Right to strike: Complete withdrawal of labour

This summary of Hobart Paper 106 – What Right to Strike? by ARTHUR SHENFIELD was published in 1986 and makes very interesting reading.

“1. The unions’ use of the strike weapon is usually justified as an expression of the free man’s fundamental right to withdraw his labour from undesired work. It is this which distinguishes his status from that of a slave, serf, conscript, or prisoner sentenced to loss of liberty. The justification is false.

2. In nearly all known strikes the workers do not withdraw their labour. They withdraw from the performance of the jobs concerned, but they insist that their labour is present and available for those jobs which, they maintain, belong to them and them alone. Hence other workers (‘scabs’, ‘blacklegs’) must not be permitted to take their place.

3. This claim is fundamentally different from the right of a free man to withdraw his labour from undesired work. It denies a right to other workers to seek what jobs they will, it claims the ownership of a job while refusing to perform it, and it allots to the employer the serf-like status of being bound without consent to the strikers. It is because these claims are baseless that they commonly need to be supported by oral abuse and physical violence directed at the ‘scabs’ and the employers.

4. It follows that the true right to strike is the right to withdraw from a job, i.e. the right of self-dismissal. Unions which operated in accordance with this right would be very different from existing unions, but would have the valuable function of improving their members’ productivity and their ability to find the optimum status and rewards open to them in a free labour market. Such unions would fully respect the lawful rights of non-members and employers.

5. The laws governing the status of unions and the effects of strikes upon the rights of employers and employees have been beset by confusion throughout the long period since unions ceased to be unlawful conspiracies in restraint of trade. A strike called without due notice is clearly a breach of contract, but the legal effect of a strike called with due notice has puzzled eminent judges. A union’s status in law is sui generis. It is not a body corporate, but it has been endowed with some, though not all, of the rights and powers available to bodies corporate.

6. The most confusing features of union status and powers arise because Parliament has given them various immunities from laws applicable to all other persons and bodies, instead of developing a positive system of rights and duties. The legislation of 1980-82-84 has constrained and limited, but not replaced, the system of immunities. The replacement of the immunities by a positive system of rights and duties must be a necessary part of the reform of the legal status of unions.

7. The prime source of the historical confusion about union law is the belief that the individual worker’s bargaining power is inevitably weaker than that of the employer. The foundations of this belief were long ago exploded by economic analysis, but it seems to be so obviously true that it retains a powerful grip on the public mind, as once did for the same reason the belief in the flatness of the earth and the geo-centricity of the solar system. In fact, wherever a labour market has been allowed to be free, the balance of advantage over the long term, and subject to business cycle fluctuations, has lain with the worker.

8. The idea in the public mind that unions of the existing kind serve the worker well is supported by a belief that they raise the worker’s productivity, and protect his human dignity against tendencies to treat his labour as a mere commodity of commerce. These beliefs fail to survive examination.

9. A programme for reform of the union and strike-threat system must recognise that unions have become power systems which, by way of promise of benefit to members, first climb on the worker’s back and from that coign of vantage seek to climb on the back of the whole society. The workers thus become mere foot-soldiers in a war against society. This is why the unions tend conspicuously to be undemocratic bodies in organisation and use of power, unless the law forces some democracy upon them.

10. The Paper concludes with 14 proposals for reform of the union system, intended to protect the right of the worker to decide freely to join or not to join a union, and to turn the union into a body giving true service to the worker in a free labour market.”