FACULTY OF LAW

SCHOOL OF POSTGRADUATE STUDIES

UNIVERSITY OF LAGOS

LABOUR LAW II (CIL 805)

BEING A SEMINAR PRESENTATION IN PARTIAL FULFILMENT OF THEREQUIREMENTS FOR THE AWARD OF LL.M DEGREE

TOPIC:THE RIGHT TO STRIKE: A COMPARATIVE ANALYSIS

PRESENTED BY:GROUP 16

NAMES MAT. NO.

OWOEYE ISAAC SEGUN - 119061042OKORIE LAZARUS UZODINMA- 970601338TOLU ODUPE -

SUPERVISING LECTURER

PROF. C. K. AGOMODR. J. O. ABUGU

JULY, 2013

STRIKE: WHAT IT IS

The right to strike is the most visible form of collectiveindustrial action that workers employ to force employers toexpress their grievance and to force the employer to thebargaining table.1 The right to strike is a keystone of modernindustrial society. No society which lacks that right can bedemocratic. Any society which seeks to become democratic mustsecure that right.2 In the case of Tramp Shipping Corporation V.Greenwich Marine Incorp.,3 the indomitable Lord Denning statedthat a strike is

“a concerted stoppage of work by men, done with a view to improving their wages or conditions of employment, or giving vent to a grievance or

making a protest about something or sympathising with otherworkmen in such endeavour. It is distinct from stoppage brought by anexternal even such as a bomb scare or by apprehension of danger.”

Under Nigerian Law, Section 47 of the Trade Disputes Act4 statesthat:

“Strike means the cessation of work by a body of persons employed actingin combination, or a concerted refusal or a refusal under a commonunderstanding of any number of persons employed to continue to work foran employer in consequence of a dispute, done as a means of compelling

1 Chioma Agomo, Nigerian Employment and Labour Relations; Lawand Practice, 2011 Concept Publications Limited, Page 2972 L. MacFarlane, The Right to Strike London, Penguin Books(1981), p. 12.3 (1975) ICR 261, at 276. See also Miles V. WakefieldMetropolitan District Council (1987)2 ALL E.R 1081, at 1097.4 Chapter 432, Laws of the Federation of Nigeria 1990.

their employer or any persons or body of persons employed, to accept ornot to accept terms of employment and physical conditions of work; and inthis definition:- (a) “Cessation of work” includes deliberately working at less than usual

speed or with less than usual efficiency; and (b) “Refusal to continue to work” includes a refusal to work at usual speed

or with usual efficiency.”

The right to strike is therefore one of the numerous rights thatworkers are entitled to, it is so fundamental and pivotal to theinstrumentality of any workers' union. The right to strike hasbecome a veritable tool in industrial relations and this righthas been widely recognised and utilised by trade or workers unionaround the world. Strike is the best known form of Industrialaction. It is the most potent instrument normally adopted oremployed by workers.5

The following can be drawn out of the definition:

1. Strikers are persons employed in any industry to do work2. A strike is called against an employer of labour.3. Strike is a concerted action under common understanding by

the strikers to refuse to work or accept employment 4. The concerted action may be pre-planned or spontaneous 5. The action resulted in physical cessation of work whose

duration is immaterial.

There are three elements in the definition of a strike that aredeemed to be essential. One is the element of concerted action.The second is the stoppage of work. The third is that that thepurpose of the cessation must be in connection with a disputeinvolving the terms of employment and physical conditions ofwork.6

5 Oladosu Ogunniyi, Nigerian Labour and Employment Law inPerspective; Folio Publishers Limited (2004) Pg 4036 O.V.C Okene, The Status of the Right to Strike in Nigeria: Aperspective From International and Comparative Law; AfricanJournal of International and Comparative Law , Volume 15 (1): 29

As a concept, the right of workmen to strike is the essentialelement in the principle of collective bargaining. It is in otherwords, an essential element in the principle of collectivebargaining. Essential not only to the unions' bargaining power,that is for the bargaining process itself, it is also a necessarysanction for enforcing agreed rules.7

Strike has been described as the equivalent of what is generallyregarded as the managerial prerogative in certain aspects of theemployment relationship, such as the power of management todetermine the value for the job either through the process of jobevaluation or other methods. A situation where there is nofreedom to decide whether or not to work or where people can becompelled to work is compatible only with totalitarianism.8 Theright to work therefore is fundamental to the employmentrelationship and is compatible with the traditional values of asociety which professes democracy.9

NATURE OF THE RIGHT

The actions that constitute strike, according to Section 48, are:"Cessation of Work," and "Concerted refusal" to continue work.These two components of strike are further defined in thesection. "Cessation of work" includes deliberately working atless than usual speed or with less than usual efficiency, while"refusal to continue to work" includes a refusal to work at usualspeed with usual efficiency.10

Basically, the right to strike is a fundamental human right, Edinburgh University Press – Mar 1, 2007

7 Supra note 5, See the case of Crofter Harris Tweed Co. Ltd v.Veitch (1942) 1 All ER 142 at 1578 Section 16 of the English Trade Union and Labour Relations Act(TULRA) in fact provided that no court shall compel an employeeto do any work or attend at any place for the doing of any work.9 Supra note 510 Section 48 (1) Trade Disputes Act, Cap. T8, LFN, 2004

which is derived from various sources of law. The legality of theright to strike is derived from Legislations, Statutes, CaseLaws, International Conventions, Collective Agreements and insome countries the Constitution.

This subject falls within the scope of the given areas from twodifferent perspectives. Striking can be seen as a failure ofCollective Bargaining, where a strike is the last means of atrade union to show its employer(s) that it is serious aboutsomething and that something has to change about a particularsituation. On the other hand, a strike can be looked at as a partof the freedom of association where it is one of the forms ofexpression of the unions.11

Strike is one of the major methods in industrial actions, wherecollective bargaining breaks down; workers tend to resort tostrikes in order to drive home their demands. The cardinalinterest of unions is to win wage and other concessions from theemployer through collective bargaining, failing which strikeaction could ensue. The question may be asked here as to whatspecific factors provoke workers to undertake industrial actionin collective bargaining. We have seen that the right to strikeis embedded into the collective bargaining process. Where thebargaining takes place smoothly and the parties arrive at amutual agreement, it may then be difficult for workers to embarkon industrial action.12

However, the cardinal interest of unions is to win wage and otherconcessions from employers through collective action. Collectivebargaining ought to achieve this but where, as it often happens,the employer fails or neglects to implement the terms of anagreement commonly arrived at after negotiations between the11 The right to Strike: a comparative analysis between UK andBelgian legislation and jurisprudence; Available online athttp://www.timsmet.com/The%20right%20to%20Strike.pdf; Assessed on01/07/2013 at 4.00pm12 V. C. OKENE. "Collective Bargaining, Strikes and the Questfor Industrial Peace in Nigeria" Nigerian Journal of Labour Lawand Industrial Relations 2.2 (2008).

parties, the union will be left with the weapon of industrialaction as an alternative. Industrial action or the threat of itis therefore justified as a legitimate purpose and technique bothfor achieving an agreement and for resolving disputes over theimplementation of an agreement.13

Without any doubt, collective bargaining will not be effectivewithout a credible threat of damaging industrial action. Theright to industrial action (strike as in this case) is the onlylegitimate weapon which strengthens the power of the workers atthe bargaining table.14 Without it organised labour is powerlessto deal with management at arm’s length. Clearly if workers couldnot, in the last resort, collectively refuse to work, they couldnot bargain collectively.15 Therefore, where there is an absenceof a right to strike ‘collective bargaining’ would amount to‘collective begging’.16

FACTORS THAT GIVES RISE TO STRIKE

13 Ibid14 Lending support to necessity of the right to strike incollective bargaining, Lord Wedderburn of Charlton furtherrationalised: “To protect such a right is not to approve ordisapprove of its exercise in any particular withdrawal oflabour, it is to recognise the fact that the limits set to theright to strike and to lockout are one measure of the strengthwhich each party can in the last resort bring to bear at thebargaining table. The strength of a union is bound to be relatedto its power and its right to call out its members, so long asany semblance of collective bargaining survives.” See Wedderburn,K.W., The Worker and the Law (London: Penguin Books, 1986), p.245.15 O. Kahn-Freud, Labour and the Law, (London Stevens and Sons,1983), p. 29216 A.J.M. Jacobs, ‘The Law of Strikes and Lock-outs’ in R.Blanpain and C. Engels (eds.), Comparative Labour Law andIndustrial Relations in Industrialized Market Economies (5thedn., Deventer: Kluwer, 1993), P.423)

•Refusal to recognise a union or workers group as a collective bargaining party

•Refusal to accede to Unions demand/failure of negotiation•Failure to Implement Collective Agreement

STRIKES AND OTHER FORMS OF INDUSTRIAL ACTIONS

Strike and Lock-out

Section 48 of the Trade Disputes Act defines lock-out to mean theclosing of a place of employment, or the suspension of work, orthe refusal by an employer to continue to employ any number ofpersons employed by him in consequence of a dispute, done with aview too compelling those persons, or to aid another employer incompelling persons employed by him, to accept terms of employmentand physical conditions of work.

It may also mean the temporary refusal of an employer to furnishwork as a result of an industrial or labor dispute between theemployer and the workers.

From the above, it can be deduced that lock out is an industrialaction adopted by the employer, the management or employer locksout workers from access to work premises again as an expressionof grievance against the workers. This is a collective agreementweapon. it can be distinguished from strikes in that strikes iswhen employees or workers disengage their services from theiremployment in order to protest or agitate against some real orperceived grievance against their employer.17

Peaceful Picketing

This is the right of workers during strikes consisting of themarching to and fro before the premises of an establishmentinvolved in a labor dispute, generally accompanied by thecarrying and display of signs, placards or banners withstatements relating to the dispute.

17 Supra at note 1

It is defined as the physical means employed by employees eitherto intensify the economic pressure meted on the employer in thehope of achieving the desired goals or to ensure that theconcerted stoppage of work is not undermined.

The right to picket is closely knitted with such issues as thefreedom of assembly and expression, the right to privacy, therights of individuals to the highway and the duty of the state tomaintain law and order. See generally chapter 4 of the 1999constitution of the Federal Republic of Nigeria. The lawregulating picketing is contained in section 42 of the TradeUnion Act, 1990.

One of the major reasons why strikers picket is to solicit publicattention and support for their cause. In some cases where someworkers may not join in the strike, or substitute labour may berecruited to break the strike.

The amendment of Section 42 of the Principal Act by the TradeUnions (Amendment) Act 2005 seeks to curtail the right ofpicketing. The Trade Unions Act now provides as follows:

“(1) (A) No person shall subject any other person to anykind of constraint or restriction of his personal freedomin the course of persuasion;

(1)(B) No trade union or registered Federation of TradeUnions or any member thereof shall in the course of anystrike action compel any person who is not a member of itsunion to join any strike or in any manner whatsoever,prevent aircrafts from flying or obstruct public highways,institutions or premises of any kind for the purposes ofgiving effect to the strike.”

The above provisions in section 42(1)(A) and (B) breach the rightof picketing guaranteed under the previous Sections 42 and 43,which was even safeguarded under military dictatorship. Theprotection of the right to picket in the Act before the 2005

amendment simply meant a safeguard of the democratic principle ofthe minority in an organisation having a right to a say while themajority have their way. In other words, it is a democraticpractice for the minority to abide by the decision supported bythe majority; otherwise appropriate social sanctions are usuallyadopted as penalties on those who go against organizationaldecision, if they still intend to retain membership of theorganisation. Therefore, it is a democratic practice for unionsto enforce the decision for a strike action for example, againststrikebreakers. The provision is therefore undemocratic.18 Theissue of lawful picketing was dealt with in the case of NATIONALUNION OF PAPER AND PAPER PRODUCTS WORKER V. THE MANAGEMENT OFWAHUM PACKAGES NIGERIA LTD19 where the National Industrial Courtheld that the attempt of a trade union official to enter thepremises of the respondent without permission, in the absence ofa trade dispute, did not constitute peaceful picketing asenvisaged by the Trade Disputes Act.

TYPES OF STRIKE ACTIONS

Strike actions take different forms and sometimes, theorganisation of a strike action is formulated on differentideological basis. The nature of the demands pursued throughstrike action may be categorized as being occupational (seekingto guarantee or improve workers’ working or living conditions),trade union (seeking to guarantee or develop the rights of tradeunion organizations and their leaders), or political. The twoformer categories do not give rise to any particular problems asfrom the outset the Committee on Freedom of Association has madeclear decisions stating that they are legitimate. However, withinthe three categories of demand specified, a distinction should bemade as to whether or not they directly and immediately affectthe workers who call the strike. This introduces the issue of the

18 Femi Aborishade, The Right to Strike in Nigeria and ILOPrinciples on the Right to Strike, 2012, Online and available athttp://femiaborisade.blogspot.com/2012/10/the-right-to-strike-in-nigeria-and-ilo.html Assessed on 07/07/2013 at 4pm19 (1978-2006) DJNIC 121

political strike and the sympathy strike.20

Political Strike

On the issue of political strikes, the Committee on Freedom ofAssociation considers that ‘strikes of a purely political nature… do not fall within the scope of the principles of freedom ofassociation”.21 In other words, from the standpoint of theCommittee, the right to strike does not cover strikes of a purelypolitical nature, although they do cover those which seek asolution to major issues in economic and social policy. Thus,within the framework of this ‘principle’ the popular strikesdeclared by the labour and trade union movements in support ofthe annulled June 12, 1993 election to enable MKO Abiolaactualize his mandate and to terminate military dictatorshipwould be fit for restraint and repression.22

In this connection, the Committee on Freedom of Association hasstated that “a declaration of the illegality of a national strikeprotesting against the social and labour consequences of thegovernment’s economic policy and the banning of the strikeconstitute a serious violation of freedom of association”23. Thatsaid, it should be added that the principles laid down cover bothstrikes at the local level, and general strikes, which by theirnature have a markedly political connotation.24

Sympathy Strike

Where sympathy strikes are concerned, the crux of the issue is todecide whether workers may declare a strike for occupational,trade union or social and economic motives which do not affectthem in a direct and immediate manner. Simply put, this is astrike which is taken in solidarity with another strike, a20 Bernard GERNIGON & Ors, ILO PRINCIPLES CONCERNING THE RIGHTTO STRIKE, International Labour Review, Vol. 137 (1998), No. 4.21 (ILO, 1996a, para. 481)22 Supra at note 1823 ILO, 1996d, para. 49324 Supra note 19

support strike.

A general prohibition of sympathy strikes could lead to abuse andworkers should be able to take such action provided the initialstrike they are supporting is itself lawful25.

STRIKES AND THE CONTRACT OF EMPLOYMENT

It must be noted that collective action can have an impact on theindividual labour agreement at different levels. In particular,the impact upon pay, time off in lieu and the termination of thelabour agreement will be examined.26 Nigerian Law appears tofollow the orthodox English common law rule that a strike by anindividual worker amount to a fundamental breach of contract ofemployment leading to dismissal.27

The first reported case on the point appears to be the SupremeCourt decision in Anene v. J. Allen & Co. Ltd28. In that case; theappellant along with other employees went on strike from 5–16July, 1960. After the intervention of the Federal Ministry ofLabour, it was agreed that the striking workers should apply forre-engagement. The appellant’s application was turned down and hesued, inter alia, for salary in lieu of notice. The appellant’scounsel argued that the employee’s service contract wasterminated on July 28, 1960 when the company wrote to reject theapplication for re-engagement. But this was rejected in favour ofthe company’s contention that the application for re-engagement25 ILO Freedom of Association: Digest of decisions andprinciples of the Freedom of Association Committee of theGoverning Body of the ILO, Geneva, International Labour Office,Fifth (revised) edition, 200626 Arabella Stewart & Mark Bell, The Right to Strike: AComparative Perspective. A study of national law in six EUstates; The Institute of Employment Rights. Available online athttp://www.ier.org.uk/system/files/The+Right+to+Strike+A+Comparative+Perspective.pdf Assessed on 30/6/201327 See Simon v. Hoover (1977) 1 ALL E.R. 777;28 (1975) 5 UILR (Part IV), p. 404. The decision was in 1965though reported in 1975.

implicates that when the workers went on strike the contract wasrepudiated and having withdrawn his services he could not claim asalary in lieu of notice. On the effect of strike on the contractof employment, Brett, JSC said:

Prima facie, a striker intends to return to work once the objects of thestrike have been attained and although this may involve a fresh contractof service an intention to repudiate the existing contract is not necessarilyto be presumed; on the other hand, the whole of the circumstances,including the duration of the strike, may be such as to warrant theemployer in treating the striker as having manifested an intention torepudiate. It is therefore impossible to lay down any rule of universalapplication, and each case must depend on its own facts.

Akpan29 has advocated from this decision that the Supreme Courtadopted the suspension theory propounded by Lord Denning, MR inMORGAN V. FRY.30 But it is submitted that there is nothing fromthe ratio decidendi in the judgment to suggest that the contractwas suspended. On the contrary, the Supreme Court held that byproceeding on strike the appellant had repudiated his contract ofemployment. That is why the case failed. The actual decisionconfirmed the common law repudiation position.

These decisions show that employees taking part in a strike areliable to be dismissed for a fundamental breach of the contractof employment. This remains so even where the conditions forwhich trade unions are immune from liability for industrialaction are complied with, such as the fact that the action was incontemplation and furtherance of a trade dispute, supported by aballot, and with proper notice given to the employer. In otherwords, the contractual liability of the individual striker issuch that, despite such immunities, he can be dismissed and canbe sued for damages caused by industrial action.

But should strike by employees be taken as a breach of the

29 Akpan, The Right of Workers to Strike in Nigeria 3(1)Lawyers’ Bi-Annual (1996) 62–67, p. 62.30 (1968) 3 ALL E.R. 452 at 458.

contract of employment?31 It is submitted that it is harsh andpatently unfair to regard strike action by employees as a breachof the contract of employment leading to their dismissal. Inactual fact, workers do not see strike as a way of leaving theiremployment. Strike does not put an end to the employer andemployer relationship because definitely the strikers intend toreturn and resume work. Strike is merely used as a weapon toensure that the demands of workers are met by the employer.32 Intruth, a strike is intended to exert greater and more effectivepressure upon an employer; strikers want to continue with theexisting but improved contracts of employment.33 It is thereforevery wrong to perceive strike as a termination of contract or toinsist that it should have that effect. The dismissal of workersbecause of strike is a serious violation of international law.34

Where a strike is adjudged to be illegal in contravention withthe contract of employment, the employees must be afforded fairhearing in accordance with the provisions of the law before thecontract of employment can be terminated.35

THE CONCEPT OF THE LEGALITY OF STRIKE IN NIGERIA

The right to strike in Nigeria, as will be seen in the UK, stemsfrom the immunities granted to workers and trade unions againstcivil and criminal liabilities for engaging in industrial action.Although there was no express provision on the matter, before1968 the British-flavoured amalgam of common law and legislationwhich immune’s trade unions and workers from criminal and civilliabilities attendant upon strike actions had become part of ourlegal system.36

31 Supra at note 632 Ibid33 Boxfoldia Ltd v The National Graphical Association (1988) ICR753, 756 per Saville, J.34 Digest 2006, supra note 14, para. 661–666.35 See the case of OLUFEAGBA V. ABDUL-RAHEEM (2009) 18 NWLR (Pt. 1173) p. 384.36 The year 1968 marked the beginning of legislations affecting the right to strikein Nigeria with the promulgation of the Trade Disputes Emergency Provisions Act of1968 banning the right to strike during the war in order to sustain the war efforts.

The right to strike has its legal origin in Nigeria from theTrade Disputes Act which does not specifically refer to a rightto strike, but a couple of its provisions acknowledge theexistence of the right to strike. The Act defines the meaning ofstrike in Nigeria and also contains provisions dealing with theprocedures for strike action.37 The same goes for provisions ofthe Trade Union (Amendment) Act which prohibits employees or anyother person to “take part in a strike or engage in any conductin furtherance or contemplation of a strike …”38

There is also the Banks and other Financial Institutions Actwhich specifically recognised the right of bank workers to go onstrike but it protected the banks from incurring liability byreason of their inability to open to customers due to strikeaction by their employers. Section 42 of the Act provides that“no bank shall incur any liability to any of its customers byreason only of failure on the part of the bank to open forbusiness during a strike.”39

The law guiding strikes in Nigeria can be predominantly traced tothe Trade Disputes Act. By virtue of Section 18 of the TradeDisputes Act, there is an outright limitation of the right tostrike; however, the Act recognizes the existence of the right tostrike. Section 18 provides that:

Prohibition of lock-outs and strikes before issue of award of NationalIndustrial Court(1) An employer shall not declare or take part in a lock-out and a workershall not take part in a strike in connection with any trade dispute where-(a) The procedure specified in section 4 or 6 of this Act has not beencomplied with in relation to the dispute; or(b) A conciliator has been appointed under section 8 of this Act for the

Although there was no express provision on the matter, before 1968 the British-flavoured amalgam of common law and legislation37 See sections 17, 42 and 47 of the Trade Disputes Act, Chapter 432 of the Laws ofFederation of Nigeria 1990.38 Section 6 of the Trade Union (Amendment) Act 2005.39 Section 42 of the Banks and other Financial Institutions Act, Cap

purpose of effecting a settlement of the dispute; or(c) The dispute has been referred for settlement to the IndustrialArbitration Panel under section 9 of this Act; or(d) An award by an arbitration tribunal has become binding under section13 (3) of this Act; or(e) The dispute has subsequently been referred to the National IndustrialCourt under section 14 (1) or 17 of this Act; or(f) The National Industrial Court has issued an award on the reference.

The Act further makes it a crime for any worker or employee toengage in a strike action in connection with a trade disputewithout first exhausting the procedures listed above. This isfurther supported by the provisions of Section 18 (3) whichprovides that:

"It is hereby declared that where a dispute is settled under foregoingprovisions of this Act either by agreement or by the acceptance of anaward made by an arbitration tribunal under Section 13 of this Act, thatdispute shall be deemed for the purposes of this Act to have ended; andaccordingly any further trade dispute involving the same matters(including a trade dispute as to the interpretation of an award madeaforesaid by which the original dispute was settled) shall be treated forthe purposes of this section as a different dispute."

From the foregoing provisions, there is recognition of the rightto strike, however, it is severely restricted and limited, andaccording to Professor Agomo40 it leads to the conclusion thatthere can never be a lawful exercise of any right to strike inNigeria as long as Section 18 remains ridden in our law. Thesystem is a merry-go-round where one can never differentiatewhich must continue in motion until the programmed time isexhausted. It can therefore be said that, in effect, Section 18constitute a total ban on the right to strike in Nigeria.41

The Trade Unions (Amendment) Act, 2005 is another importantlegislation that recognises the right to strike. Stemming fromthe provision contained in the Trade Disputes Act, Section 6 of40 Supra note 141 Ibid

the Trade Unions Act provides as follows:

"No person, trade union or employee shall take part in a strike or lock-outor engage in any conduct in contemplation or furtherance of a strike orlock-out unless:

A. The person, trade union or employer is not engaged in the provisionof essential services;

B. The strike or lock-out concerns a labour dispute that constitutes adispute of right;

C. the strike or lock-out concerns a dispute arising from a collectiveand fundamental breach of contract of employment or collectiveagreement on the part of the employee, trade union or employer.

D. the provisions for arbitration in the Trade Disputes Act Cap. 432,Laws of Federation of Nigeria, 1990 have first been complied with;and

E. in the case of an employee or a trade union, a ballot has beenconducted in accordance with the rules and constitution of the tradeunion at which a simple majority of all registered members voted togo to strike.

Furthermore, other sources of the right to strike can also bereferred to. For example, a conjoint reading of section 4(1) andparagraph of the first schedule of the Trade Unions Act impliedlyrecognises the right to strike in Nigeria. First, section 4(1) ofthe Act provides that every trade union must have registeredrules which must contain provisions with respect to mattersmentioned in the first schedule of the Act. And paragraph 14 ofthe first schedule provides that the Rules Book of trade unionsmust contain a provision that no member of a trade union shalltake part in a strike unless a majority of the members has in asecret ballot voted in favour of the strike. One wonders whatthis rule would be doing in the Rules Book of trade unions ifworkers have no right to strike!42

The provisions above capture and reflect the draconic nature ofour law with regards to the right to strike. The right to strikehas been ostracised by these provisions. It is obvious that theseprovisions clearly preclude the employer from taking legal action42 Supra note 6 at page 41

for damages or an injunction against those individuals or tradeunions that commit the tort or crime and therefore contemplates aright to strike. That the right to strike exists in Nigeria isbeyond doubt. Evidence shows that Nigerian trade unions have madeample use of the right to strike at several points in time.

There can be little doubt therefore that the Nigerian worker doesnot possess the fundamental “right to strike.” Although he isfree to strike, the law only protects him or his trade unionagainst action in certain torts. This means that any personaffected by a strike is free to take legal action against thestriker in contract or in tort not protected by trade unionlegislation. The striker may also be pursued under the law ofcrime if he has done something that warrants criminalprosecution.43

STRIKE AND ESSENTIAL SERVICESWorkers in essential services are under the Trade Disputes Actrequired to give 15 days' notice before embarking on any strikeaction44. As understandable as the restriction specified by thisact may sound for workers in essential services, there is anoutright prohibition by the Section 30 of the Trade Unions(Amendment) Act 2005. It can be seen that the definition45

ascribed to the term (essential services) by the Trade DisputesAct and the Trade Disputes (Essential Services) Act insinuates a"catch-all phrase" which muzzles the entire civil and publicservants, among others from exercising their right to strike.46

As Professor Agomo noted47 the definition is too wide and goes farbeyond what an ordinary person on the street would consider to be

43 O’Higgins has expressed a similar view. See P. O’Higgins, The Right to Strike-Some International Reflections, in J.R. Carby-Hall, (ed.) Studies in Labour Law(1976), p. 112.44 Supra note 145 See Section 48 of the Trade Disputes Act which makesreference to the all the services mentioned in the First Scheduleto the Trade Disputes Act.46 Supra Note 147 Ibid

an essential service. The whole public service and parastatalsfall within the concept of essential service, regardless of theirjob description. The main purport of the concept is to stiflingof activities of trade unions within the public sector inparticular, although, as the First Schedule shows, some serviceswithin the private service also fall within the definition.

The Right to Strike and the International Labour Organization(ILO)

The ILO recognises the important nature of the concept of theright to strike, The ILO organs of control have had numerousoccasions to take a position on the subject. They have built up abody of principles48, recognizing that the right to strikeconstitutes an intrinsic corollary to the right to organize and afundamental right of the workers and of their organizations.However, as fundamental as this right as been declared to be, itis surprising that that the right to strike is not expresslyrecognised or provided for in the ILO constitution or any of thenumerous International Labour Conventions and Recommendations.

Nevertheless, the absence of explicit provisions does not meanthat the ILO disregards the right to strike or refuses to dealwith the appropriate means of safeguarding its protection.49

Significantly, two resolutions of the International LabourConference which provided guidelines for ILO policy emphasiserecognition of the right to strike in member states. The firstresolution, “Resolution concerning the Abolition of Anti-TradeUnion Legislation in the States Members of the InternationalLabour Organisation” called for the adoption of “laws … to ensure

48 In accordance to Article 27 of the ILO Constitution any question or disputerelating to the interpretation of a Convention shall be referred for decision to theInternational Court of Justice. The conclusions of the experts or representativebodies have been accepted worldwide, but do not have the legal authority of a courtjudgment. There is no decision of the International Court of Justice regarding theright to strike.49 The right to strike was mentioned several times in that part of the reportdescribing the history of the problem of freedom of association and outlining thesurvey of legislation and practice. See ILC, 30th Session, 1947, Report VII, Freedomof Association and Industrial Relations, pp. 30, 31, 34, 46, 52, 73–74.

the effective and unrestricted exercise of trade union rights,including the right to strike by workers.”50 The secondresolution, “Resolution Concerning Trade Union Rights and theirRelation to Civil Liberties” called for action in a number ofways “with a view to considering further measures to ensure fulland universal respect for trade union right in their broadestsense”, paying particular attention, inter alia, to the right tostrike. 51

The ILO through the decisions of its Supervisory bodies,especially those of the Committee on the Freedom of Association(CFA) and the Committee of Experts on the Application ofConventions and Recommendations (CEACR) has held that the rightto strike is one of the essential means available to workers andtheir organisations for the promotion of their economic andsocial interests.52 The CFA has ruled that strikes are part andparcel of trade union activities.53 The Committee proclaims theright to strike as one of the essential means available toworkers and their organisations for the promotion and protectionof their economic and social interests.54

In addition to the above, the ILO Supervisory bodies have alwaysreferred to the right to strike when they have consideredapplications of Articles 355 and 856 of the Freedom of Associationand Protection of the Right to Organise Convention 1948 (No.87)

50 International Labour Office, (1957), p. 783.51 ILO, 1970, PP. 735–736; See also B. Gernigon, A. Odero, and H. Guido, ILOPrinciples Concerning the Right to Strike 137(4) International Labour Review (1996) p.152 ILO Freedom of Association: Digest of Decisions and Principles of the Freedom ofAssociation Committee Fifth (Revised) edition, Geneva: International Labour Office(2006), para. 521-52253 Ibid54 Ibid55 Article 3 lays down the right of workers’ organisations to organise theiractivities and to formulate their programmes freely and states that the publicauthorities shall “refrain from any interference which would restrict this right orimpede the lawful exercise thereof.”56 Article 8 provides that the law of the land which organisations and their membersmust respect, must not “be such as to impede, nor shall it be applied as to impair,the guarantees provided for in this Convention.”

by the various member states. The Supervisory bodies havereaffirmed the principle of the right to strike subject only tothe reasonable restrictions that might be imposed by the law.57

Other pointers to the protection of the right to strike are theILO guarantees extended to workers against acts of discriminationbased on their trade union activities.58

These provisions undoubtedly confirm that the ILO recognises theright to strike as a legitimate trade union activity, for withoutthis potent weapon in the armory of trade organisations, theycannot function effectively59. However, the ILO does not regardthe right to strike as an absolute right and has created someexceptions.

Outside these exceptions, a general prohibition or restriction ofthe right to strike is contrary to international labour law.There are three clear exceptions. The first concerns the right ofmembers of the police and armed forces to strike. The ILO acceptsthat the members of the police and armed forces can be denied theright to strike. They are thus excluded from the ambit ofConvention No. 87 from which the right derives. The secondexception is that certain employees in the public service may beprohibited or restricted from exercising the right to strikeprovided this only covers those public servants “exercisingauthority in the name of the state.”60 The third exception relatesto employees in “essential services”, which are restrictivelydefined as services “whose interruption would endanger the life,personal safety or health of the whole or part of thepopulation”.61

OTHER INTERNATIONAL AND REGIONAL INSTRUMENTS

57 Supra note 658 Supra note 5259 Supra note 660 ILO Freedom of Association and Collective Bargaining: Report of the Committee ofExperts on the Application of Conventions and Recommendations, International LabourConference, 81st Session, 1994, Geneva , Report 111 (Part 4B), p. 68 para.15861 Supra note 52

A number of international instruments give credence to the rightto strike and apart from the acknowledgement; some also makeactual provisions for the safeguard and protection of the right.The International Covenant on Economic, Social and CulturalRights of 1996 is the major international human rights instrumentwhich explicitly recognises the right to strike in Article 8(1)(d) of the Covenant to the effect that “the States parties to thepresent Covenant undertake to ensure, inter alia, the right tostrike, provided that it is exercised in conformity with the lawsof the particular country.” It is worthy of note that Article 2(1) of the Covenant provides that “each State Party to thepresent Covenant undertakes to take steps, with a view toachieving progressively the full realisation of the rightsrecognised in the present Covenant by all appropriate means,including the adoption of legislative measures.”

At the regional level, article 6(4) of the European SocialCharter of 1961 (revised 1996) expressly recognises the right tostrike in the event of a conflict of interests, subject to theobligations resulting from collective agreements in force. TheCommunity Charter of Fundamental Social Rights of Workers of 1989provides another explicit source where the importance of theright to strike is clearly acknowledged by the European Union.62

The right to strike is also affirmed by Article 28 of theEuropean Union of Charter of Fundamental Rights of 2000.Furthermore, Article 27 of the Inter-American Charter of SocialGuarantees of 1948 stipulates that “Workers have the right tostrike. The law shall regulate the conditions and exercise ofthat right.” The right to strike is also recognised in article8(1) (b) of the Additional Protocol to the American Convention onHuman Rights in the Area of Economic, Social and Cultural Rights.

Coming to the African Forum, the right to strike is to be foundin the African [Banjul] Charter of Human and Peoples Rights(ACHPR) which was adopted on June 27, 1981 and which entered intoforce on October 21, 1986. The ACHPR does not specifically

62 See point 13. This instrument is now referred to in Article 136 of the EC Treatyalongside the European Social Charter, 1961. See T. Novitz, International and EuropeanProtection of the Right to Strike (2003), p. 333.

provide for the right to strike or for trade union rights forthat matter. However, it is submitted that a conjoint reading ofArticles 10, 5, and 15 of the Charter provides support and basisfor the right to strike. Article 10 provides that “Everyindividual shall have the right to associate provided he abidesby the law”, whereas Article 5 states that “every individualshall have the right to the respect of the dignity inherent in ahuman being and to the recognition of his legal status … allforms of exploitation and degradation of man particularlyslavery, slave trade, torture, cruel, inhuman or degradingpunishment and treatment shall be prohibited.” And by Article 15“Every individual shall have the right to work under equitableand satisfactory conditions and shall receive equal pay for equalwork.” These provisions give impetus to trade unions to performtheir activities in the protection of the legitimate interests ofworkers, including the right to strike.63

COMPARATIVE ANALYSIS OF THE RIGHT TO STRIKE

INDIA

Strikes resorted to by different sections or groups in anysociety at one time or other have created hardships orinconvenience for the public. In India, at times, the sufferingsof the public have roused their fury against the strikingemployees and also attracted the attention of the courts of law.In November 1997, the Supreme Court upheld a verdict of theKerala High Court which held that calling and enforcing a band byany association, organisation or political party is "illegal andunconstitutional".

(1) The Kerala High Court had made a distinction between a bandhand general strike and held that "As understood in our countryand certainly in our State, the call for a bandh is clearlydifferent from a call for general strike or a hartal." TheCourt said that the word bandh conveyed an idea thateverything is to be blocked or closed. It also observed that

63 Supra at note 6

the organisers of a bandh clearly implied that all activitiesshould come to a standstill on the day of the bandh. Thedecision had no direct bearing on strike but was a ban imposedon the bandh declared by the political parties. But there is adegree of similarity as it is a ban on the right to protest.However, in recent past when the government employees in TamilNadu resorted to strike, the Supreme Court observed thatgovernment servants have no right, fundamental or statutory ormoral, to go on strike.

(2) The judgment generated sharp reaction from all the tradeunion federations. In the backdrop of this judgment andreaction of the trade unions, an attempt is made here toanalyze the prevalent legal provisions of strike and theirbearing upon the industrial workers.

Right to strike as a fundamental right is a function of thesociety and its laws. In India, a common wealth member countrylike Nigeria, this consideration emanates from Art. 19(1) (e) ofher constitution which provide for right to form associations orunion. However, the right provided to Indian citizen above waslimited by clause 4 of the same Article which empowers the stateto restrict the right conferred in the interest of sovereigntyand integrity of the country. And so this right in Art. 19 canonly be exercised in as much as or to the extent that it does notadversary affect others or the public interest.

The question then is what kind of right does freedom of speech,expression and association guarantee to unionism? Does it includethe right to strike? According to one author this questiondepends on the basis of theoretical and legal interpretationtheoretical view based on the literature suggesting the way tradeunion came to be, and the objectives they are supposed to pursue.On the other, the legal view is hinged upon the judgmentsdelivered by the High Court and Supreme Courts.

From the history of Trade Unionism, it is common knowledge theycome into being to deflect the exploitative practices of theemployers against the employee who is vulnerable due to in-

balance in his bargaining power with the employer. Trade Unioncame therefore to substitute this individual bargain/power withcollective bargaining power conceived upon the balance of powerbetween concerned parties. With each empowered with threat ofwithdrawal where agreement cannot be reached. This power ofwithdrawal acts to compel the other or both parties to makeconcessions.

It therefore follows that the threat to withdraw services by aunion called – strike, is a useful tool/weapon which compels theemployers to come to the bargaining table and which if removed,turns a trade union to collective begging rather than acollective bargainer. Therefore collective bargaining, freedom ofassociation and right to strike have been recognized in the beinghistory of struggle over the world and have come to be recognizedby many of the European countries as a fundamental right in theirrespective constitutions.

However, the judicial view in some of the European countries,Nigeria and India has remained that strikes is not a fundamentalright. In the Indian case of Tamil Nadu, the Indian supreme courtheld as such viewing the question - whether the right to form aUnion would carry with it the concomitant right of collectivebargaining and strike. In All Indian Bank Employees’ Associationv National Industrial Tribunal64 the court ruled that “on theconsideration of the Art. 19(1) (c) we have reached theconclusion that even a liberal interpretation of sub – clause (c)of clause (1) of Art. 19 cannot lead to the conclusion that thetrade unions have guaranteed right to an effective collectivebargaining or to strike either as a part of collective bargainingor otherwise

The author also observed that in Radheshtam Sharma v. Post MasterGeneral Nagpur the Indian Supreme Court referring to the BritishLaw report observed that in Hapsburg’s Law of England (12th Ed,Vol. VI, P. 392) the right to strike or the right of the subjectto withhold his labour so long as he commits no breach of

64 All India Bank Employees’ Association V. national Industrial Tribunal, AIR, 1962,SC P. 171

contract or tort or crime, is enunciated as one of the importantliberties of a British subject which may be regarded as afundamental character. “But under our constitution the right tostrike is not fundamental right although it may be legal rights65.

Also as noted by the author, in BR Singh & Ors v Union of India,the Supreme Court held that “though right to strike is not raisedto the high pedestal of a fundamental right, it is recognized asa mode of redress for resolving the grievance of workers”66

It therefore can be summed up that right to strike under theIndia constitution is not a fundamental right. And so anassociation’s right to associate may be extended to the right toprotest through demonstrations provided it does not disturbpublic order.

Just like in Nigeria case, strike actions before and till the1920s was an act withholding of labour which amount to a breachof contract and this a criminal offence. The World War1 and thedevelopment in other jurisdictions led to the formation of tradeunions and indirectly recognition the right to strike bylegalizing certain activities of registered Trade Unions infurtherance of the trade dispute.

However to avoid incessant and the misuse of the right,Industrial Dispute Act 1947 of India, set conditions. This madedistinction between legal and illegal strikes.

For example a set of rules was established by the Indian Act,67

which must be followed by workers employed in Public utilityservice before declaring a strike, while it set out a generalprohibition of strikes in all establishments during the pendencyof reconciliation, arbitration and adjudication and also duringthe period of operation of settlements and awards68.

65 Radhashyam Sharma V Post master General, Nagper, AIR 1965, S.C. p.31166 B.R Singh and others V. Union of India, LLJ. 1989(2), P. 59167 Refer S.22 of the Industrial Dispute Act, 194768 S. 23 of the Industrial Dispute Act, 1947

Earlier we have seen from the judicial pronunciation in theIndian courts that a strike though not a fundamental right buthas a legal right. The courts have held that in proper cases theweapon of strike is open to all69. In other circumstances strikehas been recognized as a legitimate weapon for the purpose ofventilating their demands70.

The legality and justifiability of strikes here also be examined.The Indian supreme court in a case held that “it is a littledifficult to understand how a strike in respect of a publicutility service, which is clearly illegal could at the same timehe characterized as perfectly justified. These two conclusionscannot in law co-exist”71

In a later case it held that “this court did observe that if astrike is illegal it cannot be called perfectly justified… (but)between the perfectly justified and unjustified strike, theneighbourhood is distant…. Mere illegality of the strike does notper se spell unjustifiability72.

A COMPARATIVE PERSPECTIVE ON THE RIGHT TO STRIKE IN THE EUROPEANUNION

The cases of Viking73 and Laval74 impacted remarkably on Nationallaw of European Union countries on the right to strike. In the

69 Buckingham Carnatic Mills V. Their workmen, LLJ 1951(2),P.314; Bihav fire Works V. its workmen, LLJ 1953(1), P. 4970 Gwalior rayon Silk manufacturing co. V. District collector,LLJ 1982(1) P. 367, (Kerala), Ramakrishna Iron Foundry V. theirworkman, LLJ 1954(2), P. 371, (LAT)71 India General Navigation and Railway Co. Ltd Their workmenLLJ, 1960(1) SC P2272 Gujurat Steel tubes V Gujurat Steel Tubes Mazdoor Sabha, LLJ,1980(1), SC P. 13773 Case C-438/05 International Transport Workers’ Federation, Finnish Seamen’sUnion v Viking Line ABP, OÜ Viking Line Eesti, judgment 11 December 2007.74 Case C-341/05, Laval un Partneri v Svenska Byggnadsarbetareförbundet,judgment 18 December 2007.

two cases, the court decision was that, collective action couldbe contrary to the economic freedoms guaranteed by the EU treatywhere it has a transnational dimension.75

Further understanding of this judgment, the current state ofNational legislation with regards to issues like scope ofsolidarity action and the impact of strike action on theindividual contract of employment need insight into in some EUmembers, with a focus at the following issues:76

1. Right to strike in the EU member states2. Working of the European committee of social rights and

its interpretation of the right to strike enshrined inthe European Social charter.

3. The EU Law and the right to strike

1. On the right to strike, four legal basis or sources of theright to strike can be traced to:

* National constitution * Legislation * Case law and* Collective agreements

• Of these four, the most common basis or source for strikingright is the constitution. In a member of states/countries,this right is traced to legislation or case law while in 3member states this right is found in collective agreements.

• On the types of industrial action that are lawful theresult is as follows:

a. Political strike – legal in all but five statesb. Solidarity strikes – legal in 20 states

75 For example, to oppose a business relocating elsewhere in theEuropean Union.76 The Right to Strike: A comparative perspective. – A study ofnational law in six EU States; edited by Arabella Steward & MarkBell. Pg.5.

c. Picketing – legal (subject to conditions) in allmember states, examined by the report.

• On restrictions to right to strike the following wereidentified:

- Peace obligations- Strike action as a last resort.- Obligation to undergo conciliation prior to taking strike

action.

These were found to be quite common among member states.

Consequences of strike actions; on which whether or notparticipation on a strike constituted a breach of the employmentcontract and which could lead to dismissal was most significant.

It was found that the above was the case in 4 member states –Austria, Denmark, Ireland and the UK. Elsewhere doctrine ofsuspension of contract applied.

2. The right to strike and the European Social Charter (ESC)77

A consideration of Art 6(4). The interpretation by the Europeancommittee of social rights (ECSR) of Art 6(4) of ESC in thatright of workers and employers to take collective action in casesof conflicts of interest is recognized. However, it is noted thisarticle 6(4) excludes industrial actions demanding changes toexisting legal rights; ECSR did not define what constitute astrike but interpret Art 6(4) as excluding political strikes.However, the ECSR criticized member states for restricting thepurposes for which a strike can be called and restricting theright to strike to trade unions.

3. On European Union law and the right to strike;78 Tonia Novitzof Bristol University criticised the Viking and Laval decisionsby saying that the court’s analysis undervalues collectivebargaining and he further argued that ECJ should have given more77 Ibid. P.678 Ibid p.7

weight to the social objectives of the EU, such as improvement ofworking conditions79.

It was also contended that the right to strike should have beenexcluded from the application of the free movement principles onthe basis of the decision on the Albany International case80.

FRANCE AS A MODEL OF STATE WITH THE RIGHT VIEW OF RIGHT TO STRIKE

Strike as a means of action for employees is also a sources ofdamage for employers and by extension their clients and partnersparticularly when the action last a long time.For centuries the right to strike was seen as an infringement ofother right deemed more worthy like the right of property. Theworkers regarded as a “dangerous population”81 had to be keptunder control and by no means could they be handed over such apowerful weapon like striking.

HISTORICAL OVERVIEW OF THE RIGHT TO STRIKE IN FRANCE

In 1789 there was the revolution which promoted the concepts ofenlightenment and especially the idea that individuals are on anequal footing. As a consequence, intermediary groups were notnecessary and in the name of the freedom to contract they had tobe banned.

In 1791 Le Chaplier Act was promulgated prohibitory employersand workers coalitions. The 22 Germinal An Xi Act82 introduced adifference between workers and employers’ coalitions, with latterbeing less severely repressed. The ISO new provision in Penal

79 Claudia Bennet of the Int’l transport workers’ Federation80 Case C–67/96, Albany International BV v Stitching BedrijfsfondsTextielindustrie [1999] ECRI – 5751.81 Classe laborieuse, classe dangereuse’ (the working classesare dangerous) was a slogan very popular in the first half of the19th century and especially in 1848.82 The date comes from the Revolutionary calendar applicable at the time in France. Elsewhere it was12 April 1803.

Code confirmed the worker – employer discrimination by notpunishing employer’s coalition except they pended to “unfairlyprovoke the decrease of wages” while workers’ coalition couldlead to correctional penalties, regardless of their goal.

Strikes were criminally prohibited. In 1849 the worker- employerin quality was abolished and by 1864 may, the criminal offence ofstriking was repealed but it constitute no right but onlyremained a fort likely to be sanctioned, till 1946.

It was the French constitution of 1946 which echoed in itspreamble. The 1789 declaration of Human right83. This promoted newconstitutional right including the right to strike. The currentconstitution of 1958 refers to the preamble named above.

And so the right to strike in France is elevated to aconstitutional matter and so workers there has frequentlyexercised it such that demonstrations including non- workers wasused by groups and entities to protest against governmentpolicies or to affirm right. The May 1969 National Movement is agood example and the 2006 protest was another.

The 1968 and the 2006 protest illustrates the fact that strikesin France are an instrument of progress, and a way to bring aboutreform by attracting the government’s attention to the problemsfaced by the French people. However, despite right to strikebeing a constitutional issue, strike action has been on thedecline from the pick in 1977 and in the 70s to lows of 2000.

RIGHT TO STRIKE AS A FUNDAMENTAL LEGAL NORM

a. Whether it is guaranteed in the national constitution: As said above theconstitution of 1946 and the current of 1958 made the right aconstitutional issue.

b. Is it recognized as a fundamental right: The right is so fundamentalsuch that workers cannot be dismissed on grounds of their

83 . Déclaration des Droits de l’Homme et du Citoyen 1789.

participation to a strike.84 Due to the absence of specificlegislation in this area, case law plays a fundamental role inthe interpretation of the scarce set of rules concerning theright to strike. And so the right is not only protected bythe constitution but also promoted by the courts and principallythe three highest courts in France.

The constitutional council85 of ten men referred to thepreamble of the constitution. In its judgment of 1986 it declaredthat the constituent authority is intended to give aconstitutional value to the right to strike86 the right to strikeis recognized as a fundamental right by the court ofCassation87. It can be restricted neither by private parties norby judicial power.

c. Right to Strike and Other rights and freedoms: The right to strike is afundamental right, truly, but it must be balanced with otherfreedoms of equal value example, the freedom of trade andindustry and the right to property, the freedom to work, thesafety of people and goods and the continuity of public service.

The exercise of the right to strike, as defined by case law, mayby its very nature conflict with other rights and interests.Conciliation is necessary in order to preserve the fundamentalright of each party. Thus, worker participating in a stake have aduty to respect those essential rights. The right to strike doesnot include the possibility for strikers to occupy theirworkplace and the illegal confinement of the employer or managerconstitutes criminal offence. Even sit-ins might in fringe both84 Article 521-1-1 of the Labour Code.85 The Constitutional Council (Conseil constitutionnel) is in charge of assessing the constitutionality of bills and acts86 Décision N° 86-217, DC.87 The Court of Cassation (Cour de Cassation) is the highestcourt in the French judicial branch. It rules on questions of lawand has the power to quash a decision. As far as social law isconcerned, the relevant chamber is usually the social chamber(chambre sociale). Please note that citations of decisions of thesocial chamber of the Court of Cassation will be prefaced ‘Soc.’

his freedom of trade and industry and his right to poverty. Abreach of the right to property may be constituted bydestruction, damage or determination of the employer’s goods.Picketing is an obstacle to the freedom of trade as it can causedamage to the employer and to his partners, death and suppliers.

In relation to the freedom to work, the legislator hasimplemented an offence aiming at ensuring the freedom of work andat guaranteeing the access to offices and workshops despiteindustrial actions88 as regards Sit-ins, according to case law,they are a “manifestly illicit disturbance in particular whenthey seriously (impede) the freedom of work”89. A judge mayrequest the help of public forces in order to evacuate theworkplace. Sit-ins are only considered by case law as an abuse ofthe right to strike, where there is an interference with thefreedom to work. Sit-ins are permitted by judges when they aresymbolic, momentary and harmless in that they do not infringe thefreedom to work90.

When picket lines obstruct the firm’s entrance as a result, non-strikers cannot gain access to their workplace, it is consideredas an anomalous exercise of the right to strike because itconstitutes an interference with the freedom of work91.

On the safety of people and goods and in line with theconstitution, the constitutional council declares it is necessaryto reconcile the right to strike with the protection of healthand the safety of people and goods92 and so a limitation to theright to strike is allowed when called for by a legitimate aim of88 Article 431-1, Penal Code.89 In this particular case, the strikers had forbidden access to a plant to everyone and especially to the chief executive and other workers. Soc. 21 June 1984, (Lopez et a. c/ Sté La GénéraleSucrière, Bull.civ. V, n°263)90 Soc. 26 February 1992 (Cherki et a. c/ France Glaces Findus,Bull. civ. V, n°529).91 Soc. 8 December 1983 (Fontaine et a. c/ Demery, Bull. civ; V,n°598).92 Décision N° 80-117 DC..

security.

Finally public service continuity is a general principle of lawrecognized by the state council and so the right to strike has tobe balanced with the need to ensure public service continuity and“one cannot deduce from the recognition of the right to strike alimitation to the legislator’s power to add necessaryrestrictions with a view to guarantee the continuation of publicservice which is, as the right to strike, a principle ofconstitutional value under French Law93.

In conclusion the right to strike although recognized as afundamental right, must be balanced with other principles and theforms that collective action can take will determine itslegality.

In Nigeria industrial actions apart from strike can include set-ins, go-slow and work to rule.Lock-out of the employees by their employer is the only lawfulindustrial action that an employer can take against workers. Astrike is defined as “the cessation of work by a body of personsemployed acting in combination, or a concerted refusal or arefusal under a common understanding of any number of personsemployed … to accept or not to accept terms of employment andphysical conditions of work94.

The restriction on strikes and lock outs are set out in S.17 ofTrade Dispute Act and so is the penalty for contravention. Theissue of right to strike in Nigeria is as it is discussed in theIndian cases. The Nigerian constitution provides for freedom ofassociation and speech, but there is no freedom to strike orright to strike, as being a fundamental right as in the Frenchcase even to it being a constitutional matter. And so strikes inNigeria must be in line with the provisions and guidelines ascontained in collective bargaining arguments and procedures.

93 The Right to Strike: A comparative perspective. – A study of national law in six EU States; edited by Arabella Steward & Mark Bell. Pg.35. 94 S.47(1)(b) Para.6 Trade Dispute Act. Cap432

It is for this reason that the French law is a model even amongEU member States.

THE LEGAL FRAME WORK FOR STRIKE ACTIONIn France, the right to strike is an individual right butcollectively exercised. By case, law a strike is defined as a“concerted cessation of work with a view to supportingprofessional claims”95

A cessation of work according to the court must comprise of threekey elements.

a. It must be complete b. Collective and c. Concerted

a. By Complete: It means that a general rule, a right to strikedoes not authorize strikers to commit misfeasance. Bound by theircontract of employment, strikers must accomplish their task asthey have been instructed. If they wish to protest then theiraction must take on the form of a complete cessation of work.Misfeasance for strikers would amount to a breach of theircontractual obligation and they would be liable for it. In thisrespect therefore go-slow strikes and greves de la pince96 are notconsidered as strikes and are instead deemed to be unlawfulcollective action because here is no complete cessation of work97.

Also, work-to-rule and greves a rebours98 are prohibited for thesame reason as above while work stoppages, rotating strikes andkey strikes are considered as fulfilling this condition as theyamount to a complete cessation of work.99

95 Soc. 23 October 2007 (RJS 01/08 n°65). 96 This involves refusal to perform certain duties, e.g. ticket collectors of the SNCF (French railways)refusing to inspect tickets. 97 Soc. 25 June 1991 (RJS 8-9/91 n°998).98 Working outside working hours. 99 See for stoppages : Soc. 25 February 1988, Sté Montale c/Lemaire (Bull.civ., n°133)

b. Cessation of work must be collective: Collective does not mean allworkers or a majority of them but can be a minority of workerwhich can be workers of one establishment, a fraction of theworkforce or a professional category. A strike by a worker willnot be a strike except if he is the only worker100in theestablishment, or if he follows a national call and exercise hisright to strike.101

c. Cessation of work must be concerted: public and private workershere, will be distinguished as the rules are not the same.

In private sectors there is no requirement regarding theentity calling a strike: It may be a trade Union or a groupof workers. That is an individual right exercisedcollectively and so wild cat strike is not allowed in theprivate sector. However, in the public sector, there must bea notice given by the Unions prior to the triggering of thestrike.

United Kingdom

The UK does not have a constitution and there is no positiveright to participate in industrial action in the UK. However, thelaw does provide certain immunities from liability at common lawfor the civil wrong of “torts” most frequently committed in thecourse of taking industrial action. The availability of theseimmunities is subject to a number of restrictions and mandatoryrules, which are contained in the Trade Unions and LabourRelations ( Consolidation ) Act 1992 (TULRCA). To be protected,the industrial action must be “in contemplation or furtherance ofa trade dispute.”

Even if such a trade dispute exists the union will lose itsstatutory immunity unless the industrial action has been properlyinstigated in accordance with the procedures laid down in TULRCAand the Code of Practice on Industrial Action and Ballot and100 Soc. 13 November 1996, Direr c/ Bolard (Bull.civ. V, n°379)101 Soc. 29 March 1995, Biraud c/ Sté Arnaud (Bull.civ. n°111)

Notice to Employers 2000. The fact remains, however, that thereis no positive right to strike in the United Kingdom. Honeyballand Bowers, for example note that, “it is virtually impossible inmodern Britain to take industrial action which is lawful. … Theconsequences of this are naturally serious.

To take part in industrial action may mean the worker can bedismissed or lose pay and lack qualification for job seeker’sallowance or other benefits. This is so even if the employer istotally to blame for the breakdown in relations that leads to theaction”.37 Indeed most labour law scholars102 agree that in UK lawthere is no positive right to strike and that a change wasdesirable. Sheldon Leader’s conclusion is apposite: Consequently,those who feel that changes in legislation or developments incommon law unduly restrict their ability to strike can only fallback on the various international treaties and conventions towhich the United Kingdom is a party.103

The point surely cannot have been better expressed. However, itmust be noted that not all such treaties and conventions protectthe right to strike. One outstanding Convention which has beenheld not to protect the right to strike is the EuropeanConvention on Human Rights (ECHR). The argument that freedom ofassociation as guaranteed by Article 11 of the ECHR must includethe right to strike was rejected in Schmidt and Dahlstrom v.Sweden.104 In that case, the applicants who were members of astriking union were subsequently denied certain benefits onaccount of the strike. They argued that the policy of denyingbenefits to the members of striking unions violated their rightto freedom of association as provided by Article 11.105

But the European Court of Human Rights held that while Article 11

102 See for example, J. McMullen, Rights at Work (1978), p. 286. See also B. Heppel,and S. Freedman, Labour Law and Industrial Relations in Great Britain (1992), pp. 474–475;103 S. Leader, Freedom of Association: A Study in Labour Law andPolitical Theory (1992), p. 182;104 (1980) 1 EHRR 637.105 Supra note 6

specifically mentions the right to join trade unions as a speciesof the more general right of association, this does not implythat it necessarily includes the right to strike. As the Courtfurther elucidated: The Article does not secure any particulartreatment of trade union members by the State …. [It] leaves eachState a free choice of the means to be used towards this end. Thegrant of a right to strike represents without any doubt one ofthe most important of these means, but there are others. Such aright, which is not expressly enshrined in Article 11, may besubject under national law to regulation of a kind that limitsits exercise in certain instances.106 The UK therefore may wish torely on other treaties and conventions such as the ICESCR and theESC which explicitly recognises the right to strike to make thenecessary changes to provide for a positive right to strike.

South Africa

In the case of South Africa, there is a guaranteed right tostrike provided by the Constitution. The Constitution of SouthAfrica, Act 108 of 1996 was adopted on 10 May 1996 and came intoeffect on 4 February 1997. This right is entrenched in section23(c) of the Constitution which provides that “every worker hasthe right … to strike.”

Under the South African Constitution, there are no restrictionson the right to strike. However, Limitations are provided in theLabour Relations Act 1995 (LRA) as to procedure,107 subject-matterof the issue in dispute108, and persons entitled to exercise theright.109 In NUMSA & Others v. Bader Bop (Pty) Ltd & Others110 theSouth African Court said, “the right to strike is essential tothe process of collective bargaining.

It is what makes collective bargaining work. It is to the process

106 Ibid note 103107 Section 64 of the Labour Relations Act, 1995108 Section 65 (1) (C)109 Section 65 (1) (a) ( b) and (d).110 (2003 ) 24 ILJ ( CC ) 305 at 367.

of collective bargaining what an engine is to a motor vehicle.”111

There is no doubt therefore that the South African legal systemclearly recognises the right to strike.112

Ghana

The right to strike is recognised under the Ghanaian Labour Actof 2003. The parties to a trade dispute are first encouraged tonegotiate in good faith to settle the dispute using their ownagreed procedures. The National Labour Commission of Ghana canalso intervene in disputes and seek settlement by mediation andthereafter by arbitration. 113

However, where a trade dispute remains unsettled at the end ofarbitration, either party may give seven days notice of intentionto strike or lockout.114 Section 160 of the Ghanaian Labour Actwhich contains the substantive provision on right to strikeprovides that a worker can go on strike subject to the giving ofseven day’s notice which must expire before the strike action isembarked upon.

The right to strike is, however, absolutely prohibited inessential service which is defined strictly in line with the ILOstandards.115 Furthermore, Section 170 of the Ghanaian Labour lawprotects against dismissal and hiring of replacement labourduring a lawful strike. In view of this, the Ghanaian legalframework offers a workable and palatable environment on theright strike.

CONCLUSION

111 ibid, p. 367, per Ngcobo J.112 Supra note 6113 Labour Act 2003 (Ghana), section 153.114 Ibid, section 159.115 Ibid, section 175.