The right to strike and the right to be paid to strike

Jun 21, 2024 Peeping Tom

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Kaieteur News – At his weekly press conferences, Vice President, Bharrat Jagde0 continually expresses concern that workers should not be entitled to payment for the time spent on strike. He says that this could set a precedent where employees might expect to be paid while staying home from work.

What Jagdeo, however, in typical fashion overlooks  is the difference between a person staying home from work without authorization, as against the legal withdrawal of labour under a strike. Do striking workers have an entitlement to be paid?

The government has appealed a recent decision that ruled in favour of paying striking teachers. This appeal is expected to address not only the issue of payment for striking workers but also whether there is a substantive difference between the right to strike and the freedom to strike, and whether these rights or freedoms are protected under the right to freedom of association.

Today I want to examine these issues. I begin by examining the issue of payment for striking workers.

Section 24 of the Labour Act explicitly addresses the permissible deductions an employer can make from an employee’s salary. This section is inherently focused on regulating the deductions from the salary for work performed by the employee. It ensures that such deductions do not exceed one-third of the total monthly earnings, thereby allowing the employee to at least have some basic minimum of his salary available.

Section 24 cannot be construed as pertaining to instances where an employee is absent from work or when an employee withdraws their labour, such as during a strike. The core intent of this section is to manage deductions from earned wages, i.e., compensation for the labour provided by the employee during their period of active work.

When an employee is on strike, they are not performing any work and thus do not generate earnings for that period. Section 24 is silent on the issue of non-earnings periods, implying that it does not intend to cover scenarios where wages are not being accrued. Instead, it only governs the permissible deductions from wages that have been earned through the employee’s labour.

Therefore, in the humble estimation of this columnist, Section 24 does not impact an employer’s right to withhold payment for periods when an employee does not work, such as during a strike. The period of non-work does not equate to earnings, and thus, any interpretation of Section 24 that suggests otherwise would be a misreading of its provisions. This section is strictly about regulating deductions from earned wages, ensuring fair treatment in the remuneration for work performed, and does not extend to governing the withholding of wages for periods of non-work.

A strike represents a deliberate and wilful decision by employees to withhold their labour as a form of protest or negotiation tactic. This voluntary withdrawal of labour signifies that the workers are consciously choosing not to fulfill their contractual obligations to perform work. As such, it is my opinion that there is no entitlement for payment during the period of a strike.

Under employment contracts, the fundamental principle is an exchange of labour for compensation. Employees agree to provide their labour, and in return, employers agree to remunerate them for their work. During a strike, this exchange is intentionally interrupted by the employees. Since no labour is being provided, the foundational basis for earning a salary is absent.

Legally and logically, payment for work is contingent upon the work being performed. In the context of a strike, employees are not fulfilling their part of the employment contract by providing labour. Thus, there is no contractual basis for claiming wages during such periods. The decision to strike is a recognized and legitimate form of industrial action, but it inherently comes with the understanding that wages are not earned during the time labour is withheld.

During talks about terms of resumptions there are almost invariably negotiations about payment for the period workers were on strike. This indicates that there is no inherent right to such payment. If workers had an intrinsic entitlement to be paid during a strike, this issue would not need to be negotiated; it would be automatically guaranteed.

The necessity for bargaining over this point suggests that payment during a strike is not a given right but rather a conditional matter dependent on the outcomes of specific negotiations between employers and employees. This negotiation process highlights that payment for strike periods is not a legal entitlement but rather subject to mutual agreement, reflecting its contingent and non-inherent nature.

The right to strike is also not as settled as some may believe. For some time now, it was contended that the right to strike is integral to the right to freedom of association. However, within the International Labour Organization, this interpretation was increasingly questioned. As such the ILO has decided to request an urgent advisory opinion from the International Court of Justice (ICJ) as to whether the right to strike is a protected right under the right of freedom of association and the Right to Organize Convention of 1948.

Within the ILO, the Committee of Experts argues that the right to strike is a fundamental aspect of the right to freedom of association. They believe that for workers to genuinely enjoy freedom of association, they must have the right to collectively withdraw their labour to protect their interests.

On the other hand, the Employers’ group contends that Convention No. 87 – which deals with the rights to organize – does not explicitly mention the right to strike. They argue for a strict textual interpretation of the Convention, which focuses on the right to organize and form associations but does not extend to striking.

The ICJ is likely to render an opinion decision on this matter by next year. But the Court of Appeal of Guyana may pronounce on these very issues before the ICJ concludes its advisory opinion.

 

 

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• authorization, Bharrat Jagde0, Conferences, Labour, minimum, Vice President

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