What do employer's need to know?
Numerous trade unions and women's associations have called a strike for 14 June 2019 to demonstrate for women's rights, in particular for equal pay, better reconciliation of work and family life and against sexism.
1. What is the legal situation?
According to the practice of the Federal Supreme Court, the following conditions must be fulfilled for a strike to be lawful:
- The strike must be supported by a workers' organisation that negotiates working conditions with the employer. An individual worker may not go on strike autonomously.
- The strike must pursue objectives that can be regulated within a collective labour agreement and are consequently linked to industrial relations (e.g. higher salaries or a change in retirement age).
- There must be no special obligations in place to maintain industrial peace or to conduct conciliation negotiations (e.g. by law or an obligation to maintain peace established in the collective labour agreement).
- The strike must also be proportionate and only be considered as a last resort.Thus, purely politically motivated strikes that have no concrete reference to an employment relationship or specific employers, or so-called 'wild strikes' that are not supported by a trade union are not lawful. Pure sympathy strikes in the event of industrial disputes in other companies or strikes to enforce legal claims are also illegal.
2. Is the Women's Strike legal?
When assessing the legality of the women's strike, the first question that arises is whether the strike is supported by a workers' organisation. At first glance, this seems to be the case, as numerous workers' associations (including SGB, Unia, Syna, and VPOD) have called for a strike. The formulated demands (e.g. wage equality, better reconciliation of work and family life, no sexism) etc. are diffuse, but in a benevolent view (also) contain demands for improved working conditions for women.
However, from a labour law point of view, the women's strike is problematic because the call to strike is directed at a broad circle of women, irrespective of who their employer is or in which sector they work or even whether they are employed at all. The underlying problem of the forthcoming women's strike is that it is not aimed at concluding concrete regulations in collective labour agreements and consequently does not address specific employers' organisations or employers. Rather, general political demands are formulated which are directed at employers in general.
Finally, the principle of proportionality ("last resort") is clearly violated.
From a purely legal point of view, the women's strike is therefore not a legal strike.
3. What does that mean for me as an employer?
There is currently a lot of uncertainty among employers about how the women's strike should be addressed. This is particularly delicate in times of increased sensitivity to gender diversity and gender equality issues. From a purely legal point of view, the following should be noted:
In the run-up: First and foremost, employers should ask themselves to what extent their employees actually feel the need to take part in the women's strike and whether they are prepared in principle to accommodate employees who are willing to go on strike. Employees should be made aware that the women's strike is an illegal strike and that the employers are therefore not obliged to make concessions. Nevertheless, we recommend, as far as operationally possible, to grant those wishing to strike holidays, overtime compensation or flexitime compensation without bureaucracy.
If there is an unauthorized participation in the Women's Strike: Since the women's strike is not a permitted strike in the legal sense, the employer can generally prohibit its employees from staying away from work partially or completely. If the employee does not show up for work, this constitutes a violation of their obligations under the employment contract. The same applies to disproportionately long breaks. As a result, the employees concerned face the same consequences as if they were absent from work without excuse. In concrete terms, this can mean:
- No entitlement to wagesIf employees decide to take part in a women's strike against the employer's will, this constitutes an unjustified refusal to work. As a result, no wages are owed for the period of participation in the strike, as the employment relationship is suspended during this period (Art. 82 OR). The principle of "no work, no pay" applies.
- Warnings or penaltiesThe women's strike is limited to a maximum of one day and organised in such a way that employees can also take part during (extended) breaks. Accordingly, unauthorised absence from work in these cases (e.g. late return from a break) does not constitute a serious breach of contract. As the mildest sanction, the employer can issue warnings or impose contractually stipulated administrative penalties.
- DismissalIf the unauthorised participation in the women's strike is so serious for an employer that it constitutes an unacceptable breach of contract, the employment contract can be terminated. Depending on the specific individual case, for example, if an employee has already been absent from work several times without excuse and has therefore been warned, a termination without notice may be possible.