Strike Ballots, Democracy, and Law

Description

International law and most national legal systems recognize the right to strike as a fundamental human right. However, the most common qualification for a strike is that the action must first be approved by ballot. These types of requirements are often said to be necessary to protect the democratic rights of the workers - the so-called democratic imperative. But is that truly their aim? This book draws on detailed empirical study of the Australian legislative provisions for pre-strike ballots; a comparative analysis of law and practice in a range of countries including Canada, South Africa, the United States, and the United Kingdom; and the approaches of the supervisory bodies of the International Labour Organisation to evaluate the true purpose and effect of the ballot requirement. While in some cases the ballot requirement provided additional bargaining leverage for unions, overall, the study showed that the principle purpose of ballot requirements is to curtail strikes rather than vindicate the democratic imperative it claims to support. Exploring collective bargaining and union democracy, this is an essential title for those involved in or studying labour law. This book also demonstrates the fundamental shortcomings of ballot regimes, and provides and accessible exploration of the operation of said regimes, which makes this a helpful tool for unionists to understand their rights as workers. It also considers significant policy questions in the field and is relevant in the respect of the international labour law regime. Cover Series Strike Ballots, Democracy, and Law Copyright General Editors’ Preface Preface Contents 1. Strikes, Ballots, Law, and Democracy Introduction What is a strike? The purposes of strike action Strikes and the law Rationale for ballot requirements How pre-​strike ballots can affect strike action English railways 2017 Australia Post 2009 Democracy at work Previous studies of the effects of pre-​strike ballots Introduction to the Study The structure of this book 2. The Right to Strike and Pre-​Strike Ballot Requirements in International Law Introduction The right to strike in international law Universal and regional standards The right to strike and the ILO Conditioning the right to strike The principle Substantive constraints Procedural constraints Conclusions 3. Pre-​Strike Ballots in Comparative Perspective Introduction Pre-​strike ballots in international context Ballot requirements in selected national jurisdictions The United States South Africa Canada The United Kingdom Australia Conclusions 4. Pre-​Strike Ballot Regulation in Australia Introduction History of pre-​strike ballot regulation in Australia The legal framework and its practical operation The legal context for protected industrial action Protected Action Ballot Orders Conduct of the protected industrial action ballot Approval of proposed industrial action Taking protected industrial action Conclusions 5. The Impact of Ballot Requirements on Organizing and Taking Strike Action Introduction Employer opportunity to contest the ballot application Balloting requirements and associated administrative burdens Quorum requirement Proportion of ballots which reached quorum Ballot mode and ballot agent requirements Relationship between ballot mode and voter turnout Factors impacting ballot mode selection Associated administrative burdens Educating members, encouraging voter participation, and support for action Maintaining membership records Variation in union experiences Taking protected industrial action post-​ballot: issues in practice Action must be ‘industrial action’ and the action approved in the ballot and of which notice is given The thirty-​day rule ILO compliance Conclusions 6. Bargaining Leverage and Stakeholder Perceptions Introduction Opportunities for bargaining power Opportunities for recruitment and engagement Tactical considerations Employer responses Undermining support for industrial action Deterring ballot participation Stakeholder perceptions of the PABO regime Stakeholder views on possible reforms to the system Conclusions 7. Democratic Rationales for Pre-​Strike Ballots Introduction The legal context Democratic union practices and industrial action decision-​making The decision to apply for a PABO The protected industrial action ballot The decision actually to take industrial action Conclusions 8. Reflections on the Australian Pre-​Strike Ballot Model Introduction An overview of the Australian model in practice Overall impact: consequences for employers, unions, and democracy Do pre-​strike ballot requirements inhibit the ability of unions and their members to take strike action in support of their claims during collective bargaining? How do pre-​strike ballot requirements impact upon the internal democratic processes of trade unions? What impact do mandatory pre-​strike ballot requirements have on associated collective bargaining negotiations? Stakeholder perceptions of the pre-​strike ballot provisions and their impact on enterprise bargaining negotiations Employer perceptions Union perceptions of the PABO process Reform of the system: stakeholder views The FW Act regime and industrial democracy A programme for reform Appendix 1: Study Methods Appendix 2: Interview Coding Frameworks Bibliography Index