Strike Ballots, Democracy, and Law

Abstract

The purpose of the research upon which this book is based was empirically to investigate whether the ballot requirements in the Fair Work Act do indeed impose a significant obstacle to the taking of industrial action, and whether those provisions are indeed impelled by a legitimate ‘democratic imperative’. The book starts from the proposition that virtually all national legal systems, and international law, recognise the right to strike as a fundamental human right. It acknowledges, however, that in no case is this recognition without qualification. Amongst the most common qualifications is a requirement that to be lawful strike action must first be approved by a ballot of workers concerned. Often, these requirements are said to be necessary to protect the democratic rights of the workers concerned: this is the so-called ‘democratic imperative’. In order to evaluate the true purpose and effect of ballot requirements the book draws upon the detailed empirical study of the operation of the Australian legislative provisions noted above; a comparative analysis of law and practice in a broad range of countries, with special reference to Canada, South Africa, the United Kingdom and the United States; and the jurisprudence of the supervisory bodies of the International Labour Organisation. It finds that in many instances ballot requirements – especially those relating to quorum – are more concerned with curtailing strike activity than with constructively responding to the democratic imperative. Frequently, they also proceed from a distorted perception of what ‘democracy’ could and should entail in an industrial context. Paradoxically, the study also finds that in some contexts ballot requirements can provide additional bargaining leverage for unions. Overall, however, the study confirms our hypothesis that the principal purpose of ballot requirements – especially in Australia and the United Kingdom – is to curtail strike activity rather than to vindicate the democratic imperative, other than on the basis of a highly attenuated reading of that term. We believe that the end-result constitutes an important study of the practical operation of a complex set of legal rules, and one which exposes the dichotomy between the ostensible and real objectives underpinning the adoption of those rules. It also furnishes a worked example of multi-methods empirical, comparative and doctrinal legal research in law, which we hope will inspire similar approaches to other areas of labour law.

Regulatory pluralism and the resolution of collective labour disputes in Southeast Asia

“…Collective labour disputes are widely accepted as an inevitable feature of market economies. Such disputes may arise because of workers taking collective action in the context of collective bargaining, or in response to threats to health and safety, perceived abuse of managerial prerogative or failure by employers to meet their legal obligations (Creighton et al, 2020;Kahn-Freund and Hepple, 1972). Where they arise, collective labour disputes may have significant consequences.…”

“…This is particularly true of labour law, with a dominant line of inquiry being the design and operation of formal systems of collective dispute resolution to facilitate industrial peace. For example, examinations have extended to analyses of common legal mechanisms or hurdles for workers to access lawfully protected strike action and the desirability, legitimacy and design of those mechanisms (e.g., Creighton et al, 2020). There has also been growing interest in the use of Alternative Dispute Resolution (ADR): that is, procedures and mechanisms for conflict resolution that provide alternatives to litigation, although such forms of dispute resolution may also operate in conjunction with judicial processes (Roche and Teague, 2012: 447-8).…”