Though there is no basic definition of a strike, it can be termed as a collaborative cessation to work or perform work with the aim of enhancing salaries or improving the working conditions. People collaborate and decide to initiate a strike in order to air out their grievances. The basic definition of a strike can be obtained in a section of the Employment Protection Act of 1978.
It may be termed as a collaborative refusal of persons to continue working in an attempt to make employers come into terms with the desired terms and conditions of work. Often, strikes end as soon as the employers decide to negotiate with employees concerning various issues. The European Court of Human Merits (ECHR) has continually refused to recognize the merit to strike as a civil liberty.
There are various possible reasons for according strikes a legal protection. The degrees to which legal protection of strikes can be justified vary in different jurisdictions. There is a belief that the merit to strike is categorized under the socio-economic merits. Giving authority or power to strike ensures that fair wages are maintained and the working conditions are improved. This in turn promotes the social and economic welfare of the workers and the entire population.
The assumption for this merit is that the bargaining power between the employee and employer is imbalanced and hence, an employee has no say (Barnard, Deakin and Morris, 2004). Through strikes, workers are able to claim improved working conditions and fair salaries or wages. The outcome of the strikes in Several States of the European Union was improved working conditions as well as a fair share in wages. This has ultimately led to the eradication of the merit to strike case.
A good example is Western Europe that has constantly been characterized by higher wages and living standards compared to the situation in the twentieth century. Due to this fact, the courts have considered strikes to be illegitimate and unreasonable. This is the key reason behind the failure of the ECHR to recognize the merit to take part in strikes as part and composition of civil merits. It is evident that workers are now satisfied with their wages and working conditions and hence do not need to strike in order to air out their grievances (Barnard, et al, 2004).
However, workers have constantly argued claiming that the wages are inadequate since they need to earn more that the current basic salary. The key objective of the workers is improving their standards of living as well as their social well-being and not just to avoid poverty. Rather than asking for basic wages and improved working conditions, workers are fighting to achieve terms of employment that truly conform to their experience and skills.
The other appeal is for egalitarian rules that allow then to receive a share of amassed profits made by employers from hiring procedures. Workers need to have an enjoyable working environment as well as an environment that does not affect their health. Employers on the other hand counter ague that allowing employers to strike is unreasonable since this would results to employers paying more money than they could afford, and this may create several inconveniences.
To state the dilemma surrounding the issue of workers strike, the solution is independent on legalization of the merit to take part in strikes. The key solution is for the State to intervene by setting the conditions and terms of hiring through obligatory mediation. According to the ECHR, Strikes are unacceptable and should instead be replaced by obligatory conciliation and mediation.
Strikes should be the last resort following failure of other procedures such as obligatory mediation. Through mediation, it is possible to come up with a common pact or agreement between employees and employers. There are been criticism and arguments supporting and opposing the claims (Scrope and Barnett, 2008). Compulsory arbitration is a form of conflict resolution that was utilized to replace collective bargaining. The Introduction of Federal arbitration in Australia mass it clear that strikes were unacceptable.
Trade unions viewed arbitration as the process through which employees grievances could be acted upon. Before the introduction of arbitration, there was a difference between disputes of merits and disputes of interest. Disputes of merits were defines as conflicts arising due to misinterpretation of binding pacts concerning the conditions and terms of hiring. This case could be presented to conciliation court.
Dispute of interest on the other hand comprised of conflict arising due to disagreements regarding what should comprise the conditions and terms of employment. This case was not settled in court but rather required the conflicting parties to come to a common understanding. There were criticisms that the arbitration rule that was introduced failed to clarify the distinction between the two terms (Scrope, 2008).
From the stand pint of collective bargaining, this merit may be regarded as collective merit. This is due to the fact that individuals can only exercise or take part in strikes collectively or in form of a group. Withdrawal by a single person is not persuasive enough to make employers act towards the grievances aired out. In order for legal security of the merit to take part in strikes to be sensible, an extent of collaboration is a requirement.
This implies that individual persons within an organization would be accorded with a duty and not a merit to initiate industrial action. The mandate to be involved in strikes only important for efficacy purposes. It is unacceptable to justify the merit to strikes on grounds of politics or in terms of amplification of other civil liberties. Strikes are often viewed as interfering with democratic procedures. Strikes could no only lead to the disregarding of democracy but also facilitation of collective participation.
Rather than striking, employers feel that alternative methods should be utilized and these include profit-sharing schemes, consulting with the representatives or appointing directors for the workers. The European Community has made a provision for employees to be consulted and informed about various issues arising within an organization. These initiatives have been put across to encourage cooperation and reduce industrial action or strikes. The key objective of the provisions is to make sure that there is an effective partnership between employees and their employers (Beale, 2007).
Claims have been made regarding the initiatives and reforms with several people fearing that the provisions allow only limited participation of employees in the decision making processes. Moreover, the use of representatives may not cater for the general needs of workers in totality. For these reason, the merit to strike may be seen as the only way through which workers can have the opportunity to play an active role in the decision-making process.
The scope of having the merit of striking is broadened through a justification of this merit on the grounds of industrial democracy. In this case, workers can not only have a merit to strike in opposition to poor wages and working conditions but also to oppose the methodology by which a business or organization is run. Moreover, workers could strike against the various organizational decisions reached upon.
There is a distinction between civil liberties and socio-economic merits and this partly justifies the refusal of the ECHR to recognize the merit to strike as part of the convention. Those advocating for the legal protection of the merit to strike have attempted to create a connection between this merit and the commonly known civil liberties such as the merit to associate. It ahs been postulated that the merits bestowed to employees or workers are most ancient form of civil liberties. The key question lies in the degree to which there can be a logical link between civil liberties such and the merit to strike.
Claiming that the freedom of association is connected to the merit to strike is an attempt to argue that the merit to strike deserves a much greater extent of legal protection. There is a fundamental difference between a freedom and a merit whereby a freedom is the lack of a duty while a merit bestows duties that are correlative unto others. Freedom of association can be termed as a form of civil liberty since the state has the responsibility of protecting an individual who desires to exercise the freedom of association.
This freedom can also be regarded as a political merit because it is only possible to fulfill political interest collectively. The social function of freedom of association relies on the fact that this freedom allows a coordinated defense of the interests of workers. The aspects mentioned above regarding the freedom of association are not applicable to the merit to strike (Lawrence, J. T. (2004).
An individual who ceases to work and engages in a strike is said to breach the employment contract. Consequently the employer is obliged to end the employment contract or resort to alternative means. Through the objective of the striking workers is to get better wages and working conditions, employers have the legal merit of taking severe actions against them. Majority of workers who strike expect the jobs to continue belonging to them while they are not performing.
The ECHR views this as an inappropriate action to take because it lowers the overall productivity due to lack of performance. Some critics claim that the freedom of association enables workers to form unions which are most of the times the roots of worker strikes. They therefore feel that there is a link between the freedom of association and the merit to strike. The other claims that have been postulated that there are connections between the merit to strike and the freedom from forced labor.
This has however been clarified in that the freedom from forced labor gives the workers the opportunity to make a decision regarding whom to work for. Hence, it is a matter of individual decision and choice. Contrary to the mentioned freedom, the merit to strike may be allowed on the basis of political protest or coordinated bargaining. It has nothing to do with an individual choice or decision regarding a given job or employer. Some key consequences may arise if at all freedom from forced labor becomes the basis for bestowing legal protection to the merit to strike.
Through the merit to strike is yet to be regarded as having a link to the freedom from forced labor, there is a possibility of raising sanctions based on the perpetrators of those strikes. Freedom of speech is the other form of civil liberty that may justify the need for the legal protection of the merit to strike. During strikes, workers express their views and opinions, which may be classified as a form of speech, which is under legal protection. It should however be noted that strikes can result to great monetary loss to organizations and employers.
Due to the consequences associated with strikes, debates have emerged on whether, the workers opinion should be categorized under a form of speech that is under legal protection. Those opposing the legal protection of the merit to strike argue that it should not be considered to be related to the freedom of speech because they result to incurring of losses.
An example of a question that has been raised in court is that of regarding strikes as economic boycotts organized successfully. Since the damages caused by boycotts can be justified based on the objectives of the boycott, the same case could be applied to strikes where the damages resulting from the strike could be justified on the grounds of the purposes of the strike.
For instance, if the objective of a strike is to put an end to racial discrimination within the workplace, it deserves to be recognized as a form of speech. This question has raised debates concerning the legal protection of strikes and the need to recognize it as a form of civil liberty. Several jurisdictions have shown reluctance to compare strikes to economic boycotts and regard them under the freedom of speech. The courts felt that there were several alternatives ways through which trade unions and workers could air their grievances other than strikes.
It was also concluded that striking led to infringement of other peoples merits. Unions could only take part in economic boycotts in form of collaboration with various community members and groups. There is a possibility that the rising cases of industrial strikes have regulated the way employers treat their workers and hence it has become much easier and effective for employees to raise concerns and come into negotiable terms with their employers (Novitz, 2003).
There are various reasons why the merit to strikes should be restricted. First of all, the merit would cause harm to employers. It is clear that business productivity relies on effective labor provisions. Hence, when workers strike and cease working, they decrease a business productivity. Moreover, employers may be harmed physically and incur huge monetary loses as a result of strikes. The other aftermath of strikes is causing harms to the unemployed population as well as other employees.
The financial loss that may result as a result of strikes may have negative effects on other employees within the organization or business. Some may even go to the extent of losing their jobs. Evidence has shown that due to the fear of losing their jobs, most workers prefer to come into an agreement or cooperative pacts with their employers instead of engaging in strikes or industrial action (Beale, 2007).
The other result of strike is causing harm to consumers. A good example is that as a result of strike, employers may decide to raise the price of goods in order to make up for financial losses. This in turn affects the consumer who has to pay huge sums of money for a given commodity due to a strike or industrial action. The answer to this issue is not to ban strikes. It is possible to legalize strikes in cases where the government has the ability of maintaining optimal level of services and not put the safety and health of the public at risk.
In order to reduce cases of strikes among employees and workers, there is the need to come up with a fair negotiation and arbitration system. The other negative aspect associated with strikes is that they are harmful to the welfare of the general public or the entire community. Such mass actions and strikes reduce the efficient functioning of a free market hence reducing productivity. Moreover, some strikes affect democratic institutions and should there be legally unacceptable. Strikes are a public nuisance and may pose a threat to damaging public and even government property (Siegel, 1994).
When the merit to strike is viewed as a form of civil liberty, it is an implication of it being a secondary merit and not a primary merit. Moreover, it would impose a mandate to the state to ensure that exercising of the merit to strike does not cause any harm to individuals or the general public at large. The indication of this is that it would be inappropriate to take any legal action against people who take part in strikes of mass action.
Arguments have been raised that the merit to strike may be carried out with the key objective of promoting of protecting human merits. Several courts however are in dire opposition of this matter claiming that individuals should not be bestowed upon the merit to strike. The parties proposing the legalization of the merit to strike may argue on the grounds of other civil liberties such as the freedom of association and speech.
There have been also claims that the merit to strike is a tool through which human merits can be supported or protected. The strikes may also be for social, economic and political merits that comprise the human merits treaties internationally. Since most strikes aim at promoting working conditions for workers and employees, this may be viewed as a social merit. There have been concerns against trade unions with the claim that they promote the occurrence of strikes.
This is due to the legalization of balloting that may result to strikes. This happens in cases where trade unions take part in balloting procedures to determine if a strike should take place or not. However, when human merit activist argue that the abolishment of trade unions would result to the infringement of the freedom of association. Under the freedom of association, workers have a merit to form trade unions as long as the association or unions do not disrupt individual or public activities.
Though there have been various debates on whether the merit to strike should be under legal protection, it is clear that strikes have several negative impacts. First of all, they are detrimental to employers and other employees. They also lead to decreased production and a consequent decrease in profitability. This justifies the failure of the ECHR to recognize the merit to strike as part a form of civil liberties and part of the convention
Barnard, C., Deakin, S. F., & Morris, G. S. (2004) The future of labor law. Hart Publishing
Beale, A. (2007) Employment Law and Human Merits (2nd Ed). Oxford University Press
Lawrence, J. T. (2004). Human merits in the Americas. Nova Publishers.
Novitz, T. (2003). International European protection of the merit to strike. Oxford University Press
Scrope, H.. & Barnett, D. (2008). Employment Law Handbook. Henry Scope
Siegel, R. L. (1994). Employment and human merits. The international dimension. University of Pennsylvania Press
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