Glimpse of Sri Lankan and Indian perspective: The right to strike | Daily News

Glimpse of Sri Lankan and Indian perspective: The right to strike

 

A strike can be defined as the most powerful tool of bargaining and winning, on the part of employees. Yet the actual legal basis for a strike as a right should be sought in the light of international, regional and domestic legal framework. Also, it is doubtful the reason for not expressly setting out the particular right under consideration by International Labour Organisation by any of its convention or recommendation. The purpose of this study is to explore how South Asia perceives on the right to strike with special reference to Sri Lankan and Indian perspective inter alia the international labour standards. The methodology followed in the study is exploratory where documented sources are analysed to find out the legal standing of the right to strike. It is used related legislations, judicial decisions, international standards as primary sources and journal articles, commentaries, case digests as secondary sources

 

Trade Unions Ordinance No. 14 of 1935, Sri Lanka from section 2 defines the term ‘strike’. The same enactment pinpoints that the strike action could be one objective of a trade union. The generalised definition could be given as to cessation of work by employees with the intention of obtaining some advantage from the employer, where the contract of employment still exists, not-breached. Yet recognising ‘strike’ and recognising ‘right to strike’ is different.

Thereby it is worthwhile to note that none of the labour related statutes in Sri Lanka does not identify strike as a right. Could it be accurate to state that inexpressiveness amounts to the non-existence of the right? This article appeals the true legal basis of the right to strike and the need to the express recognition of the same comparing with Indian Jurisdiction inter alia the justifiability of the strike action of employees.

Scope of the study

The strike is identified as an important weapon belongs to an armoury of employees where demands from employers can be met. It would also be justifiable on the basis that the strike as a last resort to reminding the power of majority stakeholders of the tripartite industrial relations. Yet it is pertinent to explore whether all the strike actions are justifiable on this aforementioned basis and when such unjustified action is carried out would it be under the ambit of the right to strike. Scrutiny must also be given to legal basis of the strike action as a right of employees where national constitutions, legislations and case laws are analysed. Moreover, limitations on the same right if available, need of attention on this platform.

Findings

It is lined-up under following facts, the findings of the study

a) Justifiability of strike

As per Bernard Gernigon (2000), a strike could be occupational, trade union-related or political related. Occupational is where employees seeking to guarantee or improve workers’ working or living conditions. Seeking to guarantee or develop the rights of trade union organisations and their leaders is recognised as trade union related strikes. Political strikes could be simply understood as of purely or partly political nature.

What type of strikes could then be justifiable? At the outset Committee on Freedom of Association of International Labour Organisation has made clear decisions stating that strikes of occupational and trade union nature are legitimate. Thereby the doubt accrues about strikes of political nature. Surprisingly International Labour Organisation has recognised that strike actions which are of political nature could also be justified. As per Gernigon (2000):

“The Committee on Freedom of Association's attitude in cases where the demands pursued through strike action include some of an occupational or trade union nature and others of a political nature has been to recognize the legitimacy of the strike when the occupational or trade union demands expressed did not seem merely a pretext disguising purely political objectives unconnected with the promotion and defence of workers’ interests”.

Trade union aspects of a strike are impossible to divide. In such a situation, due to sole reason of politically related aspects of a strike, it is unreasonable to consider a strike “unjustifiable”.

Sri Lankan context is positive in this regard where political nature of trade unions is expressly recognised via statutory law to some extent. More precisely, Section 47 of the Trade Unions Ordinance No. 14 of 1935 of Sri Lanka recognises a statutory right for trade unions to maintain a “Political Fund” to be used for “Political Purposes”. On this basis, it is possible to argue that a strike of a purely or partly political nature could also be justified in terms of the Sri Lankan law. Unfortunately aforementioned Section 47 if applicable only to the private sector and Section 21 (1) (b) (i) of the said enactment restricts and prohibits trade unions of public officers to maintain “political Fund” and act on “Political Objects”. Moreover, judicial decision of The Lanka Estate Worker’ Union v. The Superintendent, Vallai Oya Estate ID 8, CGG 11, 095, the cause for cessation of work must be a collective and it must have an industrial demand which implies the judicial reluctance to accept political nature of strike action.

Comparatively, Indian Perspective can be understood by construing Indian Judgements on strikes. Communist Party on India (M) v. Bharat Kumar and others, (1998) 1 SCC 20 Kerala high court judgement condemned the intervention of political parties to encourage strikes in the Industry which pinpoint judicial attitude to hinder the right to strike based on a political nature.

b) Legal basis of strike

b-i) Right to form and join trade unions

Article 14(1) (c) and (d) of the Constitution of the Democratic Socialist Republic of Sri Lanka expressly guarantees the Sri Lankans the freedom of association and the freedom to form and join a trade union which is a positive basis.

 

Can it be argued that express recognition of the freedom to form and join trade union amounts to same recognition of the right to strike which is an act under trade union actions? It is a moot point.

Moreover, violation of a fundamental right by an executive or administrative action can only be challenged at the Supreme Court of Sri Lanka under Articles 17 and 123 of the Sri Lankan Constitution. Thereby it suggests that if trade union rights of private sector employees are violated by their employer they left with no remedy. In such a case Industrial Disputes (Amendment) Act No. 56 of 1999 can be one operative legal protection based on unfair labour practices.

Indian legal basis on the subtopic under consideration is covered under the Constitution of India by Article 19(1) (c) which guarantees to all its citizens the right “to form associations and unions”. But judicial decisions specifically mention that the said right should not lead to the conclusion that trade unions have a guaranteed right to an effective collective bargaining or to strike as a part of collective bargaining or otherwise which connotes the legal non-recognition or right to strike in India. In the Supreme Court judgement of T.K. Rangaraja V. Government of Tamil Nadu and others, A.I.R. 2003 SC 3032 court justified restricting the right to strike of government employees in India. Also, the reasoning over the right to strike of private sector employees and its constitutional status is still not uniform in India.

b-ii) Right to strike as an implied right

In Sri Lanka based on Trade Unions Ordinance No. 14 of 1935 and Industrial Disputes Act No. 43 of 1950 implied right to strike can be emanated. Section 2 of the Trade Unions Ordinance interprets the term “Strike” and focus must also be given to Sections 26, 26 and 29 of Trade Unions Ordinance in this consideration. Although unfettered right to strike is not crystal clear in any labour legislation in Sri Lanka protection in respect of strikes in contemplation or in furtherance of a trade dispute against a civil action for inducing branch of contract and against tortuous actions is provided in aforementioned provisions. Moreover Industrial Disputes Act No. 43 of 1950 limits the right to strike by imposing controls. For instance Section 40(1) (e) reads that it is an offence to incite or induce a workman to strike or to discontinue employment or work, with a view to procuring the alteration of any of the terms and conditions of that agreement, settlement or award being bound by a collective agreement or by a settlement under the Act or by an award of an arbitrator or an industrial court. Thereby it can be said that there must be a right order to control or limit it. Further in the Supreme Court decision of Rubberite Company vs. Labour Officer, Negombo (1990) 2 Sri LR 42 it was stated that:

“The basic right of workmen to strike to express their grievances and to win their demands is not only consistent with the international obligations undertaken by the Government of Sri Lanka in ratifying the Covenant on Economic, Social and Cultural Rights but also consistent with the accepted standards in other national and regional jurisdictions. Therefore, I hold that under our law, workmen have a basic right to strike as a measure of Collective Action directed against the employer to express their grievances and to win their demands.”

Industrial Disputes Act of 1947, India defines the term as a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have been so employed to continue to work or to accept employment. Chapter V of the same enactment validates and invalidates strikes based on nature of employment and situation of the industry which impliedly can be said that situations not prohibited under the Act recognise the availability of the right to strike. Yet there is no judicial uniformity over the matter.

Recommendation

Although a strike action is identified as a hindering factor of development in the business world, sometimes strike can be the only weapon to employees to assure their rights, demands or conditions. Moreover, a strike can speak loudly than any mechanism of alternative dispute resolution provided under labour statutes in a country.

Both Sri Lanka and India lacks the express recognition of the right to engage in a strike. Non-availability of express recognition necessarily provides room for vague and ambiguous interpretations by authorities and judiciary. Moreover, it could expressly limit and control unfair industrial actions by the employees if the right under consideration is expressive under the law. The South African law can be taken as a prototypical example to develop expressed legal policy on strikes.

Courtesy: 29th LAWASIA Conference

 

 

 


 

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