social interests of employees was considered an illegitimate political strike in The Commerce Chamber case.Footnote ¹⁶⁴

Global labour constitutionalism vis-á-vis militaristic labour constitutionalism: Justification for applying global labour constitutionalism

A few arguments could be raised in relation to the use of internationally based constitutionalism regarding police officers’ rights. Below I will present these arguments, the answer to each of them and the justification for applying the global labour constitutionalism approach.

First, it may be argued that using the internationally based approach may cause groups of workers to turn to the courts rather than using a public struggle within the public and political arenas, in a way that may weaken their power.Footnote ¹⁶⁵ It could also be claimed that such patterns might lead to a phenomenon of activism on the part of the courts and excessive intervention in socio-economic issues.

Nevertheless, this first claim should be rejected. Global labour constitutionalism has many advantages, including the ability of courts as professional, detached and politically independent institutions to exercise workers’ rights whereas political entities may refrain from adequately protecting those rights for political reasons. Apart from this, the ability of the police to lead struggles in the public sphere is limited due to the ban on demonstrations and political activity, which is prevalent in many countries.

In this vein, consideration must be given to the distinction between a strike and organizing in workers’ organizations and a political organization. There is a rationale for denying public employees in sensitive positions, such as police officers, the opportunity to demonstrate and to be politically active out of a desire to create the neutrality of public officials without political biases. Nevertheless, this rationale does not hold regarding union organizing and strike action of police officers. Even though there is a justification for depriving police officers who represent the state in their actions the possibility of demonstrating against the actions of the state itself, no similar justification could be raised regarding a strike action that is an economic struggle for dignity, working conditions and decent pay. It should be noted that even recognizing a thin organization model for police officers without a possibility of striking raises difficulty. A strike is essentially intended to serve as a tool in collective bargaining and to be an efficient weapon in union struggles, and is therefore also an important component in relation to police officers.

Second, the question of the use of the global labour constitutionalism concerns the tension between local constitutional law and the principles of international labour law.Footnote ¹⁶⁶ In this respect, one could argue that since the very existence of international law depends on states and they give it validity, the states themselves and constitutions of states prevail over international law, and therefore local constitutions cannot be interpreted according to international principles.

Nevertheless, this second claim should also be rejected. It seems appropriate to interpret domestic constitutional documents in accordance with the principles of international law, which could be used as part of a judicial review of local legislation if these constitutional documents do not contain a conflicting provision. Moreover, it could be claimed that domestic constitutions must be interpreted in accordance with the principles of international labour law. In this regard, the judges are usually obliged to refer in their rulings to all the binding sources, including international law, that are absorbed into domestic law through international principles. These are international law principles that are understood either as customary law or as conventions.Footnote ¹⁶⁷ This view is based on the notion that domestic constitutional law is the result of international order, and therefore local constitutional law should place special emphasis on the exercise of universal labour rights based on international principles.

Third, it could be argued that reliance on standards set by global organizations, such as the ILO, undermines the state’s sovereignty to formulate policies and the power of domestic politics.Footnote ¹⁶⁸ Nevertheless, this argument should also be rejected. The legitimacy of applying principles of the ILO is based on the state’s sovereignty, since the principles applied are in accordance with conventions and documents that the state itself signed, ratified and approved of.Footnote ¹⁶⁹ Hence, applying principles of international law strengthens the ability of the government to join international conventions and oblige the country to act in accordance with these conventions. Even when applying principles established by ILO committees, the standards set are based on interpretation of Conventions 87 and 98, which the states themselves have joined and ratified.

However, in practice the interpretation of domestic constitutional documents could be made in accordance with the principles of international law, while adapting these principles to the local reality of the domestic labour market and considering local values. The international principles could be adapted and applied in accordance with the local requirements of the domestic constitution and the local political arena. It should be noted that national institutions are subject to pressure from citizens seeking to receive police services on a regular basis and to political pressures. Recognizing the possibility of police strikes may affect the electoral capital of political actors, which means they are not inclined to allow police collective action. International institutions, unlike nation-states and domestic political actors, are not subject to these constraints and may therefore operate freely and set more appropriate standards. Since the states themselves are the architects setting international order and establishing international norms, they are compelled to follow it on the basis of their consent to the international order. Hence, international principles may apply regarding workers’ rights that are not explicitly enshrined in the domestic constitution unless the constitution explicitly denies such recognition.

Although it is possible to claim that international organizations sometimes have political biases regarding certain countries, such political pressures in international organizations usually concern the level of international relations and not the issue of local strikes in certain countries. Political pressures within international organizations usually concern international relations and not internal matters, such as domestic labour disputes.

Fourth, it could be argued that local actors are close to local history and culture, and therefore may well reflect local values that are appropriate regarding the domestic labour market. Thus, it could be claimed that constitutionalism should not be based on international law. Nevertheless, this claim should also be rejected. The principles of the ILO are globally accepted standards. Hence, it could be argued that they reflect proper conceptions of social justice and should also be adopted at the local level. In this context, the formulation of protections for the interests of workers in relation to legislation that violates the right to strike could base normative legitimacy for the use of international principles.Footnote ¹⁷⁰ Thus, the use of ILO principles leads to the formation of a moral justification for adopting the principles in a certain concrete way. Moreover, one of the considerations in favor of implementing the international-based constitutional approach is the need to adopt global human rights standards, enshrined in international conventions and decisions of international institutions. The need to use the human rights discourse has become particularly important in the global age, in part due to the development of abusive employment patterns towards individual workers. In this context, the adoption of global human rights standards will lead to the promotion of global justice and will ensure adequate conditions for police officers.Footnote ¹⁷¹

Fifth, it could be argued that in some countries the recognition of collective rights while applying international law could invoke problems due to the nature of the local constitution. This is especially prominent in countries where the local constitution includes individual rights discourse and an attempt to recognize new derivative collective rights.Footnote ¹⁷² For instance, in Israel, where local constitutional documents are characterized by individual rights discourse, it could be claimed that recognizing rights that are collective in nature is rather problematic. Nevertheless, the argument should be rejected. Strike action could be captured as the struggle of many individual employees joined together. Moreover, the very application of ILO principles strengthens the possibility of recognizing the constitutionality of the right to strike and may be beneficial considering the problems arising from the existing constitutional structure, which is individually oriented.Footnote ¹⁷³

Sixth, an attempt to recognize the constitutionality of the right to strike and enforce it in the context of police officers may also provoke an over-involvement of the courts where the constitution did not recognize these rights. This argument should also be rejected. The use of international principles, such as ILO principles, as a basis for constitutionality of the right to strike provides a seal of approval for the work of the courts.

It could be argued that the operation of the court in an activist manner where it receives international support raises difficulties. It could also be argued that relying on the interpretation and positions of international organizations is inevitably problematic. Nevertheless, the claim should also be rejected. A distinction must be made between the recognition in principle of a constitutional right and the application of certain outlines and policies. The recognition within a certain legal system of constitutional rights that are not explicitly enshrined in domestic constitutional documents does not in itself lead to over-legalization. Thus, the court may adopt the internationally based approach as a basis for judicial review and disqualification of existing legislation following the violation of police officers’ rights while leaving the specific arrangements to be drawn by the legislature itself, which could outline a concrete arrangement under new legislation.