Top Banner
The National University of Advanced Legal Studies, Kochi Labour Law Project Legality of Strikes Done by Harikrishnan.V 592

Legality of Strikes

Dec 15, 2015



Hari Krishnan

This work discusses about the legality of strikes over various jurisdictions of law and under the ILO structure .
Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Page 1: Legality of Strikes

The National University of Advanced Legal Studies, Kochi

Labour Law Project

Legality of Strikes

Done by



IXth Sem

Page 2: Legality of Strikes

Table of Contents

1. Introduction

2. India

3. United Kingdom

4. European Countries

5. Canada

6. China and former USSR

7. France

8. USA

9. ILO

10. Conclusion

Page 3: Legality of Strikes


Strike certainly constitutes one of the most complex phenomena

regulated by labour law, one of the most difficult to grasp in all its

dimensions. Infrequently rational arguments are so much mixed with

others of an ideological or psychological nature. Strike can have a

revolutionary flavour and work against social and production

relations; this is anathema to the authorities, even if they are not


Strikes are not per se illegal. The legality or illegality of a strike must

depend on the means by it is enforced and on its objectives. Lord

Shaw said in Russel v Amal Society of Carpenters and Justice.2

"Strikes may be perfectly legal or they may be illegal. It depends on a

nature and mode of constructed cessation of labour. If this concerted

cessation is in breach of contract then it could not be said to be within

law any more than could a breach of contract by a single workman. If

on the other hand, a strike be cessation of labour on the expiring of

contract. There is no necessary illegality there any more than in the

case of an individual workmen completing their bargain and choosing

to remain idle. But of course, in this later case, the concerted cessation

of a labour may be for the sole of deliberate off obvious purpose of the

refraining tread in which case different legal consequences might


1 The ILO law and the freedom to strike, Jean-Michel Servais, University of Toranto2 (1910) I KBP 506.

Page 4: Legality of Strikes

It was held in the case of “Cox and Kings Limited v. Their Employees'3

that a strike a considered justified if it is in connection with a current

labour dispute or directed against an unfair labour practice of the

employer. It was also held justified when undertaken only after

remedies provided in the statutory machinery of the Industrial

Disputes Act have proved futile in the case of Chandramouli Estates

v. Its Workmen,4 likewise if the employer discharges its union officers,

or causes a union official to be assaulted. The resultant strike is

considered to be justified. Refusal to recognise a union or to consult it

are considered valid reasons for a strike. In the case of 'Bihar Fire

Works and Potteries Workers Union v. Bihar Fire Works and

Potteries,'5 it was held that it is not proper to judge from the result of

the adjudication of the demands whether a strike was not justified or

not it can't be said to be unjustified unless the reasons for it are also

lately preserve and unsustainable. Union is such it does not appeal to

an ordinary common man, the strike is held to be unjustified. When

strike is held to be justified, it is not means that there is complete

justification for strike. The justification can only be relative

justification when the workers have been reasons to entertain a

bonfide unrepressed grievance which under circumstances in which

they happen to be placed is found to be such as to make them feel that

the only course left to them to redress the grievance effectively and

without undue delay is stoppage of work. A strike to be justified

should be launched or the economic demands. It was held in the case

of 'Swadesh Industries Ltd v Their Workmen',6the first and foremost 3 (1949) LLJ 796 (I.T.). 4 (1960) KK LLJ 243-2465 (1953) I LLJ L.AT. (Cal.) 49 at 52

6 (1960) AIR SC 1250

Page 5: Legality of Strikes

requirement of a justified strike is that it should be launched only for

economic demands of workmen like basic pay, dearness allowance,

bonus, provident fund, gratuity, leave and holidays etc., which are the

primary objects of a trade union. The political considerations cannot

supply and good answer to legal obligations. The economic demands

should be prima facie reasonable. The demands should not be raised

frivolously or on ulterior reasons. Even some of employees are

discharged. The workers cannot go on strike in haste. The workers

cannot insist that a particular employee should work with particular

batch of workmen and their demands can't justify the strike as was

held in the case of 'Sri Kanyakaparameswari Groundnut Oil Mils

contractor's company v their workmen7" by the industrial tribunal.6 In

the case of 'Dabir (Et. S.K. Burman) Pvt. Ltd., v Their Workmen,7 it

was held that justification of strike depends upon (a) the conduct of

the employer also, the employee which includes provocation on the

part of employer by high, handed action and unsustainable reasons for

the strike on the part of workmen (b) the nature of the strike whether

the peaceful of violent and (c) whether the strike was resorted to after

exhausting all the means of redress. The strike is justified However,

merely refusal to recognise a particular trade union or to negotiate

with it as a recognised union, will not by itself justify strikes. When

there is a bonfide dispute about the conditions on which recognition

should be granted when the management refuses to agree to arbitration

or adjudication of demands of the workmen, the strike is justified.

Even in some demands are not referred to adjudication or arbitration,

the workers are justified to go strike. When the workers were forced to

resort to strike because of various acts of management and more

7 (1955) 1 ILJ (566 I.T) Calcutta 10

Page 6: Legality of Strikes

essentially the placing the number of workmen under the contractors

and retrenchment of a large body of a workmen the strike is not

justified. If the existing service facilities are withdrawn, the strike

started consequent on such abrupt discontinuation of benefits, is quire

justified. The strike against contract in force is not justified.


All strikes are not ipso facto unlawful or illegal. Industrial Disputes

Act. 1947 however, makes certain strikes illegal under section 24.

This section specifies the events on the happening of which, strike is

to be treated as illegal and the plain meaning of this is that, those

strikes which do not fall in that category are not illegal, another way

strike may be unjustifiable, but it is not illegal unless it is illegal

according to the provision of the Industrial Disputes Act, 1947. Thus a

strike which is not illegal under Section 24 of the Industrial Disputes

Act, 1947 can never be treated as illegal under the Act.

The Supreme Court has stated in Caltex (India) Ltd. v. Certain

workmen 8strike is a legitimate weapon in the hand of the workers to

redress their grievances. However it has been held that it should be

used as a "last resort'' when all other avenues. Have proved futile and

so long as it is used in a restrained, peaceful manner of good and

justifiable reasons, it can not be punished.

It may be noted that in India, legal strikes are classified into ‘justified’

and ‘unjustified’ strike, whereas in U.K., U.S.A. and Australia it is not


8 (1954)(II) LL.J.516 (520).

Page 7: Legality of Strikes

Every strike is not illegal. It may be mentioned that the field of

industrial law, so far as country is concerned,9 it is not the objects

which make the strike illegal but it is the breach of the statutory

provisions, which refers the industrial strikes illegal. Section 24 of the

Industrial Disputes Act. 1947, declares that strikes would be illegal

only when they have been resorted to in contravention of the

mandatory provisions of Section 22 and those of Section 23 of Act or

when they are in defiance of the order made under sub-Section (3) of

Section 10 or (4A) of Section 10 A of the Act.

The provisions of Sections 22 of the Act apply to establishments

which fall in the category of 'public utility service' as defined in

Section 2(n) of the Act. According to Section 2(n) of the Industrial

Disputes Act, 1947, public utility service means:

a) any railway service or any transport service for the carriage if

passengers or goods by air,

b) any section of an industrial establishment, on the working of

which the safety of the establishment or the workmen

employed therein depends;

c) any postal, telegraph or telephone service,

d) any industry which supplies power, light or water to the public,

9 In Australia and England, there are certain objects which renders the strike illegal. In Dorcey v. Kansas

(71 L.Ed.248) speaking for the Supreme Court of United States, Brandeis J. Said “A strike may be illegal because of its purpose, however orderly the manner in which it is carried”.

Page 8: Legality of Strikes

any system of public conservancy or sanitation: (f) any

industry specified in the First Schedule which the appropriate

Government may, if satisfied that public emergency or public

interest so requires, by notification in the official Gazette

declare to be public utility service for the purpose of this Act

for such period as may be specified in the notification provided

that the period so specified shall not in the first instance,

exceed six months but may by a like notification be extended

from time to time by any period not exceeding six months at

any one time if in the opinion of the appropriate Government

public emergency or public interest requires such extension.

A glance at the definition of ‘public utility service' which

is mentioned above, shows that these are key services, essential to

the very life of the State and well being of the community and

hence special formalities have been provided for in the Act before

strike in these services can be legally resorted to. Employees in the

above stated industrial are not completely prohibited by the

provisions of this section to go on strike. What the section 22 of

the Act aims at, is placing certain mandatory obligations subject to

the fulfillment of which alone the right of the workers to go on

strike can be exercised. The fulfillment of the mandatory

requirements of the Section is absolutely essential before a strike

can be resorted to in a public utility service.

It has been emphatically stated in the case of Swadeshi Industries Ltd.

v. Its Workmen10 that where the establishment is consisting of public

10 (1960) (II) LL.J. 78.

Page 9: Legality of Strikes

utility as well as non-public utility service, the bonus is upon the

employer to show that concerned workmen who launched strike

worked in public utility section.

Notice of strike within six weeks before striking, i.e. the notice should

have been given not earlier than six weeks before the date on which

the strike is resorted, and the strike should not be resorted to unless

and until a period of 14 days has expired from the date of the notice of

strike. Before the expiry of the date of strike specified in the notice of


The condition contained in sub-Section (i) (b) of Section 22 of the Act

is that the strike shall not be resorted to during the period when the

conciliation proceeding are pending before, a conciliation officer until

the expiry of seven days after the conclusion of the conciliation


The Essential Service Maintenance Act, 1981, provides in explicit

words that no person employed in any essential service shall go or

remain on strike, and any strike declared or commenced by persons

employed in any such essential service shall be illegal.

United Kingdom

In U.K., peacetime Emergency powers11 sought to secure the

essentials of life to the community and prohibited strikes in public

utilities by empowering the Government to declare a state of

emergency. The industrial disputes which are of a grave and serious

11 Emergency Powers Act. (1920) and (1964)

Page 10: Legality of Strikes

character by establishing that the Secretary of State in certain

circumstances may apply to the Industrial Court for an order

restraining persons from organising industrial action for upto 60

days12. The other procedure available in the same type of emergency

situation is a ballot, that is the Secretary of State may apply for a

ballot when the situation is that the conditions appear to be, or likely

to be seriously injurious to the livelihood of a substantial number of

workers employed in a particular industry Now, the Trade Union and

Labour Relations Act of 1974, has also abolished the Emergency

measures of 1971 statute.13

In U.K. whether public utility service or non-public utility service, if

due notice of strike is not given, then each workman withdraws his

labour in breach of his respective contract of employment. Hence in

U.K. all wild-cat14 and official strike are unlawful.


in the case of a proclamation made of the existence of a serious

industrial disturbance prejudicial or threatening trade or commerce

with other countries or among the States, the participation in or

incitement to strike in relation to (1) employment connected with the

transport of goods or the conveyance of passengers in overseas or

inter-stale trade or commerce or (2) employment in or in connection

12 Section 139(2) of IRA (1971) 13 Section 141(2) of IRA 1971. 14 Wild-cat a kind of unpremeditated strike action which is not taken according to the due process. The purpose of ‘wild-cat’ strike is to get quick results also known as ‘quckie’ strike.

Page 11: Legality of Strikes

with the provision of any public service by the Commonwealth

Government or any Commonwealth public authority, is an offence.15

In Australia, a strike may take place without notice being given to the

employer concerned or to an arbitration authority or alternatively after

the expiration of a period of notice. Again, a strike in which unionists

are concerned may have been decided up on by the particular

employees concerned or by an official of the union or by all the

members of union.16

In Queensland, and New South Wales, where all strikes are not made

illegal the Acts distinguish between strike action that is taken in

accordance with a majority decision of the member if the union

concerned after a secret Ballot and strike action decided up on in some

other manner.17

. In Australia the setting up of conciliation arbitration machinery has

been accompanied by legislation making strikes illegal. The attitude is

that where machinery for the settlement of disputes by conciliation

and arbitration exists, resort to strikes is unnecessary strikes victoria

are illegal strikes in essential service unless there has been affirmative

vote at a secret ballot. New South Wales Legislation also makes

certain strikes illegal which take place before 14 days notice to the

government of an intention to strike.

European Countries

15 Section 30 (J) of the Crimes Act (1914-1955) 16 Portus J.H. The Development of Australian Trade Union Law 4th Ed. (1958) at p.21417 Section 51(I) of Queensland Act Section 99 of New South Wales Act.

Page 12: Legality of Strikes

Strikes may be a means of action only trade unions are authorized to

take (Sweden) or recognized for individual workers (France). In some

cases they are an exceptional measure the workers can invoke when

the employer does not fulfil its obligations. They may be allowed only

in the classic form or extended to cover work slowdowns, rotating

strikes, work-to-rule, boycotts and other kinds of direct action.


In Canada there is no constitutional right to strike, as per a 1987

Supreme Court ruling on a reference case brought by the province of

Alberta. In Canada the federal and/or provincial governments can (and

often do) introduce "back to work legislation" a special law that

blocks the strike action (or a lockout) from happening or continuing

on further. It can also impose binding arbitration or a new contract on

the disputing parties. Back to work legislation was first used in 1950

during a railway strike, and as of 2012 has been used 33 times by the

federal government for those parts of the economy that are regulated

federally (grain handling, rail and air travel, and the postal service),

and in more cases provincially. In addition certain parts of the

economy can be proclaimed 'essential services' in which case all

strikes are illegal.18

Examples include, the government of Canada passed back to work

legislation during the 2011 Canada Post lockout and the 2012 CP

Rail strike, thus effectively ending the strikes.


Page 13: Legality of Strikes

China and former USSR

In some Marxist-Leninist states, such as the former USSR or

the People's Republic of China, striking is illegal and viewed

as counter-revolutionary. Since the government in such systems

claims to represent the working class, it has been argued that unions

and strikes were not necessary. In 1976, China signed the International

Covenant on Economic, Social and Cultural Rights, which guaranteed

the right to unions and striking, but Chinese officials declared that

they had no interest in allowing these liberties.19 (In June 2008,

however, the municipal government in Shenzhen in

southern China introduced draft labor regulations, which labor rights

advocacy groups say would, if implemented, virtually restore Chinese

workers' right to strike.20) Trade unions in the Soviet Union served in

part as a means to educate workers about the country's economic

system. Vladimir Lenin referred to trade unions as "Schools of

Communism." They were essentially state propaganda and control

organs to regulate the workforce, also providing them with social



In France, the right to strike is recognized and guaranteed by the


A "minimum service" during strikes in public transport was a promise

of Nicolas Sarkozy during his campaign for the French presidential

19  "Still waiting for Nike to do it," by Tim Connor, page 70.

20 Factory to the world will soon get the right to strike', by Venkatesan Vembu, Daily News and Analysis, 26 June 2008.

Page 14: Legality of Strikes

election. A law "on social dialogue and continuity of public service in

regular terrestrial transports of passengers" was adopted on 12 August

2007, and it took effect on 1 January 2008.

This law, amongst other measures, forces certain categories of public

transport workers (such as train and bus drivers) to declare to their

employer 48 hours in advance if they intend to go on strike. Should

they go on strike without having declared their intention to do so

beforehand, they leave themselves open to sanctions.

The unions did and still do oppose this law and argue these 48 hours

are used not only to pressure the workers but also to keep files on the

more militant workers, who will more easily be undermined in their

careers by the employers. Most importantly, they argue this law

prevents the more hesitant workers from making the decision to join

the strike the day before, once they've been convinced to do so by

their colleagues and more particularly the union militants, who

maximize their efforts in building the strike (by handing out leaflets,

organising meetings, discussing the demands with their colleagues) in

the last few days preceding the strike. This law makes it also more

difficult for the strike to spread rapidly to other workers, as they are

required to wait at least 48 hours before joining the strike.

This law also makes it easier for the employers to organize the

production as it may use its human resources more effectively,

knowing beforehand who is going to be at work and not, thus

undermining, albeit not that much, the effects of the strike.

However, this law has not had much effect as strikes in public

transports still occur in France and at times, the workers refuse to

Page 15: Legality of Strikes

comply by the rules of this law. The public transport industry - public

or privately owned - remains very militant in France and keen on

taking strike action when their interests are threatened by the

employers or the government.

The public transport workers in France, in particular the "Cheminots"

(employees of the national French railway company) are often seen as

the most radical "vanguard" of the French working class. This law has

not, in the eyes of many, changed this fact.

United States of America

The Railway Labor Act bans strikes by United States airline and

railroad employees except in narrowly defined circumstances. The

National Labor Relations Act generally permits strikes, but provides a

mechanism to enjoin strikes in industries in which a strike would

create a national emergency. The federal government most recently

invoked these statutory provisions to obtain an injunction requiring

the International Longshore and Warehouse Union return to work in

2002 after having been locked out by the employer group, the Pacific

Maritime Association.

Some jurisdictions prohibit all strikes by public employees, under

laws such as the "Taylor Law" in New York. Other jurisdictions

impose strike bans only on certain categories of workers, particularly

those regarded as critical to society: police and firefighters are among

the groups commonly barred from striking in these jurisdictions. Some

states, such as New Jersey, Michigan, Iowa or Florida, do not allow

Page 16: Legality of Strikes

teachers in public schools to strike. Workers have sometimes

circumvented these restrictions by falsely claiming inability to work

due to illness — this is sometimes called a "sickout" or "blue flu", the

latter receiving its name from the uniforms worn by police officers,

who are traditionally prohibited from striking. The term "red flu" has

sometimes been used to describe this action when undertaken by


The Code of Federal Regulations declares "encouraging others to

refuse to work, or to participate in a work stoppage" by prisoners to be

a "High Severity Level Prohibited Act" and authorizes solitary

confinement for periods of up to a year for each violation.21 The

California Code of Regulations states that "participation in a strike or

work stoppage", "refusal to perform work or participate in a program

as ordered or assigned", and "recurring failure to meet work or

program expectations within the inmate's abilities when lesser

disciplinary methods failed to correct the misconduct" by prisoners is

"serious misconduct" under §3315(a)(3)(L), leading to gang affiliation

under CCR §3000.22

21  28 C.F.R. 541.3

22 22 California Code of Regulations §3000, "Gang means any … formal or informal organization,

association or group of three or more persons which has a common name or identifying sign or symbol

whose members and/or associates, individually or collectively, engage or have engaged, on behalf of that

organization, association or group, in two or more acts which include, … acts of misconduct classified as

serious pursuant to section 3315."

Page 17: Legality of Strikes

Postal workers involved in 1978 wildcat strikes in Jersey City,

Kearny, New Jersey, San Francisco, and Washington, D.C. were fired

under the presidency of Jimmy Carter, and President Ronald Reagan

fired air traffic controllers and the PATCO union after the air traffic

controllers' strike of 1981.

International Labour Organization

It may be surprising to find that the right to strike is not set out

explicitly in ILO Conventions and Recommendations. It has been

discussed on several occasions in the International Labour Conference

during the course of preparatory work on instruments dealing with

related topics, but for various reasons this has never given rise to

international standards (Conventions or Recommendations) directly

governing the right to strike. The right to strike is, however,

mentioned incidentally in a Convention and in a Recommendation.

The Abolition of Forced Labour Convention, 1957 (No. 105),

prohibits the use of forced or compulsory labour “ as a punishment for

having participated in strikes ” (Article 1, sub-paragraph (d); and the

Voluntary Conciliation and Arbitration Recommendation, 1951 (No.

92), first mentions strikes in paragraphs 4 and 6, then states in

paragraph 7 that no provision it contains “may be interpreted as

Page 18: Legality of Strikes

limiting, in any way whatsoever, the right to strike ” (ILO, 1996b, p.

89 and 1996a, p. 660).

However, the absence of explicit ILO standards should not lead to the

conclusion that the Organization disregards the right to strike or

abstains from providing a protective framework within which it may

be exercised.

Furthermore, though it does not explicitly mention the right to

strike, the Freedom of Association and Protection of the Right to

Organise Convention, 1948 (No. 87), establishes the right of workers’

and employers’ organizations to “ organize their administration and

activities and to formulate their programmes ” (Article 3), and the

aims of such organizations as “furthering and defending the interests

of workers or of employers ” (Article 10), (ILO, 1996a, pp. 528 and

529). On the basis of these provisions, the two bodies set up to

supervise the application of ILO standards, the Committee on

Freedom of Association (since 1952) and the Committee of Experts on

the Application of Conventions and Recommendations (since 1959), 23have frequently stated that the right to strike is a fundamental right

of workers and of their organizations, and have defined the limits

within which it may be exercised, laying down a body of principles in

connection with the right to strike 24 giving rise to substantial “ case

23 The mandate, composition and procedure of the ILO’s supervisory bodies are described, for example, in ILO, 199524 These principles are contained in particular in ILO : Freedom of association and collective bargaining, a General Survey of Conventions No. 87 and No. 98, conducted in 1994 by the Committee of Experts on the Application of Conventions and Recommendations (ILO, 1994a); and in ILO: Freedom of Association, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (ILO, 1996d). These are frequently referred to in ILO publications in their abbreviated forms: General Survey, 1994 and CFA Digest, respectively

Page 19: Legality of Strikes

law ” in the broadest sense of the term which renders more explicit

the extent of the provisions mentioned above. 25Of the remaining

supervisory bodies of the ILO, the committees established under

article 24 of its Constitution do not deal, in principle, with matters

relating to the right to strike, since the Governing Body generally

refers the corresponding complaints to the Committee on Freedom of

Association. The few Commissions of Inquiry that have been set up in

response to complaints under article 26 of the ILO Constitution for

non-observance of Conventions relating to trade union rights refer in

their conclusions to the principles of the Committee on Freedom of

Association and of the Committee of Experts, and the same is true of

the Fact-Finding and Conciliation Commission on Freedom of



Right to Strike is not absolute in India. U.K. and Australia.

Reasonable restrictions have been put on this right in India and U.K.

whereas in Australia this right is very extensively regulated.Countries

around the world stick on to the ILO guidelines while determining the

legality of strikes.

25 preceding the adoption of Convention No. 87During the discussions , no amendment expressly establishing or denying the right to strike was submitted

Page 20: Legality of Strikes


3.Legality of Strikes,

4.ILO principles concerning strike, Bernard GERNIGON, Alberto ODERO and Horacio

GUIDO, International Labour office , Geneva

5. The ILO law and the freedom to strike, Jean-Michel Servais, University of Toranto