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The Relationship between Freedom of

Association, Collective Bargaining and the
Right to Strike: A Critical Exposition

Chapter January 2012

DOI: 10.13140/RG.2.1.2868.4324

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 Chapter 20

The Relationship between Freedom of Association, Colit'ctivl'

Bargaining and the Right to Strike: A Critical Exposition

Dr. ore O!lI'lIc'

1. Introduction

This paper examines the inter-relationship between the conn'pts 01

freedom of association, collective barg-aining and the rigln to "tri),e It I '
argued that freedom of association ami collective barg;ainillf!: all
interrelated with the exercise of the rIg-ht to st rikc. l t is argued that t ln-
freedom to associate is not a bare liberty to associate, but to partll'lpatl'
in all the activities of such association The essc'nce' of t()rlllin,12. and
Joining a trade union would be Inelkerl\(' if workcrs could not also
exercise the right to xuik ,\., o n of the ]q.>;illll1atc actl\'itics 'If such
trade union.' The paplT turt hcr cxammes the roll' of collectl\ ('
bargaining ill the exercise of the rig-ht to strike. What IS it that
mot ivatc-s stril,es:) Conflic-t is inevitable in any industrial society ;ll1d till
major means oj settling cuntlict in industrial relations 1:, throllp;l\
collective bargaining and the exercise of the right to strike. It I" argued
that It is the failure of collective bargaining that Justifies 1ll<!II,tl'I,Ii
action. Workers have the nght to belong to the trade union III th.n
choice and to bargain collectively. What happens in the ve-nt I)!
negotiations collapsing<) It is argued that workers are perlllittl'd t o 1.11\,
lawful industrial action to realise their demands. The right to stril,,' I"
thus an essential weapon tor ensuring the success of a collc-l'tl\ l'
bargaining system. It is a sine qua non to collective barplining.
It must be noted that the right to strike is not a singll' OJ' 1~()lakd
right, but the organic content of the system oflabour ngllts.' TI1;' rH"lll

LL.M (lte), Ph.D. (UK). B.L, FeAt, Dean of LeIW, Faclllty "I Lim, 1:1\"1''-;''''
Lruversuv OfSri~IHC' and Tt'l'hn"l"gy, \,,,, t ! ldl'U'llrl, J','ig"Ilil.
lAs Morns noh-d, "hr!litin~ tl~l:'<:donl of assonjtt\ons is cleady a \'ery l,Hhtl\ l \\dY (,t
lllal-;.ing- it JiH'icu1t fur \\'()rkt-'rs to organise IIHItl:.;tnal act](H}."Sel" (;. S. \l(lrr;", ,\/rti;(\ III
Esscnt ial SnTI(f\ (London anrl 1':,,\\ 1',,1"\; \1."",11 Pllbli,hillg Lillllt,'d. I!),~h). I' c"" (;
S. Morr ~r. l i ,,' :;1 1;, I '.1'_ ~'l till' Statp" III l l u m.rn Ulgl!j, dllli'
L,',,; '.c'. C' \ (;,.any alld Ii ,\ 11'1'1':'
(cds.) (Lo: ,li,d >"'1\, l' I \ ~ 1-). Ii -;'. S S \'IS\\'l','"i\\'<tr;lIali. .\
Critical Expo""", 'd 1.1" ',t. :1, I !,,,i,, j":'I) +:1 Centr! l ndt., Lu: 1),11 d 1'1,., 11 , !'
70; R. lk-'n-hrdf.'l, l ntrrnatron.tt 1.1<)),','((1' ,\'{;/ii,{au(, 'The Cast' l;,!, tlu Frrcdo, t.. ,\'1,1!;/
(Devcnu-r. Kltl\\l'I', ! :1;-;;-;), p. C>"
'c. Kai, "Lq;lslatlol1 on th Rig!lllo SU'!,e ill CI>II1<I'
263

.ssociation, Collective
Critical Exposition
Dr. O.v.e. Okene"
p between the concepts of
nd the right to strike. It is
'oilective bargaining are
trike. It is argued that the
.sociate, bu t to part icipate
~ essence of forming and
f workers could not also
~itimate activities of such
,5 the role of collective
strike. What is it that
industrial society and the
rial relations is through
ight to strike, It is argued
g that justifies industrial
I the trade union of their
1appens in the event of
kers are permitted to take
Ids. The right to strike is
, success of a collective
tive bargaining.
is not a single or isolated
flabour rights. 2 The right
Faculty of Law, Rivers State
igeria.
clearly a Yery effective way of
:ion."SeeG. S. Morris Strikes In
ishing Limited, I USG), p. 25; G.
the Slate" JJ1 Human Rights and
:..\. Geclrty and B. A. Hepple
5~; S S. Visweswaraiah, "A
Central India Law Quarterfv, p.
Case if the Freedom to Strike
Dr. O.v. C. Okene
to strike, the right to organise and the right to bargain colledi\l'ly
Jointly form "basic labour rights" and the cornerstone ofeffective labour
relations systems." These rights are interconnected and take eHen
mutually. As between them, the right to organise is a basic requirement,
the right to collective bargaining is the core, and the right to strike
exists to guarantee the right to bargain collectively.'
2. Freedom of Association and the Right to Strike
Is the right to freedom of association a bare freedom to associate?
Does the right to form unions carry with it the concomitant right to
achieve the purpose for which the union is formed? In other words, if
the workers are guaranteed the right to form unions, should such trade
unions be entitled to engage in collective bargaining and to exercise, if
necessary, the right to strike so that the main reason for the
establishment of trade unions serves its purpose?
Generally, there are two ways to approach the concept of freedom
of association. First, it can be seen as a liberal political right, derived
from the principle that an individual should be free to associate with
other persons of their choice as long as no harm is caused." Freedom of
association is a political right, "because political interests can be
effectively championed only in community with others.?:' The second
<http://, 4.1 c25.".1 S,' I search:Jq=cclche:Hfx Vgz\:lKGAJ:www.airroc.org.tw/ISLSSLc20
05 Ip ro g-ralIlI docl I 1-
,'l.doc+the+rig-ht+to+strike+in+chil1a&cd= l&hl=en&ct=c1nk&gl=uk> (c20 February
20(9); \V. Min and X. Jifeng-, Labour Relations and Disputes (Taiwan: Taiwan National
Open University Publishing House, 1999), p. 286.
'Freedom of Association and Collective Bargaining: A Primer on Freedom of
Association < http://www.cleanclothes.orglcodeslfreedomofassociation.htlll > (29
January c2(09); \V. Min and X. Jifeng, Labour Relations and Disputes (Taiwan: Taiwan
National Open University Publishing House, 1999), p. 286.
'Ben-Israel has expressed a similar view, noting that the freedom to strike is "a three-
faceted principle comprised of the freedom to organise, the freedom to barg-ain
collectively and the freedom to strike." See: R. Ben-Israel, "Introduction to Strikes and
Lock-outs: A Comparative Perspective" in R. Blanpain (ed.), Comparative Labour Lau.
(Deventer: Kluwer. 1994), p. 6; W. Min and X. Jifeng, Labour Relations and Disputes
(Taiwan: Taiwan National Open University Publishing House, 1999), 1'1'. c2S6-c2UI; A.
M. Swiatkowski, "European Social Charter: The Right to Strike" (2005) 4,:6 Manayrria!
LIW, p. 296.
.'F. von Prondzynski, "Freedom of Association in Modern Industrial Relations" (2001)
l!i (I) Industrial Relations Journal, p. 10; T. Sheppard, "Liberalism and the Charter:
Freedom of Association ami the Right to Strike (1996) 5 Dalhousie Lmc Journal. p. 11,.
"M. Nowak, UN Covenant on Cnul and Political Rights: CCPR Commentary (Arlington. Vir:
Engel, 1993), p. 385; F. Prondzynski, "Freedom of Association in Modern Industrial
Relations" (200 I) 15 (I) Industria! Relations Journal. p. 10; T. Sheppard, "Liberalism and
the Charter: Freedom of Association and the Right to Strike (1996) 5 Dalhousie Lou:
Journal, p. 117.
264
 Freedom ofrlssociation, Collective BargawZIIg and the Rzght to Sink.
Dr.OV.C

approach treats freedom of association as a functional guarantee which fi'C'cdOI11 c

is protected in order to secure a clearly defined purpose, such as the workers t,
attainment of some sort of equilibrium of bargaining power between approach,
employers and workers." In the present context, we are concerned with associatioi
the relevance of the concept of freedom of association in industrial such assoc
relations. According to Anderman: collective
Summ
the rights of association underlying collective labour associatior
legislation are based on the basic political freedom of orga n rse, ,
association of individuals, comparable to freedom of logether <
speech, assembly and religion. As a way of enhancing Sccondly,
the bargaining economic power of employees, the rights orga nisa til
of association are meant to modify the prerogatives of organisati<
the employer." associatior
all - this i
Freedom of association thus enables the collective defence of l"()lhTt:\C
workers' interests and it is therefore the key enabling right and the above free
gateway to the exercise of a range of other rights at work.? The right to I 1](' r-xcrci:
freedom of association is promoted throughout the world. At the ollwr. 1u
opening of the first 11.0 African Regional Conference in Lagos, Nigeria, Lord ,
in 1960, the then Prime Minister of Kigeria, Sir Abubakar Tafawa a.""mlil tion
Balewa, declared that, "Freedom of association is one of the foundations pu rposl\c
on which we build our free nations."!" as."mia tion
Labour lawyers and industrial relations experts are, however, not "\lIH'cptiOl;
ad idem so far as the content of the concept of freedom of association in 1l1<>1"t.,.IS
industrial relations is concerned. There are two competing views as to There:
the content of the concept of freedom of association."! One view is that or associa ti.
, Ibid. "S,'" He Pub
8S. D. Anderman, Labour Law: Management Decisions and IVorkers' Rzghts (London: "Sll"H' ThllUg
Butterworths, 1998), p. 289. .Iournal. p. 161
"Press Release (ILO/oo/17): Pioneering ILO Global report calls for more widespread til!' 1{lght to ~
respect for rights at work< T SIH'ppard,
www.ilo.org/public/english/bureau/inflpr/2000/17.htm> (20 June 2(07). See also SII"!;" (1996).
"Your Voice at Work: First global report on Freedom of Association and Collective i I~t..(', f<)l' exa
Bargaining"< ['Il'"" Memb
www.ilo.org/public/english/bureau/infldownload/mag-az inel pdfl mag35.pdf> (20 Prn nsvlranta I
June 20(7). I'Ibid
JOG. A. Johnston, The International Labour Organisation (London: Europa Publications, . [b,d
1970), p. ISO. "'Ibid. S.D. AI
I 'For more detailed discussion, see: S. Leader, Freedom if Association: A Study in Labour
1111 t terworths,
Law and Political Theory (New Haven and London: Yale University Press, 1992), pp. Lor.] \Ved,
180- 198; S. Leader, "Choosing an Interpretation of the Right to Freedom of 1...l>ollr Law (
Association" (2002) 40:1 British Journal of Industrial Relations, pp 128-137; S. Leader, ,,[!>/{1. See als
"Freedom of Association, Labour Law, and the Needs of a Democratic Society" in Tlirorv (~('w I
Freedom of Association, Council of Europe (The Netherlands: Martinus Nijhoff, 1994), ..( '1Joosin~~; an
pp.176-184. .laurna] (!(hzdl
265
 argaining and the RIght to Strike
ctional guarantee which
ed purpose, such as the
[ rgaining power between
. t, we are concerned with
association in industrial
/ collective labour
blitical freedom of
ble to freedom of
, way of enhancing
)ployees, the rights
the prerogatives of
the collective defence of
iey enabling right and the
Ights at work.? The right to
Ighout the world. At the
mference in Lagos, Nigeria,
eria, Sir Abubakar Tafawa
on is one of the foundations
~ experts are, however, not
of freedom of association in
two competing views as to
'ociation. I J One view is that
ions and Workers' Rights (London:
I report calls for more widespread
at work<
.htm> (20 June 2007). See also:
dom of Association and Collective
nag:azine/ pdf/ mag:35.pdf> (20
uon (London: Europa Publications,
om of Association: A Study in Labour
Yale University Press, 1992), pp.
1 of the Right to Freedom of
I Relations, pp 128-137; S. Leader,
eeds of a Democratic Society" in
ierlands: Martinus Nijhotf, 19910),
Dr. or.c. Okene
freedom of association extends no further than the right of individual
workers to join an association.v The second view takes a more liberal
approach, contending that in order to give the concept of freedom of
association more meaning, all other rights and freedoms that flow from
such association be encompassed in the concept, including the right to
collective bargaining and the right to strike. IS
Summers, for example, argues that the concept of freedom of
association comprises three distinct forrns.t- The first is the right to
organise, which according to Summers is the right of individuals to join
together and to combine economic resources for the common good.
Secondly, the concept might imply the freedom to choose between
organisations - the right of the individual to join and work through the
organisation that speaks best for his needs. Lastly, freedom of
association might also mean the freedom not to join any trade union at
all - this involves the right of the individual to refuse to participate in
collective action.t- Summers makes a crucial observation in that the
above freedoms are not always mutually enforceable in the sense that
the exercise of one may at the same time be at the expense of the
other.w
Lord Wedderburn of Charlton is of the opinion that freedom of
association can be interpreted either purposively or restrictively. I? A
purposive interpretation protects all activities involved in such
association, including the right to strike, whereas a restrictive or static
conception means just a right to join a trade union without doing
more.!"
There is no doubt that the interpretation of the concept of freedom
of association is bound to have an effect on the extent to which workers
12See Re Public Service Relations Act, 38 D.L.R. (10 th ) , p. is i, See also: G. England,
"Some Thoughts on Constitutionalizing The Right to Strike" (1988) 13 Queen's Law
Journal, p. 168; C. D'aoust and F. Delorme, 'The Origin of Freedom of Association and
the Right to Strike: An Historical Perspective" (1981) 36 Relat~ones lndustrielles, p. 916;
T. Sheppard, "Liberalism and the Charter: Freedom of ASSOCIatIOn and the RIght to
Strike ( 1996) 5 Dalhousie Law Journal, p. I 17.
"See, for example, C. W. Summers, "Freedom of Association and Compulsory Trade
Union Membership in Sweden and the United States (19610) I (112) University of
Pennsylvania Law Review, P: 6107.
J< Ibid.
15 Ibid
]6Ibid; S.D. Anderman, Labour Law: Management Decisions and Workers' Rights (London:
Butterworths, 2000), P: 307.
17 Lord Wedderburn of Charlton, "Freedom of Association and the Philosophies of
Labour Law (1989) 18 Industrial Law Journal, p. 16.
I 8 Ibid. See also S. Leader, Freedom if Association: A Study in Labour Law and Political
Theory (New Haven and London: Yale University Press, 1992), pp. 180-198; S. Leader,
"Choosing an Interpretation of the Right to Freedom of Association" (2002) 100: I Britisli
Journal ifIndustrial Relations, pp 128-137.
266
 Freedom ojAssociation, Collective Bargaining and the Right to Strike
Dr.O.VI
and trade unions will be allowed to function. Where freedom of
association is perceived as nothing more than just a right of workers to
come together, the scope of trade union activity will be narrowed. tl
However, if one interprets the concept purposively, then all activities o
which flow from such association might be protected. tI
It is submitted that in its simple and everyday form, freedom of tl
association will include anything from the right to form, join,
participate in activities and remain in trade unions, to the right to TherE
bargain collectively, the right to strike and trade union independence protects i
from both the employers and the state. First of all, it has to be accepted relations i
that the right to associate for trade union purposes includes, inter alia, to strike 2\
the right to form and belong to trade unions. Secondly, the purpose of Some,
forming and joining trade unions is to improve the workers' economic Ie;'' ex
and other interests. Thirdly, the principal way of improving these .: the
interests is through collective bargaining. Fourthly, in the event of a between fr.
breakdown in collective bargaining. workers exercise the right to strike
in order to compel the employer to accede to their demands.v Thus, It
freedom of association must be given a purposive interpretation which tha
recognises and protects all activities which flow from such association, bar
including the right to strike. Ben-Israel supports this view: aSSI
WOI
It follows that the recognition of the freedom of
association must signify that there is also a Similar!
simultaneous recognition of the complementary of Human
freedom to conduct collective bargaining. But that, too, Convention
is insufficient. The freedom to associate and to bargain mentions thl
collectively must be supplemented by an additional
of associa tio
freedom, which is the freedom to strike. Hence, freedom
Court said:-
to strike is a complementary freedom of the freedom of
association since both are meant to help in achieving a
The
common goal which is to place the employer-employee
trade
relationship on an equal basis.w
State
end.
Indeed, freedom of association would be hollow if workers were not
any (
able to engage in collective bargaining and exercise the right to strike.
but
As Bayda, J has said:
expn

21Retail H'holesa
Bayda.J.
19See generally, Jane Hodges-Aeberhard and Odero de Dios, "Principles of the
22 F. VOIl Pron
Committee on Freedom of Association Concerning Strikes" (1987) 126(5) International
Study (London: :
Labour Review, pp. 543-561.
"~1970J AC .13
20R. Ben-Israel, International Labour Standards: The Case oj the Freedom to Strike
,. Ibid, p. 548 per
(Deventer: Kluwer, 1988), p. 27.
"'(1980) I EHR:
267

\

'Association, Collective
A Critical Exposition
Dr. o.r.c. Okene"
,hip between the concepts of
; and the right to strike. It is
collective bargaining are
) strike. It is argued that the
I associate, but to participate
'he essence of f(JrI11ing and
e jf workers could not also
legitimate activities of such
ines the role of collecti ve
to strike, What is it that
lny industrial society and the
rstrial relations is through
e right to strike. It is argued
ling that Justifies industrial
to the trade union of their
It happens in the event of
rorkers are permitted to t akc-
nands. The right to strike is
the success of a collect: ve
llertive hargaining.
Ike is not a single or isolated
n of labour rights,~ The right
.aw, faCilIty of Law, Rivers Stat"
t. ~i~erja
s is clearly a vpry "Heni,'p way of
I aetlUn,"See G, S, Morris Strikes //I
'ublishing Limited, 19,~(i), p, 25; G.
s (If the State" JIl Human Rights and
'g, C ,\. Geartv and 13, A, Heppl
I), p',l; S. S, Visweswar aiah, "A
) +: I Central lndta Law Quarterly, p,
ThR Case oj' the Freedom 10 Strik
Dr. o.rc. Okeue
to strike, the right to organise and the right to bargain collectively
Jointly form "basic labour rights" and the cornerstone of effective labour
relations systems." These rights are interconnected and take eHect
mutually. As between them, the right to organise is a basic requirement,
the right to collective bargaining is the core, and the right to strike
exists to guarantee the right to bargain collectively.'
2. Freedom of Association and the Right to Strike
Is the right to freedom of association a bare freedom to associate;'>
Does the right to form unions carry with it the concomitant right to
achieve the purpose for which the union is formed? In other words, if
the workers are guaranteed the right to form unions, should such trade
unions he entitled to engage in collective bargaining and to exercise, if
necessary, the right to strike so that the main reason for the
establishment of trade unions serves its purpose?
Generally, there are two ways to approach the concept of freedom
of association. First, it can be seen as a liberal political right, derived
from the principle that an individual should be free to associate with
other persons of their choice as long as no harm is caused." Freedom of
association is a political right, "because political interests can be
effectively championed only in community with others.?? The second
<http://7.J.. 1'2.',,77,13'21 s<'arcll:)y=cache:lltx Vg.zvsKGAJ:www.airroc.org.tw/ISLSSLC.()
O:JI program looclll-
s,doc+the+rig'ht+ to+ strike+ in+china&cd= I &hl=en&ct=dnk&gl=uk> ('20 FehnJary
20(9); \V, Min and X, .Jifeng, Labour Helations and Disputes (Taiwan: Taiwan National
Open Uni"ersity Publishing House, 1999), p, 2M;.
"freedom of Association and Collective Rargai'ning: A Primer on Frr-edor of
Association < http://www,cleanc!othes,org/cooeslfreedom of association,htn! > (29
January 2(09); \V, Min and X, Jifeng, Labour Relations and Disputes (Taiwan: Taiwan
National Open University Publishing House, 1999), p. 286.
'Ben-Israel has expressed a similar view, noting that the freedom to strike is "a thre-e-
faceted principle comprised of the freedom to organise, the freedom to bargain
collect ivelv and the freedom to strike." See: R Ben-Israel, "Introduction to Stnkes and
Lock-outs: A Comparative Perspective" in R Blanpain (ed.), Comparative Labour Lu:
(Deventer: Kluwer, ]994), p, 6; W, Min and X, Jifeng, Labour Relations and Disputes
(Taiwan: Taiwan National Open University Publishing House, 1999), PI" 2HG-291; A.
M. Swiatkowski, "European Social Charter: The Right to Strike" (2005) .J.7:6 Managerial
Law, p, 296,
-F. von Prondzynski, "Freedom of Association in Modern Industrial Relations" (2001)
I:J (I) Industrial Relations Journal, p. ] 0; T Sheppard, "Liberalism and the Charter:
Fr-eedom of Association and the Right to Strike (1996) 5 Dalhousie Law Journal, p, 1 17,
(iM, Nowak, UN Covenant on CIVil and Political Rights: CCPR Commentary (Arlington, Vir:
Engel, 1995), P: S85; F, Prondzynski, "Freedom of Association in Modern Industrial
Relations" (2001) 15 (I) Industrial Relations Journal, p, ] 0; T. Sheppard, "Liberalism and
the Charter: freedom of Association and the Right to Strike (1996) 5 Dalhoustr 1,,]
Journal, p, 1 17,
264
 Freedom ifAssociation, Collectiue Bargaining and the Right to Strike
T Dr. 0. V.C. '

approach treats freedom of association as a functional guarantee which freedom of

is protected in order to secure a clearly defined purpose, such as the workers to
attainment of some sort of equilibrium of bargaining power between approach, (
employers and workers." In the present context, we are concerned with association
the relevance of the concept of freedom of association in industrial such associ
relations. According to Anderman: collective t
Sumrne
the rights of association underlying collective labour association
legislation are based on the basic political freedom of organise, \\
association of individuals, comparable to freedom of together a:
speech, assembly and religion. As a way of enhancing Secondly,
the bargaining economic power of employees, the rights organisatio
of association are meant to modify the prerogatives of organisatio
the employer.s association
all - this ir
Freedom of association thus enables the collective defence of collective c
workers' interests and it is therefore the key enabling right and the above freer
gateway to the exercise of a range of other righ ts at work. 9 The righ t to the exercis
I freedom of association is promoted throughout the world. At the other.!v
opening of the first ILO African Regional Conference in Lagos, Nigeria, Lord \
in 1960, the then Prime Minister of Nigeria, Sir Abubakar Tafawa association
Balewa, declared that, "Freedom of association is one of the foundations purposive
on which we build our free nations."!" association
Labour lawyers and industrial relations experts are, however, not conception
ad idem so far as the content of the concept of freedom of association in more.v
industrial relations is concerned. There are two competing views as to There i
the content of the concept of freedom of association. I I One view is that of associati.

nu '"See Re Pub
8S. D. Anderman, Labour Law: Management Decisions and Workers' RIghts (London: "Some Thoug
Butterworths, 1998), p. 289. Journal. p. 161
9Press Release (ILO/oo/17): Pioneering ILO Global report calls for more widespread the Right to ~
respect for rights at work< T. Sheppard,
www.ilo.org/public/english/bureau/inf/pr/2000/i7.htm> (20 June 2007). See also: Strike (1996).
"Your Voice at Work: First global report on Freedom of Association and Collective I.'See, for exa
Bargaining"< Union Memb
www.ilo.org/publiclenglish/bureau/inf/download/magazine/pdf/mag35.pdf> (20 Pennsyluania I
June 2007). "Ibid.
lOG. A. Johnston, The International Labour Organisation (London: Europa Publications, If, Ibid
1970), p. 150. 'GIbld; S.D. Ar
"For more detailed discussion, see: S. Leader, Freedom if Association: A Study In Labour Butterworths,
Law and Political Theory (New Haven and London: Yale University Press, 1992), pp. 17 Lord Wed!
180-198; S. Leader, "Choosing an Interpretation of the Right to Freedom of Labour Law (:
Association" (2002) 4<l:1 British Journal if Industrial Relations, pp 128-137; S. Leader, " Ibid. See als
"Freedom of Association, Labour Law, and the Needs of a Democratic Society" in Theory (New I
Freedom if Association; Council if Europe (The Netherlands: Martinus Nijhoff, 1994-), "Choosing an
pp.176-1840. Journal of'Indu
265

GLc'- _ I ~v f/?tJ1r~
Freedom ofAssociation, Collective Bargaining and the Rzght to Sinh'

g; and trade unions will be allowed to function. Where freedom of

association is perceived as nothing more than just a right of workers to
g- come together, the scope of trade union activity will be narrowed.
However, if one interprets the concept purposively, then all activities
which flow from such association might be protected.
Ie It is submitted that in its simple and everyday form, freedom of
association will include anything from the right to form, join,
participate in activities and remain in trade unions, to the right to
bargain collectively, the right to strike and trade union independence
from both the employers and the state. First of all, it has to be accepted
that the right to associate for trade union purposes includes, inter alia,
(3 the right to form and belong to trade unions. Secondly, the purpose of
forming and joining trade unions is to improve the workers' economic
and other interests. Thirdly, the principal way of improving these
interests is through collective bargaining. Fourthly, in the event of a
breakdown in collective bargaining, workers exercise the right to strike
If in order to compel the employer to accede to their demands.:? Thus,
freedom of association must be given a purposive interpretation which
recognises and protects all activities which flow from such association,
including the right to strike. Ben-Israel supports this view:

It follows that the recognition of the freedom of

association must signify that there is also a
simultaneous recognition of the complementary
freedom to conduct collective bargaining. But that, too,
is insufficient. The freedom to associate and to bargain
collectively must be supplemented by an additional
freedom, which is the freedom to strike. Hence, freedom
to strike is a complementary freedom of the freedom of
association since both are meant to help in achieving a
common goal which is to place the employer-employee
relationship on an equal basis.w

Indeed, freedom of association would be hollow if workers were not

able to engage in collective bargaining and exercise the right to strike
As Bayda, J has said:

]OSee generally, Jane Hodges-Aeberhard and Odero de Dios, "Principles of the

Committee on Freedom of Association Concerning Strikes" (1987) 126(5) lntrrnalumal
Labour Review, pp. 543-561.
'0R. Ben-Israel, International Labour Standards: The. Case of the Freedom 10 Strik:
(Deventer: Kluwer, 1988), p. 27.

l__
267

J
J

 eBargainingand the Right to Strike
Dr.
nction. Where freedom of
n just a right of workers to
activity will be narrowed.
rposively, then all activities
rotected.
everyday form, freedom of
. the right to form, join,
o.r.c. Okene
To be in association means to act in association," and
"the freedom to bargain collectively, of which the right
to withdraw services is integral, lies at the very centre
of the existence of an association of workers. To remove
their freedom to withhold their labour is to sterilise
their association.s'

~
de unions, to the right to
d trade union independence
t of all, it has to be accepted
!purposes includes, inter alia,
'ns. Secondly, the purpose of
prove the workers' economic
ial way of improving these
. Fourthly, in the event of a
rs exercise the right to strike
le to their demands.!? Thus,
wposive interpretation which
6flow from such association,
pports this view:
! of the freedom of
there is also a
the complementary
~aining. But that, too,
iociate and to bargain
~ed by an additional
strike. Hence, freedom
~om of the freedom of
~o help in achieving a
he employer-employee
be hollow if workers were not
id exercise the right to strike.
There is therefore clear support for a freedom of association which
protects industrial action. Indeed, at the collective level of industrial
relations it is hard to envisage freedom of association without the right
to strike.e
Some decisions outside Nigeria have taken a different approach. The
le-' ; example is Collymore v. Attorney-General if Trinidad and Tobago
\ .: the Privy Council held, in 1970, that there was no necessary link
between freedom of association and the right to strike. The court said:
It ... seems to their Lordships inaccurate to contend
that the abridgement of the right to free collective
bargaining and of the freedom to strike leaves the
assurance of 'freedom of association' empty of
worthwhile content.w
Similarly, in Schmidt and Dahlstrom v. Suedens the European Court
of Human Rights held that, while Article 1 1 of the European
Convention for the Protection of Human Rights (ECHR) specifically
mentions the right to join trade unions as a species of the broader right
of association, this does not ipso facto include the right to strike. The
Court said:-
The Article does not secure any particular treatment of
trade union members by the State .... [It] leaves each
State a free choice of the means to be used towards this
end. The grant of a right to strike represents without
any doubt one of the most important of these means,
but there are others. Such a right, which is not
expressly enshrined in Article 11, may be subject under

Ddero de Dios, "Principles of the
Ig Strikes" (1987) 126(5) International
The Case if' the Freedom to Strike
"'Retail Wholesalers v. Government of Saskatchewan (1985) 19 DLR 609 at 614- 629, per
Bayda, J.
F. von Prondzynski, Freedom of Association and Industrial Relations: A Comparative
Study (London: Mansell Publishing Limited, 1987), p. 109.
3[1970J AC 5.'18 (PC)
"Ibid, p. 548 per Lord Donovan .
5(1980) 1 EHRR 6.'17.
268
 Freedom if Association, Collective Bargaining and the Right to Strike

r national law to regulation of a kind that limits its

exercise in certain instances.w

However, with the greatest respect to their Lordships, to accept

these decisions would be to deny the purposive role of freedom of
association. The protection of members' interests would be difficult for
an association which has no sanctions, such as the strike, to employ." It
is submitted that, while it is vital to protect the ability of workers to
form, join and maintain unions, unless workers are also protected in
their pursuance of the objects for which they have associated, such as
the right to collective bargaining and the right to strike, the freedom is
meaningless. In international law, the concept of freedom of association
has come to be accepted as a functional guarantee in the field of
industrial relations, the main purpose of which is to maintain
bargaining equilibrium between employers and employees.
Furthermore, there is a clear consensus amongst the ILO adjudicative
bodies that the Freedom of Association and Protection of the Right to
Organise (Convention No. 87) goes beyond merely protecting the
formation of labour unions and provides protection of their essential
activities - that is of collective bargaining and the right to stnke.w It is
therefore submitted that, with due respect to their Lordships, unless
freedom of association is interpreted as purposive in nature, it is
rendered useless. As Skelly J has said:

26Jbid, paras. :34-45; J. Hendy, "The Human Rights Act, Article II and the Right to
Strike" (1998) European Human Rights Law Review, p. 582. This trend has been followed
in other jurisdictions as well, notably in Canada where the Canadian Supreme Court
has held that freedom of association as provided for in the Canadian Charter of Rights
and Freedoms does not incorporate the right to strike or the right to bargain
collectively. See Reference Public Service Employee Relations Act (1987) 1 SCR 313;
38 DLR (4 th) 161; Saskatchewan v. Retail and Department Store Union (1987) 1 SCR 4-60;
38 DLR (4 th) 277; Public Service Alliance v. Canada (1987) I SCR 424; 38 DLR (4'h) 24-9;
Professional Institute if the Public Service if Canada v. Northwest Territories (1990) 2 SCR
367; 72 DLR (4'h). Cf. R. Ben-Israel, International Labour Standards: The Case of the
Freedom to Strike; C. D'aoust and F. Delorme, The Origin of Freedom of Association
and the Right to Strike (1981) 36(4) Relations Industrielles, p. 894; G. England, Some
Thoughts on Constitutionalz%:ing the Right to Strike (1988) 13 Queens Law Journal; P: 180,
27F. von Prondzynski, Freedom if Association and Industrial Relations: A Comparative Stu~y
(London: Mansell Publishing Limited, 1987), p. 109.
iSR. Ben-Israel, International Labour Standards: The Case if the Freedom to Strike
(Deventer: Kluwer, 1988), p. 27; F, von Prondzynski, "Freedom of Association in
Modern Industrial Relations (2001) 15 (1) Industrial Relations Journal, p. 10.
29In particular Articles S, 8 and 10 of Convention No. 87 have been interpreted by the
ILO Committee of Experts on the Application of Conventions and Recommendations as
being incompatible with a denial of the right to strike. See ILO: Freedom ofAssociation
and Collective Bargaining: General Survey 1994, para. 179; L. Swepston, Human Rights
Law and Freedom of Association: Development through ILO Supervision (1991;) 137:2
International Labour Review, p. 187.
269
 r
five Bargaining and the RIght to Strike
kind that limits its
o their Lordships, to accept
urposive role of freedom of
iterests would be difficult for
I as the strike, to employ.e? It
:ect the ability of workers to
orkers are also protected in
.hey have associated, such as
right to strike, the freedom is
;ept offreedom of association
11 guarantee in the field of
of which is to maintain
ployers and employees.se
mongst the ILO adjudicative
id Protection of the Right to
rond merely protecting the
protection of their essential
and the right to strike.es It is
ct to their Lordships, unless
; purposive in nature, it is
5 Act, Article II and the Right to
). 582. This trend has been followed
/here the Canadian Supreme Court
. in the Canadian Charter of Rights
o strike or the righ t to bargain
e Relations Act (1987) I SCR 3 13;
ment Store Union (1987) 1 SCR 4060;
1987) I SCR 40240; 38 DLR (40 th) 2409;
Northwest Territories (1990) 2 SCR
, Labour Standards: The Case cif the
Origin of Freedom of Association
ustrielles, p. 8940; G. England, Some
18)13 Queens Law Journal, p. 180.
ustrial Relations: A Comparative Study
rhe Case 0/ the Freedom to Strike
~nski, "Freedom of Association in
Relations Journal, p. 10.
~D. 87 have been interpreted by the
nventions and Recommendations as
ike. See ILO: Freedom cif Association
. 179; L. Swepston, Human Rights
lugh ILO Supervision (199!l) 137:2
r-----~~------~~==-=-===-.-.~iiiiiiiiO'
Dr. o.r. C. Okene
Obviously, the right to strike is essential to the viability
of a labour union... [IJf the inherent purpose of a
labour organisation is to bring the workers' interests to
bear on management, the right to strike is, historically
and practically, an important means of effectuating that
purpose. A union that never strikes, or which can make
no credible threat to strike, may wither away in
effectiveness ... and cannot survive the pressures in the
present-day industrial world.w
It is submitted as a matter of fact that the whole range of workers'
hUJ11'1n rights could be involved and must be seen to be respected before
an speak of freedom of association in the true industrial relations
sense. A trade union without the right to strike is a "poor" and "weak"
trade union indeed."
8. Collective Bargaining and the Right to Strike
Simply put, collective bargaining involves a process of negotiation
and conclusion of collective agreements on terms and conditions of
employment between employers and workers. The right to collective
bargaining is intimately related to and dependent on the right to
30 United Federation of Postal Clerks v. Blount, 588 (1971) 40040 U.S. 802, p. 885. Similarly,
in Uttar Pradeshia Shramik Maha Sangh v. State of Uttar Pradesh (1960) A.I.R 405, 409
when presented with the question of whether freedom to associate can be equated with
freedom to pursue without restrictions the objects of the association the court said:
"The purpose of an association is an integral part of the right, and if the purpose is
restricted, the right is inevitably restricted. The right to form an association is not a
right to be exercised in a vacuum or an empty or a paper right. The enjoyment and
fulfilment of the right begins with the fulfilment of the purpose for which the
association is formed ...." See S. S. Visweswaraiah, "A Critical Exposition of the Strike
Law in India" (1991) 40:1 Central India Law Quarterly, pp. 70-71. According to Birk,
"Freedom of Association is a classic case of implied fundamental right to strike." See: R.
Birk, "Derogations and Restrictions on the Right to Strike under International Law" in
R. Blanpain (ed.), Labour Law, Human Rights and Social Justice (Deventer: Kluwer Law
International, 2001), p. 96. See: H. M. Seady and P.S. Benjamin, "The Right to Strike
and Freedom of Association: An International Perspective" (1990) 11 (3) Industrial Law
Journal, pp. 4039-4059; C. D'aoust and F. Delorme, "The Origin of Freedom of
Association and the Right to Strike: An Historical Perspective" (1981) 36 Relations
Industrielles, pp. 8940-921; S. Leader, Freedom ofAssociation: A Study in Labour Law and
Political Theory (New B'<iven and London: Yale University Press, 1992), pp. 180-198.
31 S. S. Visweswaraiah, "A Critical Exposition of the Strike Law in India" (1991) 40:1
Central India Law Quarterly, p. 70.
270
 Freedom 0/Association, Collective Bargaining and the Rzght to Strike D

freedom of association and the right to strike. Workers generally ex

associa te with each other for the protection of their economic and other wi
interests. Where they have to confront their employer in wage and fu
other negotiations they have to present a solid front. The only way that
they can meet the employer as equal partners is when they come
through their trade organisations. Negotiation between the two parties
is known as collective bargaining. From the above, it can be concluded
that the right to bargain collectively stems from the right of
association.
However, in some cases negotiations do not always have a
satisfactory outcome. Sometimes the views of the parties are so
diametrically opposed that negotiations break down. It is after the ar
breakdown of negotiations that trade unions ballot their members for a m
mandate to commence strike action. It was accordingly held in Union tt
Bank ofNigeria Ltd.v. Edet" that a strike of this kind was functional to
collective bargaining. Collective bargaining will thus not be effective
without a credible threat of industrial action.s-
Without doubt, the stoppage of work initiated by the union will
affect both sides.v The employer's operation may be shut down with
the attendant loss of revenue and the employees will suffer hardship
because they will be out of work and will be deprived of their salaries
and wages. Both sides will naturally be hurt economically. The
question may therefore arise as to: why do workers choose to bear the
economic loss rather than accept the offer of the employer? The answer
is that the workers resort to industrial action to force the employer to
reach a mutually acceptable agreement about the terms and conditions
of employment. The right to strike helps to equalize workers'
bargaining power and a chance to resist the economic compulsion
inherent to an otherwise unequal wage bargain.w In this sense the '7

economic purpose of strikes plays an important role in collective 38

bargaining. Thus industrial action, or the likelihood of its occurrence, is P

tl
seen as one of the necessary conditions for collective bargaining to ar
C
cs
'2R. Ben-Israel, International Labour Standards: The Case if the Freedom to Strike fe
(Deventer: Kluwer, 1988), p. '27. C
"(199.'3) 4- NWLR (Pt. '287) '288 at '29l. F
34 K.W. Wedderburn, The Worker and the Law (England: Penguin Books, 1965), p. 24-5; cr
S. D. Anderman, Labour Law: Management Decisions and Workers' Rights (London: o
Butterworths, '2000), pp. .'358-.'359. fr
"E. Chianu, Employment Law (Ondo State: Bernicov Publishers Nigeria Ltd, '2004-), p. b
277; T. Novitz, International and European Protection 0/ the Righi to Strike (Oxford: r-.
Oxford University Press, 200.'3), p.77; S. D. Anderman, Labour Law: Management
Decisions and Workers' Rights (London: Butterworths 2000), p . .'358. s
>6S. D. Anderman, Labour Law: Management Decisions and JVorkers' Righis (London:
Butterworths 2000), pp. .'358-.'359. B
271
peBargammg and the Right to Strike
Itrike.31? Workers generally
of their economic and other
teir employer in wage and
lid front. The only way that
rtners is when they come
Ion between the two parties
! above, it can be concluded
stems from the right of
, do not always have a
NS of the parties are so
'eak down. It is after the
: ballot their members for a
accordingly held in Union
this kind was functional to
will thus not be effective
34
nitiated by the union will
n may be shut down with
oyees will suffer hardship
~ deprived of their salaries
hurt economically. The
vorkers choose to bear the
the employer? The answer
n to force the employer to
t the terms and conditions
ps to equalize workers'
the economic compulsion
rgain. In this sense the
iortant role in collective
Iihood of its occurrence, is
. collective bargaining to
Case if the Freedom to Strike
i Penguin Books, 1965), p. 24-5;
and Workers' Rights (London:
ublishers Nigeria Ltd, 2004-), p.
if the Right to Strike (Oxford:
nan, Labour Law: Management
0), p. 358.
r and Workers' Rights (London:
Dr. o.r.c. Okene
exist."? As Kahn-Freund asserts, "The strike is the ultimate sanction
without which collective bargaining cannot exist/" As Kahn-Freund
further noted:
Collective bargaining as we understand it is impossible
without social sanctions ....Collective bargaining cannot
work without the ultimate sanction of the strike, no
more than the law of, say, the sale of goods could work
without the law of bankruptcy.w
The notion that there is a connection between collective bargaining
and the right to strike is widely accepted by labour lawyers and
industrial relations experts. Anderman, as previously mentioned, notes
that:-
The right to strike is understood as a safeguard against
the imbalance of power between individual employee
and employer and it provides a necessary underpinning
to collective bargaining. It has long been recognised
that without a credible threat of damaging industrial
action there is little assurance that management will be
willing to engage in meaningful negotiation with trade
union representatives over disputed issues of
management decision-making.tv
37 Ibid.
3BO. Kahn-Freund, Labour Relations: Heritage and Adjustment (Oxford: Oxford University
Press, 1979), p. 77. As Chamberlain and Kuhn also assert, TTJhe possibility or ultimate
threat of strikes is a necessary condition for collective bargaining." See N. Chamberlain
and J. Kuhn, Collective Bargaining (New York: McGraw-Hill College, 1986), p. 391. As
Cox et al noted: "It is through the appreciation that the risks of losses that a strike can
cause are so great that compromise is cheaper than economic battle: The strike or the
fear of a strike is the motive power that makes collective bargaining operate." See A.
Cox, D. Bok and R. Gorman, Cases and Materials on Labor Law 10 th edn. (New York:
Foundation Press, 1986), p. 4-84-. According to Myburg, "It is one of the ironies of
collective bargaining that the attainment of the object of industrial peace should depend
on the threat of conflict. The reason for this dependence is a functional one. The
freedom to threaten strike action and, if needs be, to carry out the threat is protected,
because in an imperfect world, the system of collective bargaining requires it." See
Myburg, J.F., "100 Years of Strike Law" (2004-) 25 Industrial Law Journal, p. 966.
39 O. Kalin-freund, "Legal Framework" in A. Flanders and H.A. Cleggg (eds.), The
System if Industrial Relations in Great Britain (Oxford: Blackwell, 1954-), p. 10 I.
""S. D. Anderman, Labour Law: Management Decisions and Workers' RIghts (London:
Butterworths 2000), pp. 358-359.
272
 Freedom if Association, Collectiue Bargaining and the Right to Strike

This view was acknowledged by Lord Wright in his famous dictum

in 1942:I-lWithout doubt, the right to strike is not only a logical step in
the collective bargaining process, but also a part of the price paid for
industrial self-regulation of the conditions of employment. It is a
necessary part of the process toward securing the adjustment of
expectations of economic realities.v Giving further justification for the
crucial role of the right to strike in collective bargaining, Collins et at
explain.-

The connection between the right to strike and

collective bargaining is easy to understand. Collective m
bargaining would be rather empty of substance if the rr
employer could say: 'this is my offer - take it or leave if,
or if the employer could say: 'I am proposing to change
the terms of existing collective agreement-and there is
nothing you can do about it, whether you agree or not'.
The strike enables workers collectively to put pressure
on the employer in pursuit of what they see as a just
cause and a way of resisting what they see as unjust
action by the employer.v

Examples of this link are numerous in Nigerian labour Iaw.

Adeogun, for example, says of the nexus between collective bargaining
and the right to strike:-
4.
Conceptually, the right to strike can be seen as an
essential characteristic of collective bargaining. This is
so because the ability of the union to bring direct co
economic pressure on the employer depends largely on cl
th
we
OICrrfier Hand Woven Harris Tweed Co. Ltd V. Veitch [1942J A.C. 435, 463. IS (
o. A. A. Adeogun, "Industrial Relations and the Law" in T.O. Elias, (ed.), Law and
Development (Lagos: University of Lagos Press, 1972), p. 122.
os H. Collins, K. D. Ewing and A. McColgan, Labour Law: Text and Materials (Oxford
and Portland, Oregon: Hart Publishing, 2005), P: 864. According to Sykes: "The strike
is itself a part of the bargaining process.... [TJ he very economic pressure of the strike
is the catalyst which makes agreement possible. Even when no strike occurs, it plays its
part in the bargaining process, for the very prospect of the hardship which the strike oST.
will bring provides a prod to compromise. Collective bargaining is a process of reaching T.I
agreement, and strikes are an integral and frequently necessary part of that process." Nig
See: E.l. Sykes, Strike Law in Australia (London: Sweet and Maxwell, 1982), p. s. T.O
"A. Emiola, Public Servant and the Law (Ile-Ife: University of Ife Press, 1985), p. 67; A. <60
A. Adeogun, "Industrial Relations and the Law" in T.O. Elias (ed.), Law and Development oiA.
(Lagos: University of Lagos Press, 1972), p. 122; T. Fashoyin, "Collective Bargaining in Con
the Public Sector: Retrospect and Prospects" in T. Fashoyin (ed.), Collective Bargaining edn.
in the Public Sector in Nigeria (Lagos: Macmillan Nigeria Publishers, 1987), p.12. But!
273
 Ie Bargainingand the Right to Strike
Vright in his famous dictum
is not only a logical step in
a part of the price paid for
s of employment. It is a
:curing the adjustment of
further justification for the
ve bargaining, Collins et at
~ht to strike and
derstand. Collective
of substance if the
- take it or leave it',
iroposing to change
ement-i-and there is
:r you agree or not'.
rely to put pressure
t they see as a just
they see as unjust
in Nigerian labour law.w
tween collective bargaining
can be seen as an
bargaining. This is
on to bring direct
depends largely on
1942J A.C. 435, 463.
w" in T.O. Elias, (ed.), Law and
p. 122.
'Law: Text and Materials (Oxford
'. According to Sykes: "The strike
ry economic pressure of the strike
when no strike occurs, it plays its
of the hardship which the strike
'argaining is a process of reaching
y necessary part of that process."
and Maxwell, 1982), p. 3.
rsity of Ife Press, 1985), p. 67; A.
). Elias (ed.), Law and Development
ishoyin, "Collective Bargaining in
ishoyin (ed.), Collective Bargaining
a Publishers, 1987), p. 12.
View publication stats
Dr. 0. V C. Okene
the availability or use of the strike weapon .,. [TJhe
presence or threat of a strike induces the parties to
engage in continuous dialogue for a search for an
agreement. That is to say when workers are certain that
they can strike, or employers are conscious of its
occurrence, the seriousness of the dispute is intensified
and, correspondingly, the bargaining power of the
employees is increased.s-
There is little doubt that the right to strike is a very important
instrument in collective bargaining in order to ensure the economic
rights of workers. Indeed, if workers could not in the last resort
collectively refuse to work, they could not bargain coliectively.w In the
absence of the right to strike "collective bargaining" would amount to
"collective begging."47
However, Nigerian law adheres to the principle of free collective
bargaining, yet at the same time suppresses the right to strike. This is a
significant discrepancy. This paper argues that the Nigerian approach of
recognising collective bargaining and yet, ironically, suppressing the
right to strike is anomalous and demonstrates that Nigerian law is
deficient. The right to strike must be strengthened to enable collective
bargaining to perform the important role envisaged in Nigeria's system
of ind ustrial relations.
4, Conclusion
This paper has examined the link between freedom of association,
collective bargaining and the right to strike. As has been seen, there is a
close nexus between freedom of association, collective bargaining and
the right to strike; therefore violations of the right of association
weaken the exercise of the right to strike. Similarly, the right to strike
is crucial for effective collective bargaining.
"T. Fashoyin, "Collective Bargaining in the Public Sector: Retrospect and Prospects" III
T. Fashoyin (ed.), Collective Bargaining in the Public Sector in NIgeria (Lagos: Macmillan
Nigeria Publishers, 1987), p. 12; A. A. Adeogun, "Industrial Relations and the Law" in
T.O. Elias, (ed.), Law and Development (Lagos: University of Lagos Press, 1972), p 122.
<6 O. Kahn-Freund, Labour and the Law, (London: Stevens and Sons, 1983), p. 292
<7A.J.M. Jacobs, 'The Law of Strikes and Lock-outs' in R. Blanpain and C. Engels (eds.).
Comparative Labour Law and Industrial Relations in Industrialized Market Economies (5 th
edn., Deventer: Kluwer, 1993), p. 423; B. Perrins, Trade Union Law (London:
Butterworth, 1985), p. 22.
274