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The Right to Strike

Federico Fabbrini

in Fundamental Rights in Europe

This chapter examines the right to strike in Europe. It explains how member states diverge significantly in their recognition of the right to take industrial action and argues that the recent ... More

This chapter examines the right to strike in Europe. It explains how member states diverge significantly in their recognition of the right to take industrial action and argues that the recent expansion of EU law in the field, with judicial recognition of a right to strike, has produced a challenge of ineffectiveness, since a ceiling for the protection of the right to strike has been introduced at EU level to secure the functioning of the common market. From the perspective of comparative law, the chapter contrasts the European dynamics with the experience of the United States and stresses how historically the interaction between state labor laws and federal free market rules produced the same tensions in the United States. Drawing cautionary tales from the example of the US New Deal, it discusses how EU legislative reform could increase the effectiveness of the right to collective labor action in the EU.Less

Conclusion: Past Sources of Divergence and Prospects for Future Developments

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

This final chapter discusses the past resources of divergence between international labour standards and future prospects for more consistent or coherent protection of a right to strike. It ... More

This final chapter discusses the past resources of divergence between international labour standards and future prospects for more consistent or coherent protection of a right to strike. It summarizes the differences between the International Labour Organization (ILO), the Council of Europe, and the European Union with regards to their respective attempts to promote protection of the right to strike. It concludes by considering the particular concerns of the ILO, as well as issues faced by European organizations, and discusses how these could affect future developments in this field.Less

Introduction: Why Investigate Protection of the Right to Strike?

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

The aim of this book is to investigate the right to strike and the differences between the jurisprudence developed concerning the legitimate scope of industrial action. It considers how the ... More

The aim of this book is to investigate the right to strike and the differences between the jurisprudence developed concerning the legitimate scope of industrial action. It considers how the justifications for industrial action could be balanced against grounds for its restriction and what kind of limitation could be regarded as appropriate. This introductory chapter introduces issues concerning the right to strike in the light of contemporary debates over ‘good governance’, which arises at both the national and international level. A governance framework provides a useful basis for examining not only the contours of the right to strike as it is presented as an international legal norm to national governments, but also the internal dynamics of transnational organisations which shape the content and communication of that norm.Less

Divergent Remedial Mechanisms in the Council of Europe

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

This chapter discusses the mechanisms utilized for the implementation and review of the Council of Europe's position on civil, political, and socio-economic rights. The protection of human rights ... More

This chapter discusses the mechanisms utilized for the implementation and review of the Council of Europe's position on civil, political, and socio-economic rights. The protection of human rights within the Council of Europe differs according to whether the right in question is protected under the European Convention on Human Rights 1950 (ECHR) or the European Social Charter 1961 (ESC). The level of protection for civil and political rights under the former is far superior to that provided for social rights under the latter. This is significant because the right to strike is expressly protected only under the ESC.Less

Existence and Exercise of the Right to Strike

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

This chapter examines the international and European jurisprudence concerning the existence of the right to strike and the basic constraints that may be placed on its exercise. It focuses on the ... More

This chapter examines the international and European jurisprudence concerning the existence of the right to strike and the basic constraints that may be placed on its exercise. It focuses on the decisions taken under the International Labour Organization (ILO) and European Social Charter (ESC) supervisory mechanisms. It also explores the few observations made by the United Nations (UN) Committee on Economic, Social, and Cultural Rights under the International Covenant on Economic, Social, and Cultural Rights 1966 (ICESCR) relevant to these issues.Less

Permissible Objectives of a Strike

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

This chapter examines the approaches of international and European supervisory bodies on the permissible objectives of a strike. The first is the stance taken by the European Court of Human Rights, ... More

This chapter examines the approaches of international and European supervisory bodies on the permissible objectives of a strike. The first is the stance taken by the European Court of Human Rights, that the exercise of the right to strike should be restricted to the aim of achieving a collective agreement. The European Committee of Social Rights (ESCR) has adhered to the Article 6 of the European Social Charter (ESC), which links the right to strike to collective bargaining. The International Labour Organization (ILO) has taken a third position, that workers are entitled to take industrial action to defend their ‘economic and social interests’.Less

Standard-setting in the ILO

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

This chapter considers the role of International Labour Organization (ILO) on the protection of the right to strike. The constitutional objectives of the ILO and the form of its standard-setting ... More

This chapter considers the role of International Labour Organization (ILO) on the protection of the right to strike. The constitutional objectives of the ILO and the form of its standard-setting mechanisms arguably made the adoption of conventions concerning freedom of association imperative. These were, in turn, to provide the basis for the protection of a right to strike, by virtue of the jurisprudence developed by the ILO supervisory bodies, which also made reference to the terms of the ILO Constitution.Less

“A New era of Labor Relations”: Teachers and the Public-Sector Labor Problem

Jon Shelton

in Teacher Strike!: Public Education and the Making of a New American Political Order

This chapter outlines the parameters of the “public sector labor problem.” When private sector unions grew powerful after World War II, public employees organized for similar rights. In many states ... More

This chapter outlines the parameters of the “public sector labor problem.” When private sector unions grew powerful after World War II, public employees organized for similar rights. In many states they acquired the right to organize but not the right to strike. The chapter chronicles the early history of teacher unions—especially the American Federation of Teachers (AFT)—and their quest for meaningful collective bargaining. It uses Pennsylvania—the state that passed the furthest reaching attempt to ensure union rights for teachers—and teacher strikes in Pittsburgh (1968, 1971) and Philadelphia (1970) to highlight the failure of liberal labor policy to prevent teacher strikes.Less

Adoption of Human Rights Instruments in the Council of Europe

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

This chapter outlines the historical background to the adoption of multilateral instruments which contain provisions requiring protection of freedom of association and the right to strike. It begins ... More

This chapter outlines the historical background to the adoption of multilateral instruments which contain provisions requiring protection of freedom of association and the right to strike. It begins with an analysis of the constitutional objectives set out in the Statute of the Council of Europe. The Council of Europe has the capacity to exercise influence over labour standards in Europe via two key instruments: the European Convention on Human Rights (ECHR) and the European Social Charter (ESC). There is some overlap between the two instruments, both of which recognize freedom of association or the right to join and act as a member of a trade union. However, only the ESC expressly recognizes the right to strike.Less

Judicial Circumspection in the EU

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

Neither freedom of association nor the right to strike receives explicit protection under EC legislation, apart from non-binding declaratory instruments. This means that, generally, there is no ... More

Neither freedom of association nor the right to strike receives explicit protection under EC legislation, apart from non-binding declaratory instruments. This means that, generally, there is no potential role for the European Court of Justice (ECJ) in enforcing protection of the right to strike. This chapter explores the two alternative paths through which jurisprudence may shape the extent to which a right to strike is protected. The first is through ‘staff cases’, that is, complaints brought before the Court by EU officials who claim that there has been a breach of the ‘Staff Regulations’ which form the basis of their contract of employment. The second is via the ‘fundamental rights’ jurisprudence, which has the potential to be used as a defence against the aggressive application of market integration principles to national laws.Less

Responses to Public Welfare Considerations

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

This chapter discusses the standard response of the supervisory bodies in the International Labour Organization to public welfare considerations. The right to strike may only be restricted or ... More

This chapter discusses the standard response of the supervisory bodies in the International Labour Organization to public welfare considerations. The right to strike may only be restricted or prohibited in the following cases: (1) in the public service only for public servants exercising authority in the name of the State; (2) in essential services, that is, services the interruption of which would endanger the life, personal safety or health; and (3) in the event of an acute national emergency and for a limited period of time.Less

The Right to Strike and Contestatory Citizenship

Alan Bogg and Cynthia Estlund

in Philosophical Foundations of Labour Law

Is the right to strike a fundamental right? If so, what are its philosophical foundations? This chapter argues that the right to strike is a fundamental right resting upon three basic liberties: ... More

Is the right to strike a fundamental right? If so, what are its philosophical foundations? This chapter argues that the right to strike is a fundamental right resting upon three basic liberties: freedom from forced labour, freedom of association, and freedom of expression. In so doing, it challenges and rejects two dominant strategies in arguing for a fundamental right to strike: (a) that the right is derivative of a single basic liberty; (b) that the right is derivative of a right to collective bargaining. The contours of these basic liberties are developed using the republican ideal of non-domination and contestatory citizenship. Having defended a republican account of the philosophical foundations of the right to strike, the chapter then uses that framework to explore how the basic regulatory questions of a ‘right to strike’ have been addressed in Canada, the UK, and the US.Less

Reasons for Restriction of Strikes

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

The reasons for protection of a right to strike need to be weighed against the potential harms which industrial action can cause to employers, consumers, and others. This chapter examines debates on ... More

The reasons for protection of a right to strike need to be weighed against the potential harms which industrial action can cause to employers, consumers, and others. This chapter examines debates on the nature of these harms and the degree to which they should restrict legal protection of strikes.Less

The Implications of Categorizing the Right to Strike as a Civil, Political, and/or Social Right

Tonia Novitz

in International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union

This chapter analyses the categorisation of ‘rights’ as civil, political, and socio-economic within a democratic framework. It considers the extent to which the right to strike may fall within such ... More

This chapter analyses the categorisation of ‘rights’ as civil, political, and socio-economic within a democratic framework. It considers the extent to which the right to strike may fall within such categories, as well as the implications that this categorisation has for the scope of such a right. The distinction between civil, political, and socio-economic rights remains a useful tool by which to determine the scope of the right to strike, whose ambit cannot be wider than its justificatory bases permit, and to understand its treatment under international human rights law.Less

Pre-Strike Ballots in Comparative Perspective

Breen Creighton, Catrina Denvir, Richard Johnstone, Shae McCrystal, and Alice Orchiston

in Strike Ballots, Democracy, and Law

Chapter 3 contains a comparative review of pre-strike ballot requirements, describing the principal forms adopted around the world. It demonstrates that pre-strike ballot requirements can range from ... More

Chapter 3 contains a comparative review of pre-strike ballot requirements, describing the principal forms adopted around the world. It demonstrates that pre-strike ballot requirements can range from ‘light touch’ regulation specifying that union rules must contain provisions requiring the conduct of pre-strike ballots but attaching almost no consequence to failure to do so, through to highly prescriptive requirements which can have the effect of making it exceedingly difficult lawfully to take strike action. Chapter 3 then examines in detail the pre-strike ballot requirements that have been adopted in four jurisdictions: the United States, where there are no formal pre-strike ballot requirements; South Africa, where formerly stringent ballot requirements were replaced by light touch regulation in 1995; Canada, where there are formal requirements for the conduct of pre-strike ballots, but where they appear to be of only very marginal inconvenience to trade unions; and the United Kingdom which has adopted exceedingly complex provisions which betoken an almost obsessive desire to regulate the circumstances and manner in which strike action can lawfully be taken. The chapter also points to the case of Australia, which has adopted an approach that is, in many respects, similar to that of the United Kingdom—albeit with some significant differences. The similarities are such that the detailed study of the operation of the Australian provision affords many insights into the operation of the British provisions, and into the role of law as a means of regulating industrial behaviour more generally.Less

The Right to Strike and Pre-Strike Ballot Requirements in International Law

Breen Creighton, Catrina Denvir, Richard Johnstone, Shae McCrystal, and Alice Orchiston

in Strike Ballots, Democracy, and Law

The book is underpinned by the assumption that the right to strike to promote or to protect the individual’s economic and social interests is a universally recognized human right, either standing on ... More

The book is underpinned by the assumption that the right to strike to promote or to protect the individual’s economic and social interests is a universally recognized human right, either standing on its own, or as part of the principle of freedom of association. This is reflected in the fact that the right to strike is, directly or indirectly, afforded protection by major international standard-setting instruments, and in the constitutions of many nation states. This chapter outlines the international recognition of the right to strike, with particular reference to the jurisprudence of the supervisory bodies of the International Labour Organisation. This includes consideration of the extent to which access to the right to strike can properly be conditioned by pre-requisites such as pre-strike ballot requirements.Less

The Right to Strike *

A.G. Noorani

in CONSTITUTIONAL QUESTIONS AND CITIZENS' RIGHTS: An Omnibus Comprising Constitutional Questions in India and Citizens' Rights, Judges and State Accountability

This chapter discusses the judgement pronounced by Justice M. B. Shah of the Supreme Court, on 6 August, in the now famous ‘right to strike’ case. He held that employees have no fundamental right to ... More

This chapter discusses the judgement pronounced by Justice M. B. Shah of the Supreme Court, on 6 August, in the now famous ‘right to strike’ case. He held that employees have no fundamental right to go on strike. The chapter criticizes the reasoning and the conclusion of Justice Shah. Every rule in the book was broken. Justice Shah made observations which he did not have to make in order to decide the case; they were sweeping and inappropriate. They were made not only against the spirit of the times but in apparent unawareness of modern trends in the law, including India's international obligations. The chapter suggests that the right to strike should be seen as a fundamental right; it should be permissible with lawful restrictions and should not be completely denied.Less

The Rights of Free Labor, 1875–1910

in The Making of Law: The Supreme Court and Labor Legislation in Mexico, 1875-1931

This chapter focuses on the constitution of 1857 that largely comprised the law affecting labor relations in Mexico during the administration of Porfirio Díaz. It also examines some of the debates ... More

This chapter focuses on the constitution of 1857 that largely comprised the law affecting labor relations in Mexico during the administration of Porfirio Díaz. It also examines some of the debates about free labor among the delegates who drafted the constitution, along with relevant provisions of the civil and penal codes. The chapter concludes by discussing a symposium held in 1875 on the right to strike, when speakers construed that the constitution with the penal code affirmed the right of workers to strike peacefully. The speakers insisted that both the constitution and the codes could be used as a basis for maintaining the rights of free labor; the liberal ideology prevalent in Mexico under Díaz's regime encompassed a vision of the free laborer.Less