Welcome to Reed Smith’s Monthly Global Employment Law blog post. This month’s post covers the legality of employee strikes in five key jurisdictions: France, Germany, Hong Kong, the UK and the United States.
According to the French Supreme Court, a lawful strike action is defined as a collective cessation of work, the purpose of which is to support professional claims. In the private sector, the right to strike, as a constitutional right, cannot be restricted or regulated by a collective agreement or by the employer itself. There is thus no obligation to comply with a specific notice period prior to going on strike. Employees, however, must inform the employer of their claims at the time they decide to stop working and go on strike.
Employment contracts are suspended during the strike (i.e., the employees do not perform their duties and the employer does not pay them). Employees on strike are protected against any disciplinary sanctions, including dismissals in the sense that any sanctions that may be imposed where there is lawful strike action are deemed to be null and void. This protection does not apply when the strike is unlawful (i.e., the action does not support professional claims or where the employees on strike prevent non-strikers from working).
The majority of strike actions are usually settled without having to commence legal action before the courts.
In Germany, a strike is the typical industrial action on the part of the employees and trade unions. To be legal, a strike must meet certain formal requirements and pursue a legitimate purpose. Formally, a strike must be (i) organised by a trade union; and (ii) called following a strike vote conducted according to democratic principles. Therefore, a so-called “wildcat” strike, which is not organised by a trade union, is illegal. Any strike must pursue a legal purpose, which can only be to change working conditions. Furthermore, a strike must be conducted in a reasonable and lawful manner. Therefore, the union may not occupy the premises, call on customers of the employer to boycott the product, or prevent employees willing to work from entering the premises and working.
The German government is currently proposing a new law on strike rights. The aim is to prevent the situation where a small union, which represents only a minor part of workforce, claims to negotiate collective bargaining agreements for the entire workforce and goes on strike. It the past, the small but powerful union “GVL”, representing (almost solely) train drivers at Deutsche Bahn, went on strike. Because of their member structure, these strikes seriously affected the entire rail traffic in Germany. The GVL union also claims to be responsible for other employees of Deutsche Bahn (such as conductors). The majority of employees at Deutsche Bahn, apart from train drivers, are members of a different union. GVL’s claim would result in the same type of employees at Deutsche Bahn having different employment conditions depending on their specific union membership. Deutsche Bahn is trying to prevent this unsatisfactory situation. However, its negotiation position is very limited because of the disruptive strikes which can be organized by the small GVL union with the train drivers. Currently, the new law is still under discussion.
In Hong Kong, the freedom of association is guaranteed by the Basic Law as well as by the Hong Kong Bill of Rights Ordinance (Cap. 383) (“BORO“). In addition, the Trade Unions Ordinance (Cap. 332) sets out the rights and duties of trade union members, while the Employment Ordinance (Cap. 57) (“EO“) provides protection against anti-union discrimination generally. The Labour Relations Ordinance (Cap. 55) governs the resolution of trade disputes. The Public Order Ordinance (Cap. 245) (“POO“) is relevant if a strike takes the form of a public procession.
The freedom of association and freedom to strike is guaranteed by Article 27 of the Basic Law, which provides that “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.” Their entrenchment in the Basic Law shows that they are fundamental rights.
The BORO is the domestic enactment of the International Covenant on Civil and Political Rights. Articles 17 and 18(1) recognise the right of peaceful assembly and the right to freedom of association with others, which includes the right to form and join trade unions for the protection of one’s interests.
Public Order Ordinance
The POO is concerned with the regulation of public assemblies. The POO needs to be observed where strikes take the form of a public procession, a public meeting, unlawful assembly or a riot. The aforementioned freedom of association and freedom to strike envisage that only peaceful, intentional, temporary gatherings of groups for a specific purpose are afforded the protection. Assemblies that are not peaceful or that cease to be peaceful through violence do not fall within the protective scope.
Under the POO, depending on the number of attendees, holding a public meeting or a public procession may require notice to be given to the Commissioner of Police seven days in advance. The Commissioner of Police has statutory discretionary power to prohibit, object to or impose conditions on the public meeting/public procession.
Under the EO, an employer is prohibited from preventing or deterring an employee from exercising his/her rights to be a member of or to take part in a trade union’s activities. An employer should not dismiss, penalise or discriminate against an employee who exercises his/her rights to do so. The EO also prohibits an employer from summarily dismissing an employee on the grounds that the employee took part in a strike. Where an employee takes part in a strike which is not illegal, the EO ensures that his/her continuity of employment is preserved during the time he/she is absent from work for taking part in the strike.
There is no statutory definition of a strike, but any concerted action which is taken in order to put pressure on an employer can be generally classified as “industrial action”. Industrial action may either consist of workers going on strike or taking other action like refusing to work overtime – such action being termed “action short of a strike”. Sometimes an employer may “lock out” its employees and stop them from working or coming back to work during a dispute. There is no right to strike as such, and calling a strike in the UK is in principle unlawful as it amounts to inducing employees to breach their contracts of employment. For this reason, striking or taking industrial action has often been described as a privilege rather than a right. However, provided that certain conditions are met, certain legal immunities are available to unions calling for industrial action, and employees individually enjoy certain protections in the case of such “lawful” industrial action.
At the moment, in order to proceed with a strike lawfully, a union must first give a notification of ballot and provide a copy of the voting papers to the employer no later than a week and three days before the ballot takes place. Every member of the union is entitled to vote and has the right to do so secretly where the conditions are met. Employees have some protection against disciplinary action by their employer as a result of both deciding to vote for a strike and participating in a strike or other industrial action.
The new Conservative majority government put forward reforms that will see industrial action become much harder to execute legally. According to Business Secretary Sajid Javid, these changes will be a priority of the government. The first key change proposed is a new 50% turnout threshold for ballots (no turnout threshold is currently in place). Second, in core public services such as education, health, fire and transport services, 40% of those eligible to vote must support the industrial action (at the moment ballots only need a simple majority). Other proposed reforms include lifting restrictions to use temporary (“agency”) workers to fill the roles of striking workers.
These proposed reforms are controversial. The Trade Union Congress has inevitably responded extremely negatively towards the proposed changes, arguing that strike action will become almost impossible under the new reforms. Some unions have indicated that they will strike illegally if the new legislation is passed by parliament.
The issue of strike action is of some topical interest to commuters in London where recently huge disruption was caused to transport links across the capital after four major underground rail unions called a strike. Regardless of political affiliation, many Londoners were left frustrated, and these proposed reforms may in fact be welcomed by some.
In the United States, the National Labor Relations Act (“NLRA”) guarantees the rights of private sector employees to strike, but also places qualifications on the exercise of that right. Determining whether a strike is lawful or unlawful under the NLRA is critical in determining the rights of employees to reinstatement after the strike. The lawfulness of a strike depends on the purpose of the strike, its timing, and the conduct of the strikers.
Lawful strikes fall into two categories: economic and unfair labour practice strikes. Employees engage in an economic strike in order to obtain an economic concession from the employer, such as higher wages. An employer can replace employees who engage in economic strikes, and are not required to reinstate strikers after they apply unconditionally to go back to work. If, however, the strikers do not obtain regular and substantially equivalent employment after the strike, they are entitled to be recalled to their jobs when openings occur. Employees who strike in order to protest an unlawful practice of the employer, such as disciplining employees for engaging in union activity, have greater rights to reinstatement. They are entitled to immediate reinstatement even if replacement employees have to be discharged. Employees who engage in a work stoppage for an unlawful purpose are not protected under the NLRA, and thus can be discharged or otherwise disciplined as a result of their strike activity. For example, a strike is unlawful if it violates a no-strike provision in a collective bargaining agreement between the union and employer. Also, if strikers engage in serious misconduct during the strike, such as attacking management representatives, they are not protected by the NLRA and are not entitled to reinstatement to their former jobs.