Right Against Right: Are Current Legal Constraints On Trade Unions Justified?

Abstract

This paper is concerned with the ethics of the law, and the particular case of law as it applies to strike action. An ethical critique of the law considers whether the law prohibits what morally should be prohibited, or enables what morally should be enabled. The paper argues that workers have a moral right to strike, derived from a right to wage justice that can, in some circumstances, only be defended by taking strike action. This right will conflict with the right of employers to have employees do what their contracts of employment require. Ethical theory suggests that moral rights are always prima facie, and must be weighed when in conflict to determine what is acceptable conduct in any given situation. Current industrial relations law and the common law seem to give overriding weight to the duty of fidelity that employees owe to their employer. The paper argues that workers have a right to wage justice that may outweigh employees duties to employers in some circumstances. This provides a moral reason to reform our industrial relations law. But, though our law could and should be better, the paper concludes with some reservations as to the practical importance of industrial relations law reform.