The Right to Strike during a Pandemic

2 October 2020

The right to strike has come to be considered one of the defining features of a democratic society and is now considered an established aspect of the right of freedom of association. Nonetheless, the manner and timing of strikes is frequently the subject of fierce debate at national and international level, and remains one of the most discussed aspects of labour law.

The unprecedented scale, and duration, of the Covid crisis has sharpened the lines drawn by the different stakeholders, like medical front liners and health ministries, in any number of strike scenarios and will test the suitability of existing laws to govern this new situation. In Malta, there are two constitutional provisions which deal, indirectly, with the right to strike, both of which are found in Chapter 4 – the Chapter containing the Fundamental Rights and Freedoms of the Individual. Article 35 lays down the prohibition of forced labour, while Article 42 establishes the freedom of assembly and association. The first sub-article of the former seems rather categoric, and reads as follows: “No person shall be required to perform forced labour.” However, sub-article (2) then goes on to list some exceptions to this fundamental human right. The final clause falls squarely within the scope of this discussion. It excludes from the definition of forced labour “any labour required during a period of public emergency or in the event of any other emergency or calamity that threatens the life or well-being of the community.”

In 1977, as many will recall, the professional body representing the interests of doctors in Malta (the MAM) ordered partial strike action which affected the outpatients departments of government hospitals. The government of the day, led by Mr. Dom Mintoff, reacted by locking out the striking doctors from government hospitals and enacted a far-reaching law which provided that no private hospital could employ any medical doctor who had resorted to industrial action in government hospitals, not even after their contractual relationship with Government was revoked.

The MAM sued Mr.Mintoff and his government (Dr Walter Cuschieri et vs Prime Minister (Constitutional Court) (30 November 1977) and argued, amongst other things, that this law was a form of forced labour. In brief, the Court applied the emergency exception without delving into the question of who had caused the emergency; whether it was the striking doctors who were obeying a legitimate order of their trade union, or the Government which had locked them out from the entire hospital. The Court held that whenever there is an emergency, regardless of the cause of said emergency, the constitutional safeguard against forced labour (Article 35) does not apply.

Article 42, on the other hand, guarantees that “no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right peacefully to assemble freely and associate with other persons and in particular to form or belong to trade or other unions or associations for the protection of his interests.” This was another point of contention in the Walter Cuschieri vs PM case, and even here the court gave a restrictive interpretation. The issue was whether this right entitled MAM members to obey a legitimate trade union directive. The Court decided that since the striking doctors were still entitled to be members of their Medical Association, and they could still resort to strike action, then no breach had occurred and they were not entitled to constitutional protection if they resorted to strike action: “This Court does not consider that appellants as members of a trade union were deprived of their capacity to strike to protect by lawful means their occupational interests. They were and still are active members of a trade union and could through such union fully negotiate with Government in the dispute which unfortunately arose […] they were also in a position to strike as in fact they did, so much so that they are still, after six months, on strike till the present day. When they acted so, the other part retaliated; in general terms, lock out is nothing but the logical reaction and the symmetrical term for a strike in the balancing of opposing forces.”

The unprecedented scale, and duration, of the Covid crisis has sharpened the lines drawn by the different stakeholders, like medical front liners and health ministries, in any number of strike scenarios and will test the suitability of existing laws to govern this new situation.

As time passed, the restrictive tone of this judgement was not upheld by the courts and in 1988, in Charles Spiteri vs Minister for Public Buildings et (CC) (5 October 1988), the court held that the discriminatory treatment of a union official following participation in a strike action amounted to a violation of his right to associate. The Court ruled that “The word ‘hinders’ used in article 42(1) of the Constitution has in itself a wide meaning and is not restricted in any way […]; since it was this circumstance and applicant’s activities as a member of the said trade union to protect his interests which led to this different treatment compared with his colleagues. The Court therefore holds that in this case there was an infringement of the right to association envisaged in article 42(1) of the Constitution.”

Another central constitutional provision in this discussion is article 47 of the Constitution; the so-called interpretation clause. Amongst other things, it defines what a ‘public emergency’ is. Essentially, such a period subsists whenever Malta is at war, or when there is a proclamation of such by the President acting on the advice of the Government of the day, or finally when there is a Parliamentary resolution approved by two-thirds of all its members declaring that the democratic institutions of Malta are threatened by subversion. It is the second instance which is of particular relevance to this debate. Such a definition is of paramount importance when one considers that in such periods of time, certain fundamental human rights are ‘suspended’. For instance, as has already been noted, if there is a formal declaration in this sense, labour can be imposed on members of the community without this amounting to forced labour. An issue which arose recently between the Government and MAM falls squarely within this discussion. The latter association called a general strike after negotiations with the Government to ban mass events fell through. Such a strike was only possible because Government had revoked the formal declaration of a public emergency, even though the pandemic was, and remains, anything but over. Therefore, by lifting the formal proclamation of a public emergency, Government effectively allowed the doctors to go on strike, as the derogation on forced labour no longer holds. In the absence of a formal declaration of a public emergency, the only way Government can prohibit industrial action is through recourse to the courts, which could qualify such a situation as an “emergency or calamity that threatens the life or well-being of the community”, as it had done in the Walter Cuschieri case

The European Convention, on the other hand, deals with this matter in Article 15, which reads as follows: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” The European Court of Human Rights gave a definition of what constitutes a public emergency in Lawless v Ireland (14 November 1960): “in the general context of Article 15 (art. 15) of the Convention, the natural and customary meaning of the words “other public emergency threatening the life of the nation” is sufficiently clear; whereas they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed.” It is noteworthy that while the Convention’s derogation applies to all rights except those relating to life, inhuman treatment and the non-retroactivity of penal laws, the Constitution of Malta limits such derogation only to personal liberty and forced labour. Furthermore, in any case – pandemic, public emergency, or neither – the provisions of the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) hold. This law specifically deals with industrial actions and trade disputes. Amongst other things, it lists a number of workers which Government considers to be essential workers, limiting the rights of some to resort to strike action (such as Air Traffic Controllers), while in most cases, establishes a minimum number of workers required to keep essential services such as health, electricity and water supply going.

While it is clear that the law gives considerable power and discretion to the Government in terms of limiting the right to strike in times of public emergency, it is imperative for the sake of fairness and justice that the same Government acts with consistency. It would be manifestly wrong to deal with essential workers and front liners in a manner appropriate to the extraordinary circumstances we collectively find ourselves in, while treating other sectors – with perhaps stronger economic interests – with a business-as-usual attitude.