Enhancing the right to strike

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Enhancing the right to strike

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Publication date (Print): 2018

Journal: Institute of Employment Rights Journal

Publisher: Pluto Journals

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Journal ID (doi): 10.13169

Journal ID (publisher-id): instemplrighj

Title: Institute of Employment Rights Journal

Publisher: Pluto Journals

ISSN (Print): 23981326

ISSN (Electronic): 23981334

Publication date (Print): 2018

Volume: 1

Issue: 1

Pages: 48-55

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Publisher ID: instemplrighj.1.1.0048

DOI: 10.13169/instemplrighj.1.1.0048

SO-VID: 99b0d08d-daf8-4061-8778-5bc8e89e5dfa

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ScienceOpen disciplines: Labor law

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Crofter Hand Woven Harris Tweed v Veitch [1942] AC 43, at p 463.
National Union of Rail, Maritime and Transport Workers v Serco Ltd (t/a Serco Docklands) [2011] ICR 848, at para 8.
Saskatchewan Federation of Labour v. Saskatchewan , above, at para 46. To the foregoing we might have added the South African Constitutional Court to similar effect: ‘Collective bargaining is based on the recognition of the fact that employers enjoy greater social and economic power than individual workers. Workers therefore need to act in concert to provide them collectively with sufficient power to bargaining effectively with employers. Workers exercise collective power primarily through the mechanism of strike action’ (In re Certification of the Constitution of South Africa 1996 (4) SA 744, at para 66).
F O'Grady, ‘The Future of Trade Unions’ Centre Write (November 2015), written as part of the TUC's campaign against the Trade Union Bill.
We have already identified the international treaties, ratified by the United Kingdom, guaranteeing the right to strike (subject only to the permissible restrictions) and reflected in their respective jurisprudence. The leading ECtHR decisions upholding the right to strike are to be found in National Union of Rail, Maritime and Transport Workers v United Kingdom (2015) 60 EHRR 10, at para 84.
As noted above, the most prominent catalogue of permissible restrictions on the right to strike is found in ECHR, Article 11(2), above at the ‘International protection’ section.
The ILO Committee of Experts gave the following examples of States recognising the right to strike: Albania, Algeria, Angola, Argentina, Armenia, Azerbaijan, Belarus, Benin, Plurinational State of Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo, Democratic Republic of the Congo, Costa Rica, C$oCte d'Ivoire, Croatia, Cyprus, the Czech Republic, Djibouti, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, France, Georgia, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hungary, Italy, Kazakhstan, Kenya, Republic of Korea, Kyrgyzstan, Latvia, Lithuania, Luxembourg, The former Yugoslav Republic of Macedonia, Madagascar, Republic of the Maldives, Mali, Mauritania, Mexico, Republic of Moldova, Montenegro, Morocco, Mozambique, Nicaragua, Niger, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Russian Federation, Rwanda, San Marino, Sao Tome and Principe, Senegal, Serbia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Suriname, Timor-Leste, Togo, Turkey, Ukraine, USA, Uruguay and Bolivarian Republic of Venezuela: ILO Committee of Experts, General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice for a Fair Globalisation, 2008 (2012).
National Union of Rail, Maritime and Transport Workers v United Kingdom , above, at paras 30–37.
Ibid., para 98.
Ibid.
See A Bogg and K D Ewing, ‘The Implications of the RMT Case’ (2014) 43 Industrial Law Journal 221.
Consideration will need to be given to transnational labour law both across the EU (with the problem limitations of Viking and Laval – see below) and more broadly by reason of the globalisation of the market in labour and trade. In turn, the utterly defective chapters on labour rights in the Free Trade Agreements (such as TTIP, CETA, EU-Korea, EU-Vietnam) will need to be addressed. Note the important A Ojeda-Aviles, Transnational Labour Law (2015).
European Committee of Social Rights (ECSR), Conclusions XX-3 (United Kingdom). In fact, the right to strike under the Charter is narrower than that under the ECHR! The former guarantees the right to strike only for the purposes of collective bargaining whereas the latter permits the right to strike to be exercised in defence of any economic or social interests of the workers. See F Dorssemont, ‘The Right to Take Collective Action in the Council of Europe: A Tale of One City and Two Instruments and Two Bodies’ (2016) 27 KLJ 67. It is hard to see how the deference invariably shown to the ECSR by the ECtHR could permit the latter to uphold the central holding in RMT should a future challenge to the ban on secondary action arise again in the ECtHR in the future.
Jeremy Corbyn, Financial Times , 17 January 2016. For similar views expressed by a previous Labour leader see Official Report, Standing Committee D, 22 February 1990, cols 171–8: ‘The abolition of sympathy action is unreasonable, unjustified and way out of line with anything that happens anywhere else’ (Tony Blair).
In particular, privatisation and outsourcing have caused work colleagues to find themselves employed by different employers even when working for the same ultimate enterprise.
The highly controversial provisions of the Trade Union Act 2016 on picketing supervisors should have no place in relation to picketing, wherever it takes place.
European Committee of Social Rights, Conclusions XX-3 (United Kingdom).
International Transport Workers' Federation v Viking Line ABP (C-438/05) [2008] ICR 741; Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet (C-341/05) [2008] IRLR 160. See also, Case C-346/06, Rüffert v Land Niedersachsen [2008] ECR I-1989; Case C-319/06, Commission v Luxembourg [2008] ECR I-4323; and Case C-271/08, Commission v Germany [2011] All ER (EC) 912. Both the ILO Committee of Experts and the ECSR have found these decisions of the CJEU to be incompatible with ILO Conventions 87 and 98.
ILO Committee of Experts, Observation (United Kingdom) – Adopted 2009, Published 99th ILC Session (2010) (Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)).
The section limits damages against a trade union (in relation to industrial action) to a sum commensurate with the size of the trade union, that is, the ability of the workers' organisation collectively to compensate without destroying its capacity to act as a representative of workers in the future.

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[1] Crofter Hand Woven Harris Tweed v Veitch [1942] AC 43, at p 463.

[2] National Union of Rail, Maritime and Transport Workers v Serco Ltd (t/a Serco Docklands) [2011] ICR 848, at para 8.

[3] Saskatchewan Federation of Labour v. Saskatchewan , above, at para 46. To the foregoing we might have added the South African Constitutional Court to similar effect: ‘Collective bargaining is based on the recognition of the fact that employers enjoy greater social and economic power than individual workers. Workers therefore need to act in concert to provide them collectively with sufficient power to bargaining effectively with employers. Workers exercise collective power primarily through the mechanism of strike action’ (In re Certification of the Constitution of South Africa 1996 (4) SA 744, at para 66).

[4] F O'Grady, ‘The Future of Trade Unions’ Centre Write (November 2015), written as part of the TUC's campaign against the Trade Union Bill.

[5] We have already identified the international treaties, ratified by the United Kingdom, guaranteeing the right to strike (subject only to the permissible restrictions) and reflected in their respective jurisprudence. The leading ECtHR decisions upholding the right to strike are to be found in National Union of Rail, Maritime and Transport Workers v United Kingdom (2015) 60 EHRR 10, at para 84.

[6] As noted above, the most prominent catalogue of permissible restrictions on the right to strike is found in ECHR, Article 11(2), above at the ‘International protection’ section.

[7] The ILO Committee of Experts gave the following examples of States recognising the right to strike: Albania, Algeria, Angola, Argentina, Armenia, Azerbaijan, Belarus, Benin, Plurinational State of Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo, Democratic Republic of the Congo, Costa Rica, C$oCte d'Ivoire, Croatia, Cyprus, the Czech Republic, Djibouti, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, France, Georgia, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hungary, Italy, Kazakhstan, Kenya, Republic of Korea, Kyrgyzstan, Latvia, Lithuania, Luxembourg, The former Yugoslav Republic of Macedonia, Madagascar, Republic of the Maldives, Mali, Mauritania, Mexico, Republic of Moldova, Montenegro, Morocco, Mozambique, Nicaragua, Niger, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Russian Federation, Rwanda, San Marino, Sao Tome and Principe, Senegal, Serbia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Suriname, Timor-Leste, Togo, Turkey, Ukraine, USA, Uruguay and Bolivarian Republic of Venezuela: ILO Committee of Experts, General Survey on the Fundamental Conventions Concerning Rights at Work in Light of the ILO Declaration on Social Justice for a Fair Globalisation, 2008 (2012).

[8] National Union of Rail, Maritime and Transport Workers v United Kingdom , above, at paras 30–37.

[9] Ibid., para 98.

[10] Ibid.

[11] See A Bogg and K D Ewing, ‘The Implications of the RMT Case’ (2014) 43 Industrial Law Journal 221.

[12] Consideration will need to be given to transnational labour law both across the EU (with the problem limitations of Viking and Laval – see below) and more broadly by reason of the globalisation of the market in labour and trade. In turn, the utterly defective chapters on labour rights in the Free Trade Agreements (such as TTIP, CETA, EU-Korea, EU-Vietnam) will need to be addressed. Note the important A Ojeda-Aviles, Transnational Labour Law (2015).

[13] European Committee of Social Rights (ECSR), Conclusions XX-3 (United Kingdom). In fact, the right to strike under the Charter is narrower than that under the ECHR! The former guarantees the right to strike only for the purposes of collective bargaining whereas the latter permits the right to strike to be exercised in defence of any economic or social interests of the workers. See F Dorssemont, ‘The Right to Take Collective Action in the Council of Europe: A Tale of One City and Two Instruments and Two Bodies’ (2016) 27 KLJ 67. It is hard to see how the deference invariably shown to the ECSR by the ECtHR could permit the latter to uphold the central holding in RMT should a future challenge to the ban on secondary action arise again in the ECtHR in the future.

[14] Jeremy Corbyn, Financial Times , 17 January 2016. For similar views expressed by a previous Labour leader see Official Report, Standing Committee D, 22 February 1990, cols 171–8: ‘The abolition of sympathy action is unreasonable, unjustified and way out of line with anything that happens anywhere else’ (Tony Blair).

[15] In particular, privatisation and outsourcing have caused work colleagues to find themselves employed by different employers even when working for the same ultimate enterprise.

[16] The highly controversial provisions of the Trade Union Act 2016 on picketing supervisors should have no place in relation to picketing, wherever it takes place.

[17] European Committee of Social Rights, Conclusions XX-3 (United Kingdom).

[18] International Transport Workers' Federation v Viking Line ABP (C-438/05) [2008] ICR 741; Laval un Partneri Ltd v Svenska Byggnadsarbetareforbundet (C-341/05) [2008] IRLR 160. See also, Case C-346/06, Rüffert v Land Niedersachsen [2008] ECR I-1989; Case C-319/06, Commission v Luxembourg [2008] ECR I-4323; and Case C-271/08, Commission v Germany [2011] All ER (EC) 912. Both the ILO Committee of Experts and the ECSR have found these decisions of the CJEU to be incompatible with ILO Conventions 87 and 98.

[19] ILO Committee of Experts, Observation (United Kingdom) – Adopted 2009, Published 99th ILC Session (2010) (Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)).

[20] The section limits damages against a trade union (in relation to industrial action) to a sum commensurate with the size of the trade union, that is, the ability of the workers' organisation collectively to compensate without destroying its capacity to act as a representative of workers in the future.