Strikes in essential services
Strikes are frequent in essential services in developing nation like China, India, South Africa, etc. (Strikes in essential services, 2014), but they are banned in UK irrespective some EU’s tolerance. The present paper investigates the nature of strike in Essential Services, legality of these strikes but subjected to some limitations, and its banning.
Strike is defined as temporary walk out, slow down or stoppage of work by the labour union to communicate a complaint or implement a demand (Peterson, 1938). Group of occupations which are legislated by the government are termed as essential services and restrict labor to walk out legally. Essential services and minimum services are differentiated by The International Labor Office, a United Nations agency (Peterson, 1938).
The idea of essential service is vague, a non-essential service can be converted to essential if a strike lasts over certain period of time or broaden in terms of scope, therefore imperiling the life, wellbeing or healthiness of the population (International Labor Office, 2006). Hospital sector, the armed forces, the police and fire-fighting services are considered to be essential services while railway services, metropolitan transport and postal services are constituted as non-essential/minimum services. Thus, for the drift of this paper, the theoretical ground work, empirical evidence along with real life examples (the Royal Mail and some essential services strike in UK and in South Africa) relative to the topic are examined (International Labor Office, 2006).
The 2009 Royal Mail Strike Case Study
The 2009 Royal Mail Strike is an industrial disagreement in Britain concerning members of CWU and Royal Mail, which occurred in 2009. The strike was nation’s first industrial action which involved postal workers since 2007 after CWU blame Royal Mail of rebuffing negotiation regarding the execution of advanced plans which would affect postal workers’ job opportunities (International Labor Office, 2006). The strike began on a local level following postal workers at Royal Mail offices in London and charged management of cutting job which they indicated breaking the 2007 Pay and Modernization Agreement (Wintour and et. al., 2009). After this incident, a national ballot for industrial action was opened by the CWU in September 2009. Over a period of sixty days, various announcements to strike and walkout came into being. However, on 5 November, strike had been called off. After a series of discussion, a conclusion was made on 8 March 2010, and on 27 April postal workers voted to accept the deal (Wintour and et. al., 2009). Initially, CWU employed a tactics of localized strikes, and then escalated it to national level by sending ballot papers to union members who voted three to one in favor of taking strike action. Negotiations between Royal Mail and the CWU continued, but associations got worse due to a document leaked out suggesting that Royal Mail would accomplish its alteration "with or without union engagement" which is a pretty hardnosed tactics adopted by Royal Mail management (Wintour and et. al., 2009).
This deal stipulated Royal Mail employees would receive a 6.9% pay hike over three years, while extra payments of £1,400 would be made to full-time workers. Therefore there will be a further payment of £1000 and £400 between the parties (Wintour and et. al., 2009). In addition the 75% of the workforce of the Royal Mail will be kept as full-time, and the working hours will be reduced to 39 hrs per week from 40 hrs. In substitution, the CWU settled for Royal Mail's modernization plan to install the automated walk sequencing machinery (Wintour and et. al., 2009).
It seems the deal worked out pretty fine for both sides. It was welcomed by CWU as it highlights main challenges experienced by the postal workers. The job losses can be offset through operational charges and balance of pay and will ensure fair reward for all the members, as deputy general secretary of the Communication Workers Union said (International Labor Office, 2006). On the other hand, outgoing chief executive of Royal Mail stated that the resolution was beneficial for the users as it will provide stability in the next few years, and allowed Royal Mail to proceed with modernization. However, the strike action resulted in accumulation of millions of undelivered mail which impacted the business market in London as they were forced to oust staff, or defer paying them (Struck out, 2010). Furthermore, The Daily Telegraph conducted a YouGov poll which shows that public support for the industrial action dropped. Richard O'Hagan of the Daily Mail argued that there was little support for the strikes due to the economic climate of Britain at the time. From the above discussion, on can debate on “Should employee in essential service be allowed to strike?” (Wintour and et. al., 2009).
The banning of Essential Services and the Right to Strike in UK
There are specific areas in various occupations where the public depends a great deal on the services of those that serve them. They include police officers, prison officers, firemen and health care personnel (International Labor Office, 2006). Since their profession is such an indispensable service, one can ask this rhetorical question, “Should the striking by people working in those sectors be banned?” Those industries are too vital to the social and economic wellbeing of society to permit it to extort over wage disputes, working conditions, hours etc (Struck out, 2010). There are many far reaching disruptions in the economy caused by such strikes and therefore should be banned to begin with.
In addition, the strike effect on the society is disproportionate. To be fair to taxpayers - public sector employees should be paid the minimum that is needed to bring the right people to do the job. But the salary of private sector employees is less in comparison to public sector employs although they have to work for longer hours. It is not fair for the taxpayer to overpay the public sector (International Labor Office, 2006).
In many respects British union laws are strictest among all the developed economies, says Richard Hyman of the London School of Economics. Unlike France and Italy, right to strike is not formally acknowledged by Britain’s common law. Workers can be sued if they breach the contract, says Nicholas Lakeland, a Silverman Sherliker’s lawyer (Struck out, 2010). Complicated procedures can be adopted by the unions to protect themselves, but bureaucrat pointed out it will give rise to red tapes. Sticks of essential service are banned as they can cause lot of damage. In the views of Mr. Hyman, one cannot legalize sticks in essential services (Struck out, 2010)
Indeed, essential services legislation crumbles bargaining power of people. There should be some trade-off between full collective bargaining rights and the public interest as services related to health and safety are essential. But the question is whether it is entirely banned? Once again, this issue can be argued (Dunn and Metcalf, 1989).
It appears that the British administration has come up some options with strike, not only to persuade public opinion, but also to smooth out the processes of bargaining power. One option is negotiation. Another is to take away some touchy issue, like wages, from collective bargaining altogether (Dunn and Metcalf, 1989). This means an elaboration of the pay review that now include nurses, doctors and dentists, or of pay indexation which cover police and fire fighters. Without arbitration, banning essential service strike would turn industrial action into a sporadic warfare, led by secretive groups of shop stewards as mentioned earlier. Such tactic adopted by activists on London Underground was a case in point. But the difficulty is that the management is not eager about settlement and indexing as a way of settling public employees pay (Dunn and Metcalf, 1989). The government wants extensible market-oriented pay structure for developing a cost-effective public sector. It sees arbitration, review and indexes as a means of fixing pay inflexibility, but lacking productivity, market and performance criteria (Dunn and Metcalf, 1989)
There are a couple of approaches legally or otherwise that the British government can employ to combat essential service strike. Firstly, the governments can “balkcanise” public sector industrial relation (i.e. breaking up the centralized bargaining units that produce constant pay and conditions across the country and treacherous national strike) (Dunn and Metcalf, 1989). Second, privatize micro sectors such as laundry, cleaning, and garbage collection and deregulate bus routes which has the effect of where services are in private hand will be continuously functioned during public sector stoppage. Third, the Employment Secretary can enact an emergency procedure to delay a specific strike indefinitely or for a limited cooling off period which can do away with arbitration, review, indexation and even court injunction (Dunn and Metcalf, 1989). Of the four alternatives, arbitration seems to be the best because public sector unions are familiar with the process, and is written into many bargaining procedures. (Dunn and Metcalf, 1989)
Essential Services and the Right to Strike in South Africa
On the other side of the globe, essential service workers right to strike appears to be a bit different. To start off, it is necessary to examine whether essential services workers can go for strike or not. Section 27 of The South African Constitution protects the right to strike for the purposes of collective bargaining as it is one of the fundamental rights (Strikes in essential services, 2014). It is an enormously significant right so that they cannot bargain collectively. Equilibrium in industrial relations cannot be attained without a freedom to strike (Davies and Friedland, 1983).
The Labor Relations Act ("LRA") recognizes this legitimate right to strike but with a limitation, that is, if a person is engaged in some essential service, he has no right to go for strike. Due to this reason this limitation can be justified. This limitation on the right to strike in the LRA is unlikely to be a subject for constitutional challenge (Strikes in essential services, 2014). Bill of Rights of the Constitution permits rights to limit laws of general application to the extent which can be justified in the society based on human equality, dignity and freedom (Sec31(6), The South African Constitution, n.d).
However, there must be some alternative for the essential service workers to strike action. So that one party to pass on a disagreement in essential services to arbitration with or without the agreement of other parties involved in the contract (Strikes in essential services, 2014). An arbitrator then has to decide the argument if strike action were permissible. If the dispute is related to working conditions and wages it is referred to negotiation, unlike in rights arbitration, where the authority determines a argument within the moderately slender limits of existing rights (Strikes in essential services, 2014).
Number of principles has been developed by the common law of arbitration which protects interest arbitrators in carrying that out. The more important principles are:
• Demonstrated need for the change proposed
• Replication of a negotiated outcome (Davies and Friedland, 1983).
• Appropriate comparison with similarly situated employees doing similar work in similar sectors
• Total compensation - the overall cost to the employer of the deal (Hospital Labor Disputes Arbitration Act Ontario, Canada, 1990)
Therefore interest arbitrator should add-on the collective bargaining process by making a fair and evenhanded arrangement between the parties which they were unable to do for themselves. The type of argument must be focused on seriously to make the arbitrator's determination workable. One must consider the category of opinion that parties make with other at the time of collective bargaining process (Davies and Friedland, 1983). These arguments include, for example:
• Existing practice in the trade
• The ability to pay
• Cost of living indices
• Previous practice (Davies and Friedland, 1983).
• Public interest
• Internal and external comparisons
• Supply and demand
• Equity (Davies and Friedland, 1983).
There is no universal application for any of the single creation and arbitrators are generally practiced on an amalgamation of standards. The most important advantage of compulsory interest arbitration is that, outcome can be predictable if there is a good body of arbitrators. Further, it discourages parties for taking any unreasonable position while negotiating with others. This actually persuades negotiated settlements (Strikes in essential services, 2014)
Though constitution does not challenge limitation on the right to strike in essential services in South Africa, the workers of essential services are provided an alternative of compulsory arbitration; but there are grim structural tribulations in public sector collective bargaining. The most grave of these is the lack of suitably designated bargaining units (Strikes in essential services, 2014). Following are the factors which decide an appropriate bargaining unit. The dominant aspect is a community of interest among employees. For example there are distinct communities of interest for doctors, prosecutors and cleaners and would be conferred within separate bargaining units. Other applicable measures are:
• The extent of union organization
• Bargaining history
• The desires of employees
• The employer's organizational structure (Morris, n.d)
However, in some public sector strike, there should be a centralized bargaining unit for example; the dispute over increase in housing allowance should be paid to every public sector worker whether it is a labor or a surgeon. But it does not consider the different needs of housing for different individual. And thus fails to distinguish the interests of different workers as suitable bargaining units were synchronized by the law, as they are in other jurisdictions. (Strikes in essential services, 2014)
From the above discussion it can be concluded that in UK, industrial relations in the essential services will prove to be lethal if a strike ban is not convoy by a new way of settling argument. Arbitration is the only solution to bring it back to life. But it has to be legally supported and must be free from political interference (Dunn and Metcalf, 1989)
If essential services and the right to strike in South Africa is going to go one step further, there is a need for major change. First, it is necessary for the parties to understand each other as lawful entities with different welfare in a constitutional democracy. Second, one must put efforts to make sure that parties hold modern negotiation theory and practice. Lastly, obsolete adversarial must be replaced by modernized tools for solving problems which have mutual benefits (Strikes in essential services, 2014).
Davies, P. and Friedland, M. 1983. Freund’s Labor and the Law. 3rd ed.
Dunn, S. and Metcalf, D. 1989. Your obedient public servant. New Statement & Society.
Hospital Labour Disputes Arbitration Act, RSO. 1990. Ontario, Canada.
International Labor Office. 2006. Freedom of association - Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO.
Morris, C. The Developing Labor Law: The Board, the Courts, and the National Labor Relations ACT . American Bar Association.
Paterson, F. 1938. Strikes in the United States1880-1936. Washington D C United States: Government Printing Office.
Sec31(6), The South African Constitution
Strikes in essential services. 2014. [Online]. Available through: < http://www.ifaisa.org/Strikes_in_Essential_Services.html>. [Accessed on 28th April, 2013].
Struck out. 2010. [Online]. Available through: < http://www.economist.com/node/17420126>. [Accessed on 28th April, 2013].