Right to strike
Culture sector strikes
Effects of strike
A strike by employees in the culture sector has hampered the reopening of concert and theatre venues, which recently reopened following closures that were a result of covid-19 lockdowns. Last week, the strike further escalated and resulted in opera companies and the country's largest theatres having to cancel major performances. The impact will not only be felt by audiences, but also by artists who are not participating in the strike.
Groups of workers can initiate strikes on the ground of conflict of interests (on jural disputes). These are disputes between a trade union and an employer or employers' organisation that concern disagreements about future working and wage conditions. It is a prerequisite that either the terms are not regulated in a collective agreement between the two parties, or the previous collective agreement has been terminated.
Provided that there is a collective agreement between the parties, the employees must comply with the "peace obligation", which obliges them not to strike. Disputes concerning the validity, understanding or existence of a current collective agreement are referred to as legal disputes. These must be resolved by legal means in cases before the Labour Court or in arbitration.
There is no law that expressly states the right of workers to strike. The right to strike is, however, interpreted in the basic rules on freedom of association, which are enshrined in both the Constitution and the European Convention on Human Rights (ECHR). The reason for this is that the right of employees to organise and form trade unions would easily become meaningless without a means of pressure to change working and wage conditions.
This means of pressure is carried out by collective work stoppage – a strike. Employers can similarly seek to hold firm on their demands by implementing a "lockout". This is a complete or partial work stoppage initiated by the employer. However, lockouts are used significantly less in practice than strikes.
Labour Disputes Act
The conditions for striking are taken from the Labour Disputes Act. This Act provides detailed rules on the procedure that the parties must follow before a labour dispute can be initiated, including termination of a previous collective agreement, negotiations between the parties, termination of employment and mediation with the chief state mediator.
When mediation has been carried out without a solution, and the collective agreement has expired, employees can go on strike to put in place a new agreement with better working and wage conditions. There are no requirements for the scope of a strike, nor for any factual or justifiable connection to the working and wage conditions that are being disputed.
The working and wage conditions that employees in the culture sector have been striking for recently concern pensions. The employees on strike believe that the current defined contribution pension scheme is discriminatory and leads to different pension payments for women and men. They demand that their employers must stand by a promise of a permanent pension scheme with gender-neutral and lifelong pension benefits. This would include employees in a hybrid pension scheme that comprises elements from both the defined contribution pension (during the vesting period) and the defined benefit pension (during the payout period).
The employers believe that the defined contribution pension scheme that they currently offer is on a par with the pension schemes across other sectors and generally and takes care of the employers' need for predictability. The employers also point out that the current scheme ensures good pension conditions for freelancers, who comprise a large proportion of the workforce in the cultural sector.
As the Labour Disputes Act does not set requirements for objectivity, justifiability or proportionality, a legal strike can have major negative consequences. Employers' companies can suffer significant production and turnover losses (eg, cancelled performances and lost ticket revenues in the culture sector). The public misses out on cultural experiences, and groups of workers who are outside the strike lose income.
In the culture sector, this effect can be particularly strong because many who work on live events are freelancers and, therefore, do not have the same safety provisions as regular employees. These negative effects are also what make the strike an effective means of combat: the more burdensome the effects of the strike are on the employer side, the greater the chance for the workers to achieve their demands.
The opportunity for employers to mitigate the negative effects of a strike lies, firstly, in the fact that employees who have not gone on strike can still work. This also applies to unorganised and hired workers and contractors.
Secondly, the employer can reallocate employees within the framework of the individual employment contract. Here, however, the employer must exercise caution. If other employees are allowed to perform tasks that would otherwise have been performed by those who are on strike, the employer will easily be met with accusations of strikebreaking. Strikebreaking is not regulated in the Labour Disputes Act, but it is generally accepted that strikebreaking is unacceptable and can have legal consequences.
Thirdly, the employer can request exemptions from strikes in the event of danger to life, health or significant property damage. However, such exceptions are not relevant in the ongoing strike in the culture sector.
In principle, there is no limit to how long a strike can last. When the strike is ongoing, both the parties and the chief state mediator can take the initiative to mediate, but this is no guarantee that the dispute will be resolved. The parties have a duty to attend the mediation proceedings, but they have no duty to agree. If they do not agree, the strike continues.
In some cases, the state can intervene and interrupt the strike with a compulsory wages board. This is a form of compulsory arbitration where the National Wages Board determines which working and salary conditions shall apply between the parties. A compulsory wages board can strongly interfere with the right to strike and, therefore, can only be used in situations where the strike threatens life and health or vital societal interests. As such a threat is not posed by the current strike, it is unlikely that a compulsory wages board will intervene.
In practice, the strike will continue until the economic realities force one of the parties to concede. On the employer side, the economic aspects are affected by the fact that the cultural institutions are public and cannot go bankrupt. However, the potentially negative effects on reputation must also be considered.
On the employee side, the decisive factor will be how long the trade union is willing to cover the strikers' wages in order to achieve the working and wage conditions for which they are fighting. During the culture sector strike, the employees' side has announced that the strike fund is full and the will to fight is great.
If neither party in the ongoing strike sees any reason to move away from the positions that have been stated publicly, the culture sector will face a quiet end to 2021.
For further information on this topic please contact Ole Kristian Olsby or Nina Elisabeth Thjømøe at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.