Industrial Action

• Pages: 296-339

CHAPTER 8

INDUSTRIAL ACTION

OVERVIEW

The right of Commonwealth Caribbean workers to freely associate, and to form and be

members of trade unions, is for the most part guaranteed by regional Constitutions

1 and other

specifi c indigenous legislation.

2 It is considered as a fundamental and indispensable element of

industrial relations generally,

3 but this entitlement to organise is of itself only a segment of a

jigsaw puzzle. Workers must be able to have recourse to various means which will ensure that

the employer ‘hears’ their standpoint, and vice versa. These objections are designed to effec-

tively cause a change in what either party considers to be the adverse positions taken by the

employer or the employee and their representatives.

Industrial action of whichever variety

4 can provide workers with increased bargaining

power. Consequently, from an economic perspective, it is the ability to organise, coupled with

the potential to take industrial action, which really creates the balance of power between work-

ers and employers.

5 Good industrial relations policy (and law) seeks to attain an adequate

balance of power between these contending parties. Too much strength in the hands of unions

can shift the balance in their favour; while, conversely, too little in the hands of the union will

create increased strength in the hands of the employer.

6

In examining this topic, we will briefl y explore the theoretical basis underpinning the

establishment of industrial action from an international law and common law perspective. The

effect of such activities on the individual employment contract will be examined, as well as the

implications for the collective organisations who may have orchestrated them. The types of

industrial action, their characteristics and the law’s response to them are also important in this

discourse. The legislative interventions in this area within the Commonwealth Caribbean will

thereafter be investigated and infused with views of how the region should move forward to

address this disruptive conduct in the employment and labour law arena.

INTERNATIONAL PERSPECTIVES

The capacity to undertake industrial action can be viewed from the perspective of being a basic

human right.

7 This implies that involvement in industrial action operates as the natural oppo-

site of forced labour or slavery. As such, workers are endowed with an inherent right to make

1 Such as Jamaica Constitution Section 13(3)(e), Barbados Constitution Section 21, Trinidad and Tobago

Constitution Section 4(j).

2 Such as Jamaica Labour Relations and Industrial Disputes Act Section 4; St. Lucia Labour Code

Section 8.

3 This concept is referred to as the ‘autonomous argument’ – see Deakin, S. and Morris, G. (2012) Labour

Law (6 th Ed., Hart Publishing) p. 1028.

4 We will be discussing various types, including strikes, lock-out, work to rule, go slow, sick out, overtime

ban, blacking and the involvement of picketing.

5 See Davies, A.C.L. (2004) Perspectives on Labour Law (1 st Ed., Cambridge University Press) pp. 218–237.

6 This is referred to as the ‘equilibrium argument’ – see Deakin, S. and Morris, G. (2012) Labour Law

(6 th Ed., Hart Publishing) p. 1028.

7 Ewing, K. (2010) ‘Yes, Striking is a Human Right’, article in the UK Guardian newspaper dated

March 26, 2010 available at www.theguardian.com/commentisfree/libertycentral/2010/mar/26/

ba-strike-human-rights .

Chapter 8: Industrial Action 297

decisions regarding whether or not they will continue in an employment relationship or

withdraw their labour and, if so, under what terms. The taking of industrial action in these

circumstances is but one means of pursuing workers’ rights to ‘decent work’.

8

Several international instruments provide implicit recognition of the fact that workers

should possess the right to make their own decisions in relation to pursuing collective means of

protecting their employment interests. Thus a fundamental constitutive document of the United

Nations, the Universal Declaration of Human Rights (1948) 9 supports the idea of freedom of associa-

tion, but is silent on the issue of whether workers, having organised, can legally undertake indus-

trial action. In 1996 the United Nations further adopted the International Covenant on Economic,

Social and Cultural Rights (ICESCR) , a treaty which enjoins state parties to aspire to provide

economic, social and cultural rights to individuals inclusive of labour rights. Specifi cally, Article

8 of the ICESCR speaks to the ‘Right to Strike’. However, access to this right is subject to it

being exercised in conformity with national legal provisions.

10 This qualifi cation in effect means

that the ‘right’, as provided under this instrument, can be limited in scope and application. It is

to be noted that the right is set out under the social and economic rights and not political and

civil rights instruments.

11 This tends to suggest that, at this level, the rights are considered as

aspirational in nature and not necessarily subject to positive legal enforcement mechanisms.

Despite the specialised nature of the International Labour Organisation (ILO), most of its

instruments

12 simpliciter also fail to specifi cally provide workers with a right to engage in industrial

action. Thus, Convention 98 on Right to Organise and Collective Bargaining (1949) and

Convention 87 on Freedom of Association and Protection of the Right to Organise (1948) are

devoid of any direct reference to the right. These core Conventions encourage the development of

collective bargaining and the right to organise; but, instead of categorically affi rming the attendant

right of industrial action, the ILO has instead relied on the decisions and interpretations of its

specialist bodies – such as the Committee of Experts Application of Conventions and

Recommendations (CEACR)

13 and the Freedom of Association Committee – to extrapolate that it

is a natural corollary of the right to organise and bargain freely.

14 There has been some amount of

controversy surrounding this position on at least two accounts. Firstly, employer groups opine that,

since Convention 87 did not create a right to strike, it should not be used as the basis of formulating

8 This concept has been developed by the ILO based on the understanding that work is a source of

personal dignity, family stability, peace in the community that delivers for people economic growth that

expands opportunities for productive jobs and enterprise development. See further information at www.

ilo.org/global/about-the-ilo/decent-work-agenda/lang–en/index.htm ; for the Caribbean perspective,

see www.ilocarib.org.tt/index.php?option=com_content&id=1096&Itemid=952 .

9 Article 20(1) of the Declaration provides that ‘everyone has the right to freedom of peaceful assembly

and association’. Article 23 (4) states that ‘everyone has the right to form and to join trade unions for

the protection of his interests’.

10 Article 8(1) states ‘The State Parties to the present Covenant undertake to ensure: ... (d) the right to

strike provided that it is exercised in conformity with the laws of the particular country’; and Article 8(2)

states ‘This article shall not prevent the imposition of lawful restrictions on the exercise of these rights

by members of the armed forces or of the police or of the administration of the State’.

11 See International Covenant on Civil and Political Rights (ICCPR) and discussion in Chapter 2 p. 31.

12 ILO instruments which speak of labour confl icts include the Unemployment Provision Convention,

1934 (No. 44), Article 10; the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92),

paragraphs 4, 6 and 7; the Social Security (Minimum Standards) Convention, 1952 (No. 102), Article

69; and the Abolition of Forced Labour Convention, 1957 (No. 105), Article 1.

13 See Chapter 2 p. 36; International Labour Offi ce General Survey on the Fundamental Conventions concern-

ing rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization 2008 Report of the

Committee of Experts on the Application of Conventions and Recommendations (2012, 1 st Ed.) para

119, where they affi rm that the right to strike derives from Convention 87.

14 International Labour Offi ce Freedom of Association: Digest of Decisions and Principles of the Freedom of Association

Committee of the Governing Body of the ILO (2006, 5 th Revised Ed.) para 523.

298 Commonwealth Caribbean Employment and Labour Law

detailed principles in this regard.

15 Secondly, they aver that the extension of any embryonic provi-

sion that could be inferred is not the purview of the CEACR, but rather of the International Labour

Conference which is vested with the power to adopt authoritative Conventions and

Recommendations.

16 Notwithstanding these concerns, the ILO has continued to advance this posi-

tion as the foundation of the workers’ right to withdraw their labour in appropriate circumstances.

The rationale behind the ILO’s position has been described by Ben Israel

17 as being

fourfold: the existence of procedural diffi culties; political differences between States; the belief

that specifi c elaboration of the principle was unnecessary; and the workers’ fear that spelling

out the right would make it easier to restrict. The ILO has, however, accepted that, although

the right should be readily available to workers and their representatives, some restrictions may

be allowed by national laws and regulations provided they do not adversely abrogate the

underlying right.

18 In this regard the ILO has enumerated some general principles to guide

States in addressing industrial action in their national legal systems.

The ILO posits that strikes should only be pursued as a part of efforts to defend economic

and social interests;

19 so, political strikes are generally not sanctioned,

20 although the calling of

strikes by either individuals or representative organisations may also be allowed.

21 Whenever

industrial action is contemplated, workers should give notice to the requisite authorities and the

employer,

22 and it is acceptable for secret ballots to be utilised requiring a reasonable quorum of

worker strike votes before embarking on industrial action.

23 The ILO recognises that national

laws may institute prerequisites for the calling of a lawful strike, but professes that these condi-

tions should not be so onerous as to limit the undertaking of such action.

24 It encourages the use

of established industrial relations protocols in attempting to settle disputes (that is, negotiation,

conciliation, arbitration) before workers take recourse to industrial action, provided these mech-

anisms are adequate, impartial and speedy, involving the parties at every stage.

25

The ILO accepts that compulsory arbitration may be entered into if both parties to an

industrial dispute request it.

26 Outside of such agreements, the use of this mechanism is gener-

ally discouraged, although it is viewed as acceptable in certain other limited instances. These

include disputes within the essential or public service where interruption would endanger the

life, health or safety of a signifi cant part of the population.

27 Moreover, a general strike prohibition

may only be justifi ed in acute national emergencies for limited periods.

28 Where the power to

15 International Labour Offi ce General Survey on the Fundamental Conventions concerning rights at work in light of

the ILO Declaration on Social Justice for a Fair Globalization 2008 Report of the Committee of Experts on the

Application of Conventions and Recommendations (2012, 1 st Ed.) para 117.

16 Ibid.; see also The Right to Strike? The ILO’s Freedom of Association Convention (Ius Laboris), available at www.

iuslaboris.com/fi les/documents/Public%20Files/Ius_Laboris_global_right_to_strike.pdf .

17 Ben Israel, R. (1988) International Labour Standards: The Case of Strike (Deventer, Kluwer), p. 46.

18 Servais, J.-M. ILO Law and the Freedom to Strike Paper presented at the University of Toronto Strike Symposium

December 5, 2009 available at www.law.utoronto.ca/documents/conferences2/StrikeSymposium09_

Servais.pdf .

19 International Labour Offi ce Freedom of Association: Digest of Decisions and Principles of the Freedom of Association

Committee of the Governing Body of the ILO (2006, 5 th Revised Ed.), paras 520–522.

20 Ibid. para 528; although it should be noted that the ILO contemplates that strikes may sometimes be

used to protest against government economic policies (para 529).

21 Ibid. para 524.

22 Ibid. para 552.

23 Ibid. paras 555–563.

24 Ibid. para 547.

25 Ibid. para 549.

26 Ibid. para 564.

27 Ibid. para 565; it should be noted that the ILO limits the ‘public service’ to public servants exercising

authority in the name of the State and advocates that the essential services should also not be so widely

construed thereby unduly restricting the workers’ right to strike. See para 585 for a comprehensive list

of which workers are considered essential.

28 Ibid. para 570.