Question

Rubber stuff is medium-sized business which manufactures rubber mats for cars and for households. There are some 15 workers in the factory, including the office staff and a manager. The workers belong to various unions according to the type of work they do. The workers on the factory floor are employed under an enterprise agreement which their unions negotiated some 18 months previously.

In the press there have been some reports of dangerous fumes that may be emitted from rubber products, particularly during the production process before a final product is sealed in the factory. There are scientific means of measuring any fumes or emissions from rubber, though this requires extensive testing. Rubber stuff management believes any testing will disrupt production and cause the business to run behind on a valuable contract it is currently completing. A request from the principle union for an inspection of the workplace by a scientist and a union official from union headquarters has been refused.

The union believes that the workers are now subject to a dangerous work situation and should discontinue working until the matter is resolved. The management believes that the union is calling for unlawful industrial action and is breaching the relevant employment contract. The management has promised to investigate the issue, but not until the end of the current production contract.

Question:  

Discuss the rights of both the business and the union to deal with this industrial issue.  Explain whether the union has the right to call a strike, and outline the rights of the business to prevent such action.The IRAC method must be used in resolving this problem scenario. Also, reference must be made to relevant legislation and case laws.    

Answer 1

A strike action, also called labor strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the Industrial Revolution when mass labor became important in factories and mines. In most countries, strike actions were quickly made illegal, as factory owners had far more political power than workers. Most western countries partially legalized striking in the late 19th or early 20th centuries.

                        Most strikes are undertaken by labor unions during collective bargaining. The object of collective bargaining is to obtain a contract (an agreement between the union and the company) which may include a no-strike clause or penalizes the union and/or the workers if they walk out while the contract is in force. The strike is typically reserved as a threat of last resort during negotiations between the company and the union.

1. A strike may consist of workers refusing to attend work or picketing outside the workplace to prevent or dissuade people from working in their place or conducting business with their employer.

2. Less frequently workers may occupy the workplace, but refuse either to do their jobs or to leave. This is known as a sit-down strike.

3. A similar tactic is the work-in, where employees occupy the workplace but still continue work, often without pay. This tactic attempts to show they are still useful, or that worker self- management can be successful. This occurred with factory occupations in the Bienno Rossi strikes-the “two red years” of Italy from 1919-1920.

4. Another unconventional tactic is work-to-rule, in which workers perform their tasks exactly as they are required but no better. For example, workers might follow all safety regulations in a way that it impedes their productivity. Such strikes may be a form of “partial strike” or “slowdown. “

Most strikes called by unions are somewhat predictable; they typically occur after the contract has expired.

a. Strike preparation: Companies which produce products for sale will frequently increase inventories prior to a strike. Salaried employees may be called upon to take the place of strikers, which may entail advance training. If the company has multiple locations, personnel may be redeployed to meet the needs of reduced staff.

b. Companies may also take out strike insurance prior to an anticipated strike, helping to offset the losses which the strike would cause.

c. One of the weapons traditionally wielded by already-established unions is strike action. Some companies may decline entirely to negotiate with the union, and respond to the strike by hiring replacement workers.

d. Another counter to a strike is a lockout, the form of work stoppage in which an employer refuses to allow employees to work.

Most strikes called by unions are somewhat predictable; they typically occur after the contract has expired. However, not all strikes are called by union organizations. Some strikes have been called in an effort to pressure employers to recognize unions. Other strikes may be spontaneous actions by working people. Spontaneous strikes are sometimes called “wildcat strikes;” they were the key fighting point in May 1968 in France. Most commonly, they are responses to serious (often life-threatening) safety hazards in the workplace rather than wage or hour disputes, etc.

                                  Whatever the cause of the strike, employers are generally motivated to take measures to prevent them, mitigate the impact, or to undermine strikes when they do occur. Companies which produce products for sale will frequently increase inventories prior to a strike. Salaried employees may be called upon to take the place of strikers, which may entail advance training. If the company has multiple locations, personnel may be redeployed to meet the needs of reduced staff.

                       Some companies negotiate with the union during a strike; other companies may see a strike as an opportunity to eliminate the union. This is sometimes accomplished by the importation of replacement workers, strikebreakers, or “scabs. ” Historically, strike breaking has often coincided with union busting. It was also called “Black legging” in the early twentieth century, during the Russian socialist movement.

                                            IRAC stands for Issue-Rule-Application-Conclusion, and like a soapbox salesman with a miracle cure, IRAC boasts a very appealing claim: to provide a step-by-step framework to solving legal problems.It works like this: you have an issue. Perhaps a border dispute involving lemon tree branches felling their fruit in a disgruntled neighbour’s yard. Or perhaps a mere misunderstanding over the launch of a ‘communications satellite’ from a country equipped with nuclear weapons. Whatever your issue, certain rules – certain laws – will apply. For the lemon tree neighbour: law of trespass or nuisance. Add a little negligence for good measure. Perhaps the offending tree might even trigger some obscure part of Real Property Law, like Old System Title, the bane of property lawyers everywhere.

                                          In the IRAC method of legal analysis, the "issue" is simply a legal question that must be answered. An issue arises when the facts of a case present a legal ambiguity that must be resolved in a case, and legal researchers (whether paralegals, law students, lawyers, or judges) typically resolve the issue by consulting legal precedent (existing statutes, past cases, court rules, etc.). For example, suppose the law required that a lawsuit had to be filed within one year of an allegedly negligent act.

The Rule section of an IRAC follows the statement of the issue at hand. The rule section of an IRAC is the statement of the rules pertinent in deciding the issue stated. Rules in a common law jurisdiction derive from court case precedent and statute. The information included in the rules section depends heavily on the specificity of the question at hand. If the question states a specific jurisdiction then it is proper to include rules specific to that jurisdiction. Another distinction often made in the rule section is a clear delineation of rules that are in holding, and binding based on the authority of the hierarchy of the court, being ratio decided, and being the majority ruling, or simply persuasive.

The Application (or Analysis) section of an IRAC applies the rules developed in the rules section to the specific facts of the issue at hand. This section uses only the rules stated in the rules section of the IRAC and usually utilizes all the rules stated including exceptions as is required by the analysis. It is important in this section to apply the rules to the facts of the case and explain or argue why a particular rule applies or does not apply in the case presented.

simply making it a close call and identifying whether it is decided by the tribunal of fact or is a matter of law to be decided by the judge. The Conclusion section of an IRAC directly answers the question presented in the issue section of the IRAC. It is important for the methodology of the IRAC that the conclusion section of the IRAC not introduces any new rules or analysis. This section restates the issue and provides the final answer. Conclusion is a vital process where the final calls are distributed upon the previous cases and are redefined by the judge.