IOE Policy Paper on Essential Services - July 2021 - International ...
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IOE Policy Paper on Essential Services July 2021 International Organisation of Employers Organisation Internationale des Employeurs Organización Internacional de Empleadores
IOE POLICY PAPER ON ESSENTIAL SERVICES
Contents
INTRODUCTION ........................................................................................................................ 2
I. CFA PRINCIPLES AND CASES ON ESSENTIAL SERVICES AND PUBLIC SERVICES ................... 3
A. ACUTE NATIONAL EMERGENCY .................................................................................... 3
B. PUBLIC SERVICE ............................................................................................................ 4
C. ESSENTIAL SERVICE ....................................................................................................... 5
D. COMPENSATORY GUARANTEES IN THE EVENT OF THE PROHIBITION OF STRIKES IN
THE PUBLIC SERVICE OR IN ESSENTIAL SERVICES ................................................................. 7
II. NATIONAL DEFINITIONS OF “ESSENTIAL SERVICES” ........................................................ 10
A. AFRICA ........................................................................................................................ 10
B. ASIA ............................................................................................................................ 11
C. EUROPE AND CENTRAL ASIA ....................................................................................... 13
D. NORTH AMERICA ........................................................................................................ 14
E. LATIN AMERICA .......................................................................................................... 14
III. STRIKE ACTIONS IN THE CONTEXT OF COVID-19 ............................................................. 17
CONCLUSION .......................................................................................................................... 20INTRODUCTION
The concept of “essential services” has been a long-standing debate in cases concerning industrial
actions brought before the Committee on Freedom of Association (CFA), an International Labour
Organisation (ILO) supervisory body.
During the COVID-19 global health pandemic, the approach to essential services varied greatly among
governments as they adopted wide restriction measures to contain the widespread of the virus. A
common measure widely adopted was allowing continued activity for only “essential services” and
temporary closure of all “non-essential services”.
As of 15 June 2020, almost one third of the world’s workers (32%) were living in countries with required
workplace closures for all but essential services. An additional 42% were living in countries with
required workplace closures for some sectors or categories of workers, and a further 19% in countries
with recommended workplace closures.1
The decisions on which services were “essential” and “non-essential” have drawn wide public
confusion, as most countries do not have an absolute definition of essential services. Where it exists,
the definition is more related to the context of industrial relations and results in different regulations
concerning legitimate and illicit collective action.
Many businesses have been forced to implement various labour measures to mitigate the economic
impact. These measures may also trigger some labour disputes concerning the limitations of industrial
actions in sectors considered to be essential.
This policy paper explores the concept of “essential services” in the context of industrial relations,
especially during state of emergency. It is divided into three parts: i) the definition and concept of
“essential services” in CFA cases concerning strike actions; ii) national definitions of “essential services”
in the context of industrial relations and during COVID-19; and iii) specific examples of strike actions
during COVID-19 in different sectors and industries.
This policy paper argues that the context of COVID-19 illustrates that the Government needs more
flexibility to response to industrial context in situation where health and safety of its population or
third parties are put at risk. Furthermore, the CFA has a limited capacity in defining essential services
in cases concerning the prohibition of the right to strike cases. Its recommendations and conclusions
are non-binding and should be determined on a case-by-case basis.
2I. CFA PRINCIPLES AND CASES ON ESSENTIAL SERVICES AND
PUBLIC SERVICES
The ILO Compilation of decisions of the CFA (Compilation) addresses in paragraphs no. 824-836, the
situations where strikes may be restricted or even prohibited. The CFA has been and continues to deal
with labour disputes, particularly concerning the right to strike in public and essential services,
including during a state of emergency. The following are some principles and related cases, where the
CFA issued conclusions and recommendations based on the specific factual contexts.
A. ACUTE NATIONAL EMERGENCY
Paragraph 825 of the Compilation deals with the concept of “acute national emergency” whereby the
“[r]esponsibility for suspending a strike on the grounds of national security or public health should not
lie with the Government, but with an independent body which has the confidence of all parties
concerned.”
In Korea Case 1865 concerning strike action in the construction sector, the Government proposed a
bill for a renewed and wider definition of “public services” category that includes what was formerly
called “essential” public services as well as suppliers of heat and steam, harbour loading and unloading,
railway, freight transport, airborne freight transport (airlines), and social insurance providers. This
expanded category of “public services” could be subject to emergency arbitration powers, which leads
to a 30-day prohibition of a strike and, if no agreement is reached, the National Labour Relations
Commission can refer the matter to compulsory arbitration to “resolve” the dispute. The new bill adds
more sectors to the “essential” public services and could subject such sectors to the possibility of
emergency arbitration (30-day prohibition of industrial action; arbitration award takes the force of a
collective bargaining agreement).
The Committee concluded that “responsibility for suspending a strike on the grounds of national
security or public health should not lie with the Government, but with an independent body which has
the confidence of all parties concerned [Digest, op. cit., para. 571.] Finally, the Committee recalls that
the hiring of workers to break a strike in a sector which cannot be regarded as an essential service in
the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious
violation of freedom of association [Digest, op. cit., para. 632]. Considering that the recent use of these
provisions in the case of the airline services did not meet these criteria, the Committee requests the
Government to take all necessary measures to amend the emergency arbitration provisions in the
TULRAA (sections 76–80) so as to ensure that such a measure can only be imposed by an independent
body which has the confidence of all parties concerned and only in cases in which strikes can be
restricted in conformity with freedom of association principles.”2
Similarly, in Greece Case 2506, the Government has issued a “Civil Mobilization Order” (requisition of
workers’ services) of indefinite duration to put an end to a legal strike of seafarers on passenger and
cargo vessels, which do not constitute essential services. In this case, for Greece, like any other country
with a large number of inhabited islands, the security, health and survival of islanders were directly
and decisively linked to sea transport which connected islands between them and with continental
3Greece. Therefore, it was understood that persons employed in such transport offered essential
services, the interruption of which constituted a direct risk to life, personal security and health of a
major section of the islanders.3
The Committee concluded and recommended that in view of the allegations that over the last 32 years,
the Government has resorted to civil mobilization orders in order to end strikes in various sectors. The
Committee noted that the new law still allows for the requisition of services in case of danger to public
health, which could therefore continue to be used as grounds for suspending strikes in the future,
recalls that the responsibility for suspending a strike on the grounds of national security or public
health should not lie with the Government, but with an independent body which has the confidence
of the parties concerned [Digest, op. cit., para. 571] and requests the Government to take the
necessary measures to ensure that any general suspension or termination of strike is decided in
accordance with this principle.4
Covid-19 has proven to be more than an acute national emergency, but a global health crisis with
unprecedented impact on all aspects of our lives. In response this unprecedented crisis, governments
had to make quick and timely action to react to the spread of the disease and to minimize the impact
on our lives, livelihoods and economy. Due to the urgency and severity of the impacts, governments
had to make decisive health measures such as closure of non-essential services and social-distancing
measures, before proper consultations with social partners. Global pandemic like COVID-19
demonstrated that it is necessary for Government to end strike actions where national security and
public health are at risks.
B. PUBLIC SERVICE
Paragraph 827 of the Compilation states that “the right to strike can be restricted or even prohibited in
the public service or in essential services in so far as a strike there could cause serious hardship to the
national community and provided that the limitations are accompanied by certain compensatory
guarantees.” Furthermore, paragraph 828 notes that the right to strike may be restricted or prohibited
only for public servants exercising authority in the name of the State.
In Zimbabwe Case 2365, the Government allegedly was directly responsible for numerous violations,
such as attempted murders, assaults, intimidation, arbitrary arrests and detentions, as well as arbitrary
dismissals and transfers committed against members, activists and leaders of the country’s trade union
movement and members of their families.
Regarding civil servants, the Committee recalled that the right to strike may be restricted or prohibited
only for public servants exercising authority in the name of the State. It noted that a too broad
definition of the concept of public servant is likely to result in a very wide restriction or even a
prohibition of the right to strike for these workers [see Digest, op. cit., paras 574-575]. Moreover, all
public service workers other than those engaged in the administration of the State should enjoy
collective bargaining rights, and priority should be given to collective bargaining as the means to settle
disputes arising in connection with the determination of terms and conditions of employment in the
public service [see Digest, op. cit., para. 886].5
4During the COVID-19 pandemic, public service, particularly public healthcare and hospitals, were
particularly important to respond to the pandemic. As discussed below, there were several strike
actions conducted in the healthcare due to the government’s measures on the COVID-19 response. In
the context of the global health situation, a stoppage of health services could cause serious hardship
on the national community, especially those who were infected by the virus.
C. ESSENTIAL SERVICE
Paragraph 830 of the Compilation refers to “essential services” in the strictest sense of term to mean
“services the interruption of which would endanger the life, personal safety or health of the whole or
part of the population”.
The concept “depends to a large extent on the particular circumstances prevailing in a country.
Moreover, this concept is not absolute, in the sense that a non-essential service may become essential
if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life,
personal safety or health of the whole or part of the population”.6
Moreover, the CFA provides a non-exhaustive list of services considered as essential services, including
hospital, electricity, water supply, telephone, police and armed forces, firefighting, public or private
prison, food, air traffic control.7
Furthermore, the CFA decided that the following do not constitute essential services in the strict sense
of the term: radio and television, the petroleum sector and oil facilities, distribution of fuel to ensure
that flights continue to operate the gas sector, filling and selling gas canisters, ports, banking the
Central Bank, insurance services, computer services for the collection of excise duties and taxes,
department stores and pleasure parks the metal and mining sectors, transport generally, including
metropolitan transport, airline pilots, production, transport and distribution of fuel rail services,
metropolitan transport, postal services, refuse collection services, refrigeration enterprises, hotel
services, construction, car manufacturing, agricultural activities, the supply and distribution of
foodstuffs, tea, coffee and coconut plantations, the Mint, the government printing service and the
state alcohol, salt and tobacco monopolies, the education sector, mineral water bottling companies,
aircraft repairs, elevator services, export services, private security services (with the exception of
public or private prison services), airports (with the exception of air traffic control), pharmacies,
bakeries, beer production and the glass industry.8
In Bolivia Case 3285 concerning the restrictions on the right to strike in the public health sector, the
CFA underlined that the right to strike is not an absolute right and that it may be restricted or
prohibited in (1) in the public service only for public servants exercising authority in the name of the
State; or (2) in essential services in the strict sense of the term (that is, services the interruption of
which would endanger the life, personal safety or health of the whole or part of the population
(paragraph 830 of the Compilation).9
Furthermore, the Committee recalled that what is meant by essential services in the strict sense of the
term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this
concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts
5beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or
health of the whole or part of the population and that the Committee has previously stated that the
hospital sector may be considered an essential service.10
Similarly, in Bolivia Case 2956 concerning the right to strike in the health sector, the Committee
concluded that the right to strike may be restricted or prohibited in essential services in the strict sense
of the term (that is, services the interruption of which would endanger the life, personal safety or
health of the whole or part of the population) and deemed that the health sector may be considered
as an essential service.11
In Norway Case 1763 relating to alleged violation of trade union rights of workers in the social
education and social work, the Committee concluded that teachers do not fall within the definition of
essential services, but has determined that employees engaged in the hospital sectors are engaged in
an essential service in the strict sense of the term.12
In Norway Case 3147 concerning collective bargaining in the laundry and dry-cleaning industry. The
Committee “observe[d] that neither the complainant nor the Government argue that the laundry and
dry-cleaning services are inherently essential services in the strict sense of the term, but both accept
that the consequences of the full stoppage without dispensation could give rise to a situation where
the life and personal safety or health of people might be endangered.”13
In Brazil Case 3327 concerning the imposition of fines for exercising the right to strike in the oil sector,
a sector which according to Brazil law is an essential service. The Committee recalled that the concept
of essential services is not absolute and that, a non-essential service may become essential if a strike
lasts beyond a certain time or extends beyond a certain scope.
In both first and second instances, the national courts had determined that the strike at issue was
eminently political in nature and was consequently considered it abusive. Regarding the fines imposed
on the workers, the Committee noted that these were linked to the non-compliance with a judicial
decision ordering to refrain from strike action.
During the COVID-19 pandemic, most governments decided a list of essential services that could
continue operation as normal – some of which were included the CFA non-exhaustive list, but others
were not. For example, pharmacies which are considered as non-essential by the CFA was one of the
most essential shops that remained open during the open, as it was essential for the public to access
medication and medical help. Therefore, while the CFA decisions and non-exhaustive list provide some
guidance, the definition of essential services should be assessed based on the particular national
circumstances.
6D. COMPENSATORY GUARANTEES IN THE EVENT OF THE PROHIBITION OF
STRIKES IN THE PUBLIC SERVICE OR IN ESSENTIAL SERVICES
In addition to defining the concept of public and essential services, including during a state of
emergency, the CFA has decided on some compensatory guarantees that should be implemented for
strikes under these circumstances.
Minimum services
Para 847 of Compilation states the imposition of minimum services is permissible, such as in the sector
of refuse collection service, measures should be taken to guarantee that such minimum services avoid
danger to public health and safety of the population.
In Canada Case 3107 concerning the right to strike for workers in the public transit sector, the
Committed considered that metropolitan transport does not constitute an essential service in the strict
sense of the term. It recalled that the transportation of passengers and commercial goods is not an
essential service in the strict sense of the term, but “this is a public service of primary importance where
the requirement of a minimum service in the event of a strike can be justified.”14
In Peru Case 3096 relating to the right to strike by nurses in the State Health Service, the Committee
concluded that “[a]s regards the legal requirement that a minimum service must be maintained in the
event of a strike in essential public services, and that any disagreement as to the number of duties of
the workers concerned shall be settled by the labour authority, the Committee is of the opinion that
legislation should provide for any such disagreement to be settled by an independent body and not by
the ministry of labour or the ministry or public enterprise concerned.”15
Furthermore, the Committee also noted that “[a] definitive ruling on whether the level of minimum
services was indispensable or not – made in full knowledge of the facts – can be pronounced only by
the judicial authorities, in so far as it depends, in particular, upon a thorough knowledge of the structure
and functioning of the enterprises and establishments concerned and of the real impact of the strike
action.”16
It also recommended that disagreements between the parties as to the number and duties of the
public service workers in a minimum service should be settled by an independent body, such as the
judicial authority for example.17
Third parties
Paragraph 851 of Compilation states that “Although it has always been sensitive to the fact that a
prolonged interruption in postal services can affect third parties who have no connection with the
dispute and that it may, for example, have serious repercussions for companies and directly affects
individuals (in particular recipients of unemployment benefits or social assistance and elderly people
who depend on their pension payments), the Committee nevertheless considered that, whatever the
case may be, and however unfortunate such consequences are, they do not justify a restriction of the
7fundamental rights of freedom of association and collective bargaining, unless they become so serious
as to endanger the life, safety or health of part or all of the population.”
In Canada Case 2894 involving a legislative bill providing for the resumption and continuation of postal
services, the Committee noted that postal services do not constitute as essential services in the strict
sense of the term.18 However, it noted that “[w]hile it has always been sensitive to the fact that a
prolonged interruption in postal services can affect third parties who have no connection with the
dispute, for instance it may have serious repercussions for companies or directly affect individuals
(especially recipients of unemployment benefits or social assistance and elderly people who depend on
their pension payments), the Committee has nonetheless considered that whatever the case may be,
and however unfortunate such consequences are, they do not justify a restriction of the fundamental
rights of freedom of association, unless they become so serious as to endanger the life, safety or health
of part or all of the population [see Case No. 1985 (Canada), 316th Report, para. 322].”19
Independent Impartial Body
Paragraph 858 of the Compilation states that “[i]n mediation and arbitration proceedings it is essential
that all the members of the bodies entrusted with such functions should not only be strictly impartial
but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration
really depends, is to be gained and maintained, they should also appear to be impartial both to the
employers and to the workers concerned.”
In Bolivia Case 2956 concerning the right to strike in the health sector, the Committee recalled that
“where the right to strike is restricted or prohibited in certain essential undertakings or services,
adequate protection should be given to the workers to compensate for the limitation thereby placed
on their freedom of action with regards to disputes affecting such undertakings and services” and that
“as regards the nature of ‘appropriate guarantees’ in where restrictions are placed on the right to strike
in essential services and the public service, restrictions on the right to strike should be accompanied by
adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned
can take part at every stage and in which the awards, once made, are fully and promptly implemented.”
(paras 595 and 596 of Compilation) 20
The Committee concluded that in cases where restrictions are placed on the right to strike in essential
services and the public service, these restrictions should be accompanied by adequate, impartial and
speedy conciliation and arbitration proceedings.
Compulsory conciliation and arbitration
Paragraph 856 of the Compilation states that “[a]s regards the nature of appropriate guarantees in
cases where restrictions are placed on the right to strike in essential services and the public service,
restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation
and arbitration proceedings in which the parties concerned can take part at every stage and in which
the awards, once made, are fully and promptly implemented.”
Argentina Case 3320 concerned allegations of violations of freedom of association and the right to
collective bargaining in the public education sector. The Committee observed that prolonged
8stoppages of activities of the complainant organization affected children’s access to education and
food in schools. Therefore, in such circumstances, the Committee considered that education service
was essential and that the call made by the administrative authority to put forward a limited period
for compulsory conciliation between the parties before the strike was reasonable.
In Norway Case 3147 concerning collective bargaining in the laundry and dry-cleaning industry through
the imposition of compulsory arbitration to end a collective labour dispute, the Committee’s
recommendations noted that it “encourages the Government to discuss with the social partners
possible ways of ensuring that basic services are maintained in the event of a strike, the consequences
of which might endanger the life or health of the population”.
9II. NATIONAL DEFINITIONS OF “ESSENTIAL SERVICES”
By its very definition, “essential” means something necessary, indispensable or important. The
common understanding of what is essential and what is not, does not necessarily fall within the
definition of “essential services” in the context of industrial strikes.
When it comes to dealing with the COVID-19 pandemic, there is no uniformed definition or pre-
determined list in place on what is an essential service. Instead, “essential” seems to change depending
on national context and can be quite confusing. For example, most countries considered essential
services as healthcare, hospital, electricity, supermarkets, water supply and postal services, based on
an approach of what was needed to safeguard the health, life and livelihood of people. On the other
hand, other countries went beyond and deemed essential other services that played an important role
in the development of their economies, such as the automotive industry in Mexico and gun stores in
the US.
The following are some definitions of essential services in the context of industrial actions and during
the COVID-19 pandemic in different countries.
A. AFRICA
In Malawi, the Labour Relations Act 1996 provides in section 2 ‘essential services’ means “services, by
whomsoever rendered, and whether rendered to the Government or to any other person, the
interruption of which would endanger the life, health or personal safety of the whole or part of the
population”. Furthermore, Section 47 prohibits strike or lockout in any essential services and states
that the Minister “may at any time apply to the Industrial Relations Court for a determination as to
whether a threatened or actual strike or lockout involves an essential service.”
On 1 April 2020, the Government declared coronavirus as “formidable disease” under the Public Health
Act (PHC) and gave authority to the Minister of Health to issue the Public Health (Corona Virus
Prevention, Containment and Management) Rules, 2020, one week later. The Public Health Rules
stated that during a lockdown all persons other than those excepted by the Minister must be confined
to their place of residence, except to perform an essential service; obtain essential goods or services;
seek medical attention; visit pharmacies, food supply stores, courts or banks; or get physical exercise,
as long as no more than three persons exercise together. The rules also prohibit anyone from entering
or leaving a restricted area, traveling from one restricted area to another restricted area, or selling or
purchasing alcoholic beverages. In addition, all shops and businesses not classified as essential, all open
markets and informal trading activities, and all entertainment businesses (including bars, nightclubs
and cinemas) must remain closed. Restaurants, fast food vendors, and coffee shops must remain
closed with the exception of providing takeaway services.
On 17 April 2020, the High Court of Malawi temporarily suspended implementation of a proposed 21-
day lockdown issued in response to COVID-19, pending judicial review. (S v. President of Malawi and
Others; Ex Parte: Kathumba and Others (Judicial Review Cause No. 22 of 2020) [2020] MWHC 7 (17
Apr. 2020).) Minister of Health had ordered the three-week national lockdown from 18 April through
9 May 2020.21
10In South Africa, section 70 of the Labour Relations Act 1995 (amended by the Labour Relations
Amendment Act 2002), allows for the Minister to establish an essential service committee to
determine whether or not the whole or a part of any service is an essential service. Furthermore,
section 72 provides that the essential services committee may ratify any collective agreement that
provides for the maintenance of minimum services in a service designated as an essential service.
During COVID-19 period, the Government of South Africa ordered clinics, pharmacies, food-stores and
hospitals to remain open. Those exempted from the lockdown include health workers in the public and
private sectors, emergency personnel, those in security services such as the police, traffic officers,
military medical personnel, soldiers, and other persons necessary for the country’s response to the
pandemic. This also includes those involved in the production, distribution, and supply of food and
basic goods, essential banking services, the maintenance of power, water and telecommunication
services, laboratory services and the provision of medical and hygiene products.22
B. ASIA
In Australia, article 2 of the Essential Services Act 1981 provides that essential service “means a service
(whether provided by a public or private undertaking) without which the safety, health or welfare of
the community or a section of the community would be endangered or seriously prejudiced.” During
the pandemic, the Australian Government declared that there was a broad agreement that
supermarkets, service stations, health services (pharmacy, chiropractic, physiotherapy, psychology,
dental) and banks) are essential services.
In Bangladesh, essential services are referred to as “public utility service” and defined in section 2(viii)
of the Bangladesh Labour Act, 2006 (XLII of 2006)17 to mean the generation, production, manufacture,
or supply of electricity, gas, oil or water to the public; any system of public conservancy of sanitation;
hospitals and ambulance service; fire-fighting service; postal, telegraph or telephone service; railways,
airways, road and river transport; ports; watch and ward staff and security services maintained in any
establishment; oxygen acetylene; and banking. Furthermore, members of the defence force (section
1(4)(a)(j) of the Bangladesh Labour Act, 2006) and workers in industrial establishments owned and
directly managed by the government (section 1(4)(a)(i) of the Bangladesh Labour Act, 20062.4.2) are
excluded from its scope.
During the initial period of 15 days lockdown (24 March to 8 April 2020), the Government decided that
the following essential services would remain open: health services, food distribution, water and
sanitation, site management. All types of shops including tea stalls and street food shops were
temporarily closed except markets for vegetables, fish and meat.23
In China, essential services are not defined. The only reference is under section 66 of the Emergency
Response Law of the People's Republic of China (Order No. 69 of President of the People's Republic of
China), which states that “[w]here any unit or individual, in violation of the provisions of this Law, fails
to follow the decisions or orders of the local people’s government and its relevant departments or
refuses to act in coordination with the measures taken thereby according to law, which constitutes a
violation of the regulations for administration of public security, a penalty shall be imposed on it/him
by the public security organ according to law."
11On 23 January 2020, the Government of China placed a quarantine on 15 cities inside the Hubei
Province. People were ordered to stay inside their homes, private vehicle use was banned, and food
and other essentials services such as military, police, medical staff, delivery drivers, constructive
workers and site management staff were allowed to remain open. Other related enterprises that
involve important parts of the national economy or critical influence people’s livelihood, were also
required to arrange for operations to carry on as normal.24
In India, at the federal level, section 2(n)(i) of the Industrial Disputes Act 1947 (No. 14 of 1946) defines
essential service, referred to as “public utility service” to include any railway service or any transport
service for passengers or goods; any service in connection with any major port or dock; any section of
industrial establishment; any postal, telegraph or telephone service; any industry which supplies
power, light or water to the public; and any system of public conservancy or sanitation.
To ensure physical distancing the country, the Government of India imposed lockdown measures from
25 March till 14 April 2020 with all industries, services, units and public transport facilities closed. Only
government staff engaged in essential services and private staff engaged at grocery shops, banks,
medical, media, telecommunication, petrol pumps, private security services are permitted to attend
work.
In relation to strikes, the State has the power to restrict strikes across all sectors under the Disaster
Management Act 2005.25 In response to the pandemic, an Industrial Relations Code was enacted in
October 2020,26 requiring any party to give 14 days mandatory notice before a strike. This requirement
covers all sectors and industries. Once the notice is serviced, the conciliation proceedings commence.
In New Zealand, the Employment Relations Act 2020 provides a list of essential services whose right
to strike is regulated by Part 8 of the Act requiring 14 days notice period. 27 Under COVID-19, many
sectors were considered essential. For example, in the public sector, essential services included border
control agencies, courts, tribunals and the justice system, critical crown entities such as the Electoral
Commission, civil defence, foreign affairs, emergency and security services. For the private sector, it
included accommodation, fast-moving community goods, financial services, manufacturing and retail.
Furthermore, cross sectors industries such as building and construction, education, health, science,
social services, transport and logistics, utilities and communications were also considered as essential
services.
In Singapore, the COVID (Temporary Measures) Act was passed by Parliament on 7 April 2020,28 Under
Sections 34(1) of the Act, the Minister may make regulations for the purpose of preventing, protecting
against, delaying or otherwise controlling the incidence or transmission of COVID-19 in Singapore.
Essential services included supermarket, delivery services and entities that are part of global supply
chain. These services required business to work with minimum staff on premises, implement strict safe
distancing, avoid social interactions between workers and suspend operations if staff becomes
infected.
12C. EUROPE AND CENTRAL ASIA
In the European Union (EU), the Council of Europe defines essential services as such services of general
interest covering both market and non-market services which the public authorities class as being of
general interest and which are subject to specific public-service obligations. The term "services of
general economic interest" refers to services of an economic nature which EU countries or the Union
have subjected to specific public-service obligations by virtue of a general-interest criterion. The
concept covers in particular certain services provided by the big network industries such as transport,
postal services, energy and communications.29 Furthermore, the European Commission issued
guidelines for a list of mobile workers within the EU, in particular those in “critical occupations” to fight
the pandemic, can reach their workplace. The list provided was not exhaustive, but it includes services
like childcare, elderly care, and critical staff for utilities.30 In Europe, services generally considered
essential include transport, public broadcasting, water, gas and electricity supply, prison
administration, justice system, national security services, medical care and emergency services.
In France, there is no definition of essential services and no general restrictions for essential services
to engage in strike action. During the COVID-19 pandemic, article 8 of Decree N. 2020-293 of 23 March
2020 list the type of services that can and cannot remained to be open to the public.
In Spain, the Constitutional Court determined that the classification of a service as essential must
prioritize the protection of persons rather than enterprises. The Government must evaluate each
situation on its merits, taking into account the territorial and personal scope, the expected duration of
the strike and other concurrent circumstances, which allow the government to know “the specific
needs of the service and the nature of the constitutionally protected rights or goods which it affects.”31
The basic principle is that a strike must respect a reasonably proportionate sacrifice for the strikers
and the users, allowing for minimum services but not the normal levels.
The Spanish Government declared that all security and law enforcement bodies, carers, transport
workers, energy and water suppliers and drink services, and post offices were essential services. All
workers in the non-essential services must stay at home during the initial lockdown period from 30
March to 9 April 2020.32 Minimum services must be guaranteed in sectors considered to provide
essential services.
In Switzerland, there is no definition of essential services and no general restrictions for essential
services to engage in strike action. During the pandemic, the Swiss authorities announced that shops,
markets, restaurants, bars, museums, libraries, cinemas, concert halls, theatres, sports centres,
swimming pools, hairdressers, beauty salons and ski resorts, all such businesses and facilities were to
be closed in Switzerland from 17 March to 19 April 2020. Only businesses providing essential goods to
the population – such as grocery stores, bakeries, pharmacies, banks and post offices – are to remain
open. Private businesses can also continue their activities, but they must take measures to protect
employees and customers (hygiene measures and social distancing).33
13D. NORTH AMERICA
In Canada, essential service is defined as a “service, facility or activity of the Government of Canada
that is or will be at any time, necessary for the safety and security of the public or a segment of the
public.”34 Some examples that are considered essential include income and social security, border
safety and security, national security, correctional services, accident safety investigations, marine
safety and search and rescue. Although government services are generally considered essential, they
are determined on a case by case basis as to whether or not the duties are essential in practice.
During COVID-19 period, the authorities of the British Colombia declared a state of emergency and
allowed the following list of essential services to continue health services, law enforcement, critical
infrastructure, food and agriculture service, transportation, industry and manufacturing, sanitation,
communications and financial institutions.35
In the United States of America, section 176 of the Labour Management Relations Act 1947, provides
that an essential service is “an entire industry or a substantial part thereof engaged in trade,
commerce, transportation, transmission, or communication among the several States or with foreign
nations, or engaged in the production of goods for commerce, where a strike will imperil the national
health or safety, if permitted to occur or to continue.”
During COVID-19 pandemic, 42 states issued some guidance on which sectors and industries they
consider “essential” despite pandemic-related closures. According to the U.S Department of
Homeland Security, essential workers are those who conduct a range of operations and services that
are typically essential to continue critical infrastructure operations. Critical infrastructure is a large,
umbrella term encompassing sectors from energy to defense to agriculture. The remaining 22 states
who have issued essential worker orders have developed their own lists of who needs to be continuing
to work under stay-at-home orders. Between the federal guidelines and state essential worker orders,
a number of major sectors overlap including, but not limited to energy, childcare, water and
wastewater, agriculture and food production, critical retail, critical trades, transportation and
nonprofits and social service organisations.36
E. LATIN AMERICA
In Brazil, Section 10 of Law No. 7.783 of 28 June 1989 “Regulating the Exercise of the Right to Strike,
Defining Essential Services, and Setting Out Minimum Services and Other Issues”, establishes the
following activities as essential services: water supply and treatment; production and distribution of
electricity, gas and fuels; medical and hospital care; distribution and marketing of pharmaceuticals and
foods; funeral services; public transportation; collection and treatment of sewage and garbage;
telecommunications; guard, use and control of radioactive, nuclear equipment and materials; data
processing linked to essential services; air traffic control; and bank clearing. Furthermore, section 11
of Law No. 7.783 defines essential services as those providing urgent needs of the community, and
those which if detained, put the survival, health or safety of the population in imminent danger.
On 20 March 2020, the Government of Brazil issued a Decree No. 10.282 which regulates Law No.
13,979, of February 6, 2020, to define public services and essential activities, as health care, social
14assistance, public and private security activities, national defense and civil defense activities,
telecommunication and transportations. The list has been regularly repealed by subsequent decrees.
In Colombia, the Constitution provides that the right to strike shall be guaranteed, except for the case
of essential public services. Nonetheless, the definition of essential services was left to the Congress
to decide and as of now, there is no statutory definition of this concept. While the Labour Code
enumerates a list of services that are deemed public, there is no provision on essential services.
However, specific regulations on certain topics have implied that some services are essential, For
example: services provided by the central bank (L. 31/92) services relating to social security system in
health and pensions in regards to its recognition and payments (L. 100/93); domiciliary public services
(i.e. water, sewerage, cleaning, electric power, gas and fuel distribution and telephone) (L. 142/94);
transport services in all its modalities: air, maritime, fluvial, rail, mass road and to its operation in the
national territory (L. 336/96) and services for administration of justice (L. 270/96).
On 6 April 2020, the Colombian government announced that the ongoing nationwide quarantine due
to the coronavirus pandemic, which was due to be extended for 14 days until 26 April 2020. A total of
24 exceptions was officially listed, which included medical care, medication, food, bank services, for
childcare and care of elderly people. Under the measures, only one person per family was allowed to
shop for essential items or to carry out financial transactions. Individuals was required to wear masks
in stores, banks, and on public transport, while restaurants were only allowed to provide deliveries.
Transportation service was allowed to continue, but limited in service and exclusively for those who
require healthcare.37
In Costa Rica, Article 376 of the Labour Code defines public essential services as the ones “whose
suspension, discontinuity or paralysis can cause significant damage to the rights to life, health and
public safety” and for which strike action is forbidden.38 They include health services; air traffic
controllers and immigration control services at airports, ports and border posts; rail, maritime
transport and public transport services; firefighters and emergency services; the services necessary to
guarantee the supply of drinking water, sanitary sewerage and wastewater treatment; the services
necessary to ensure the supply of electrical energy to consumers, and those necessary for the provision
of telecommunications services; the essential services for the import, transport, distribution and
supply of fuel; school canteen service, as well as protection, care and / or shelter services for children
and adolescents and the elderly, people with disabilities or in a state of vulnerability.
Furthermore, the Labour code provides definition of services of “transcendental importance” as those
that, “due to their strategic nature for the socioeconomic development of the country, their paralysis
or suspension imply a sensible damage to the living conditions of all or part of the population” and
where a minimum service must be guaranteed. Such services are, for instance, the collection and
treatment of waste and residues, banking services, justice administration services, custom services.
The Code foresees the conditions under which the judge must declare the legality of the strike action
within 24 hours. It also details the procedure for compulsory conciliation and the cases for arbitration.
for public services, after a suspension of work of 8 days and no conciliation reached, the employer may
request the judge to suspend the strike when it is harming the population. For education services,
strike action cannot continue after 21 days.39
15In Guatemala, there is no general statutory definition of essential services. However, the Congress
issued Decree No. 71-86 on unionization and regulation of strike for public workers. It provides for
some restrictions and outlines services deemed as essential, such as i) hospitals and health centres, as
well as public hygiene and cleaning services; ii) telephone, air navigation, telegraph and mail service;
iii) administration of justice and its auxiliary institutions; iv) State or municipal urban and extra-urban
public transport of all kinds; v) water supply services to the population and the production, generation,
transportation and distribution of electricity and of fuels in general; and vi) public security services.
The Decree provides compulsory arbitration for labour disputes in these services mentioned and
mandates that these services shall not be affected.
On 14 May 2020, the Government of Guatemala announced that additional restrictions would be put
in place on 18 May 2020, in an effort to curb the spread of the COVID-19 pandemic. Except for the
transportation of food, water, medicine, gas, and permitted essential services, nothing else may be
transported during the specified dates. Food stores were only permitted to open between the hours
of 08:00-11:00 from Friday to Sunday. Additionally, individuals could only travel by foot, as the use of
private vehicles was prohibited.40
In Mexico, there is no formal definition of essential services in the context of the right to strike. The
Federal Labour Law (LFT) regulates the right to strike. For strikes in public services, the LFT indicates
that there is an additional condition to inform the labour tribunals ten days in advance of the strike,
instead of six days applicable for other activities. However, article 466 provides for the temporary
continuation of services in specific cases, such as: i). ships, aircraft, trains, buses and other transport
vehicles that are on route, where these must be driven to their destination; and ii). hospitals,
sanatoriums, clinics and other similar establishments, where the care of patients at the time of
suspension of work, until they can be transferred to another establishment.
Nonetheless, on 31 March 2020, Mexico issued a decision posted in the Federal Registrar, establishing
extraordinary measures to deal with the health emergency triggered by COVID-19, where the
suspension of non-essential activities was mandated. The Federal government established a list of
essential activities that could continue performing activities, namely:
a) Those that are directly necessary to attend the health emergency, such as the work
activities of the medical, paramedical, administrative and support branches throughout the
National Health System. Also those who participate in its supply, services and supply, among
which the pharmaceutical sector stands out, both in its production and in its distribution
(pharmacies); the manufacture of supplies, medical equipment and technologies for health
care; those involved in the proper disposal of hazardous biological-infectious waste (RPBI), as
well as cleaning and sanitizing medical units at different levels of care;
b) Those involved in public security and citizen protection; in the defense of national integrity
and sovereignty; the administration and administration of justice; as well as legislative activity
at the federal and state levels;
c) Those of the fundamental sectors of the economy: financial, tax collection, distribution and
sale of energy, gas and gas stations, generation and distribution of drinking water, food
industry and non-alcoholic beverages, food markets, supermarkets, self-service stores,
groceries and sale of prepared foods; passenger and cargo transportation services;
16agricultural, fishing and livestock production, agro-industry, chemical industry, cleaning
products; hardware stores, courier services, guards in private security work; nurseries and
childcare centers, nursing homes and homes for the elderly, shelters and care centers for
women victims of violence, their daughters and sons; telecommunications and information
media; private emergency services, funeral and burial services, storage and cold chain services
for essential supplies; logistics (airports, ports and railways), as well as activities whose
suspension may have irreversible effects for their continuation;
d) Those directly related to the operation of government social programs, and
e) Those necessary for the conservation, maintenance and repair of the critical infrastructure
that ensures the production and distribution of essential services; namely: drinking water,
electricity, gas, oil, gasoline, jet fuel, basic sanitation, public transport, hospital and medical
infrastructure, among others that could be listed in this category.
On 21 April 2020, Mexico’s Ministry of Health extended the emergency decree suspending all non-
essential activities in the country to 30 May 2020, in order to prevent the outbreak of COVID-19. The
original order had been set to terminate on 30 April 2020. Under the decree, essential companies that
continue to operate and render services must continue to: (1) apply safe distancing measures in
production and facilities; (2) implement sanitary contingency protocols (i.e., cleaning and sanitizing
workplaces); (3) prohibit congregations of more than 50 people; (4) ensure that individuals practice
proper hygiene when sneezing, and avoid shaking hands, hugging, and kissing.41
On 12 May 2020, the Mexican Health General Council also issued a decision providing that the
construction, mining and manufacturing of transport equipment, shall be considered as essential.
The examples above illustrate how some countries have existing laws defining essential services in the
context of strike actions. Others have issued emergency measures to redefine and outline the list of
essential services specific to the pandemic situation. Many also had to revise these lists multiple times
to adapt to the changing development of the global pandemic.
III. STRIKE ACTIONS IN THE CONTEXT OF COVID-19
During the first half of 2020, workers from different sectors and industries called for strike actions
relating to the measures taken in response to the COVID-19 pandemic. Some of these were considered
in the public and essential services, which were allowed to continued service during the lockdown.
In the transport industry, the bus drives in Detroit Michigan went on a one-day wildcat strike on 17
March 2020 over the lack of health and safety items like masks to protect against COVID-19.42 Bus
services were cancelled throughout the city due to the shortage of drivers. The driver’s union backed
the drivers and their brief work stoppage. Within less than 24 hours, the transportations officials agree
to their demands and increased cleaning, provided masks for passengers and made the buses free to
reduce interactions between bus drivers and passengers over fares.
17In the distribution and logistics, 80 shift workers at Coles distribution centre in Victoria, Australia
demanded more safety measure over COVID-19. They demanded proper provision and enforcement
of social distancing measures and additional supplies of antibacterial wipes. The strike lasted only
several hours and ended when the management promised to improve social distancing practices and
sanitizing.43
In the food industry, 60 food packages workers for Linden Foods in Dungannon, North Ireland
temporary walked out of work due to lack of safety conditions. Linden Foods agreed to double the
size of the canteens, have erected multiple handwashing units at the entrance to all the sites, increased
sanitizing units, staggered breaks, erected new temporary changing facilities, carried out temperature
checks on all employees twice daily, reviewed social distancing and installed protective screens and
respaced work areas, increased PPE and undertaken additional training for the teams.44
Similarly, Whole Foods workers in the United States walked out or called for a sickout in March 2020
over the number of confirmed coronavirus infections at the supermarket chain. At least two Whole
Foods employees have died from coronavirus, and over 200 workers have tested positive around the
country.45 The workers demanded for increased hazard pay, paid sick leave for workers who choose to
isolate or self-quarantine, and the closure of stores in response to confirmed coronavirus cases among
workers. Whole Foods Market responded by implementing safety measures including enhanced deep
cleaning, crowd control and daily temperature screenings for Whole Foods employees who are in the
store to fill Prime Now orders. The company has also temporarily boosted base pay by $2 per hour,
increased overtime pay, and offered an additional two weeks of paid sick time for those who are in
quarantine or have tested positive for the virus.46
In the medical sector, hundreds of doctors and nurses working public hospitals in United Kingdom held
a strike due to a lack of protective equipment.47 NHS England and the Government had several
meetings to address concerns about protective gear. The Government called the army to help deliver
millions of pieces of personal protective equipment (PPE) to 200 hospitals. The Minister of Health also
ordered 7 million pieces of PPE and set up a helpline for healthcare works to contact when they are
short of masks or other necessary equipment. 48
In France, tens of thousands of doctors, nurses and healthcare workers went on strike since May to
demand the Government for a hiring scheme and a general salary review of €300 to €400.49 After seven
weeks of protests, the Government of France approved pay rises worth €8 billion for health workers.
The deal was signed with trade unions on 13 July 2020 after weeks of negotiations and the wages will
raise by €183 a month on average.50
In the restaurant industry, workers from McDonalds went on strike in several states in Unites States
over paid sick days and lack of soap to clean hands.51 The strikes went on for more than two months
in several locations. In March, McDonalds workers in Tampa walked out of work after being told not
to wear masks and gloves in their states because it would make customers uncomfortable. Similarly,
workers in St. Louis and Memphis walked out when their working hours were dramatically cut. In April,
cooks and cashiers at a Crenshaw Boulevard McDonald’s in Los Angeles announced a strike after a co-
worker was tested positive for COVID-19. In response to the strike actions, McDonalds offered two
18weeks of paid sick leave for employees who need to quarantine but only for those in their corporate
franchises, as they were not able to enforce sick leave policies at independently owned locations.52
In the retail industry, 500 workers walked out of work at ASOS site in the United Kingdom due to lack
of enforcement of social distancing measures.53 ASOS refuted the claims and stated that they have
introduced a wide range of health and safety measures since the lockdown took place on 24 March
2020.54
In the shipping sector, 60 wharf workers were stood down in the Port of Melbourne, Australia for
refusing to unload cargo from a Chinese ship due to fears about coronavirus safety.55 The dock workers,
who are members of the Maritime Union of Australia (MUA)—a division of the Construction Forestry
Maritime Mining and Energy Union—claimed that the vessel had visited another port in Asia on 19
March 2020, so it was still in quarantine and refused to board the vessel. The MUA and the Port officials
negotiated that the workers would unload the vessel once the 14-day quarantine period was
reached.56 There is no information whether the workers were reinstated.
These examples illustrate the type of strike actions that occurred around the world and the measures
that Government took to resolve the industrial disputes. In serious and unresolved cases where there
might be infringement on the right to freedom of association and collective bargaining, some of these
cases may appear before the CFA. For example, the CFA recently examined Hungary Case 3381 where
the complainant argued the special measures introduced during the COVID-19 pandemic infringed the
right to collective bargaining. In this case, the Committee concluded that the Government should
engage in social dialogue with employers’ and workers’ organisations to limit the duration and the
impact of the measures, and to ensure the full use of collective bargaining as a means of achieving
balanced and sustainable solutions in times of crisis. More cases like this concerning urgent measures
taken in the context of the pandemic will likely appear before the CFA in the near future. It is important
for the Committee to examine them carefully on a case-by-case basis.
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