The common thread in these growing displays of employer power is their offensive function. Workers are not being locked out by employers contending with diminished profits; many companies employing lockouts are flush with record returns. They are doing it because they can. It is a response to a shifting balance of power, and in turn a lever for increasing still further the power of capital. It is a tool for wringing double-digit returns while further diminishing workers’ capacity to effectively mobilize.
Most national systems for collecting labour statistics confound strikes and lockouts under the rubric ‘work stoppages’. In these figures, working days lost are working days lost, whether due to a strike or a lockout. There is no way to distinguish between the two, and a general decline in work stoppages can conceal a rise in lockouts. Workers on the receiving end of the employers’ lockout offensive can and do distinguish between the two.
Sloppy statistics conceal the brutal reality of resurgent capital’s growing appetite for the lockout. Workers cannot afford to be sloppy and need to be clear about the status of lockouts in international law, and specifically international human rights law.
The right to strike, as a corollary of the right to freedom of association, is a right set out in fundamental human rights instruments. Over the past six decades, the ILO has developed a considerable body of jurisprudence specifically linking the right to strike to Convention 87. Without this right, there can be no effective freedom of association for workers. Workers’ right to freedom of association by forming trade unions is set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Cultural Rights. In the context of freedom of association, the right of workers to strike is specifically stated in the International Covenant on Economic, Social and Cultural Rights. Convention 87 forms part of customary international human rights law.
None of these instruments mention lockouts or employer ‘rights’. Nothing in the jurisprudence of the ILO establishes equivalent rights for workers to strike and employers to lock out. There is no ILO jurisprudence on employers ‘right’ to lockout, in connection with Convention 87 or in any other context. Governments may ban lockouts, legalize them, or restrict them, but they cannot do so with reference to either the ILO or other international human rights instruments.
The ability to implement lockouts is a legal claim which is enforceable to varying degrees in national systems of law, but there is no human right to lockout. Workers who collectively withdraw their labour, on the other hand, are exercising a fundamental human right. The human right of workers to form trade unions and to strike, as an expression of freedom of association, is founded on the explicit recognition that wage earners stand in an unequal bargaining relationship against capital. The lockout is a naked expression of class power, and it is essential to recall this fundamental distinction at a time when the right to strike, already hobbled with many restrictions in most countries, is under attack at the ILO and elsewhere.