1 Introduction
This
paper examines the inter-relationship between the concepts of freedom of
association, collective bargaining and the right to strike. It is argued that
freedom of association and collective bargaining are interrelated with the
exercise of the right to strike. It is argued that the freedom to associate is
not a bare liberty to associate, but to participate in all the activities of
such association. The essence of forming and joining a trade union would be
ineffective if workers could not also exercise the right to strike as one of
the legitimate activities of such trade union.[1] The paper further examines the role of
collective bargaining in the exercise of the right to strike.
What is it that
motivates strikes? Conflict is inevitable in any industrial society and the
major means of settling conflict in industrial relations is through collective
bargaining and the exercise of the right to strike. It is argued that it is the
failure of collective bargaining that justifies industrial action. Workers have
the right to belong to the trade union of their choice and to bargain
collectively. What happens in the event of negotiations collapsing? It is
argued that workers are permitted to take lawful industrial action to realise
their demands. The right to strike is thus an essential weapon for ensuring the
success of a collective bargaining system. It is a sine qua non to collective bargaining.
It must be noted that the right to strike is
not a single or isolated right, but the organic content of the system of labour
rights.[2] The
right to strike, the right to organise and the right to bargain collectively jointly
form “basic labour rights” and the cornerstone of effective labour relations
systems.[3] These rights are interconnected and take effect mutually. As between
them, the right to organise is a basic requirement, the right to collective
bargaining is the core, and the right to strike exists to guarantee the right
to bargain collectively.[4]
Is the right to
freedom of association a bare freedom to associate? Does the right to form
unions carry with it the concomitant right to achieve the purpose for which the
union is formed? In other words, if the workers are guaranteed the right to
form unions, should such trade unions be entitled to engage in collective
bargaining and to exercise, if necessary, the right to strike so that the main
reason for the establishment of trade unions serves its purpose?
Generally, there
are two ways to approach the concept of freedom of association. First, it can
be seen as a liberal political right, derived from the principle that an
individual should be free to associate with other persons of their choice as
long as no harm is caused.[5] Freedom of
association is a political right, “because
political interests can be effectively championed only in community with
others.”[6]
The second approach treats freedom of association as a functional guarantee
which is protected in order to secure a clearly defined purpose, such as the
attainment of some sort of equilibrium of bargaining power between employers
and workers.[7] In the present context,
we are concerned with the relevance of the concept of freedom of association in
industrial relations. According to Anderman:
“the rights of
association underlying collective labour legislation are based on the basic
political freedom of association of individuals, comparable to freedom of
speech, assembly and religion. As a way of enhancing the bargaining economic
power of employees, the rights of association are meant to modify the
prerogatives of the employer.”[8]
Freedom of
association thus enables the collective defence of workers’ interests and it is
therefore the key enabling right and the gateway to the exercise of a range of
other rights at work.[9]
The right to freedom of association is promoted throughout the world. At the
opening of the first ILO African Regional Conference in Lagos, Nigeria,
in 1960, the then Prime Minister of Nigeria, Sir Abubakar Tafawa
Balewa, declared that, “Freedom of association is one of the foundations on
which we build our free nations.”[10]
Labour lawyers
and industrial relations experts are, however, not ad idem so far as the content of the concept of freedom of
association in industrial relations is concerned. There are two competing views
as to the content of the concept of freedom of association.[11] One view is that
freedom of association extends no further than the right of individual workers
to join an association.[12] The second view
takes a more liberal approach, contending that in order to give the concept of
freedom of association more meaning, all other rights and freedoms that flow
from such association be encompassed in the concept, including the right to
collective bargaining and the right to strike.[13]
Summers, for
example, argues that the concept of freedom of association comprises three
distinct forms.[14] The first is the
right to organise, which according to Summers is the right of individuals to
join together and to combine economic resources for the common good. Secondly,
the concept might imply the freedom to choose between organisations – the right
of the individual to join and work through the organisation that speaks best
for his needs. Lastly, freedom of association might also mean the freedom not
to join any trade union at all – this involves the right of the individual to
refuse to participate in collective action.[15] Summers makes a crucial observation in that
the above freedoms are not always mutually enforceable in the sense that the
exercise of one may at the same time be at the expense of the other.[16]
Lord Wedderburn
of Charlton is of the opinion that freedom of association can be interpreted
either purposively or restrictively.[17] A purposive
interpretation protects all activities involved in such association, including
the right to strike, whereas a restrictive or static conception means just a right
to join a trade union without doing more.[18]
There is no doubt
that the interpretation of the concept of freedom of association is bound to
have an effect on the extent to which workers and trade unions will be allowed
to function. Where freedom of association is perceived as nothing more than
just a right of workers to come together, the scope of trade union activity
will be narrowed. However, if one interprets the concept purposively, then all
activities which flow from such association might be protected.
It is submitted
that in its simple and everyday form, freedom of association will include
anything from the right to form, join, participate in activities and remain in
trade unions, to the right to bargain collectively, the right to strike and
trade union independence from both the employers and the state. First of all,
it has to be accepted that the right to associate for trade union purposes
includes, inter alia, the right to
form and belong to trade unions. Secondly, the purpose of forming and joining
trade unions is to improve the workers’ economic and other interests. Thirdly,
the principal way of improving these interests is through collective
bargaining. Fourthly, in the event of a breakdown in collective bargaining,
workers exercise the right to strike in order to compel the employer to accede
to their demands.[19] Thus, freedom of
association must be given a purposive interpretation which recognises and
protects all activities which flow from such association, including the right
to strike. Ben-Israel supports this view:
“It follows that
the recognition of the freedom of association must signify that there is also a
simultaneous recognition of the complementary freedom to conduct collective
bargaining. But that, too, is insufficient. The freedom to associate and to
bargain collectively must be supplemented by an additional freedom, which is
the freedom to strike. Hence, freedom to strike is a complementary freedom of
the freedom of association since both are meant to help in achieving a common goal
which is to place the employer-employee relationship on an equal basis.”[20]
Indeed, freedom
of association would be hollow if workers were not able to engage in collective
bargaining and exercise the right to strike. As Bayda, J has said:
“To be in association means to act in
association,” and “the freedom to bargain collectively, of which the right to
withdraw services is integral, lies at the very centre of the existence of an
association of workers. To remove their freedom to withhold their labour is to
sterilise their association.”[21]
There is
therefore clear support for a freedom of association which protects industrial
action. Indeed, at the collective level of industrial relations it is hard to
envisage freedom of association without the right to strike.[22]
Some decisions outside Nigeria have
taken a different approach. The leading example is Collymore v. Attorney-General of Trinidad and Tobago[23] where the Privy
Council held, in 1970, that there was no necessary link between freedom of
association and the right to strike. The court said:
“It … seems to
their Lordships inaccurate to contend that the abridgement of the right to free
collective bargaining and of the freedom to strike leaves the assurance of
‘freedom of association’ empty of worthwhile content.”[24]
Similarly, in Schmidt and Dahlstrom v. Sweden,[25] the European
Court of Human Rights held that, while Article 11 of the European Convention
for the Protection of Human Rights (ECHR) specifically mentions the right to
join trade unions as a species of the broader right of association, this does
not ipso facto include the right to strike. The Court said:
“The Article does not secure
any particular treatment of trade union members by the State…. [It] leaves each
State a free choice of the means to be used towards this end. The grant of a
right to strike represents without any doubt one of the most important of these
means, but there are others. Such a right, which is not expressly enshrined in
Article 11, may be subject under national law to regulation of a kind that
limits its exercise in certain instances.”[26]
However, with the
greatest respect to their Lordships, to accept these decisions would be to deny
the purposive role of freedom of association. The protection of members’
interests would be difficult for an association which has no sanctions, such as
the strike, to employ.[27] It is submitted
that, while it is vital to protect the ability of workers to form, join and
maintain unions, unless workers are also protected in their pursuance of the
objects for which they have associated, such as the right to collective
bargaining and the right to strike, the freedom is meaningless. In
international law, the concept of freedom of association has come to be accepted
as a functional guarantee in the field of industrial relations, the main
purpose of which is to maintain bargaining equilibrium between employers and
employees.[28] Furthermore,
there is a clear consensus amongst the ILO adjudicative bodies that the Freedom
of Association and Protection of the Right to Organise (Convention No. 87) goes
beyond merely protecting the formation of labour unions and provides protection
of their essential activities – that is of collective bargaining and the right
to strike.[29] It is therefore
submitted that, with due respect to their Lordships, unless freedom of
association is interpreted as purposive in nature, it is rendered useless. As Skelly J has said:
“Obviously, the right to strike is essential
to the viability of a labour union… [I]f the inherent purpose of a labour
organisation is to bring the workers’ interests to bear on management, the
right to strike is, historically and practically, an important means of
effectuating that purpose. A union that never strikes, or which can make no
credible threat to strike, may wither away in effectiveness…and cannot survive
the pressures in the present-day industrial world.”[30]
It is submitted
as a matter of fact that the whole range of workers’ human rights could be
involved and must be seen to be respected before one can speak of freedom of
association in the true industrial relations sense. A trade union without the
right to strike is a “poor” and “weak” trade union indeed.[31]
Simply put, collective bargaining involves a process of negotiation and conclusion
of collective agreements on terms and conditions of employment between
employers and workers. The right to collective
bargaining is intimately related to and dependent on the right to freedom of
association and the right to strike.[32]
Workers generally associate with each other for the protection of their
economic and other interests. Where they have to confront their employer in
wage and other negotiations they have to present a solid front. The only way
that they can meet the employer as equal partners is when they come through
their trade organisations. Negotiation between the two parties is known as
collective bargaining. From the above, it can be concluded that the right to
bargain collectively stems from the right of association.
However, in some cases negotiations do not always have a satisfactory
outcome. Sometimes the views of the parties are so diametrically opposed that
negotiations break down. It is after the breakdown of negotiations that trade
unions ballot their members for a mandate to commence strike action. It was
accordingly held in Union Bank of Nigeria Ltd.v. Edet[33] that a strike of this kind was functional to collective bargaining. Collective bargaining will thus not be effective without a credible
threat of industrial action.[34]
Without doubt, the stoppage of work initiated by the union will affect
both sides.[35]
The employer’s operation may be shut down with the attendant loss of revenue
and the employees will suffer hardship because they will be out of work and
will be deprived of their salaries and wages. Both sides will naturally be hurt
economically. The question may therefore arise as to: why do workers choose to
bear the economic loss rather than accept the offer of the employer? The answer
is that the workers resort to industrial action to force the employer to reach
a mutually acceptable agreement about the terms and conditions of employment.
The right to strike helps to equalize workers’ bargaining power and a chance to
resist the economic compulsion inherent to an otherwise unequal wage bargain.[36] In
this sense the economic purpose of strikes plays an important role in
collective bargaining. Thus industrial action, or the likelihood of its
occurrence, is seen as one of the necessary conditions for collective
bargaining to exist.[37] As
Kahn-Freund asserts, “The strike is the ultimate sanction without which
collective bargaining cannot exist.”[38] As Kahn-Freund further noted:
“Collective bargaining as we understand it is
impossible without social sanctions….Collective bargaining cannot work without
the ultimate sanction of the strike, no more than the law of, say, the sale of
goods could work without the law of bankruptcy.”[39]
The notion that there is a connection between collective bargaining and
the right to strike is widely accepted by labour lawyers and industrial
relations experts. Anderman, as previously mentioned, notes that:
“The right to
strike is understood as a safeguard against the imbalance of power between
individual employee and employer and it provides a necessary underpinning to
collective bargaining. It has long been recognised that without a credible
threat of damaging industrial action there is little assurance that management
will be willing to engage in meaningful negotiation with trade union
representatives over disputed issues of management decision-making.”[40]
This view was
acknowledged by Lord Wright in his famous dictum in 1942.[41]Without
doubt, the right to strike is not only a logical step in the collective
bargaining process, but also a part of the price paid for industrial
self-regulation of the conditions of employment. It is a necessary part of the
process toward securing the adjustment of expectations of economic realities.[42]
Giving further justification for the crucial role of the right to strike in
collective bargaining, Collins et al explain:
“The
connection between the right to strike and collective bargaining is easy to
understand. Collective bargaining would be rather empty of substance if the
employer could say: ‘this is my offer - take it or leave it’, or if the
employer could say: ‘I am proposing to change the terms of existing collective
agreement—and there is nothing you can do about it, whether you agree or not’.
The strike enables workers collectively to put pressure on the employer in
pursuit of what they see as a just cause and a way of resisting what they see
as unjust action by the employer.”[43]
Examples of this link are numerous in Nigerian labour law.[44]
Adeogun, for example, says of the nexus between collective bargaining and the
right to strike:
“Conceptually, the right to strike can be seen
as an essential characteristic of collective bargaining. This is so because the
ability of the union to bring direct economic pressure on the employer depends
largely on the availability or use of the strike weapon … [T]he presence or
threat of a strike induces the parties to engage in continuous dialogue for a
search for an agreement. That is to say when workers are certain that they can
strike, or employers are conscious of its occurrence, the seriousness of the
dispute is intensified and, correspondingly, the bargaining power of the
employees is increased.”[45]
There is little doubt that the right to strike is a very important
instrument in collective bargaining in order to ensure the economic rights of
workers. Indeed, if workers could not in the last resort collectively refuse to
work, they could not bargain collectively.[46] In the absence
of the right to strike “collective bargaining” would amount to “collective
begging.”[47]
However, Nigerian
law adheres to the principle of free collective bargaining, yet at the same
time suppresses the right to strike. This is a significant discrepancy. This paper
argues that the Nigerian approach of recognising collective bargaining and yet,
ironically, suppressing the right to strike is anomalous and demonstrates that
Nigerian law is deficient. The right to
strike must be strengthened to enable collective bargaining to perform the
important role envisaged in Nigeria’s
system of industrial relations.
4. Conclusion
This paper has examined the link between freedom of association,
collective bargaining and the right to strike. As has been seen, there is a
close nexus between freedom of association, collective bargaining and the right
to strike; therefore violations of the right of association weaken the exercise
of the right to strike. Similarly, the right to strike is crucial for effective
collective bargaining.
[1]As Morris noted, “limiting freedom of associations is clearly a very
effective way of making it difficult for workers to organise industrial
action.”See G. S. Morris Strikes in
Essential Services (London and New York: Mansell Publishing Limited, 1986),
p. 25; G. S. Morris, “Freedom of Association and the Interests of the State” in
Human Rights and Labour Law: Essays for
Paul O’Higgins, K. D. Ewing, C. A.
Gearty and B. A. Hepple (eds.) (London and New York: Mansell Ltd, 1994), p. 52;
S. S. Visweswaraiah, “A Critical Exposition of the Strike Law in India” (1991)
4:1 Central India Law Quarterly, p. 70; R. Ben-Israel, International Labour Standards: The Case of
the Freedom to Strike (Deventer: Kluwer, 1988), p. 27.
[2]C. Kai, “Legislation on the Right to Strike in China”
<http://74.125.77.132/search?q=cache:HfxVgzv3KGAJ:www.airroc.org.tw/ISLSSL2005/program/doc/II-3.doc+the+right+to+strike+in+china&cd=1&hl=en&ct=clnk&gl=uk> (20 February 2009); W. Min and X. Jifeng, Labour
Relations and Disputes (Taiwan: Taiwan National Open University Publishing
House, 1999), p. 286.
[3]Freedom of Association and Collective Bargaining: A Primer on
Freedom of Association < http://www.cleanclothes.org/codes/freedom_of_association.htm
> (29 January 2009);
W. Min and X. Jifeng, Labour Relations
and Disputes (Taiwan: Taiwan National Open University Publishing House,
1999), p. 286.
[4]Ben-Israel has expressed a similar view, noting that the freedom to
strike is “a three-faceted principle comprised of the freedom to organise, the
freedom to bargain collectively and the freedom to strike.” See: R. Ben-Israel,
“Introduction to Strikes and Lock-outs: A Comparative Perspective” in R.
Blanpain (ed.), Comparative Labour Law
(Deventer: Kluwer, 1994), p. 6; W. Min
and X. Jifeng, Labour Relations and
Disputes (Taiwan: Taiwan National Open University Publishing House, 1999),
pp. 286-291; A. M. Swiatkowski, “European Social Charter: The Right to Strike”
(2005) 47:6 Managerial Law, p. 296.
[5]F. von Prondzynski, “Freedom of Association in Modern Industrial
Relations” (2001) 15 (1) Industrial
Relations Journal, p. 10; T. Sheppard, “Liberalism and the Charter: Freedom
of Association and the Right to Strike (1996) 5 Dalhousie Law Journal, p. 117.
[6]M. Nowak, UN Covenant on Civil
and Political Rights: CCPR Commentary (Arlington, Vir: Engel, 1993), p.
385; F. Prondzynski, “Freedom of
Association in Modern Industrial Relations” (2001) 15 (1) Industrial Relations Journal, p. 10; T. Sheppard, “Liberalism and
the Charter: Freedom of Association and the Right to Strike (1996) 5 Dalhousie Law Journal, p. 117.
[7]Ibid.
[8]S. D. Anderman, Labour Law:
Management Decisions and Workers’ Rights (London: Butterworths, 1998), p.
289.
[9]Press Release
(ILO/00/17): Pioneering ILO Global report calls for more widespread respect for
rights at work< ...
www.ilo.org/public/english/bureau/inf/pr/2000/17.htm> (20
June 2007). See also: “Your Voice at Work: First global report on Freedom of Association and Collective Bargaining”< www.ilo.org/public/english/bureau/inf/download/magazine/pdf/mag35.pdf> (20 June 2007).
[10]G. A. Johnston, The International Labour Organisation
(London: Europa Publications, 1970), p. 150.
[11]For more detailed discussion, see: S.
Leader, Freedom of Association: A Study
in Labour Law and Political Theory (New Haven and London: Yale University
Press, 1992), pp. 180-198; S. Leader, “Choosing an Interpretation of the Right
to Freedom of Association” (2002) 40:1 British
Journal of Industrial Relations, pp 128-137; S. Leader, “Freedom of Association, Labour Law, and the Needs of a
Democratic Society” in Freedom of
Association, Council of Europe (The Netherlands: Martinus Nijhoff, 1994),
pp.176-184.
[12]See Re Public Service Relations Act, 38 D.L.R. (4th), p.
161. See also: G. England, “Some Thoughts on Constitutionalizing The Right to
Strike” (1988) 13 Queen’s Law Journal,
p. 168; C. D’aoust and F. Delorme, “The Origin of Freedom of Association and
the Right to Strike: An Historical Perspective” (1981) 36 Relationes Industrielles, p. 916; T. Sheppard, “Liberalism and the
Charter: Freedom of Association and the Right to Strike (1996) 5 Dalhousie Law Journal, p. 117.
[13]See, for example, C. W. Summers, “Freedom of Association and
Compulsory Trade Union Membership in Sweden and the United States
(1964) 1 (112) University of Pennsylvania
Law Review, p. 647.
[14]Ibid.
[15] Ibid
[16]Ibid; S.D. Anderman, Labour Law:
Management Decisions and Workers’ Rights (London: Butterworths, 2000), p. 307.
[17] Lord Wedderburn of Charlton, “Freedom of Association and the
Philosophies of Labour Law (1989) 18 Industrial
Law Journal, p. 16.
[18]Ibid. See also S. Leader, Freedom of Association: A Study in Labour Law and Political Theory
(New Haven and London: Yale University Press, 1992), pp. 180-198; S. Leader,
“Choosing an Interpretation of the Right to Freedom of Association” (2002) 40:1
British Journal of Industrial Relations,
pp 128-137.
[19]See generally, Jane Hodges-Aeberhard and Odero de Dios, “Principles
of the Committee on Freedom of Association Concerning Strikes” (1987) 126(5) International Labour Review, pp.
543-561.
[20]R. Ben-Israel, International
Labour Standards: The Case of the Freedom to Strike (Deventer: Kluwer,
1988), p. 27.
[21]Retail Wholesalers v.
Government of Saskatchewan (1985) 19 DLR 609 at
614- 629, per Bayda, J.
[22] F. von Prondzynski, Freedom
of Association and Industrial Relations: A Comparative Study (London: Mansell Publishing Limited, 1987), p.
109.
[23][1970] AC 538 (PC)
[24]Ibid, p. 548 per Lord Donovan.
[25](1980) 1 EHRR 637.
[26]Ibid, paras. 34-45; J. Hendy, “The Human Rights Act, Article 11 and the
Right to Strike” (1998) European Human Rights
Law Review, p. 582. This trend
has been followed in other jurisdictions as well, notably in Canada where
the Canadian Supreme Court has held that freedom of association as provided for
in the Canadian Charter of Rights and Freedoms does not incorporate the right
to strike or the right to bargain collectively. See Reference Public Service
Employee Relations Act (1987) 1 SCR 313; 38 DLR (4th) 161; Saskatchewan v. Retail and Department Store
Union (1987) 1 SCR 460; 38 DLR (4th) 277; Public Service Alliance v. Canada (1987) 1 SCR 424; 38 DLR (4th)
249; Professional Institute of the Public
Service of Canada v. Northwest Territories (1990) 2 SCR 367; 72 DLR (4th).
Cf. R. Ben-Israel, International Labour Standards: The Case of
the Freedom to Strike; C. D’aoust and F. Delorme, The Origin of Freedom of
Association and the Right to Strike (1981) 36(4) Relations Industrielles, p. 894; G. England, Some Thoughts on Constitutionalizing the Right to Strike (1988)13 Queens Law Journal, p. 180.
[27]F. von Prondzynski, Freedom of
Association and Industrial Relations: A
Comparative Study (London: Mansell Publishing Limited, 1987), p. 109.
[28]R. Ben-Israel, International
Labour Standards: The Case of the Freedom to Strike (Deventer: Kluwer,
1988), p. 27; F. von Prondzynski, “Freedom of Association in Modern Industrial
Relations (2001) 15 (1) Industrial
Relations Journal, p. 10.
[29]In particular Articles 3, 8 and 10 of Convention No. 87 have been
interpreted by the ILO Committee of Experts on the Application of Conventions
and Recommendations as being incompatible with a denial of the right to strike.
See ILO: Freedom of Association and
Collective Bargaining: General Survey 1994, para. 179; L. Swepston, Human
Rights Law and Freedom of Association: Development through ILO Supervision
(1998) 137:2 International Labour Review,
p. 187.
[30]United Federation of Postal
Clerks v. Blount, 588 (1971) 404 U.S. 802, p.
885. Similarly, in Uttar Pradeshia
Shramik Maha Sangh v. State or Uttar Pradesh (1960) A.I.R 45, 49 when
presented with the question of whether freedom to associate can be equated with
freedom to pursue without restrictions the objects of the association the court
said: “The purpose of an association is an integral part of the right, and if
the purpose is restricted, the right is inevitably restricted. The right to
form an association is not a right to be exercised in a vacuum or an empty or a
paper right. The enjoyment and fulfilment of the right begins with the
fulfilment of the purpose for which the association is formed ….” See S. S.
Visweswaraiah, “A Critical Exposition of the Strike Law in India” (1991)
4:1 Central India Law Quarterly, pp. 70-71. According to
Birk, “Freedom of Association is a classic case of implied fundamental right to
strike.” See: R. Birk, “Derogations and Restrictions on the Right to Strike
under International Law” in R. Blanpain (ed.), Labour Law, Human Rights and Social Justice (Deventer: Kluwer Law International, 2001), p.
96. See: H. M. Seady and P.S. Benjamin, “The Right to Strike and Freedom of
Association: An International Perspective” (1990) 11 (3) Industrial Law Journal, pp. 439-459; C. D’aoust and F. Delorme,
“The Origin of Freedom of Association and the Right to Strike: An Historical
Perspective” (1981) 36 Relations
Industrielles, pp. 894-921; S. Leader, Freedom
of Association: A Study in Labour Law and Political Theory (New Haven and
London: Yale University Press, 1992), pp. 180-198.
[31] S. S. Visweswaraiah, “A Critical Exposition of the Strike Law in
India” (1991) 4:1 Central India Law
Quarterly, p. 70.
[32]R. Ben-Israel, International
Labour Standards: The Case of the Freedom to Strike (Deventer: Kluwer,
1988), p. 27.
[33](1993) 4 NWLR (Pt. 287) 288 at 291.
[34] K.W. Wedderburn, The Worker and the Law (England: Penguin Books, 1965), p. 245; S. D. Anderman, Labour Law: Management Decisions and
Workers’ Rights (London:
Butterworths, 2000), pp. 358-359.
[35]E. Chianu, Employment Law (Ondo State:
Bemicov Publishers Nigeria Ltd, 2004), p. 277; T. Novitz, International and European Protection of the Right to Strike (Oxford: Oxford University
Press, 2003), p.77; S. D. Anderman, Labour
Law: Management Decisions and Workers’ Rights (London: Butterworths 2000), p. 358.
[36]S. D. Anderman, Labour Law:
Management Decisions and Workers’ Rights (London: Butterworths 2000), pp. 358-359.
[37] Ibid.
[38]O. Kahn-Freund, Labour
Relations: Heritage and Adjustment (Oxford: Oxford University Press, 1979),
p. 77. As Chamberlain and Kuhn also
assert, “[T]he possibility or ultimate threat of strikes is a necessary condition for collective bargaining.” See N.
Chamberlain and J. Kuhn, Collective
Bargaining (New York: McGraw-Hill
College, 1986), p. 391. As Cox et al
noted: “It is through the appreciation that the risks of losses that a strike
can cause are so great that compromise is cheaper than economic battle: The
strike or the fear of a strike is the motive power that makes collective
bargaining operate.” See A. Cox, D. Bok and R. Gorman, Cases and Materials on Labor Law 10th edn. (New York:
Foundation Press, 1986), p. 484. According to Myburg, “It
is one of the ironies of collective bargaining that the attainment of the
object of industrial peace should depend on the threat of conflict. The reason
for this dependence is a functional one. The freedom to threaten strike action
and, if needs be, to carry out the threat is protected, because in an imperfect
world, the system of collective bargaining requires it.” See Myburg, J.F., “100
Years of Strike Law” (2004) 25 Industrial
Law Journal, p. 966.
[39] O. Kahn-freund, “Legal
Framework” in A. Flanders and H.A. Cleggg (eds.), The System of Industrial Relations in Great Britain (Oxford:
Blackwell, 1954), p. 101.
[40]S. D. Anderman, Labour Law:
Management Decisions and Workers’ Rights (London: Butterworths 2000), pp. 358-359.
[41]Crofter Hand Woven Harris Tweed Co. Ltd V. Veitch [1942]
A.C. 435, 463.
[42] A. A. Adeogun, “Industrial Relations and the Law” in T.O. Elias,
(ed.), Law and Development (Lagos: University of Lagos Press, 1972), p.
122.
[43] H. Collins, K. D. Ewing and A. McColgan, Labour Law: Text and Materials (Oxford and Portland, Oregon:
Hart Publishing, 2005), p. 864. According to Sykes: “The strike is itself a part of the bargaining process. … [T]he very
economic pressure of the strike is the catalyst which makes agreement possible.
Even when no strike occurs, it plays its part in the bargaining process, for
the very prospect of the hardship which the strike will bring provides a prod
to compromise. Collective bargaining is a process of reaching agreement, and
strikes are an integral and frequently necessary part of that process.” See:
E.I. Sykes, Strike Law in Australia
(London: Sweet and Maxwell, 1982), p. 3.
[44]A. Emiola, Public Servant and the Law (Ile-Ife: University of
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