Right to lock out (instrument of economic coercion)

Kathmandu University School of Law
Kathmandu University School of LawLecturer à Kathmandu University School of Law
Right to Strike & Lock-Out
Strike
 Generally, a strike is a temporary work stoppage
(or slowdown) willfully effected by one or more
groups of workers with a view to enforcing or
resisting demands or expressing grievances, or
supporting other workers in their demands or
grievances.
 Regarding various types of strike action denied to
workers (wild-cat strikes, tools-down, go-slow,
working to rule and sit-down strikes), the
Committee considers that these restrictions may
be justified only if the strike ceases to be peaceful
Causes of strikes
 Dissatisfaction with company policy
 Salary and incentive problems
 Increment not up to the mark
 Wrongful discharge or dismissal of workmen
 Withdrawal of any concession or privilege
 Hours of work and rest intervals
 Leaves with wages and holidays
 Bonus, profit sharing, Provident fund and gratuity
 Retrenchment of workmen and closure of
establishment
 Dispute connected with minimum wages
TYPES OF STRIKE
 Economic Strike:- labors stop their work to enforce their
economic demands such as wages and bonus. In these kinds of
strikes, workers ask for increase in wages, allowances like
traveling allowance, house rent allowance, dearness allowance,
bonus and other facilities such as increase in privilege leave and
casual leave.
 A wildcat strike is a work stoppage that occurs during the term
of a collective bargaining agreement without approval of union
leadership and in violation of a no-strike clause.
Such strikes generally occur because. labor has specific
problems or concerns that have not been satisfactorily
addressed by employers.
 Tools-down strike is a form of strike where the workers are not
using machineries weapons for work.
 Work to rule" or slowdown strikes, in which employees fail to
perform the duties which the employer has historically required
them to perform;
 In-facility or "sit down" strikes, in which the striking employees
take possession of the employer's property and block others
from entering;
Prerequisites
 The conditions that have to be fulfilled under the law in
order to render a strike lawful should be reasonable and in
any event not such as to place a substantial limitation on
the means of action open to trade union organizations.
 The legal procedures for declaring a strike should not be
so complicated as to make it practically impossible to
declare a legal strike.
 Economic consideration should not be invoked as a
justification for restrictions on the right to strike.
 According to the Voluntary Conciliation and Arbitration
Recommendation, 1951 (No. 92), voluntary conciliation
machinery, appropriate to national conditions, should be
made available to assist in the prevention and settlement
of industrial disputes between employers and workers.
Provision should be made to enable the procedure to be
set in motion, either on the initiative of any of the parties to
the dispute or ex officio by the voluntary conciliation
authority.
 Legislation which provides for voluntary conciliation and
arbitration in industrial disputes before a strike may be called
cannot be regarded as an infringement of freedom of
association, provided recourse to arbitration is not compulsory
and does not, in practice, prevent the calling of the strike.
 The Committee has emphasized that, although a strike may be
temporarily restricted by law until all procedures available for
negotiation, conciliation and arbitration have been exhausted,
such a restriction should be accompanied by adequate, impartial
and speedy conciliation and arbitration proceedings in which the
parties concerned can take part at every stage.
 The obligation to give prior notice to the employer before calling
a strike may be considered acceptable, as long as the notice is
reasonable
 The requirement that a 20-day period of notice be given in
services of social or public interest does not undermine the
principles of freedom of association.
 The legal requirement of a cooling-off period of 40
days before a strike is declared in an essential
service, in so far as it is designed to provide the
parties with a period of reflection, is not contrary
to the principles of freedom of association. This
clause which defers action may enable both
parties to come once again to the bargaining
table and possibly to reach an agreement without
having recourse to a strike.
 The information asked for in a strike notice should
be reasonable, or interpreted in a reasonable
manner, and any resulting injunctions should not
be used in such a manner as to render legitimate
trade union activity nearly impossible.
Limitation of the duration of a strike
 The Committee has expressed its concern at the
imposition of a limit on the duration of a strike
which, due to its nature as a last resort for the
defence of workers’ interests, cannot be
predetermined.
Suspension of a strike
 The responsibility for suspending a strike should not
lie with the Government, but with an independent
body which has the confidence of all parties
concerned.
 The Committee requested the Government to take the
necessary measures to amend the legislation so as to
ensure that the final decision whether to suspend a
strike rests with an independent and impartial body.
 A provision which allows the Government to suspend
a strike and impose compulsory arbitration on the
grounds of national security or public health is not in
itself contrary to freedom of association principles as
long as it is implemented in good faith and in
accordance with the ordinary meaning of the terms
“national security” and “public health”.
Sanctions for unlawful strikes
 Dismissals-Many countries afford protection against
dismissal to strikers by guaranteeing that recourse to
strike action does not suspend or constitute a breach
of the contract of employment.
 rotection may even cover unlawful strikes. For
example, in Malta, where the period of the strike does
not constitute an interruption of service, protection
against dismissal is valid even in cases where the
strike has been called when the dispute has been
submitted to compulsory arbitration.
 In other cases, such as India, Kazakhstan and the
Philippines, participation in an unlawful strike results
in dismissal.
 In the event of failure to comply with the annulment of
a strike ordered by the courts, the legislation in
Pakistan explicitly refers to the dismissal of strikers as
a penalty.
 Civil liabilities – In common law countries, the
principal consequence of unlawful strike action is that
the legal immunities that would otherwise protect
strikers and unions do not apply. Striking is thereby
treated as an actionable repudiation or material
breach of the employment contract. In these
circumstances, it is open to employers to discipline or
dismiss the workers concerned. (In Pakistan,
uniquely, the dismissal of unlawful strikers requires an
order of the National Industrial Relations
Commission.)
 Penal sanctions (including imprisonment) – Most
legislation restricting or prohibiting the right to strike
provides for various sanctions against workers and
trade unions, including penal sanctions. Specific
penalties for strike action are included in the criminal
codes of at least 30 countries. Specific penalties of
imprisonment can apply under certain conditions
Right o Lock-Out
 It means temporary shutdown of the factory by the employer, but not
winding up (permanent) of the factory.
 Lockout of the factory maybe happened due to the failure in the
management affected by internal disturbances or maybe by external
disturbances.
 Internal disturbances maybe caused when the factory management goes in
to financial crisis or got succumbed into financial debts, disputes between
workers and workers, disputes between workers and management or may be
caused by ill-treatment of workers by the management.
 Sometimes factory lockouts may be caused by external influences, such as
unnecessary political parties involvement in management of workers union
may be provoked for unjustified demands that may be unaffordable by the
management, which may ultimately lead to lockout of the factory.
 Factory lockout is procedural aspects governed by the labour legislation of
that country. Lockout of the factory is a major issue, which affects workers
as well as management and cannot be initiated for a simple reason.
 Section 2 (e) of the labour Act 2074 defines,
"Lockout" means closure of any enterprise or
workplace by the employer prohibiting its workers
from carrying out their regular work partially or
completely.
 Provided that the word shall not mean the
situation where the workers are laid off or
the stoppage of work because of an
immediate danger.
 The right to strike is enshrined for everyone, both employees
and employers.
 More specifically, the equivalent type of work stoppage for
employers is internationally known as ‘Lockout’, a mean of
protection of the employers’ interests.
 According to the International Labour Organization’s definition
: ‘A lockout is a total or partial temporary closure of one or
more places of employment, or the hindering of the normal
work activities of employees, by one or more employers with a
view to enforcing or resisting demands or expressing
grievances, or supporting other employers in their demands or
grievances.
 Lockout takes place in the following two forms: the offensive
one and the defensive one.
 The offensive lockout is characterized as such in the context of
a collective dispute or when negotiations reach deadlock.
 In the latter case, the employer seeks more drastic solutions
such as the imposition of a lockout on the workers in order to
 According to the establishment (or not) of the right to
lockout in each national legislation, the lockout can
be characterised as legal or illegal, depending on the
different legal conditions foreseen.
 The conduction of a legal lockout- in the legal
systems where it is institutionally enshrinedsignifies
the non-termination of the employment relationship.
 During a legal lock outs the reciprocal obligations of
the parties are suspended and the employee is
exempted from the obligation to pay them their
salary.
 Nevertheless, in the case of an illegal lockout, the
 Lock made is not permanent that can be closed and opened. The word 'out' can be
understood as keeping temporarily away management and employees from the
factory, till settlement of the issues caused to lockout.
 Factory lockout is the ultimate weapon in the hands of the management when an
uncontrollable situations arises in the factory. No matter what it is factory lockout will
cause great loss to the management and to the workers.
 If lockout re-occurs, it may become threat for the existence of the factory, which
finally leads to the loss of the jobs of workers.
 According to Industrial Disputes Act 1947, Lockout [Sec. 2(1)] (Lockout means "the
temporary closing of a place of employment, or the suspension of work, or the refusal
by an employer to continue to employ any number of persons employed by him".
 Lockout is the antithesis of strike.
 It is a weapon of the employer while strike is weapon in the hands of workers.
 Just as the strike as a weapon in the hands of the workers for enforcing
their demands, lockout is a weapon available to the employer to make their
employees to come to their way and to make accept them to the management terms
and conditions.
 The Industrial Dispute Act does not intend to take away these rights.
 However, the rights of strikes and lockouts have been restricted to achieve the
purpose of the Act, namely peaceful investigation and settlement of the industrial
disputes.
General Prohibition of Strikes & lock-
out
A. Acute national emergency
B. Public service
C. Essential services
D. Compensatory guarantees in the event of the
prohibition of strikes in the public service or in
essential services
A. Acute national emergency
 A general prohibition of strikes can only be justified in
the event of an acute national emergency and for a
limited period of time.
 Responsibility for suspending a strike on the grounds
of national security or public health should not lie with
the Government, but with an independent body which
has the confidence of all parties concerned.
 Report in which the committee requests to be kept
informed of development - Report No 343,
November 2006 Case No 2426 (Burundi) -
Complaint date: 16-MAY-05 .
 Report in which the committee requests to be kept
informed of development - Report No 371, March
2014
 Case No 3001 (Bolivia, Plurinational State of) -
Complaint date: 22-NOV-12
Public service
 Recognition of the principle of freedom of association in
the case of public servants does not necessarily imply the
right to strike.
 The Committee has acknowledged that the right to strike
can be restricted or even prohibited in the public service or
in essential services in so far as a strike there could cause
serious hardship to the national community and provided
that the limitations are accompanied by certain
compensatory guarantees.
 The right to strike may be restricted or prohibited only for
public servants exercising authority in the name of the
State.
 The right to strike may be restricted or prohibited: (1) in the
public service only for public servants exercising authority
in the name of the State; or (2) in essential services in the
strict sense of the term (that is, services the interruption of
which would endanger the life, personal safety or health of
Essential services
 To determine situations in which a strike could be
prohibited, the criterion which has to be established is the
existence of a clear and imminent threat to the life,
personal safety or health of the whole or part of the
population.
 What is meant by essential services in the strict sense of
the term depends to a large extent on the particular
circumstances prevailing in a country. Moreover, this
concept is not absolute, in the sense that a non-essential
service may become essential if a strike lasts beyond a
certain time or extends beyond a certain scope, thus
endangering the life, personal safety or health of the whole
or part of the population.
 The following may be considered to be essential services:
the hospital sector, electricity services, water supply
services, the telephone service, the police and the armed
forces, the fire-fighting services, public or private prison
services, the provision of food to pupils of school age and
the cleaning of schools and air traffic control
Compensatory guarantees in the event of the prohibition of strikes in
the public service or in essential services
 Where the right to strike is restricted or prohibited in certain
essential undertakings or services, adequate protection should
be given to the workers to compensate for the limitation thereby
placed on their freedom of action with regard to disputes
affecting such undertakings and services.
 In the event that an intervention would be necessary for safety
reasons, the parties to the dispute should be given every
opportunity to bargain collectively, for a sufficient period of time,
with the help of independent facilitators and machinery and
procedures designed with the foremost objective of promoting
collective bargaining.
 Employees deprived of the right to strike because they perform
essential services must have appropriate guarantees to
safeguard their interests; a corresponding denial of the right of
lockout, provision of joint conciliation procedures and where, and
only where, conciliation fails, the provision of joint arbitration
machinery.
 Regarding the requirement that the parties pay for the
conciliation and mediation/arbitration services, the Committee
has concluded that, provided the costs are reasonable and do
not inhibit the ability of the parties, in particular those with
Right to lock out (instrument of economic coercion)
1 sur 23

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Right to lock out (instrument of economic coercion)

  • 1. Right to Strike & Lock-Out
  • 2. Strike  Generally, a strike is a temporary work stoppage (or slowdown) willfully effected by one or more groups of workers with a view to enforcing or resisting demands or expressing grievances, or supporting other workers in their demands or grievances.  Regarding various types of strike action denied to workers (wild-cat strikes, tools-down, go-slow, working to rule and sit-down strikes), the Committee considers that these restrictions may be justified only if the strike ceases to be peaceful
  • 3. Causes of strikes  Dissatisfaction with company policy  Salary and incentive problems  Increment not up to the mark  Wrongful discharge or dismissal of workmen  Withdrawal of any concession or privilege  Hours of work and rest intervals  Leaves with wages and holidays  Bonus, profit sharing, Provident fund and gratuity  Retrenchment of workmen and closure of establishment  Dispute connected with minimum wages
  • 4. TYPES OF STRIKE  Economic Strike:- labors stop their work to enforce their economic demands such as wages and bonus. In these kinds of strikes, workers ask for increase in wages, allowances like traveling allowance, house rent allowance, dearness allowance, bonus and other facilities such as increase in privilege leave and casual leave.  A wildcat strike is a work stoppage that occurs during the term of a collective bargaining agreement without approval of union leadership and in violation of a no-strike clause. Such strikes generally occur because. labor has specific problems or concerns that have not been satisfactorily addressed by employers.  Tools-down strike is a form of strike where the workers are not using machineries weapons for work.  Work to rule" or slowdown strikes, in which employees fail to perform the duties which the employer has historically required them to perform;  In-facility or "sit down" strikes, in which the striking employees take possession of the employer's property and block others from entering;
  • 5. Prerequisites  The conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations.  The legal procedures for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike.  Economic consideration should not be invoked as a justification for restrictions on the right to strike.  According to the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), voluntary conciliation machinery, appropriate to national conditions, should be made available to assist in the prevention and settlement of industrial disputes between employers and workers. Provision should be made to enable the procedure to be set in motion, either on the initiative of any of the parties to the dispute or ex officio by the voluntary conciliation authority.
  • 6.  Legislation which provides for voluntary conciliation and arbitration in industrial disputes before a strike may be called cannot be regarded as an infringement of freedom of association, provided recourse to arbitration is not compulsory and does not, in practice, prevent the calling of the strike.  The Committee has emphasized that, although a strike may be temporarily restricted by law until all procedures available for negotiation, conciliation and arbitration have been exhausted, such a restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.  The obligation to give prior notice to the employer before calling a strike may be considered acceptable, as long as the notice is reasonable  The requirement that a 20-day period of notice be given in services of social or public interest does not undermine the principles of freedom of association.
  • 7.  The legal requirement of a cooling-off period of 40 days before a strike is declared in an essential service, in so far as it is designed to provide the parties with a period of reflection, is not contrary to the principles of freedom of association. This clause which defers action may enable both parties to come once again to the bargaining table and possibly to reach an agreement without having recourse to a strike.  The information asked for in a strike notice should be reasonable, or interpreted in a reasonable manner, and any resulting injunctions should not be used in such a manner as to render legitimate trade union activity nearly impossible.
  • 8. Limitation of the duration of a strike  The Committee has expressed its concern at the imposition of a limit on the duration of a strike which, due to its nature as a last resort for the defence of workers’ interests, cannot be predetermined.
  • 9. Suspension of a strike  The responsibility for suspending a strike should not lie with the Government, but with an independent body which has the confidence of all parties concerned.  The Committee requested the Government to take the necessary measures to amend the legislation so as to ensure that the final decision whether to suspend a strike rests with an independent and impartial body.  A provision which allows the Government to suspend a strike and impose compulsory arbitration on the grounds of national security or public health is not in itself contrary to freedom of association principles as long as it is implemented in good faith and in accordance with the ordinary meaning of the terms “national security” and “public health”.
  • 10. Sanctions for unlawful strikes  Dismissals-Many countries afford protection against dismissal to strikers by guaranteeing that recourse to strike action does not suspend or constitute a breach of the contract of employment.  rotection may even cover unlawful strikes. For example, in Malta, where the period of the strike does not constitute an interruption of service, protection against dismissal is valid even in cases where the strike has been called when the dispute has been submitted to compulsory arbitration.  In other cases, such as India, Kazakhstan and the Philippines, participation in an unlawful strike results in dismissal.  In the event of failure to comply with the annulment of a strike ordered by the courts, the legislation in Pakistan explicitly refers to the dismissal of strikers as a penalty.
  • 11.  Civil liabilities – In common law countries, the principal consequence of unlawful strike action is that the legal immunities that would otherwise protect strikers and unions do not apply. Striking is thereby treated as an actionable repudiation or material breach of the employment contract. In these circumstances, it is open to employers to discipline or dismiss the workers concerned. (In Pakistan, uniquely, the dismissal of unlawful strikers requires an order of the National Industrial Relations Commission.)  Penal sanctions (including imprisonment) – Most legislation restricting or prohibiting the right to strike provides for various sanctions against workers and trade unions, including penal sanctions. Specific penalties for strike action are included in the criminal codes of at least 30 countries. Specific penalties of imprisonment can apply under certain conditions
  • 13.  It means temporary shutdown of the factory by the employer, but not winding up (permanent) of the factory.  Lockout of the factory maybe happened due to the failure in the management affected by internal disturbances or maybe by external disturbances.  Internal disturbances maybe caused when the factory management goes in to financial crisis or got succumbed into financial debts, disputes between workers and workers, disputes between workers and management or may be caused by ill-treatment of workers by the management.  Sometimes factory lockouts may be caused by external influences, such as unnecessary political parties involvement in management of workers union may be provoked for unjustified demands that may be unaffordable by the management, which may ultimately lead to lockout of the factory.  Factory lockout is procedural aspects governed by the labour legislation of that country. Lockout of the factory is a major issue, which affects workers as well as management and cannot be initiated for a simple reason.
  • 14.  Section 2 (e) of the labour Act 2074 defines, "Lockout" means closure of any enterprise or workplace by the employer prohibiting its workers from carrying out their regular work partially or completely.  Provided that the word shall not mean the situation where the workers are laid off or the stoppage of work because of an immediate danger.
  • 15.  The right to strike is enshrined for everyone, both employees and employers.  More specifically, the equivalent type of work stoppage for employers is internationally known as ‘Lockout’, a mean of protection of the employers’ interests.  According to the International Labour Organization’s definition : ‘A lockout is a total or partial temporary closure of one or more places of employment, or the hindering of the normal work activities of employees, by one or more employers with a view to enforcing or resisting demands or expressing grievances, or supporting other employers in their demands or grievances.  Lockout takes place in the following two forms: the offensive one and the defensive one.  The offensive lockout is characterized as such in the context of a collective dispute or when negotiations reach deadlock.  In the latter case, the employer seeks more drastic solutions such as the imposition of a lockout on the workers in order to
  • 16.  According to the establishment (or not) of the right to lockout in each national legislation, the lockout can be characterised as legal or illegal, depending on the different legal conditions foreseen.  The conduction of a legal lockout- in the legal systems where it is institutionally enshrinedsignifies the non-termination of the employment relationship.  During a legal lock outs the reciprocal obligations of the parties are suspended and the employee is exempted from the obligation to pay them their salary.  Nevertheless, in the case of an illegal lockout, the
  • 17.  Lock made is not permanent that can be closed and opened. The word 'out' can be understood as keeping temporarily away management and employees from the factory, till settlement of the issues caused to lockout.  Factory lockout is the ultimate weapon in the hands of the management when an uncontrollable situations arises in the factory. No matter what it is factory lockout will cause great loss to the management and to the workers.  If lockout re-occurs, it may become threat for the existence of the factory, which finally leads to the loss of the jobs of workers.  According to Industrial Disputes Act 1947, Lockout [Sec. 2(1)] (Lockout means "the temporary closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him".  Lockout is the antithesis of strike.  It is a weapon of the employer while strike is weapon in the hands of workers.  Just as the strike as a weapon in the hands of the workers for enforcing their demands, lockout is a weapon available to the employer to make their employees to come to their way and to make accept them to the management terms and conditions.  The Industrial Dispute Act does not intend to take away these rights.  However, the rights of strikes and lockouts have been restricted to achieve the purpose of the Act, namely peaceful investigation and settlement of the industrial disputes.
  • 18. General Prohibition of Strikes & lock- out A. Acute national emergency B. Public service C. Essential services D. Compensatory guarantees in the event of the prohibition of strikes in the public service or in essential services
  • 19. A. Acute national emergency  A general prohibition of strikes can only be justified in the event of an acute national emergency and for a limited period of time.  Responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of all parties concerned.  Report in which the committee requests to be kept informed of development - Report No 343, November 2006 Case No 2426 (Burundi) - Complaint date: 16-MAY-05 .  Report in which the committee requests to be kept informed of development - Report No 371, March 2014  Case No 3001 (Bolivia, Plurinational State of) - Complaint date: 22-NOV-12
  • 20. Public service  Recognition of the principle of freedom of association in the case of public servants does not necessarily imply the right to strike.  The Committee has acknowledged that the right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees.  The right to strike may be restricted or prohibited only for public servants exercising authority in the name of the State.  The right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of
  • 21. Essential services  To determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population.  What is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population.  The following may be considered to be essential services: the hospital sector, electricity services, water supply services, the telephone service, the police and the armed forces, the fire-fighting services, public or private prison services, the provision of food to pupils of school age and the cleaning of schools and air traffic control
  • 22. Compensatory guarantees in the event of the prohibition of strikes in the public service or in essential services  Where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services.  In the event that an intervention would be necessary for safety reasons, the parties to the dispute should be given every opportunity to bargain collectively, for a sufficient period of time, with the help of independent facilitators and machinery and procedures designed with the foremost objective of promoting collective bargaining.  Employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests; a corresponding denial of the right of lockout, provision of joint conciliation procedures and where, and only where, conciliation fails, the provision of joint arbitration machinery.  Regarding the requirement that the parties pay for the conciliation and mediation/arbitration services, the Committee has concluded that, provided the costs are reasonable and do not inhibit the ability of the parties, in particular those with