The World Court has spoken: what the ICJ's 'right to strike' opinion means for Australian employers

On 21 May 2026, the International Court of Justice (ICJ) confirmed by ten votes to four that the right to strike is protected under International Labour Organisation (ILO) Convention No. 87 - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (Convention No. 87) an international treaty Australia ratified in 1973.

The opinion is not binding and does not override the Fair Work Act 2009 (Cth) (FW Act). But it hands Australian unions their most authoritative international legal argument to date, and they are already signalling they intend to use it.

On 22 May, ACTU President Michele O'Neil declared:

"This court ruling confirms that the right to strike is protected by international law. This will give workers a stronger voice to bargain for better wages, safer workplaces, and fairer and more democratic societies."

For employers, the practical question is straightforward: does this change anything?

The short answer is not yet - but it may change the trajectory of industrial relations litigation and reform in Australia. Here is what you need to know.

The question of whether Convention No. 87 protects the right to strike has been contested between employer groups and ILO supervisory bodies since at least 2012. The ILO referred the dispute to the ICJ in November 2023. The International Organisation of Employers (IOE) argued the word "strike" appears nowhere in the Convention's text and warned that most state parties would be found in violation if the ILO's guidance were treated as authoritative.

The Court disagreed, holding that strike action falls within the ordinary meaning of the "activities" and "programmes" that workers' organisations are entitled to pursue under the Convention. Crucially, however, it left the "precise content, scope or conditions" for the exercise of the right to national law.

Photo by Samuel Girven on Unsplash

The Australian Government told the ICJ in its written submissions that Convention No. 87 protects the right to strike - a position it has acted on legislatively since 1993.

Under the FW Act, protected industrial action is available only in support of a proposed enterprise agreement - sympathy strikes, political strikes and industry-wide action are unprotected; and the Fair Work Commission (FWC) may suspend or terminate action where it threatens "significant damage" to the economy. The FW Act continues to govern. But the opinion creates a new reference point that unions and their lawyers may seek to exploit, and the litigation risk is material.

Australian unions have been invoking ILO standards against domestic strike laws for over three decades: from the airline pilots' CFA complaint in 1991, through sustained CEACR criticism of the Workplace Relations Act and WorkChoices, to the CEPU's 2009 complaint that the Fair Work Act itself remained non-compliant with Convention No. 87.

These efforts produced significant findings at the international level but had limited domestic impact, because Australian courts have consistently been reluctant to give direct effect to ILO supervisory body pronouncements.

The key barrier has been the High Court's decision in Victoria v Commonwealth (1996), where the Court upheld the 1993 right-to-strike provisions under the external affairs power, but only on the basis that they implemented Article 8(1)(d) of the ICESCR, which expressly refers to the right to strike. The Court declined to find that Convention No. 87 itself created such an obligation, noting the Convention "does not expressly provide for a right to strike". That reasoning has been the central obstacle to union challenges ever since.

The ICJ's advisory opinion may now be deployed by Australian unions to argue that this gap has been filled. The FW Act rests primarily on the corporations power rather than the external affairs power, so the opinion's domestic impact operates through principles of statutory interpretation rather than constitutional validity - but the shift in the international legal landscape is nonetheless significant.

The opinion may change the litigation calculus in two ways.

First, it provides an authoritative judicial determination, from the world's highest court, that the right to strike is protected under Convention No. 87. Unions may argue that this addresses the obstacle identified in Victoria v Commonwealth.

Second, they may invoke the presumption of consistency - the principle that Australian courts interpret legislation (so far as language permits), as not inconsistent with international law - to argue the Fair Work Act should be read down.

In practice, this means unions might challenge:

• the confinement of protected action to enterprise bargaining - arguing strikes in response to government policy or in support of broader economic interests should be lawful;
• the ban on sympathy and political strikes - which ILO bodies have found inconsistent with Convention No. 87;
• ballot requirements and the 30-day commencement window - characterised by the ILO as unduly burdensome;
• the FWC's economic-damage suspension power - arguing it should be confined to genuine threats to life, safety or health; and
• sanctions for "unprotected" action - including injunctions and civil penalties for strikes that fall outside the protected-action framework but would be lawful under international standards.

Australia's own submissions to the ICJ provide a strong basis for defending the existing framework.

Australia argued that "the right to strike that is protected by Convention 87 is not unlimited" and that a state may "regulate and thereby limit the right to strike provided that the ability of workers to pursue their interests through collective bargaining is not substantially impaired". It pointed to the wide range of restrictions adopted by ratifying countries (including ballot requirements, notice periods, cooling-off periods, compulsory arbitration) as evidence that such measures are permissible.

Most significantly, Australia submitted that a "wider margin of appreciation" is warranted for strike restrictions than for other aspects of freedom of association, because of their inevitable impact on third parties and the broader economy.

The Australian Government is likely to take the position that the FW Act already complies with the Convention because it regulates rather than abolishes the right. The opinion vindicates the existence of the right, but on the Government's own argument, Australia has long recognised it, and the FW Act gives effect to it subject to reasonable regulation.

Accordingly, employers should not expect the Government to volunteer legislative reform, however union lobbying is likely.

The FW Act remains in force and the opinion confers no new domestic rights. That said, Australian employers should monitor:

• union litigation - challenges invoking the presumption of consistency before the Federal Court or High Court, particularly in response to FWC suspension orders or injunction applications;
• ILO complaints - fresh filings with the ILO’s Committee on Freedom of Association (a body historically utilised by Australian unions to ventilate domestic issues), now backed by the ICJ's endorsement;
• political pressure - intensified ACTU lobbying, particularly if the ILO Governing Body issues follow-up recommendations at its November 2026 session; and
• bargaining tactics - unions citing the opinion at the table to justify broader or more assertive industrial action claims during enterprise bargaining.

The opinion does not compel change to the FW Act, but it has given Australian unions a new argument. Australian employers should be alert to how it may be deployed.

Resources:

Read the ICJ's opinion online here: The Court gives its Advisory Opinion and responds to the question posed by the Governing Body of the International Labour Organization

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation.

For more insights from the Kingston Reid team on the workplace law issues facing organisations in 2026, head to our Publications page to access our 2026 Workplace Insights report.

Main Photo by Esra Afşar on Unsplash