From: Rakesh Bhandari (rakeshb@STANFORD.EDU)
Date: Sun May 23 2004 - 20:43:04 EDT
Vol:21 Iss:02 URL: http://www.flonnet.com/fl2102/stories/20040130001007500.htm BOOKS On the right to strike A.G. NOORANI International and European Protection of the Right to Strike by Tonia Novitz; Oxford University Press; pages 419, £70. WHEN the Supreme Court takes up for hearing petitions for a review of its judgment, delivered by a two-member Bench on August 6, 2003, denying employees the time-honoured and well-established right to strike, it would find this book most helpful in correcting the error. So, also, Professor K.D. Ewing's work The Right to Strike, published by the Oxford University Press. Both are part of the series, Oxford Monographs on Labour Law. The author Tonia Novitz is a Lecturer in Law at the University of Bristol. The three General Editors of the series, including Prof. Ewing, are jurists of eminence. Their preface is very relevant to the situation in which we find ourselves today. It describes the problem and shows the way out - a deeper study of the law then has been undertaken in India. "The right to strike is one of the most difficult and intractable issues of modern labour law. Although recognised as a fundamental human right in international law, and indeed by the British courts, it is a fundamental right that is rarely acknowledged to its full extent, even in the domestic law of those countries that have ratified the international treaties in which it is to be found. Despite its protection in international law, the right to strike needs to be better understood, both in terms of its role and purpose, and in terms of its scope and content. This scholarly work meets that need, with Dr. Novitz providing a detailed and sophisticated account of why the right to strike should be protected, and the nature and form which that protection should take." Dr. Tonia Novitz's book is exhaustive and unrivalled. She analyses the right to strike in international law and the protection afforded to the right in the Council of Europe's Social Charter of 1961 and International Labour Organisation (ILO) Convention 87. Drawing on traveaux preparatoires (preparatory material preceding the treaty before its adoption), she unearths material neglected by international labour lawyers. The author analyses the relevant provisions of the European Convention on Human Rights and the European Union law, including the Charter of Fundamental Rights of 2000. The statement of the law is as on August 1, 2002. As a 15-year-old student the author debated the issue of compulsory trade unionism in her first summer job. As an 18-year-old waitress, she participated in a strike; as a lawyer she grappled with the legal issues the right raises; and as a jurist, she has produced this outstanding work. The Indian media wrongly calls lawyers "jurists", indiscriminately. What we have is a cluster of rights, socio-economic, political and civic. All merit legal protection. The right to strike is a political right, as "a facet of industrial democracy". It can be exercised legitimately not only in protest against employer policies but also as a challenge to government policy. As a civil liberty it involves three rights - freedom of association, freedom from forced labour, and freedom of speech. No right is absolute. Every right is subject to reasonable restrictions in the interests of other segments of society or of society as a whole. That is no reason for denying the right, but a challenge to define the limits sensibly. Even in the haven of private enterprise, the United States, its Supreme Court's ruling in National Association for the Advancement of coloured People vs Clariborne Hardware Co. (458 U.S. 886; 1982) should prod people here to reflect on the right. The NAACP had organised a boycott to put pressure upon local civic and business leaders to take steps to promote racial equality. The court upheld their action as a form of political expression, and, therefore, entitled to protection as speech. The author remarks, "A strike seems to be no more coercive than a successfully organised economic boycott". The work discusses thoroughly the reasons for legal protection as well as restriction of strikes, the standard - setting in the ILO and the import of international instruments. It is not widely known in India that the ILO's Committee on Freedom of Association (CFA) held that the right to strike is an essential aspect of freedom of association, guaranteed not only in Conventions 87 and 98 (appended to the book) but also in the ILO Constitution. The author records that "in Case No.5 (India), the complainant alleged that whenever industrial disputes arose, the Indian government, under the guise of maintaining law and order, resorted to the arrest and detention of trade union members and organisers. The CFA pointed out that the complainant had made no reference to specific cases in which the right to strike had been prohibited and that therefore there was insufficient information to warrant further examination of the case. The Committee merely observed that `in most countries strikes are recognised as a legitimate weapon of trade unions in furtherance of their members' interests'. Also, the Committee added that strikes are regarded as legitimate in these countries only `so long as they are exercised peacefully and with due regard to temporary restrictions placed thereon (for example, cessation of strikes during conciliation and arbitration procedures, refraining from strikes in breach of collective agreements)'." Over time, however, the Committee became more committed to the protection of a right to strike. India is a member of the ILO. The Supreme Court's ruling, unless reviewed and reversed, will be an international embarrassment. This book will be of invaluable assistance in that process of review.
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