The ICJ opinion was issued on 21 May 2026, confirming 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’). 

For employers, the practical question is straightforward: does this change anything? The short answer is not yet. The opinion is not binding and does not override the Fair Work Act 2009 (Cth) (‘FW Act’). However, it may change the trajectory of industrial relations litigation and reform in Australia. In this article, we set out precisely what employers need to know and the practical steps they should take in light of the opinion. 

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. 

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 (but originally introduced under legislation from 1993), 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’), Australia’s workplace tribunal, may suspend or terminate action where it threatens ‘significant damage’ to the economy.   

The FW Act continues to govern. Even so, the ICJ opinion creates a new reference point that may influence future legal and policy arguments.  

In the past, union efforts to invoke ILO standards against domestic strike laws have produced significant findings at the international level but had limited domestic impact. This is 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 Australia’s 1993 right-to-strike provisions under the external affairs power. This is the constitutional power that allows the Federal Parliament to implement Australia’s international treaty obligations through domestic legislation. 

However, the Court only did so on the basis that the provisions under the 1993 legislation implemented a key United Nations treaty 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 recent advisory opinion may now be harnessed by Australian unions to argue that this gap has been filled. While the FW Act rests on a different constitutional foundation to the 1993 legislation (the corporations power rather than the external affairs power) meaning the opinion is unlikely to affect the FW Act’s validity, the opinion may influence how courts interpret the legislation. The shift in the international legal landscape is therefore significant. 

On 22 May, Michele O’Neil, President of Australia’s peak body for trade unions, the ACTU, stated:  

‘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.’ 

The ICJ 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 should, where possible, interpret legislation consistently with Australia’s international obligations. They may argue that, in light of the ICJ’s opinion, provisions of the FW Act should be interpreted in a manner that more closely aligns with the right to strike recognised under Convention No. 87.  

In practice, this means some, particularly employee bodies including trade unions, might challenge: 

• The limitation 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, although stakeholders, including unions, may continue to advocate for change. 

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

• Litigation – challenges, particularly from trade union bodies, 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, supported by reference to the ICJ’s opinion; 

• Political pressure - reform proposals or union campaigns concerning protected industrial action, particularly if the ILO Governing Body issues follow-up recommendations at its November 2026 session; and 

• Bargaining positions – unions citing the opinion to justify broader or more assertive industrial action claims during enterprise bargaining. 

The opinion does not compel change to the FW Act. However, it does give stakeholders a clearer reference point for in both the courts and the policy arena.