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Posted 19 October 2010

Laws against strikes need rethinking, says judge

Some of those who want to protect the ‘right to strike’, in a time when labour has been weakened by global competition, falling union membership, and economic crisis, put their faith in the developing case law of the European Court of Human Rights on freedom of association guaranteed by Article 11 of the European Convention on Human Rights.

But, in his address delivered as the 34th Countess Markievicz lecture of the Irish Association for Industrial Relations at University College Dublin, Sir Bob Hepple, a Judge of the UN Administrative Tribunal, declared that there are reasons for skepticism about a litigation strategy based on this case law.

“Although litigation may, from time to time, result in moral or symbolic victories, the courts are an inadequate forum in which to win and secure long-term changes in labour markets so as to secure ‘decent work’,” said Sir Bob Hepple.

“Rights litigation should never be more than a strategy that complements but does not take priority over the strategy of persuading democratic legislatures to protect the right to strike.”

In his lecture: ‘Rethinking Laws against Strikes’, hosted by the UCD School of Business, Sir Bob Hepple outlined a wish-list of legislative policies that would strengthen and reinvigorate the autonomy of labour law, to which others could be added. The list included:

  1. Secret ballots must be seen as the right of trade union members and not a weapon of employers or the state to halt strikes on technical grounds .It may be tempting to think that even stricter balloting laws can reduce industrial action, but as the Chairman of ACAS has pointed out, the harder it is made to get a majority in a ballot, the more likely it is that there will be unofficial strikes

  2. Consideration should be given to compulsory conciliation periods as a pre-condition of lawful collective action. Just as employers should negotiate before litigating, unions need to negotiate before announcing strike action

  3. The law should support good faith concessionary bargaining in both the public and private sectors, for example to encourage agreements on short-time, part-time and term-time working so as to minimise redundancies, and to phase in necessary changes in pension provisions gradually

  4. There should be status quo provisions to prevent unilateral changes in terms of employment without going through prescribed procedures

  5. There should be a legal requirement for employers and unions to negotiate minimum level service agreements in advance of collective action in essential services and maintenance services. The South African Labour Relations Act, modelled to some extent on Italian law,  provides for an essential services committee to prescribe services where the interruption of services ‘endangers the life or personal safety or health of the whole or any part of the population’. ‘Maintenance’ services are those whose interruption can lead to material physical destruction of workplaces, plant or machinery.  The South African Act makes both employers and unions in such services responsible for coming up with a minimum level services agreement. But this kind of law can work only if the parties show goodwill. Unfortunately, as the South African Human Rights Commission found, in the recent strike by government employees, including health service workers, some medical patients died and others were left without access to medication. The Commission found that these unacceptable consequences could have been avoided had the Government been willing to negotiate an agreement setting out what basic services would continue to be delivered during the strike

  6. There must be full protection from dismissal and disciplinary action for workers who peacefully participate in a lawful strike.

“Legislative policies such as these may not be achievable in the short-term,” said Sir Bob Hepple.

“But let us take inspiration from the defiant words of Countess Markievicz in 1921, when opposing the Treaty: ‘I have seen the stars, and I am not going to follow a flickering will-o’-the wisp’.”


About Sir Bob Hepple

Sir Bob Hepple was Master of Clare College from 1993-2003, and Professor of Law in the University of Cambridge from 1995-2001. He was appointed an Honorary Queen's Counsel in 1996, and was elected as a Fellow of the British Academy in 2003.  He was an Honorary Professor of Law in the University of Cape Town from 1999-2005, and has been a visiting lecturer in several other South African Universities. He has practised as a barrister in the areas of international, EU and UK employment and discrimination and human rights law. He has been a chairman of industrial tribunals (England and Wales), and a Commissioner for Racial Equality. He is currently a Judge of the UN Administrative Tribunal.


(Produced by UCD University Relations)


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