"Level up" the right to strike across Europe!

Submitted by martin on 1 January, 2011 - 11:01 Author: Stan Crooke
Strike

“There will be no return to the trade union laws of the 1970s. Laws banning secondary and flying pickets, on secondary action, on ballots before strikes and for union elections – on all the essential elements of the 1980s laws – will stay,” wrote the then Labour Party leader Tony Blair in an article published in the “Daily Mail” in 1997.

In the same article Blair went on to stress: “Even after the changes the Labour Party is proposing in this area (trade union rights), Britain will remain with the most restrictive trade union laws anywhere in the western world.”

This was a shameless ‘pitch’ to the paper’s core anti-union readership, appealing for a Labour vote on the basis that a Labour government could be relied upon to keep the unions under control by maintaining the Tories’ anti-union laws.

But how accurate was Blair’s boast? Are the British anti-union laws really “the most restrictive laws” in Europe? Or are there European Union (EU) member-states in which trade unions face even greater obstacles to effective organisation than in Britain?

One way of answering those questions is to compare the right to strike (or the limitations imposed on that right) in the different EU member-states. Strike action is, after all, the most basic weapon at the disposal of trade unions in seeking to impose their agenda on employers and the state.

In the majority of EU member-states the right to strike is explicitly guaranteed by the country’s constitution.

Article 57 of the Portuguese Constitution, for example, states: “The right to strike shall be safeguarded.” Article 59 of the Polish Constitution states: “Trade unions shall have the right to organise workers’ strikes.” And Article 51 of the Lithuanian Constitution states: “Employees shall have the right to strike to protect their economic and social interests.”

In two EU countries (Germany and Finland) the right to strike enjoys an ‘indirect’ constitutional guarantee. In those countries the right of freedom of association is constitutionally guaranteed. By extension, the right to take part in an association’s activities is also guaranteed. In the case of an ‘association’ of workers (i.e. a trade union), those guaranteed activities include strike action.

In Austria, Belgium, Luxembourg and the Netherlands there is no guarantee of the right to strike built into the constitution, neither directly nor indirectly. That right is guaranteed, however, by caselaw developed by the courts in each country.

But in Britain, along with Ireland and Malta, there is no constitutional right to strike, nor any fundamental right to strike at all. Instead of a positive legal right to strike, unions and their members who take strike action are protected from being pursued for damages by “immunities” (provided that the required legal procedures have been followed).

It might be logical to assume that unions in countries which constitutionally guarantee the right to strike do not encounter the kind of problems faced by British unions when organising strike action. In fact, this is not necessarily the case.

Most national constitutions which guarantee the right to strike also qualify the circumstances under which that right can be exercised. In legal terminology, the constitutional right to strike, where it exists, is not an “absolute right” but a “qualified right”.

For example, the right to strike can be exercised only “in accordance with conditions and procedures established by law” (Bulgaria), “within the limits determined by the act regulating that right” (Hungary), “within the limits of the laws regulating it” (Italy), “subject to limitations specified by statute” (Poland), or “except as otherwise provided by law or ensuing from an agreement” (Sweden).

Constitutional generalities along the lines of “workers have the right to strike, but …” are therefore a poor guide to assessing how free, or unfree, unions and their members are to take effective strike action. A more useful approach is to measure the constitutionally proclaimed “right to strike” against more specific criteria.

Who has (or does not have) the right to strike? What forms of strike action are legal (or illegal)? What (if any) procedure must be followed before strike action can occur? What, if any, are the rights and obligations of unions and their members when out on strike?

The police and the armed forces in Britain are banned by law from striking. Prison officers and staff at the GCHQ spy centre were also banned from going on strike by the Tories. Although those bans were scrapped by the last Labour government, they were replaced by ‘voluntary’ agreements by the unions not to resort to strike action.

British legal restrictions on who can go on strike, subject to the relevant legal requirements having been met, are generally comparable to equivalent restrictions in other EU member states.

The armed forces, the police and the gendarmerie are banned from striking in Cyprus, for example, as too are members of the armed forces and the police in Slovenia. Members of the armed forces and the police, plus air traffic controllers and some employees of emergency services, are not allowed to strike in Malta.

In Romania military personnel, judges and prosecutors are banned from striking, while in Poland strikes by the police, the armed forces and the secret services, and those employed by the national fire headquarters, the courts and public prosecutors’ offices are prohibited.

But some EU member-states have much more far-reaching lists of categories of workers who are either banned from going on strike or restricted in their entitlement to take strike action.

Slovakia bans strikes in nuclear facilities, crude oil facilities, and areas of employment where life or public health might be put at risk by strike action. Slovak civil servants in managerial positions have only a limited right to strike. Similar, but somewhat broader, restrictions apply in the Czech Republic.

In Croatia the possibility of strikes by the armed forces, the police, health sector employees, railway workers, and post and telecommunications staff is restricted by special legislation. In Luxembourg, whole swathes of the civil service have no right to strike: members of the diplomatic services, the judiciary, senior administrators, directors of educational establishments, and the police.

Despite the right to strike being guaranteed by the Estonian constitution, this right does not apply to employees of governmental agencies, other state bodies, local government, the armed forces, courts, the firefighting and rescue services, and the civil service.

And on paper at least, extensive restrictions on who can exercise unfettered strike action are built into the Greek constitution:

“Strikes in any form whatsoever are prohibited in the case of judicial functionaries and those serving in the security forces. The right to strike shall be subject to specific legal limitations in the case of public servants and employees of local government agencies and of public law corporate bodies as well as in the case of employees of all types of enterprises of a public nature or of public utility, the operation of which is of vital importance in serving the basic needs of the social entity.”

Restrictions on who is entitled to take strike action, examples of which can be found in various states across the EU, add a further layer of qualifications to the nominal right to strike proclaimed by the constitutions and caselaw of EU member-states. Britain is not the worst offender in this respect.

Or at least not yet: some Tories and Lib-Dems are becoming increasingly vocal in demanding a ban on strikes in essential services. Strike action against cuts in public spending in 2011 will probably see such demands raised with renewed vehemence.

In Britain a strike is covered by “immunities” (in short: it is legal) only if it is in furtherance of a “trade dispute”, as defined in very narrow terms by the Tories’ anti-union legislation. Typical “trade disputes” relate to issues such as pay, hours, other terms and conditions of employment, work allocation, dismissals and facilities for union officials.

Strikes not in pursuit of a “trade dispute” do not enjoy “immunity” (in short: they are illegal). Examples of illegal strike action in Britain include: solidarity strikes, strikes in pursuit of a political goal, strikes to win trade union recognition, strikes to force suppliers to recognize a union, and strikes in support of anyone dismissed for taking unofficial (illegal) industrial action.

This is at the opposite end of the spectrum from Portugal, where the constitution not only guarantees the right to strike but also goes on to state: “Workers shall be entitled to decide what interests are to be protected by means of strikes. The sphere of such interests shall not be restricted by laws.”

Unlike in Britain, solidarity strikes are legal in most (but not all) EU member-states. In some states, such as Belgium, Greece and Denmark, solidarity strikes in support of workers abroad can be legal as well. In Finland, Hungary and Sweden it is actually more straightforward to take part in a solidarity strike than in an ‘ordinary’ strike.

(This is because in these three countries the various procedural obstacles to taking strike action apply only to strike action against one’s own employer They do not apply to strikes against an employer other than one’s own.)

But even where solidarity strikes are legal, they are legal only if they meet the criteria laid down in legislation or by caselaw.

Solidarity strikes must be directed at an employer who can influence the outcome of the primary dispute (Czech Republic), the primary dispute must be legal and the solidarity strike capable of influencing its outcome (Denmark), or the primary action must be lawful and the solidarity strike necessary, fair, reasonable and proportionate (Germany).

The solidarity action must be concerned with the conclusion or implementation of a collective agreement (Latvia), the primary dispute must be lawful and legitimate (Portugal), or the workers engaged in the solidarity strike belong to the same union confederation as those in the primary dispute, give at least 48 hours notice of their strike, and do not strike for more than 24 hours (Romania).

In most EU member-states political strikes are illegal. But there are exceptions: Denmark (provided the strike is “short” and for a “reasonable cause”), Finland (as with solidarity strikes, easier to organize than ‘ordinary’ strikes – see above), Belgium (provided the strike concerns an employment-related matter) and Italy (provided that the strike is not aimed at
subverting the constitutionally established democratic system).

Although political strikes in Norway are technically illegal, short stoppages have been “tolerated”. In France courts have ruled in the past that strikes intended as a criticism of government policy are illegal and an abuse of the constitutional right to strike. But such strikes are now deemed a legitimate exercise of the right to strike.

In Britain the main legal impediment to organizing ‘run-of-the-mill’ strike action is not the outright outlawing of solidarity strikes and political strikes. It is the obstacle course created by the anti-union laws which has to be overcome by a union in attempting to organize strike action in furtherance of a dispute meeting the legal definition of a “trade dispute”.

Except where less than 50 members are involved, the union must organize a postal ballot of all members liable to take part in strike action. The ballot paper must conform with set legal requirements. The employer must be given seven days notice of the ballot, and receive a copy of the ballot paper at least three days before the ballot opens.

The trade union must tell the employer how many people are being balloted, what grades they belong to, the workplaces of these employees, how many employees in each grade and each workplace pay union dues by check-off, and an explanation of how these figures have been arrived at.

Once the votes have been counted, the employer must be given detailed information about the result “as soon as reasonably practical” (in practice: more or less straightaway), and so too must the members balloted.

The employer must be given at least seven days notice of a strike, which must be called within 28 days of the ballot result. Notice of the strike action must contain details about the numbers, categories and workplaces of those who will be striking.

The way in which law courts have interpreted the anti-union laws has added to the problems which British unions encounter in trying to organize legal strikes.

Strikes have been declared illegal where there has been a minor delay in informing the employer of the ballot result, where a union failed to inform its members individually (as opposed to via its website and noticeboards) of a handful of spoiled ballot papers, and where the inaccurate information provided by a union to an employer is due to the employer having given the union that inaccurate information.

Throughout the EU trade unions are required to follow set procedures laid down by law in order to be able to exercise their legal right to strike. In that sense, there is nothing unique about the British anti-union laws and the impediments which they place in the way of strike action.

In fact, in some EU member-states the procedural requirements for legal strike action are arguably even worse than those in force in Britain.

Roughly speaking, other EU member-states fall into three groups: the ex-Stalinist states (highly restrictive); the Scandinavian states (based on a tradition of ‘social partnership’ and ‘industrial peace’); and Western European states (involving varying degrees of state regulation of pre-strike procedures).

In Bulgaria all means of negotiation must have been exhausted before the legally required ballot can be conducted. The employer must be given seven days notice of the ballot. At least three days before any strike action the employer and union must reach agreement on what, if any, emergency services need to be maintained during the strike.

Similar requirements apply in the Czech Republic: mediation and arbitration procedures must have been exhausted; a strike ballot must have been conducted (with at least 50% of the workforce participating, and at least 66% of the turnout voting in favour of strike action); and the employer must have been given at least three days notice of the numbers and workplaces of those who will be striking.

Even more stringent procedures apply in Lithuania. The union must submit its demands in writing to the employer. The employer must respond within seven days. Compulsory (attempted) conciliation then takes place. If that fails, then a strike may be called – but only in relation to the demands not met during the conciliation talks. And that is just the start.

A strike ballot is compulsory and can result in strike action only if two thirds of the entire workforce (the workforce – not the turnout) vote in favour, or, where only one section of a workforce is being balloted, only if two thirds of that section vote in favour and that two thirds amounts to half of the entire workforce.

Written notice of strike action must be given to the employer at least seven days before it starts, except on the railways, in urban public transport, civil aviation, communications, the energy industry and enterprises with continuous production cycles – where 14 days notice of strike action is required.

A less draconian approach characterizes the Scandinavian countries, one based on a tradition of employers and unions supposedly working together to promote ‘industrial peace’ and ‘social partnership’. In fact, collective agreements in Scandinavian countries often contain what is known as a “peace obligation” (in more straightforward language: a no-strike clause).

(And, writing about those countries from the outside, it is not always entirely clear where the line lies between state restrictions on the right to strike and restrictions on the right to strike which have been mutually agreed by employers and unions.)

In Norway, for example, the “peace obligation” in collective agreements means that strikes can occur only when an agreement comes up for renewal. No ballot is required before a union calls a strike, but 14 days notice of a strike must be given to the employer. The National Mediator can suspend the start of a strike for a maximum of 16 days, in order to allow time for further talks.

Similarly, the “peace obligation” in Sweden means that strikes are permissible only on the expiry of a collective agreement, or in relation to an issue not covered in the agreement. No strike ballot is required. At least seven days notice of a strike should be given to the employer and the Mediation Agency (which can postpone the start of the strike for up to 14 days), but a failure to do so does not make the strike illegal.

In Denmark, where the same idea of a “peace obligation” restricts strikes to situations where a new collective agreement is sought by the unions, strike action must be approved by at least 75% of those voting at “a competent assembly” of the organization calling the strike. Notice of the strike action must be given to the employer 14 days before it starts, and again 7 days before it starts.

Once a collective agreement between an employer and a union has been signed in Iceland, any strike is unlawful until expiry of the agreement. Strikes conducted before attempts at conciliation have been exhausted are also unlawful. Workplace or postal ballots must be organised before strikes can be held, and seven days notice must be given of any strike action.

Strikes in Iceland can be unilaterally postponed by the employer(!) for up to 28 days, provided that 3 days notice is given to the relevant trade union, in order to allow further time for conciliation and mediation

In western and southern Europe there are wide-ranging variations in the procedural requirements which must be fulfilled in order for a strike to be legal.

In Belgium there are no legally set procedures which must be followed in preparing strike action. Instead, procedures are established by mutual agreement between unions and employers. Such procedures generally contain the requirement that efforts at arbitration and conciliation must be exhausted before strike action commences.

(But this does not apply to police strikes. Belgian police can strike only if the strike has previously been announced by a recognised trade union and if a negotiations committee has attempted to resolve the issue which has triggered the strike.)

Belgian trade unions do not have a “legal personality”. This means that they cannot be taken to court for, say, organising strike action in breach of a collective agreement. But, in theory at least, individual trade union members could be dismissed or sued for damages where strike action occurs in breach of a collective agreement.

Private sector strikes in France are not subject to any restrictions, either by law or by the terms of a collective agreement. There is no obligation to engage in pre-strike conciliation procedures, no requirement to give notice of a strike, and no requirement that strike action be taken only as the “ultima ratio” (last resort).

In fact, the right to strike in France is an individual right rather than a trade union right, meaning that two or more private-sector workers can strike at will. (The right to strike is a constitutionally guaranteed individual right. But only collective action, involving at least two workers, counts as strike action. A refusal to work by a single employee counts as a strike only if he/she is the sole employee in an enterprise.)

French public sector strikes, on the other hand, are subject to certain legal requirements: only trade unions can call strike action; at least five days notice of the strike action has to be provided; that notice must state the reasons, locations and duration of the strike; and there is an obligation on the union and the employer to negotiate during those five days.

In Germany there is no legislation which concerns the exercise of the right to strike. Instead, general principles which unions are required to observe have been established by the caselaw of the Federal Labour Court. Such principles are more concerned with the aims and results of strike action than with the procedures to be followed prior to strike action occurring.

Strikes must be “proportionate” to the goal pursued – ones which entail the “annihilation or erosion of the employer’s assets” are forbidden – and cannot start as long as negotiations are still taking place, even if the period of the “peace obligation” laid down by collective agreements in Germany is exhausted. The “ultima ratio” principle applies to strikes in Germany, i.e. they can be used only as a last resort.

Only a body entitled to conclude a collective agreement (in practice: a trade union) can call a strike in Germany. All strikes must have as their aim the conclusion of a new collective agreement. Any strike in pursuit of an aim that cannot be legally part of a collective agreement is unlawful, as too is any strike which seeks to amend an existing collective agreement (as such a strike would be in breach of the “peace obligation”).

The procedural requirements for organising lawful strike action in the Netherlands are comparable to those in operation in Germany and Scandinavia. (The so-called ‘polder model’ of industrial relations which exists in the Netherlands is really only the Dutch version of the Scandinavian idea of ‘social partnership’.)

And, as in Germany, it is caselaw rather than statutory law which defines what steps have to be taken in order to carry out legitimate strike action.

Strikes are illegal if “major procedural rules” have been breached. Examples of this are strikes which are initiated before any substantial negotiations have taken place, and strikes which breach a “peace obligation” clause in an existing collective agreement. The principles of “proportionality” and “ultima ratio” also apply to strikes in the Netherlands.

In Spain and Portugal, on the other hand, the legal restrictions on exercising the right to strike are of a much more specific nature and focus on the procedural requirements which must be fulfilled.

Although a “peace obligation” can be stipulated by collective agreements in both countries, any restriction on the right to strike in the employee’s contract of employment is illegal. Strikes can be initiated in both countries not just by trade unions but also by unionised or non-unionised groups of workers.

In Spain workers on strike must set up a strike committee consisting of no more than 12 representatives from among themselves. A similar provision applies to strikes by non-unionised workers in Portugal.

Under Portuguese law the decision to strike must also have been approved in a secret ballot held at a meeting called by at least 20% of the workers involved, or by at least 200 workers. The decision to strike is valid only if at least 51% of the workers involved attend the meeting, and a majority of them vote to strike.

In both countries written notice of strike action must be given to the employer five days in advance, or ten days in advance in the case of strikes in the public sector. In Spain the government is empowered to instruct strikers to return to work for a maximum of two months, and also to end a public sector strike by imposing compulsory arbitration. Comparable powers – known as “civil requisition” – can be invoked by the Portuguese government.

Once British unions have navigated their way through the minefield of the anti-union laws and initiated strike action, they face further obstacles in trying to conduct such strike action in the most effective way possible.

Picketing must be peaceful, limited in numbers, and take place only at or near the strikers’ workplace. Appeals for “blacking” and solidarity strikes are illegal. And workers on strike for more than 12 weeks can be fairly dismissed.

But, unlike the situation in many other EU member-states, there is no obligation on strikers under British law to maintain a minimum level of service while out on strike.

Under the Belgian Essential Services Act of 1948, for example, unions and employers, in both the public and private sectors, must meet as a Joint Committee and decide what “minimum services” should be maintained during a strike, in order to meet the requirements of the “performance of the public interest.” And Belgium is far from being a unique case.

Unions and employers in Croatia must jointly decide what “essential activities” will continue during a strike. In Estonia essential services or production must be maintained by the unions in enterprises and agencies which meet the “primary needs” of the population. When strike action occurs in essential services in Iceland, unions have to define exemptions from that action before it starts.

Unions in Greece must provide the minimum staff needed to maintain the safety of installations and prevent damage or accidents. A sufficient level of service must be maintained by the unions during strikes in essential services in Hungary. And one third(!) of the workforce must be available to maintain public services, including public transport, water supplies and energy production and distribution, during strikes in those sectors in Romania.

In Bulgaria unions and the employer must sign a written agreement at least three days before the start of a strike specifying any steps which need to be taken to ensure that the following are not put at risk: the life and health of people in need of urgent medical help; the production, distribution and supply of gas, electricity and heating; public transport; radio and television broadcasting; phone services; public or personal property; the natural environment; and public order.

Comparing the limitations imposed on the right to strike by constitutional clauses, legislation and caselaw in the different EU member-states does not provide a definitive basis for assessing the extent to which unions are free (or unfree) to carry out strikes.

Some laws may remain on the statute book but have fallen into abeyance. Other laws may be generally active but not used in certain disputes for fear of provoking an escalation of the strike action.

Whatever restrictions may apply to political and solidarity strikes in Spain, Portugal and France, for example, recent months have seen general strikes in all three countries in opposition to government attempts to attack living standards and public services in order to make workers pay for the ongoing international capitalist crisis.

Caselaw is not a fixed quantity either but something constantly evolving, sometimes bringing gains for trade unions (as in the Netherlands, where caselaw recognised the right to strike only in 1986) but more likely bringing further restrictions on the right to strike (as in Britain and in various judgements of the European Court of Justice).

Even allowing for such qualifications, the level of restrictions imposed on strikes by legislation and the courts does provide a rough measure of how far unions are able to exercise the right to strike in the member-states of the EU.

Britain probably does not have “the most restrictive trade union laws anywhere in the western world” if “western world” is equated with the entirety of the EU 27 member-states. The same does not hold true if “western world” is equated solely with western Europe.

But whatever position Britain might occupy in a ‘league table’ based on the right to strike – somewhere near the relegation zone, if not in the relegation zone itself – is secondary to the more basic point that British laws governing strikes were consciously designed to frustrate the ability of unions to organise strikes, and continue to be used for that purpose.

The fact that even more severe restrictions may be in force in the ex-Stalinist EU member-states does not make the British anti-union and anti-strike laws any the less an attack on the most basic right of trade unionists – to withdraw their labour.

And even in those states where the right to strike is less fettered than it is in Britain, varying levels of state-sanctioned restrictions nonetheless obstruct the free exercise of the right to strike.

Throughout Europe trade unions face limitations on the right to strike. Transforming that right from an empty constitutional phrase into an unqualified reality will need a united struggle of the European working class.

Material used in this article is taken from “Strike Rules in the EU27 and Beyond” (European Trade Union Institute, 2007) and “The Right to Strike: A Comparative Perspective” (Institute of Employment Rights, 2008).

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