The National University of Advanced Legal Studies, Kochi

Labour Law Project

Legality of Strikes

Done by
Harikrishnan.V
592
IXth Sem

Table of Contents

Introduction
India
United Kingdom
European Countries
Canada
China and former USSR
France
USA
ILO
Conclusion

Introduction
Strike certainly constitutes one of the most complex phenomena
regulated by labour law, one of the most difficult to grasp in all its
dimensions. Infrequently rational arguments are so much mixed with
others of an ideological or psychological nature. Strike can have a
revolutionary flavour and work against social and production
relations; this is anathema to the authorities, even if they are not
totalitarian.1

Strikes are not per se illegal. The legality or illegality of a strike must
depend on the means by it is enforced and on its objectives. Lord
Shaw said in Russel v Amal Society of Carpenters and Justice.2
"Strikes may be perfectly legal or they may be illegal. It depends on a
nature and mode of constructed cessation of labour. If this concerted
1 The ILO law and the freedom to strike, Jean-Michel Servais,
University of Toranto
2 (1910) I KBP 506.

cessation is in breach of contract then it could not be said to be within

law any more than could a breach of contract by a single workman. If
on the other hand, a strike be cessation of labour on the expiring of
contract. There is no necessary illegality there any more than in the
case of an individual workmen completing their bargain and choosing
to remain idle. But of course, in this later case, the concerted cessation
of a labour may be for the sole of deliberate off obvious purpose of the
refraining tread in which case different legal consequences might
ensure."

It was held in the case of Cox and Kings Limited v. Their Employees'3
that a strike a considered justified if it is in connection with a current
labour dispute or directed against an unfair labour practice of the
employer. It was also held justified when undertaken only after
remedies provided in the statutory machinery of the Industrial
Disputes Act have proved futile in the case of Chandramouli Estates
v. Its Workmen,4 likewise if the employer discharges its union officers,
or causes a union official to be assaulted. The resultant strike is
considered to be justified. Refusal to recognise a union or to consult it
are considered valid reasons for a strike. In the case of 'Bihar Fire
Works and Potteries Workers Union v. Bihar Fire Works and
Potteries,'5 it was held that it is not proper to judge from the result of
the adjudication of the demands whether a strike was not justified or
3 (1949) LLJ 796 (I.T.).
4 (1960) KK LLJ 243-246
5 (1953) I LLJ L.AT. (Cal.) 49 at 52

not it can't be said to be unjustified unless the reasons for it are also
lately preserve and unsustainable. Union is such it does not appeal to
an ordinary common man, the strike is held to be unjustified. When
strike is held to be justified, it is not means that there is complete
justification for strike. The justification can only be relative
justification when the workers have been reasons to entertain a
bonfide unrepressed grievance which under circumstances in which
they happen to be placed is found to be such as to make them feel that
the only course left to them to redress the grievance effectively and
without undue delay is stoppage of work. A strike to be justified
should be launched or the economic demands. It was held in the case
of 'Swadesh Industries Ltd v Their Workmen',6the first and foremost
requirement of a justified strike is that it should be launched only for
economic demands of workmen like basic pay, dearness allowance,
bonus, provident fund, gratuity, leave and holidays etc., which are the
primary objects of a trade union. The political considerations cannot
supply and good answer to legal obligations. The economic demands
should be prima facie reasonable. The demands should not be raised
frivolously or on ulterior reasons. Even some of employees are
discharged. The workers cannot go on strike in haste. The workers
cannot insist that a particular employee should work with particular
batch of workmen and their demands can't justify the strike as was
held in the case of 'Sri Kanyakaparameswari Groundnut Oil Mils
contractor's company v their workmen7" by the industrial tribunal.6 In
the case of 'Dabir (Et. S.K. Burman) Pvt. Ltd., v Their Workmen, 7 it
6 (1960) AIR SC 1250
7 (1955) 1 ILJ (566 I.T) Calcutta 10

was held that justification of strike depends upon (a) the conduct of
the employer also, the employee which includes provocation on the
part of employer by high, handed action and unsustainable reasons for
the strike on the part of workmen (b) the nature of the strike whether
the peaceful of violent and (c) whether the strike was resorted to after
exhausting all the means of redress. The strike is justified However,
merely refusal to recognise a particular trade union or to negotiate
with it as a recognised union, will not by itself justify strikes. When
there is a bonfide dispute about the conditions on which recognition
should be granted when the management refuses to agree to arbitration
or adjudication of demands of the workmen, the strike is justified.
Even in some demands are not referred to adjudication or arbitration,
the workers are justified to go strike. When the workers were forced to
resort to strike because of various acts of management and more
essentially the placing the number of workmen under the contractors
and retrenchment of a large body of a workmen the strike is not
justified. If the existing service facilities are withdrawn, the strike
started consequent on such abrupt discontinuation of benefits, is quire
justified. The strike against contract in force is not justified.
India
All strikes are not ipso facto unlawful or illegal. Industrial Disputes
Act. 1947 however, makes certain strikes illegal under section 24.
This section specifies the events on the happening of which, strike is
to be treated as illegal and the plain meaning of this is that, those
strikes which do not fall in that category are not illegal, another way
strike may be unjustifiable, but it is not illegal unless it is illegal
according to the provision of the Industrial Disputes Act, 1947. Thus a

strike which is not illegal under Section 24 of the Industrial Disputes

Act, 1947 can never be treated as illegal under the Act.
The Supreme Court has stated in Caltex (India) Ltd. v. Certain
workmen 8strike is a legitimate weapon in the hand of the workers to
redress their grievances. However it has been held that it should be
used as a "last resort'' when all other avenues. Have proved futile and
so long as it is used in a restrained, peaceful manner of good and
justifiable reasons, it can not be punished.
It may be noted that in India, legal strikes are classified into justified
and unjustified strike, whereas in U.K., U.S.A. and Australia it is not
so.
Every strike is not illegal. It may be mentioned that the field of
industrial law, so far as country is concerned, 9 it is not the objects
which make the strike illegal but it is the breach of the statutory
provisions, which refers the industrial strikes illegal. Section 24 of the
Industrial Disputes Act. 1947, declares that strikes would be illegal
only when they have been resorted to in contravention of the
8 (1954)(II) LL.J.516 (520).
9 In Australia and England, there are certain objects which renders the strike illegal. In
Dorcey v. Kansas

(71 L.Ed.248) speaking for the Supreme Court of United States, Brandeis J. Said A
strike may be illegal because of its purpose, however orderly the manner in which it
is carried.

mandatory provisions of Section 22 and those of Section 23 of Act or

when they are in defiance of the order made under sub-Section (3) of
Section 10 or (4A) of Section 10 A of the Act.

The provisions of Sections 22 of the Act apply to establishments

which fall in the category of 'public utility service' as defined in
Section 2(n) of the Act. According to Section 2(n) of the Industrial
Disputes Act, 1947, public utility service means:
a) any railway service or any transport service for the carriage if
passengers or goods by air,
b) any section of an industrial establishment, on the working of
which the safety of the establishment or the workmen
employed therein depends;
c) any postal, telegraph or telephone service,
d) any industry which supplies power, light or water to the public,
any system of public conservancy or sanitation: (f) any industry
specified in the First Schedule which the appropriate Government
may, if satisfied that public emergency or public interest so requires,
by notification in the official Gazette declare to be public utility
service for the purpose of this Act for such period as may be specified
in the notification provided that the period so specified shall not in the
first instance, exceed six months but may by a like notification be
extended from time to time by any period not exceeding six months at
any one time if in the opinion of the appropriate Government public
emergency or public interest requires such extension.

A glance at the definition of public utility service' which is mentioned

above, shows that these are key services, essential to the very life of
the State and well being of the community and hence special
formalities have been provided for in the Act before strike in these
services can be legally resorted to. Employees in the above stated
industrial are not completely prohibited by the provisions of this
section to go on strike. What the section 22 of the Act aims at, is
placing certain mandatory obligations subject to the fulfillment of
which alone the right of the workers to go on strike can be exercised.
The fulfillment of the mandatory requirements of the Section is
absolutely essential before a strike can be resorted to in a public utility
service.
It has been emphatically stated in the case of Swadeshi Industries Ltd.
v. Its Workmen10 that where the establishment is consisting of public
utility as well as non-public utility service, the bonus is upon the
employer to show that concerned workmen who launched strike
worked in public utility section.
Notice of strike within six weeks before striking, i.e. the notice should
have been given not earlier than six weeks before the date on which
the strike is resorted, and the strike should not be resorted to unless
and until a period of 14 days has expired from the date of the notice of
strike. Before the expiry of the date of strike specified in the notice of
strike.
The condition contained in sub-Section (i) (b) of Section 22 of the Act
is that the strike shall not be resorted to during the period when the
conciliation proceeding are pending before, a conciliation officer until
10 (1960) (II) LL.J. 78.

the expiry of seven days after the conclusion of the conciliation

proceedings.
The Essential Service Maintenance Act, 1981, provides in explicit
words that no person employed in any essential service shall go or
remain on strike, and any strike declared or commenced by persons
employed in any such essential service shall be illegal.

United Kingdom
In U.K., peacetime Emergency powers11 sought to secure the
essentials of life to the community and prohibited strikes in public
utilities by empowering the Government to declare a state of
emergency. The industrial disputes which are of a grave and serious
character by establishing that the Secretary of State in certain
circumstances may apply to the Industrial Court for an order
restraining persons from organising industrial action for upto 60
days12. The other procedure available in the same type of emergency
situation is a ballot, that is the Secretary of State may apply for a
ballot when the situation is that the conditions appear to be, or likely
to be seriously injurious to the livelihood of a substantial number of
workers employed in a particular industry Now, the Trade Union and
Labour Relations Act of 1974, has also abolished the Emergency
measures of 1971 statute.13
11 Emergency Powers Act. (1920) and (1964)
12 Section 139(2) of IRA (1971)

In U.K. whether public utility service or non-public utility service, if

due notice of strike is not given, then each workman withdraws his
labour in breach of his respective contract of employment. Hence in
U.K. all wild-cat14 and official strike are unlawful.

Australia
in the case of a proclamation made of the existence of a serious
industrial disturbance prejudicial or threatening trade or commerce
with other countries or among the States, the participation in or
incitement to strike in relation to (1) employment connected with the
transport of goods or the conveyance of passengers in overseas or
inter-stale trade or commerce or (2) employment in or in connection
with the provision of any public service by the Commonwealth
Government or any Commonwealth public authority, is an offence.15
In Australia, a strike may take place without notice being given to the
employer concerned or to an arbitration authority or alternatively after
the expiration of a period of notice. Again, a strike in which unionists
are concerned may have been decided up on by the particular

13 Section 141(2) of IRA 1971.

14 Wild-cat a kind of unpremeditated strike action which is not taken according to
the due process. The purpose of wild-cat strike is to get quick results also known as
quckie strike.

15 Section 30 (J) of the Crimes Act (1914-1955)

employees concerned or by an official of the union or by all the

members of union.16
In Queensland, and New South Wales, where all strikes are not made
illegal the Acts distinguish between strike action that is taken in
accordance with a majority decision of the member if the union
concerned after a secret Ballot and strike action decided up on in some
other manner.17
. In Australia the setting up of conciliation arbitration machinery has
been accompanied by legislation making strikes illegal. The attitude is
that where machinery for the settlement of disputes by conciliation
and arbitration exists, resort to strikes is unnecessary strikes victoria
are illegal strikes in essential service unless there has been affirmative
vote at a secret ballot. New South Wales Legislation also makes
certain strikes illegal which take place before 14 days notice to the
government of an intention to strike.
European Countries
Strikes may be a means of action only trade unions are authorized to
take (Sweden) or recognized for individual workers (France). In some
cases they are an exceptional measure the workers can invoke when
the employer does not fulfil its obligations. They may be allowed only
in the classic form or extended to cover work slowdowns, rotating
strikes, work-to-rule, boycotts and other kinds of direct action.
16 Portus J.H. The Development of Australian Trade Union Law 4th Ed.
(1958) at p.214
17 Section 51(I) of Queensland Act Section 99 of New South Wales Act.

Canada
In Canada there is no constitutional right to strike, as per a 1987
Supreme Court ruling on a reference case brought by the province of
Alberta. In Canada the federal and/or provincial governments can (and
often do) introduce "back to work legislation" a special law that
blocks the strike action (or a lockout) from happening or continuing
on further. It can also impose binding arbitration or a new contract on
the disputing parties. Back to work legislation was first used in 1950
during a railway strike, and as of 2012 has been used 33 times by the
federal government for those parts of the economy that are regulated
federally (grain handling, rail and air travel, and the postal service),
and in more cases provincially. In addition certain parts of the
economy can be proclaimed 'essential services' in which case all
strikes are illegal.18
Examples include, the government of Canada passed back to work
legislation during the 2011 Canada Post lockout and the 2012 CP
Rail strike, thus effectively ending the strikes.
China and former USSR
In some Marxist-Leninist states, such as the former USSR or
the People's Republic of China, striking is illegal and viewed
as counter-revolutionary. Since the government in such systems
claims to represent the working class, it has been argued that unions
and strikes were not necessary. In 1976, China signed the International
18

http://www.cbc.ca/news/canada/story/2011/06/15/f-faq-back-to-work-legislation.html

Covenant on Economic, Social and Cultural Rights, which guaranteed

the right to unions and striking, but Chinese officials declared that
they had no interest in allowing these liberties. 19 (In June 2008,
however,

the

municipal

government

in Shenzhen in

southern China introduced draft labor regulations, which labor rights

advocacy groups say would, if implemented, virtually restore Chinese
workers' right to strike.20) Trade unions in the Soviet Union served in
part as a means to educate workers about the country's economic
system. Vladimir Lenin referred to trade unions as "Schools of
Communism." They were essentially state propaganda and control
organs to regulate the workforce, also providing them with social
activities.
France
In France, the right to strike is recognized and guaranteed by the
Constitution.
A "minimum service" during strikes in public transport was a promise
of Nicolas Sarkozy during his campaign for the French presidential
election. A law "on social dialogue and continuity of public service in
regular terrestrial transports of passengers" was adopted on 12 August
2007, and it took effect on 1 January 2008.
This law, amongst other measures, forces certain categories of public
transport workers (such as train and bus drivers) to declare to their
19

"Still waiting for Nike to do it," by Tim Connor, page 70.

20 Factory to the world will soon get the right to strike', by Venkatesan Vembu, Daily News and
Analysis, 26 June 2008.

employer 48 hours in advance if they intend to go on strike. Should

they go on strike without having declared their intention to do so
beforehand, they leave themselves open to sanctions.
The unions did and still do oppose this law and argue these 48 hours
are used not only to pressure the workers but also to keep files on the
more militant workers, who will more easily be undermined in their
careers by the employers. Most importantly, they argue this law
prevents the more hesitant workers from making the decision to join
the strike the day before, once they've been convinced to do so by
their colleagues and more particularly the union militants, who
maximize their efforts in building the strike (by handing out leaflets,
organising meetings, discussing the demands with their colleagues) in
the last few days preceding the strike. This law makes it also more
difficult for the strike to spread rapidly to other workers, as they are
required to wait at least 48 hours before joining the strike.
This law also makes it easier for the employers to organize the
production as it may use its human resources more effectively,
knowing beforehand who is going to be at work and not, thus
undermining, albeit not that much, the effects of the strike.
However, this law has not had much effect as strikes in public
transports still occur in France and at times, the workers refuse to
comply by the rules of this law. The public transport industry - public
or privately owned - remains very militant in France and keen on
taking strike action when their interests are threatened by the
employers or the government.

The public transport workers in France, in particular the "Cheminots"

(employees of the national French railway company) are often seen as
the most radical "vanguard" of the French working class. This law has
not, in the eyes of many, changed this fact.
United States of America
The Railway Labor Act bans strikes by United States airline and
railroad employees except in narrowly defined circumstances. The
National Labor Relations Act generally permits strikes, but provides a
mechanism to enjoin strikes in industries in which a strike would
create a national emergency. The federal government most recently
invoked these statutory provisions to obtain an injunction requiring
the International Longshore and Warehouse Union return to work in
2002 after having been locked out by the employer group, the Pacific
Maritime Association.

Some jurisdictions prohibit all strikes by public employees, under

laws such as the "Taylor Law" in New York. Other jurisdictions
impose strike bans only on certain categories of workers, particularly
those regarded as critical to society: police and firefighters are among
the groups commonly barred from striking in these jurisdictions. Some
states, such as New Jersey, Michigan, Iowa or Florida, do not allow
teachers in public schools to strike. Workers have sometimes
circumvented these restrictions by falsely claiming inability to work
due to illness this is sometimes called a "sickout" or "blue flu", the
latter receiving its name from the uniforms worn by police officers,
who are traditionally prohibited from striking. The term "red flu" has

sometimes been used to describe this action when undertaken by

firefighters.

The Code of Federal Regulations declares "encouraging others to

refuse to work, or to participate in a work stoppage" by prisoners to be
a "High Severity Level Prohibited Act" and authorizes solitary
confinement for periods of up to a year for each violation. 21 The
California Code of Regulations states that "participation in a strike or
work stoppage", "refusal to perform work or participate in a program
as ordered or assigned", and "recurring failure to meet work or
program expectations within the inmate's abilities when lesser
disciplinary methods failed to correct the misconduct" by prisoners is
"serious misconduct" under 3315(a)(3)(L), leading to gang affiliation
under CCR 3000.22

Postal workers involved in 1978 wildcat strikes in Jersey City, Kearny,

New Jersey, San Francisco, and Washington, D.C. were fired under
the presidency of Jimmy Carter, and President Ronald Reagan fired air
21 28 C.F.R. 541.3

22

22

California Code of Regulations 3000, "Gang means any formal or informal organization,

association or group of three or more persons which has a common name or identifying sign or symbol
whose members and/or associates, individually or collectively, engage or have engaged, on behalf of that
organization, association or group, in two or more acts which include, acts of misconduct classified as
serious pursuant to section 3315."

traffic controllers and the PATCO union after the air traffic controllers'
strike of 1981.

International Labour Organization

It may be surprising to find that the right to strike is not set out
explicitly in ILO Conventions and Recommendations. It has been
discussed on several occasions in the International Labour Conference
during the course of preparatory work on instruments dealing with
related topics, but for various reasons this has never given rise to
international standards (Conventions or Recommendations) directly
governing the right to strike. The right to strike is, however,
mentioned incidentally in a Convention and in a Recommendation.
The Abolition of Forced Labour Convention, 1957 (No. 105),
prohibits the use of forced or compulsory labour as a punishment for
having participated in strikes (Article 1, sub-paragraph (d); and the
Voluntary Conciliation and Arbitration Recommendation, 1951 (No.
92), first mentions strikes in paragraphs 4 and 6, then states in
paragraph 7 that no provision it contains may be interpreted as
limiting, in any way whatsoever, the right to strike (ILO, 1996b, p.
89 and 1996a, p. 660).
However, the absence of explicit ILO standards should not lead to the
conclusion that the Organization disregards the right to strike or
abstains from providing a protective framework within which it may
be exercised.

Furthermore, though it does not explicitly mention the right to strike,

the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), establishes the right of workers and
employers organizations to organize their administration and
activities and to formulate their programmes (Article 3), and the
aims of such organizations as furthering and defending the interests
of workers or of employers (Article 10), (ILO, 1996a, pp. 528 and
529). On the basis of these provisions, the two bodies set up to
supervise the application of ILO standards, the Committee on
Freedom of Association (since 1952) and the Committee of Experts on
the Application of Conventions and Recommendations (since 1959),
23

have frequently stated that the right to strike is a fundamental right

of workers and of their organizations, and have defined the limits

within which it may be exercised, laying down a body of principles in
connection with the right to strike

24

giving rise to substantial case

law in the broadest sense of the term which renders more explicit
the extent of the provisions mentioned above.

25

Of the remaining

supervisory bodies of the ILO, the committees established under

article 24 of its Constitution do not deal, in principle, with matters
relating to the right to strike, since the Governing Body generally
23

The mandate, composition and procedure of the ILOs supervisory bodies are described, for
example, in ILO, 1995

24

These principles are contained in particular in ILO : Freedom of association and collective
bargaining, a General Survey of Conventions No. 87 and No. 98, conducted in 1994 by the Committee of
Experts on the Application of Conventions and Recommendations (ILO, 1994a); and in ILO: Freedom of
Association, Digest of decisions and principles of the Freedom of Association Committee of the
Governing Body of the ILO (ILO, 1996d). These are frequently referred to in ILO publications in their
abbreviated forms: General Survey, 1994 and CFA Digest, respectively

25

preceding the adoption of Convention No. 87During the discussions , no amendment expressly
establishing or denying the right to strike was submitted

refers the corresponding complaints to the Committee on Freedom of

Association. The few Commissions of Inquiry that have been set up in
response to complaints under article 26 of the ILO Constitution for
non-observance of Conventions relating to trade union rights refer in
their conclusions to the principles of the Committee on Freedom of
Association and of the Committee of Experts, and the same is true of
the Fact-Finding and Conciliation Commission on Freedom of
Association.
Conclusion
Right to Strike is not absolute in India. U.K. and Australia.
Reasonable restrictions have been put on this right in India and U.K.
whereas in Australia this right is very extensively regulated.Countries
around the world stick on to the ILO guidelines while determining the
legality of strikes.

References

1.westlaw.com
2.manupatra.com
3.Legality of Strikes, shodganaga.com
4.ILO principles concerning strike, Bernard GERNIGON, Alberto ODERO and Horacio
GUIDO, International Labour office , Geneva
5. The ILO law and the freedom to strike, Jean-Michel Servais, University of Toranto
6.heinonline.com