|Journal||Canadian Labour & Employment Law Journal|
This paper examines a range of ways in which a right to strike can be derived from the right to freedom of association, focusing on a dis- tinction between a direct and indirect linkage between the two rights. The form of derivation will, in the author's view, determine the appro- priate degree of judicial deference to legislative policy decisions con- cerning the legitimate dimensions of a strike. The link between freedom of association and the right to strike also depends on the particular fea- ture of a strike that is in question. Some of those features are constant (i.e. strikes are always coordinated action, designed to bring pressure to bear), while other features are variable (i.e. whether strikes are con- trolled by a trade union, whether they are required to be part of a formal collective bargaining process, whether strikers are protected from employer retaliation, and whether the strike pursues a political objec- tive). On the basis of these distinctions, the author argues that the con- stant features of strikes - their collective quality and the pressure they exert - can legitimately claim protection as a matter of constitutional or internationally recognized right flowing directly from a qualified right to freedom of association. The variable features of strikes can be shaped by legislatures more freely than can the constant features. Here, the fundamental rights constraint is via an indirect connection to free- dom of association. However it is wrong to treat the indirect connection entirely separately from the direct one. A great deal turns on whethe, in regulating these variable features, the legislature arbitrarily excludes certain employees from an ability to engage in the constant features of all strikes: features which make it, as a directly derivable species of right to freedom of association, a right that all should enjoy. Professor, School of Law and Centre for Human Rights, University of Essex (U.K.). The author wishes to thank Brian Langille and Chris Albertyn for their insightful suggestions. This does not, of course, implicate them in the positions advanced here.