Do you really have a right to strike?
Going on strike is a pervasive feature of labour relations and practices in Jamaica. A layman may very well assert that based on history, workers have a right to strike. However, it can be seen that the “right” is merely a custom and is not guaranteed by the law. Workers who strike may find themselves without employment.
The Labour Relations and Industrial Disputes Act defines strike as “a concerted stoppage of work by a group of workers in contemplation or furtherance of an industrial dispute…” From post-emancipation to post-independence workers in Jamaica have used strike action as a means of protest, to great effect. From the Morant Bay Rebellion, to the strikes of the 1930’s and the rise of the trade unions, employers and employees have contended with sick outs, walk outs and sit ins. The right to freedom of association enshrined in our Constitution guarantees the right to join a trade union. It does not guarantee a right to strike, as has been held by the courts in Jamaica and elsewhere in the Caribbean. Employers and employees alike should be aware that the “right” to strike does not prevent someone who absents himself from work without permission to be terminated.
The courts have definitively pronounced that workers who strike repudiate their contract of employment, thus giving the employer the option to terminate the contract. The Jamaican Court of Appeal has held that even though workers who strike may not expect to lose their jobs, their action still amounts to a fundamental breach of their employment contract. Generally, the frequency of strikes in Jamaica and employers’ attitude has given the worker an unofficial right, but this is not a legal right and no worker can claim a right to his job after committing a repudiatory breach.
Nevertheless, it is not automatic for workers who have engaged in strike action to be dismissed if the employer so wishes. An employer must still have regard for the precepts in the Labour Relations Code and if he commits any procedural improprieties, the workers may be reinstated by the Industrial Disputes Tribunal, despite their repudiation. The Labour Relations Code, though not primary legislation, encourages management and workers to agree to a procedure for the settlement of disputes that precludes industrial action until all stages of the procedure have been exhausted without success. While this tends to suggest that taking industrial action in the form of a strike is a completely unimpeachable method to press concerns, it should not be read as such. Rather, it should be read as recognising the historical underpinnings of strikes and how necessary they were to fight against employer tyranny in an era where the recently emancipated slave had no power.
Many sectors in Jamaica have been plagued by frequent strikes, leading to loss of productivity, loss of revenue and even loss of property. This writer has suggested before, and maintains, that there needs to be balance in the industrial relations arena. Employers must recognise that workers should be treated fairly but at the same time, the courts, the IDT and the Ministry of Labour must remember that going on strike is a repudiatory breach of an employment contract and should not be unduly incited or encouraged. Unions and workers who incite and engage in strikes that are not in pursuit of a legitimate industrial dispute as defined by law should be made to take responsibility for their actions.
Perhaps the way forward is to borrow from legislation in Trinidad & Tobago which outlines in more detail the parameters for taking strike action. In the twin island Republic, the Industrial Relations Act 1972 grants workers a very limited right to strike. Strike action can only be legally used without it being a repudiatory breach of the employment contract for unresolved disputes concerning the formulation of terms and conditions of employment. There are several restrictions on this right including giving notice, inter alia. Unless and until similar provisions are enacted in Jamaica, there is no right to strike.
Adrian Cotterell is an Associate at Myers, Fletcher and Gordon in the litigation department and the labour and employment law practice group. He may be contacted at firstname.lastname@example.org or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.