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James Gray Pope - One of the best experts on this subject based on the ideXlab platform.
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the Right to Strike and the perils of exclusive representation
Social Science Research Network, 2017Co-Authors: James Gray Pope, Ed Bruno, Peter KellmanAbstract:This essay commenced a Boston Review Forum featuring responses from Cynthia Estlund, Isabelle Ferreras, Janice Fine, Bill Fletcher Jr., Alicia Garza, Alex Gourevitch, Thomas A. Kochan, Sophia Z. Lee, Stephen Lerner, Staughton Lynd, Bob Master, and Andrea Dehlendorf with Dan Schlademan. Posted here is the original essay, with footnotes added, followed by the authors’ reply to the responses. The title, which originally appeared as "The Right to Strike," has been modified to reflect the fact that the essay and many of the responses are as much concerned with the issue of exclusive representation as the Right to Strike. The essay submits that (1) American labor law blocks workers from exercising the Rights to Strike, to organize, and to act in solidarity; (2) largely as a result, Taft-Hartley “labor organizations” have declined steadily for more than half a century, through Republican and Democratic administrations alike; (3) before it is too late, unions and other workers’ organizations should prioritize the fundamental Rights to Strike, organize, and act in solidarity in all phases of movement activity; (4) instead of attempting to tweak the Taft-Hartley model, proponents of workers’ Rights should seek long-term, fundamental change including the replacement of exclusive representation with a system that fosters worker freedom and permits broad solidarity. The reply discusses a number of important points raised by the respondents.
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the Right to Strike under the united states constitution theory practice and possible implications for canada
Social Science Research Network, 2010Co-Authors: James Gray PopeAbstract:Answering the critics of the Supreme Court of Canada’s judgment in B.C. Health Services, the author argues that the Court laid the foundation for a principled and durable doctrine protecting constitutional labour Rights, one that goes directly to the heart of the matter – the inequality of workers’ power in the employment relation. In the author’s view, two paths could lead from B.C. Health Services to the recognition of Charter protection for a Right to Strike: one that treats the Right as an accessory to collective bargaining, and one that upholds the Right directly on the basis of the Charter values of equality and participation. The author supports the latter approach, contending that constitutional Rights should be defined in relation to fundamental values, in a way that is not contingent on time-bound or fact-sensitive assessments about the role of Strikes within a particular collective bargaining regime. Although a Charter Right to Strike may involve the courts in difficult choices about when to defer to legislative policy decisions, and courts may lack the institutional capacity to deal effectively with labour law issues, the author points out that judges can look to ILO standards for expert guidance. Noting that the U.S. experience in this area might be of considerable use to Canadians, the author concludes by providing an overview of American case law concerning a constitutional Right to Strike.
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how american workers lost the Right to Strike and other tales
Social Science Research Network, 2005Co-Authors: James Gray PopeAbstract:As a veteran labor scholar once said, if you want to know where the corpses are buried in labor law, look for the of course statements in court opinions. This essay traces the historical origins of five such of course statements, each of which has had a devastating impact on the American labor movement. The five statements are: (1) Workers have no Right of self-defense against employers that commit unfair labor practices (NLRB v. Fansteel Metallurgical Corporation); (2) Employers enjoy the Right permanently to replace economic Strikers (NLRB v. Mackay Radio & Telegraph Company); (3) The National Labor Relations Board has no power to deter unfair labor practices (Consolidated Edison Company v. NLRB); (4) Employers may exclude union organizers from their property (Lechmere, Inc. v. NLRB); (5) Employers may close operations out of spite against workers who choose to unionize (Textile Workers Union v. Darlington Manufacturing Company). The essay argues that in each of the five cases, the Court revived Lochner-era constitutional doctrines - supposedly defunct since the switch in time that saved nine in 1937 - and applied them to cut back on statutory labor Rights. Although the five statements were not considered especially dangerous at the time, their impact has since been magnified by social and economic change. Taken together, they may account for a substantial proportion of the decline in the American labor movement. As in the pre-New Deal period, then, judges have deprived workers of the Rights to organize and Strike based on constitutional concerns. This time, however, they have avoided the forthRight constitutional reasoning of the pre-1937 period, thereby insulating their rulings against changes in constitutional jurisprudence.
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how american workers lost the Right to Strike and other tales
Michigan Law Review, 2004Co-Authors: James Gray PopeAbstract:to paraphrase a veteran labor scholar, if you want to know where the corpses are buried in labor law, look for the "of course" statements in court opinions.' By "of course" statements, he meant propositions that are announced as if they were self-evident, requiring no justification. Each year, thousands of law students read such statements in labor law casebooks. And each year, they duly ask themselves prodded sometimes by the casebook's notes how these conclusions could be justified in legal terms. But often there seems to be no answer, and the mystery continues. This Essay recounts the origins of five such "of course" statements, each of which has had a devastating impact on the American labor movement. The five statements are:
Tamara Cohen - One of the best experts on this subject based on the ideXlab platform.
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understanding the limitations to the Right to Strike in essential and public services in the sadc region
Social Science Research Network, 2016Co-Authors: Rochelle Le Roux, Tamara CohenAbstract:The nature of the limitations to the Right to Strike in essential and public services in the nine sub-regional countries of Southern Africa – South Africa, Botswana, Lesotho, Namibia, Swaziland, Malawi, Mozambique, Zambia and Zimbabwe – is examined in this contribution. While all of these countries share common influences and face common challenges, there appears to be a vast disparity in the approaches taken to the Right to Strike in public and essential services in the region. A brief overview of the demographics and labour markets in the countries under discussion is sketched, the salient features of the ILO's approach to Strike in essential and public services is highlighted, and a broad overview of the contrasting and disparate approaches to essential and public services in the region is provided. The focus is, however, on the legislative approach taken to essential service employees in South Africa. It is concluded that – with the exception of South Africa and Namibia – the limitations to the Right to Strike of public sector employees exceed those endorsed by international conventions, and the broad definition of essential services generally relied upon effectively results in an outRight ban of public sector Strikes in the sub-region.
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public servants Right to Strike in lesotho botswana and south africa a comparative study
Potchefstroom Electronic Law Journal, 2015Co-Authors: Tamara Cohen, Letlhogonolo MateeAbstract:Restrictions on the Rights of public officers to Strike are permitted by the Constitutions of Lesotho, Botswana and South Africa, where such limitations are reasonable, necessary and justifiable in a democratic society. The limitation of this Right in the context of public servants is endorsed by the ILO in the Freedom of Association Digest of Decisions and Principles which holds that "[t]he 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 these limitations are accompanied by certain compensatory guarantees".1 Public officers in Lesotho are deprived of the Right to join trade unions or to Strike, without exception or justification. Furthermore in Lesotho no dispute resolution mechanism exists to effectively facilitate the final resolution of disputes of interest in the public sector. This paper considers whether the limitations imposed on the freedom and Right to Strike of public officers in Lesotho are in breach of international obligations and are reasonable and justifiable in a free and democratic society committed to the rule of law. In so doing a comparative analysis of the jurisdictions of South Africa and Botswana is undertaken. It concludes that Lesotho is in breach of its obligations as a member state of the ILO and its constitutional commitment to freedom of association and needs to be urgently addressed. KEYWORDS : Freedom of association; Right to Strike; public officers; Lesotho; comparative analysis; Botswana; South Africa
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public servants Right to Strike in lesotho botswana and south africa a comparative study
Social Science Research Network, 2014Co-Authors: Tamara Cohen, Letlhogonolo MateeAbstract:Restrictions on the Rights of public officers to Strike are permitted by the Constitutions of Lesotho, Botswana and South Africa, where such limitations are reasonable, necessary and justifiable in a democratic society. The limitation of this Right in the context of public servants is endorsed by the ILO in the Freedom of Association Digest of Decisions and Principles which holds that "[t]he 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 these limitations are accompanied by certain compensatory guarantees." Public officers in Lesotho are deprived of the Right to join trade unions or to Strike, without exception or justification. Furthermore in Lesotho no dispute resolution mechanism exists to effectively facilitate the final resolution of disputes of interest in the public sector. This paper considers whether the limitations imposed on the freedom and Right to Strike of public officers in Lesotho are in breach of international obligations and are reasonable and justifiable in a free and democratic society committed to the rule of law. In so doing a comparative analysis of the jurisdictions of South Africa and Botswana is undertaken. It concludes that Lesotho is in breach of its obligations as a member state of the ILO and its constitutional commitment to freedom of association and needs to be urgently addressed.
Stefan Van Eck - One of the best experts on this subject based on the ideXlab platform.
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the Right to Strike and replacement labour south african practice viewed from an international law perspective
Potchefstroom Electronic Law Journal, 2018Co-Authors: Stefan Van Eck, Tungamirai KujingaAbstract:South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the Right to Strike and the use of replacement labour during Strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of Strike-breakers during legal Strikes in non-essential services as a violation of the Right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's Right to Strike and the LRA gives effect to this Right. However, the foundation of this Right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during Strike action. This article investigates whether replacement labour undermines the Right to Strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation. Keywords : Labour Law, Replacement labour, International Labour Organisation, The Right to Strike.
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the Right to Strike and replacement labour south african practice viewed from an international law perspective
Social Science Research Network, 2018Co-Authors: Tungamirai Kujinga, Stefan Van EckAbstract:South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the Right to Strike and the use of replacement labour during Strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of Strike-breakers during legal Strikes in non-essential services as a violation of the Right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's Right to Strike and the LRA gives effect to this Right. However, the foundation of this Right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during Strike action. This article investigates whether replacement labour undermines the Right to Strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.
Tungamirai Kujinga - One of the best experts on this subject based on the ideXlab platform.
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the Right to Strike and replacement labour south african practice viewed from an international law perspective
Potchefstroom Electronic Law Journal, 2018Co-Authors: Stefan Van Eck, Tungamirai KujingaAbstract:South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the Right to Strike and the use of replacement labour during Strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of Strike-breakers during legal Strikes in non-essential services as a violation of the Right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's Right to Strike and the LRA gives effect to this Right. However, the foundation of this Right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during Strike action. This article investigates whether replacement labour undermines the Right to Strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation. Keywords : Labour Law, Replacement labour, International Labour Organisation, The Right to Strike.
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the Right to Strike and replacement labour south african practice viewed from an international law perspective
Social Science Research Network, 2018Co-Authors: Tungamirai Kujinga, Stefan Van EckAbstract:South Africa is a member of the International Labour Organisation (hereafter the ILO), an establishment that sets international labour law standards through its conventions, recommendations and expert supervisory committees. Also, South African courts have an obligation to interpret labour provisions in accordance with international law and customs. This paper examines whether by way of the Labour Relations Act of 1995 (hereafter the LRA) the current regulation of both the Right to Strike and the use of replacement labour during Strikes falls within the ambits of internationally and constitutionally acceptable labour norms. Strike action constitutes a temporary and concerted withdrawal of work. On the other hand, replacement labour maintains production and undermines the effect of the withdrawal of labour. Consequently, the ILO views the appointment of Strike-breakers during legal Strikes in non-essential services as a violation of the Right to organise and collective bargaining, and in a number of countries replacement labour is prohibited. The Constitution of the Republic of South Africa, 1996 enshrines every worker's Right to Strike and the LRA gives effect to this Right. However, the foundation of this Right is ostensibly brought into question by the LRA in as far as it permits employers to make use of replacement labour during Strike action. This article investigates whether replacement labour undermines the Right to Strike in South Africa and considers to what extent labour legislation may be misaligned with international norms. In conclusion the research makes findings and proposes alternatives that may be considered to resolve this seemingly skewed situation.
Letlhogonolo Matee - One of the best experts on this subject based on the ideXlab platform.
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public servants Right to Strike in lesotho botswana and south africa a comparative study
Potchefstroom Electronic Law Journal, 2015Co-Authors: Tamara Cohen, Letlhogonolo MateeAbstract:Restrictions on the Rights of public officers to Strike are permitted by the Constitutions of Lesotho, Botswana and South Africa, where such limitations are reasonable, necessary and justifiable in a democratic society. The limitation of this Right in the context of public servants is endorsed by the ILO in the Freedom of Association Digest of Decisions and Principles which holds that "[t]he 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 these limitations are accompanied by certain compensatory guarantees".1 Public officers in Lesotho are deprived of the Right to join trade unions or to Strike, without exception or justification. Furthermore in Lesotho no dispute resolution mechanism exists to effectively facilitate the final resolution of disputes of interest in the public sector. This paper considers whether the limitations imposed on the freedom and Right to Strike of public officers in Lesotho are in breach of international obligations and are reasonable and justifiable in a free and democratic society committed to the rule of law. In so doing a comparative analysis of the jurisdictions of South Africa and Botswana is undertaken. It concludes that Lesotho is in breach of its obligations as a member state of the ILO and its constitutional commitment to freedom of association and needs to be urgently addressed. KEYWORDS : Freedom of association; Right to Strike; public officers; Lesotho; comparative analysis; Botswana; South Africa
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public servants Right to Strike in lesotho botswana and south africa a comparative study
Social Science Research Network, 2014Co-Authors: Tamara Cohen, Letlhogonolo MateeAbstract:Restrictions on the Rights of public officers to Strike are permitted by the Constitutions of Lesotho, Botswana and South Africa, where such limitations are reasonable, necessary and justifiable in a democratic society. The limitation of this Right in the context of public servants is endorsed by the ILO in the Freedom of Association Digest of Decisions and Principles which holds that "[t]he 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 these limitations are accompanied by certain compensatory guarantees." Public officers in Lesotho are deprived of the Right to join trade unions or to Strike, without exception or justification. Furthermore in Lesotho no dispute resolution mechanism exists to effectively facilitate the final resolution of disputes of interest in the public sector. This paper considers whether the limitations imposed on the freedom and Right to Strike of public officers in Lesotho are in breach of international obligations and are reasonable and justifiable in a free and democratic society committed to the rule of law. In so doing a comparative analysis of the jurisdictions of South Africa and Botswana is undertaken. It concludes that Lesotho is in breach of its obligations as a member state of the ILO and its constitutional commitment to freedom of association and needs to be urgently addressed.
