Feature: Industrial action in a time of global crisis

Joanne HarrisMonday 20 March 2023

Global Insight assesses how a balance can be struck between protecting the right to strike and minimising disruption, while maintaining the rule of law.

Economic times are tough for millions of people around the world thanks to a combination of high inflation, low growth, high energy prices and a rising cost of living. And when economic times are particularly difficult, there’s often industrial unrest. Unions globally have become increasingly active in the last 12 months in either threatening or carrying out industrial action. More working days were lost to strikes in 2022 than in 2021 in countries such as Australia, Canada, the UK and the US, as unions stepped up campaigns against poor working conditions, low salaries and labour reforms. The current calendar year has begun in a similar fashion.

Strike action can cause significant disruption, especially when it’s taking place in a key sector, such as transport or health. That, of course, is the point – the unions need employers to have a good reason to come to the negotiation table and meet their demands. And while the right to strike is seen as fundamental in many countries, that doesn’t stop governments trying to prevent such action, raising legal questions and issues for human rights.

The UK cracks down

In January 2023, the UK government introduced proposals seeking to enforce ‘minimum service levels’ across a range of sectors in the event of industrial action. Under the Strikes (Minimum Service Levels) Bill, ministers would have the power to introduce regulations requiring a minimum service level in key sectors: health; fire and rescue; education; transport; decommissioning of nuclear installations and management of radioactive waste and spent fuel; and border security. After these regulations come into force, they’d apply to any strike taking place from that point onwards.

It’s a big moment for unions. This is an opportunity for them to stand up for these members

Neil Todd
Partner, Thompsons Solicitors

Under the proposals, employers would give unions a work notice – subject to consultation with the union – identifying employees who are required to work during a strike, regardless of whether they’re union members. Unions won’t be protected under tort law if they fail to take ‘reasonable steps’ to ensure all identified employees comply with the notice. The bill also removes the protection against unfair dismissal that currently applies to employees who take part in a strike, with employers able to fire any identified employee who went on strike instead of working.

The legislation is currently at committee stage in the House of Lords – the point in the UK’s parliamentary process where amendments are introduced and argued through. According to the government’s impact assessment on the bill, the aim is ‘to limit the impacts of strike action on the lives and livelihoods of the public. [The bill] seeks to strike a balance between the right of unions and their members to strike with the need for the wider public to be able to access key services. It does this by enabling Government to apply minimum levels of service on strike days for key sectors’.

The bill was met with an outcry by unions and human rights groups upon its introduction. Neil Todd, a partner in Thompsons Solicitors’ Trade Union Group, says the ‘authoritarian’ nature of the legislation and the ‘sweeping powers’ it would give ministers are the biggest worries. Todd says it’s currently also unclear what a relevant minimum service level is or what reasonable steps unions will have to take to ensure what that level will be, as this will be determined in subsequent regulations. It’s therefore ‘a very difficult exercise to be able to establish what’s appropriate in any given area’, he says.

In early March, the Parliamentary Joint Committee on Human Rights also expressed concerns about the bill, reporting that the proposals ‘are likely to be incompatible with human rights law in their current form’. The Joint Committee found that the bill didn’t meet benchmarks established in the European Convention on Human Rights on freedom of association and that the sectors identified were too broad, with the potential to catch, for example, private tutors or taxi drivers as well as schoolteachers and train drivers. The UK’s Equality and Human Rights Commission agreed with the Joint Committee, saying that the bill ‘raises several human rights considerations’.

Sarah Wimsett, an associate and employment law specialist at Bevan Brittan in the UK, highlights that section 240 of the Trade Unions and Labour Relations (Consolidation) Act 1992 already includes limited provisions that make it an offence for individuals to wilfully or maliciously break a contract of services or hiring if that could endanger human life or expose property to destruction or serious injury. Where this applies, any derogations need to be agreed at a local level and employers must negotiate with the unions. ‘This can lead to differences in approach and it requires a willingness on all parties to be proactive and cooperative’, Wimsett adds.

The sort of things people have historically sought unions for are now being granted through regulations

Patrick Benaroche
Co-Chair, IBA Employment and Industrial Relations Law Committee

The Parliamentary Joint Committee also pointed to these existing mechanisms, saying: ‘We do not consider that the Government has given clear and compelling reasons why the current legal protections that apply to strikes and the current practice of establishing voluntary minimum service levels are no longer sufficient to balance the rights of the wider public against the rights of the employees and unions concerned, again undermining the argument that there is a “pressing social need” for this legislation’. The Joint Committee recommended that the sectors affected by the legislation be better defined, that limits be placed on the minimum levels of service that can be required by ministers and that mechanisms be created for ‘genuine collective negotiation’ between employers and unions.

A spokesperson for the UK’s Department for Business and Trade told Global Insight that ‘The purpose of this legislation is to protect the lives and livelihoods of the public and ensure they can continue to access vital public services.’ The government notes the Equality and Human Rights Commission’s report and ‘will consider it in full, but the government needs to maintain a reasonable balance between the ability of workers to strike and the rights of the public, who work hard and expect essential services to be there when they need them.’

While the legislation goes through Parliament, strikes in the UK continue and Todd believes this could be an opportunity for unions to gain more profile and clout. ‘It’s a big moment for unions’, he says. ‘This is an opportunity for them to stand up for these members. It shows the importance of having a collective voice in the workplace, they’re certainly being heard [and] there seems to be quite strong public support for them at the moment.’

Witnessing a decline

This is an important point, one made against a global backdrop of declining unionisation. Union membership in the UK dropped from 23.7 per cent in 2020 to 23.1 per cent in 2021, largely due to declining public sector union membership. The UK’s Office for National Statistics said the fall was the first decline after four years of growth. As in the US, public sector unions dominate with around half of all public sector workers belonging to a union. The latest statistics from France, meanwhile, show that 10.3 per cent of employees were union members in 2019 – not an all-time low, but dipping down to the levels last seen in the early 1990s.

In the US, there was a rise in the number of salaried workers in 2022, but a much smaller increase in those who joined a union – resulting in a drop in the proportion of workers who are union members to similar levels to France (10.1 per cent, down from 10.3 per cent). US union members are overwhelmingly found in the public sector, with 33.1 per cent of public sector employees belonging to a union.

Canada has reported a nine percentage point drop in unionisation rates in the past 40 years, with the numbers falling to 29 per cent of employees in 2022. Statistics Canada has noted, however, that the female unionisation rates have remained stable, while the proportion of men who are union members has dropped.

There’s no one single cause behind declining union rates, say employment lawyers. Patrick Benaroche, Co-Chair of the IBA Employment and Industrial Relations Law Committee and a partner in Stikeman Elliott’s Employment & Labour Group, based in Montreal, explains that ‘One reason is the rise of the gig economy, the generational shift where younger workers are not really searching for long term security as their first priority but other interests – stimulating jobs, creativity’. He adds that there seems to be a shift away for younger men from industries with high union density, such as construction or manufacturing, towards more white-collar jobs, for example retail or professional services.

‘The third reason is the social progress of employment laws’, says Benaroche. ‘There’s constant improvement in minimum standards legislation. Wrongful dismissals are protected, there’s improved health and safety regulations and the sort of things people have historically sought unions for are now being granted through regulations.’ Benaroche also attributes the changes in the world of work caused by the Covid-19 pandemic – manifesting as a search for improved work-life balance and more autonomy – as affecting workers’ mindsets.

Unions step up

Against this backdrop, unions as organisations appear to have become more determined to fight for members’ rights. This can be seen both in cases where the employer seems likely to negotiate, and in situations where the employer or government is erecting barriers to industrial action.

In Sri Lanka, workers from 40 trade unions, representing sectors including health, energy, financial services and port operations, went on strike in early March despite President Ranil Wickremesinghe issuing a proclamation banning strikes in ‘essential services’. The unions went on strike over the government’s spending plans – which are required in order to implement the country’s bailout from the International Monetary Fund – in spite of the threat of employees losing their jobs by defying the presidential proclamation. The Secretary General of the Government Medical Officers’ Association, Dr Haritha Aluthge, has reportedly pledged continued action to try and change government minds on the bailout.

Similarly in March, the South African National Education, Health and Allied Workers Union (NEHAWU) went on strike over pay despite a court order banning industrial action. In a statement, the Department of Public Service and Administration (DPSA) said: ‘It is the commitment of government to ensure that these hard fought for rights are discharged in a manner that does not disrupt service delivery, especially in relation to essential services such as health.’ It added that any work stoppage or pickets ‘will be tantamount to contempt of court and treated as such’.

Strikes are a form of negotiation, to drive negotiation through force

Arnaud Teissier
Lawyer, Capstan Avocats

In response, the NEHAWU said it remains ‘resolute that no amount of court intimidation by the government will deter us from this noble worthy cause that we have embarked on – fighting for public servants, defending collective bargaining and rights of workers’. It appealed the order. However, in mid-March the Labour Appeal Court interdicted any strike action by essential workers.

Aadil Patel, Head of the Employment Law practice at Cliffe Dekker Hofmeyr in Johannesburg, explains that while the right to strike is enshrined in South African law, legislation precludes workers in essential or maintenance services from participating. Instead, their disputes can be referred to arbitration. Patel says this is in line with International Labour Organization guidelines, which state ‘it is admissible to limit or prohibit the right to strike in essential services, defined as those the interruption of which would endanger the life, personal safety or health of the whole or part of the population’. Patel adds that South Africa is aligned with international best practice and international legislative mechanisms. ‘We’re not saying we’re taking away your right to resolve issues, you must simply go to arbitration’, he explains.

Patel says the challenge in South Africa is that strike action tends to lead to violence. ‘In South Africa, unless there’s violence nothing happens from a social perspective. It’s not just only linked to employment disputes’, he says. He highlights that employers seeking court orders to limit strike action also have to ask police to intervene in any violence, which they’re reluctant to do. For their part, trade unions will seek to distance themselves from violent action, Patel says, but if someone decides to start a fight, it’s difficult to stop it. Ending this cycle is a significant challenge. ‘It’s going to take lots of education and training, but more than that it’s going to require our social dynamic to change’, Patel says.

Coming to the table

In India, proposed changes to the country’s labour codes – including clauses requiring 14 days’ notice for strike action, and other procedural items that could make industrial action harder than it currently is – are the subject of potential strikes by major unions, who say their demands relating to the new codes have not been met.

Vikram Shroff, Co-Chair of the IBA Employment and Industrial Relations Law Committee and Head of HR Law at Nishith Desai & Associates in Mumbai, says that most of the meetings between government and unions to resolve the issues relating to the labour code changes have been held behind closed doors. However, he’s confident that the government will make concessions to appease the unions, especially as elections are due next year. ‘Luckily for India the relations between employers and trade unions in general has been quite cordial’, Shroff says, noting that continued economic and job growth has helped. ‘We have seen cordial relationships between management and labour unions for the last several years. While there have been some one-off conflicts, in general management and unions have been working together.’

The buoyant economy in India has also contributed to apathy among employees to join unions, reflecting the global trend. Shroff says employees entering the biggest growth sectors – technology and services – have tended not to unionise, although the Nascent IT Employees Senate (NITES) is attempting to recruit members. ‘They’re working hard to get membership, they want to increase their numbers, but if you asked me is there a trend amongst employees, especially new employees, to join trade unions, I’d say no’, says Shroff.

In Canada, where elections are also looming on the horizon, the Public Service Alliance of Canada (PSAC), a major national labour union, is balloting around 150,000 members on potential strike action over proposed pay rises. Although the PSAC welcomed recent wage rise recommendations from Canada’s Public Interest Commission, it said they didn’t go far enough and stressed its commitment to action. ‘The only way we’ll achieve that is by taking a stand together and showing this government we’re prepared to take strike action to make sure workers don’t continue to fall behind’, the PSAC said in a statement.

Benaroche says the Canadian government will favour a negotiated settlement rather than drawn-out strike action. ‘The sticking point remains wages and the gap between the respective positions’, he explains. ‘The Canadian government has spent an enormous amount of money during Covid; they don’t have a lot more money to give. We haven’t seen this tension between public service workers and the government for a long while, but we’re seeing it now by virtue of the sudden hike in inflation rate.’

While the PSAC is unhappy with the proposed federal wage rises, it’s more comfortable with government proposals to prohibit employers from hiring ‘replacement workers’ when regular employees go on strike. The proposals are designed to ensure workers in federally regulated sectors continue to benefit from a meaningful right to strike – one that’s protected under Canadian law.

Finding new ways to act

In France, likewise, the right to strike is a core part of the constitution. Arnaud Teissier, a lawyer at Capstan Avocats in Paris, describes it as a ‘totem’, which no government would touch for fear of undermining itself fatally. ‘In France strikes are a constitutional liberty. It’s very strongly fixed in French culture’, he says. ‘At the same time it’s true that, in some industries, our labour relations remain very strongly founded in antagonism, it’s in the culture of the unions.’

Proposed reforms to the pension age in France – which would see it raised by two years to 64 – have resulted in strike action. Over a million people went on strike on 19 January, with action continuing through into March. Teissier says the government is showing willingness to negotiate. ‘There are a certain number of concessions which the government made during the parliamentary debate stage to try and avoid a repeat of total paralysis’, he says.

But Teissier adds there’s more behind the current uptick in industrial action than dissatisfaction with the pension reforms and the cost-of-living crisis. ‘There’s also, and we shouldn’t neglect this, some slightly more structural reasons which are bringing unions back to the forefront – that’s the desire of unions to regain control, to have a leadership role in this type of negotiation. Strikes are a form of negotiation, to drive negotiation through force’, he says.

As a result, Teissier says that French unions are increasingly resorting to other types of action to maintain their profile and relevance in a world where it has become harder to motivate employees to go on strike. ‘For example the union for a brand of products found in supermarkets could go into a big hypermarket accompanied by the press, and empty the shelves of all the products of the brand in question. It’s very visual’, he says. ‘There’s a move to find a way of campaigning which is perhaps a bit more commando. You might not have many people participating in the campaign, but in any case it’s spectacular and it’s quite a media-friendly way of exerting power. It’s devastating for a company to have bad press, especially when it can be followed immediately everywhere online.’

Although the ability to strike is still seen as a fundamental right in many jurisdictions around the world, the disruption industrial action inevitably causes will always mean that tensions rise when strikes are called. In the UK, the parliamentary process relating to the new anti-strike legislation rumbles on and it’s unlikely the bill will be passed in the immediate future. But some employers are extending new offers to striking unions in a bid to end disruption, demonstrating that strike action or its mere threat can still work. Global examples suggest that even where governments crack down on industrial action, strikes will continue and unions will use legal challenges and other tactics to ensure their voices are heard.

Joanne Harris is a freelance journalist and can be contacted at joannerharris@gmail.com