Editorial: Government Interference with the Right to Strike

Aelim Yun opens this edition of IUR, reporting on the Korean Government’s “Back-to-Work” response to a strike in the trucking sector that brings to the forefront the major theme of this edition, but raises also the urgent contemporary debate around “worker status” that is also at the heart of the platform economy discussion. Yun tells us, the Government argue that the truckers “cannot do legitimate collective action as they are not ‘employees’ under Korean labour laws.

Jan Buelens follows with a damning lament for a time when freedom of association “was considered inviolable in Belgium”. This, he tells us, is collapsing under “unleashed neoliberalism”, which “threatens social achievements” and preventative injunctions are issued against strikes “before any action has even taken place”. Lance Compa reports on how in the US the Biden administration, styled as a champion of workers’ rights, has relied on an “emergency” clause to “[impose] a legislated collective agreement ... that blocked unions from freely negotiating an agreement, and using strike leverage to achieve it”. This effectively ordered rail freight workers “back to work” before a strike had even begun, with echoes of the situation Buelens reports in Belgium.

Steven Barrett tells us how the Ontario government responded to threatened strike action by low-paid school staff with a legislative ban on strike action that “contained unprecedented use of a ‘notwithstanding’ clause to block a rights-based challenge under the Canadian Charter”. But the government had “seriously misjudged the determination of CUPE education workers to strike despite the punitive Bill”. They had “entirely miscalculated the unified determination of the labour movement”.

Florence DeBord tells us how the Constitutional right to strike has been “restricted by the increase in disciplinary power, by the intervention of special laws or by the practice of requisitions”, and that now, increasingly, judges question “the legitimacy or the merits” of a strike. Meanwhile, laws on minimum service, “allow the employer to sanction an employee who has not declared his intention to strike 48 hours before”. Then there is the State’s power to requisition workers, non-compliance with which is an “offense punishable by six months’ imprisonment and a fine of 10,000 euros”.

Nicola Countouris argues that recent claims (by the British Government, in particular) with regard to minimum service rules around Europe are overblown. Sure, Countouris acknowledges, France and Italy have minimum services, but crudely mashing these laws together creates a horrible chimera. Meanwhile, many eyes are currently on the UK, where Keith Ewing and Lord Hendy KC warn us about a new Bill that aims to “impose, for the first time, minimum service levels to be observed in strikes in six sectors of the economy”. Its extraordinary mechanisms such that “an employer in the sector will have the power to serve on the union a ‘work notice’ identifying the workers and the work required”. Unions, we learn, will be under a duty to ensure that their members comply with such a notice. Ewing and Hendy ask what might be the meaning of this duty, “does it mean that the union must instruct its members included in a work notice that they must cross union picket lines?”. As such, this Bill “requires trade unions, at the behest of the State and on behalf of employers, to act as instruments of coercion over their own members, a role which unions have never in the past been required to perform”.

Everywhere we look, there are attacks and restrictions. But, I urge readers not to be wholly disheartened. As Barrett tells us, the Ontario Government’s attempted attack back-fired and may have left the labour movement stronger. And the Bill now before the UK parliament is only there because the Government has been completely spooked by the massive participation in strike action by workers in every sector of the economy. Its existence is an indication of union strength. And amidst it all, as Buelens remind us, some victories are “definitely possible”, and “hope is contagious”.

Daniel Blackburn, Editor

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IUR journal brings together the latest news, views and information on trade union rights worldwide, covering key issues from varied perspectives. IUR has an accessible format that is appreciated around the world by an audience of trade unionists, legal practitioners and academics. The journal is available in print and digital formats, with an online archive dating back to 1993.

Previous editions:

IUR 224 ChinaIUR 221 South KoreaIUR 212 Minimum WageIUR 223 Right to Strike

Back-to-Work Order: outdated legal boundaries of the fundamental labour rights
Aelim Yun

The right to collective action in Belgium
Jan Buelens

US Labour Law and the Right to Strike
Lance Compa

From Repression to Resistance to Resurgence: The 2022 Education Workers Strike in Ontario
Steven Barrett

Plea to Save the Right to Strike
Florence Debord

Minimum Service Levels During Strikes and the Misuse of Comparative Law
Nicola Countouris

The Strikes (Minimum Service Levels) Bill
K D Ewing and Lord John Hendy KC

Worldwide labour news

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The International Centre for Trade Union Rights

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union rights through research and advocacy services.

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