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Legality of Strikes
Done by
Harikrishnan.V
592
IXth Sem
Table of Contents
1. Introduction
2. India
3. United Kingdom
4. European Countries
5. Canada
6. China and former USSR
7. France
8. USA
9. ILO
10. 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
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."
1
The ILO law and the freedom to strike, Jean-Michel Servais, University of Toranto
2
(1910) I KBP 506.
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 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
3
(1949) LLJ 796 (I.T.).
4
(1960) KK LLJ 243-246
5
(1953) I LLJ L.AT. (Cal.) 49 at 52
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
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,
6
(1960) AIR SC 1250
7
(1955) 1 ILJ (566 I.T) Calcutta 10
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.
8
(1954)(II) LL.J.516 (520).
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.
58 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”.
b) any section of an industrial establishment, on the working of
which the safety of the establishment or the workmen
employed therein depends;
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.
10
(1960) (II) LL.J. 78.
United Kingdom
11
Emergency Powers Act. (1920) and (1964)
12
Section 139(2) of IRA (1971)
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.
Australia
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
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
15
Section 30 (J) of the Crimes Act (1914-1955)
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.
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
Canada
18
http://www.cbc.ca/news/canada/story/2011/06/15/f-faq-back-to-work-legislation.html
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.
organs to regulate the workforce, also providing them with social
activities.
France
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 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.
21 28 C.F.R. 541.3
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
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
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."
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.
Conclusion
23
The mandate, composition and procedure of the ILO’s 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
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
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