Rights to Strike and Lock-out

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This article is written by Pragaas Kaur Chugh, an intern under Legal Vidhiya

Abstract:

The right to strike and lockout are important aspects of collective bargaining and industrial relations. A strike is a work stoppage initiated by employees, while a lockout is a work stoppage initiated by employers. These actions are used to pressure the counterparty to comply with certain requirements.

The right to strike is considered a basic human right and is protected by international labour standards. But the right is not absolute and, in many countries, it is subject to restrictions and regulations. Some of the restrictions include requiring a cooling-off period before a strike, restrictions on the types of workers who can strike, and strikes that threaten public health or safety.

The right to strike is recognized in many countries, but there are limitations. For example, in some countries, employers must give notice before a lockout occurs and cannot use a lockout as a tool to punish employees for lawful activity.

The balance between the rights of workers and employers in the use of these measures is a subject of constant debate. Although strikes and lockouts can damage the economy and society, they are also important tools for workers and employers to protect their interests and negotiate better working conditions and wages. It is therefore important to find a balance between workers’ strike rights and employers’ lockout protections and ensure that these actions are used correctly and in accordance with regulations.

International Scenario:

The right to strike and lockout is globally recognized as a fundamental right of workers and employers. It is protected by a number of international conventions and treaties, including the International Labour Organization (ILO), which has provided a framework for the protection of workers’ rights and the promotion of social justice.

International Labour Organisation Convention No. 87 on Freedom of Association and Protection of the Right to Organize and Convention No. 98 on Organizations and Collective Bargaining mainly protect the right to strike and lockout. These conventions recognize the right of workers and employers to enter into collective agreements and to take industrial action, including strikes and lockouts, as a means of promoting their interests and settling disputes.

The right to strike and lockout is also protected by regional human rights instruments such as the European Convention on Human Rights (ECHR) and the American Convention on Human Rights. These conventions recognize the right to freedom of association and collective bargaining as a fundamental human right and protect the right to collective action with certain limitations.

In Europe, the right to strike and lockout is protected by the European Social Charter, which guarantees the right to collective bargaining and collective action, including strike and lockout. The European Court of Human Rights has also recognized the right to strike as a fundamental right protected by the European Convention on Human Rights.

In the United States, the right to strike and lockout is protected by the National Labour Relations Act, which guarantees the right of workers to negotiate collective agreements and participate in work with certain restrictions. The US Supreme Court has also recognized the right to strike as a fundamental right protected by the US Constitution.  In Canada, the right to strike and lockout is protected by the Canadian Charter of Rights and Freedoms, which guarantees the right of workers to collective bargaining and collective action with certain limitations. The Supreme Court of Canada also recognized the right to strike as a fundamental right protected by the Canadian Constitution.

In Australia, the right to strike and lockout is protected by the Fair Work Act, which provides a framework for resolving industrial disputes and regulates industrial disputes, including strikes and lockouts. Australian courts have also recognized the right to strike as a fundamental right protected by the Australian Constitution.

In conclusion, the right to strike and lockout is globally recognized as a fundamental right of workers and employers and is protected by international treaties, regional human rights treaties, and national laws. Although this right is subject to certain limitations in the public interest, it is an integral part of collective bargaining and a means to promote social justice and resolve disputes between workers and employers.

Historical Development:

The right to strike is a fundamental part of the labour movement and is enshrined in the conventions of the International Labour Organization (ILO). In India, the right to strike is recognized and regulated by the Industrial Disputes Act, 1947. This law regulates the resolution of labour disputes and determines the procedure for strikes, lockouts, and other labour disputes.

The right to strike under the Industrial Disputes Act 1947 has evolved over time and its scope and limitations have been clarified and specified through a series of amendments and court decisions. In this essay we trace the historical development of the right to strike under the Industrial Strike Act 1947. The Industrial Disputes Act 1947 was enacted to provide a legal framework for the prevention and resolution of labour disputes.

According to Section 2(q) of the Act, a strike means the interruption of work by the joint action of a group of people working in any field or the collective refusal to work by several people who are or have been in an employment relationship or accept employment. The law recognizes the right of workers to strike as a legitimate means of expressing their grievances and promoting their interests.

The first major challenge to the right to strike came in 1957, when the Bombay High Court ruled that a strike by bank workers was illegal. The court held that banks are not an “industry” within the meaning of the Industrial Disputes Act, so bank employees cannot legally strike. This decision was later overturned by the Supreme Court in All India Bank Employees vs National Industrial Tribunal & … on 28 August 1962 which said that banks are effectively an industry and bank employees have the right to strike.

In the following years, there were several more cases where the courts took a restrictive view of the right to strike. In one case, the Madras High Court held that strikes by government employees were illegal because they were civil servants and had a duty to serve the public. In another case, the Delhi High Court ruled that strikes by workers in essential services were illegal because they posed a threat to public safety.

But in 1962, the Supreme Court said that the right to strike is a fundamental right under Article 19(1)(c) of the Constitution which guarantees the right to form associations or trade unions, although it is subject to limitations. The court found that the right to strike is an important part of collective bargaining and limiting that right would violate the constitutional guarantee of freedom of association.

In the 1970s, the government amended the Industrial Disputes Act and imposed new restrictions on the right to strike. Under the amended law, workers had to give at least fourteen days’ notice of their intention to strike, and strikes were prohibited during conciliation proceedings or court rulings. These changes were contested in several cases, and the Supreme Court confirmed their constitutional validity in several regulations. However, in 1980, the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa aided in explaining section 2(j) of the act which talks about sovereign activities. In this case, it was held that the right to strike is a constitutional right and cannot be taken away by law. The court noted that while the government had the right to regulate strikes in the public interest, such regulation should not unreasonably limit or make the right to strike illusory.

In the following years, several court decisions were made that clarified the scope and limitations of the right to strike. In the case of General Labour Union (Red Flag) Vs. B.V. Chavan & Ors., the Supreme Court held that imposition and continual of a lockout shall be considered as illegal.

Provisions:

In India, the right to strike and lockout is protected by the Industrial Disputes Act, 1947. The law defines a strike as a concerted or collective refusal to stop work by personnel working in any field or refuse to continue working or accept work for such persons who are or have been in employment. Lockout means the temporary closing of a workplace or cessation of work, or the fact that an employer refuses to continue the work of a certain number of people in his service.

There are several Strike and Lock Out rules. Notice of strike or lockout: The law requires that the initiator of the strike or lockout must notify the other party and the conciliator at least fourteen days before starting the strike or lockout. The notice must state the start date, the reasons for the strike or lockout and the number of employees likely to be affected. Prohibition of strike and lockout during the conciliation process: The law provides that during the conciliation process and seven days after the end of the process, neither party can start a strike or lockout.

Prohibition of Strikes and Lockouts relating to Pending Court Proceedings: The law provides that no party can initiate a strike or lockout pending collective bargaining proceedings and two months after the end of the proceedings. Basic requirements for a legal strike: A strike is legal if it begins after the expiration of the notice period if it advances the demands of the union and fulfils the requirements of the law. A strike is illegal if it violates the law, if it violates an agreement or award, or if it promotes a claim that is not a union claim.  Prerequisites for a legal lockout include conditions such as, a lockout is legal if it begins after the end of the notice period if it favours the demands of the employer and meets the requirements of the law. A lockout is illegal if it violates the law, if it violates an agreement or award, or if it promotes a claim that is not related to the employers.

Compensation for illegal strike and lockout: The law provides that workers participating in an illegal strike are not entitled to wages during the strike, and employers who started an illegal lockout must pay compensation to affected workers.

Right to peaceful picketing: The law allows workers to picket peacefully during a strike under certain conditions. Government intervention: The law provides for government intervention in labour market disputes by appointing a mediation agency, mediation commission or court of inquiry. The government can also prohibit a strike or lockout in the public interest by allowing the dispute to be settled or by declaring the strike or lockout illegal. Section 22 particularly discusses prohibition of strikes and lockouts. It states that in the case of a contract breach, employees/workers cannot go on strike criticizing facilities provided by the Government. According to section 22(2) of the Industrial Strike Act 1947, no employee in the public service shall lock out his employees. Failing to give them notice of the closure below within six weeks before the closure; or within fourteen days after giving such notice; or before the end of the deadline specified in the said notice; or mediation proceedings during pending mediation proceedings and seven days after the end of such proceedings. Lockout without the previously mentioned conditions shall be considered illegal. Notice for strikes and lockout may not be necessary for private industries as per section 23, although it is subjected to restrictions. The restrictions as per section 23 include, at the time of the conciliation proceedings in the board and seven days after the end of the proceedings, when the proceedings are pending in a labour court, arbitration or domestic court and two months after the end of such proceedings; during the pending arbitration procedure and two months after the end of the trial, during any period during which the settlement or judgment is in effect, all matters covered by the settlement or judgment.

The penalties for illegal strikes and lockouts provided for in Section 26 of the Industrial Disputes Act also act to prevent strikes and lockouts. An illegal strike is punishable with imprisonment which may extend to one month or with fine which may extend to fifty rupees or with both. Similarly, illegal lockout shall be punishable with imprisonment which may extend to one month or with fine which may extend to one thousand rupees or with both.

Protection against victimization: The law protects workers if the employer is forced to participate in a strike or support a union. Recognition of trade unions: The law provides that employers recognize trade unions, which enables the negotiation of collective agreements and participation in the resolution of labour disputes.

Case Laws:

In India, there have been some case laws on strike and lockout in recent times All India Bank Employees vs National Industrial Tribunal & … on 28 August, 1962: In this case, the Supreme Court of India held that the right to strike is, although a fundamental right under Article 19 (1) (c) not an absolute right and must be exercised within the limits of law. The court noted that the strike must be peaceful and non-violent and must not harm the public. In Harish Uppal Vs. UOI (2003), the court held that the advocates have no right to strike unless under rarest of the rare conditions. The jurisprudences tell us that strike action by essential services workers is valid but must be given as a last resort after all other options have been exhausted.

Conclusion:

In conclusion, the strike and lockout provisions of the Industrial Disputes Act, 1947 provide a framework for the protection of workers’ rights and the promotion of social justice. Although these regulations impose certain conditions and limitations on the exercise of the right to strike and lockout.

The recent jurisprudences emphasize the importance of following the procedures laid down in the Industrial Disputes Act, 1947 for the exercise of the right to strike and lockout. They also emphasize the need for peaceful and non-violent means of protest and the importance of balancing the right to strike with public and economic interests.

The right to strike and lockout are the two main tools used by workers and employers to protect their interests and achieve their goals. The right to strike is a fundamental human right recognized in international law, which is important to ensure that workers have a say in their working conditions and wages. Similarly, the right to strike is a means by which employers can protect their financial interests and negotiate with their employees on an equal basis.

However, the exercise of these rights is not absolute, but must be balanced against other competing interests, such as public safety and order, the protection of the rights of non-striking workers, and the right of the employer to conduct his business.

That is why it is necessary that we have a legal framework that balances the rights of workers and employers and the interests of society. Such a framework should provide for peaceful and orderly settlement of labour disputes, ensure responsible and prudent use of the right to strike and lockout, and provide dispute-resolution mechanisms such as mediation and arbitration.

It can be said that the right to strike and lockout is an important part of labour relations, and a carefully prepared legal framework helps to ensure responsible and reasonable use of these rights, which leads to better labour relations and more stable labour relations and, ultimately, a more prosperous society

References:

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