Is the right to strike a fundamental labour right?

The right to strike has indeed had a belaboured conception and birth. In fact, the ILO [International Labour Organisation] Convention No’s 8 and 98 make no clear express reference to the right to strike.

However, the right has been considered one of the essential attributes of the “core” rights embodied in those two conventions and as an essential means available to workers and trade unions to promote and protect labour rights and interests.
Furthermore, it has been as essential to autonomy of (and non-interference with) the collective bargaining process and outcomes. Thus, in the context of the associational rights of workers and trade unions, the practice of collective bargaining is accepted as the most suitable means of setting conditions of employment.
These may range from improvement of wages or deteriorating of working conditions.

However, it is also acceptable that this approach runs the risk that the parties (workers and employers) may not conclude the negotiations successfully and, if this occurs, there must be resource to some other method of resolving the impasse.
In effect, the workers must be free to mount economic pressures so as to force employers to make concessions, otherwise “collective bargaining” will amount to nothing other than “collective begging”.

It is said that the right to strike is determined not only by its objective but also circumstances under which it is initiated. There are concerns as regards the lawfulness of a strike if its purpose is not fit to be regulated by collective bargaining, or only the fact that its objective is about the occupational interests of workers.

In terms of procedural restrictions and pre-conditions (most of which tend to flow from collective agreements), common in most labour laws/regulations and practices are requirements such as democratic exercise by secret ballot where workers vote for a strike prior to its commencement and parties, especially workers, give prior notice of a specific length of time.

Parties also seek resolution of dispute through conciliation, median or arbitration. Measures during and the duration of strike should be proportionate and take into account concerns about law and order.

While the issue of a vote for a strike is required in a number of countries and is largely intended to give the appearance of consensus on the part of the workers, the process, it has been argued, should not be such that the exercise of the right to strike becomes difficult or even impossible in practice.
The right to strike is, however, not absolute and in effect, the right can only be exercised within certain limits. To this end, conduct of a strike should not occasion harm and losses, especially those inflicted upon society as a whole or be out of proportion. Before considering concerns over the preconditions for lawful exercise of the right to strike, one may point out that distinctions have sought to be made in a number of countries regarding what is termed “official strikes” and “wild-cat (unofficial) strikes”.

The distinction being that the former are those carried out by “Unionised” workers and are, therefore, able and capable of concluding collective agreements through the trade union to which they belong, while the latter are carried out by “Unionised” workers.

The issue can be posed in terms of the question as to who the bearer of the right to strike – is it the trade unions or the individual workers (although acting in concert)?

In conclusion, the right is possible even in the essential service theoretically. However, this may not be so in practice given the detailing constraints of our country, including irrelevance of some labour laws, ignorance of the law, high levels of unemployment, high levels of poverty , inequality and again, trade unions which would have been a possible avenue for airing out these views are full of disagreements. Therefore, issues of labour have largely been left to the market forces.

Bwiire works with the Foundation for Human Rights Initiative
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