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What is the fundamental condition of a strike?
For a legal purpose to exist. Given that the Law is broadly worded, a broad array of strikes are legalised, including the resolution of legal differences, namely those that are resolved in civil courts. On the contrary, the Courts pass judgement (however not unanimously) that demands, which can only be resolved by the State, eg with a legislative regulation, are unlawful. According to Law 1264 “a strike cannot concern demands that are different to those that are announced [to the employer]”. However, the courts accept the legality of the strike provided that one demand is lawful. It is common practice for unions to add a number of legal demands so that the strike, which in actual fact is deemed unlawful, to be lawful.
Who calls a strike?
- Primary trade unions may call a strike only by a decision of the general assembly of their members, which may authorise (not carte blanche) the Board of Directors to specialise the decision in terms of the strike commencement, its nature, the addition of new demands, etc.
- However, for brief, non repeated stoppages of a few hours, a decision of the primary union’s Board of Directors is sufficient. The same applies to the primary trade union organisations of broader geographic regions or national coverage as well and secondlevel and third-level trade union organisations.
- In terms of an enterprise whose staff is not unionised, the decision may be taken by the region’s labour centre.
- The strike of solidarity towards employees of another enterprise of the same multinational company is only called by a third-level trade union organisation.
Is there an obligation to notify of a strike?
- The workers’ trade union has an obligation to give the employer at least 24 hours notice of the intent to strike and to announce its demands, so that the employer is not taken by surprise and an opportunity is given for final deliberations. The obligation to announce demands is not necessary when these are already known from previous negotiations.
- With respect to public service and utility enterprises that accommodate the public’s essential needs, a 4-day notification is required. According to Law 1264 such enterprises are: a) the provision of healthcare services from hospital institutions b) Water purification and distribution c) Production and distribution of electricity or gas d) Production or refinement of petroleum e) Transportation of people and goods by land, sea and airf ) Telecommunications, Post Offices, Radio and Television g) Drainage and disposal of waste water and sewage and collection and consignment of waste products h) Loading/ Unloading and storage of goods at ports and various other State departments. Added to these enterprises is an additional standard condition concerning the lawfulness of the strike, the obligation of the trade union to have called the employer to a public dialogue before the Organisation of Mediation and Arbitration (OMED), whilst the commencement of discussions does not suspend the right to strike.
What are the obligations towards the enterprise during the strike?
For a strike to be lawful, the trade union organization which calls a strike must ensure that emergency staff remains available in sufficient numbers to guarantee the safety of plant and equipment and prevent disasters or accidents for the duration of the strike. As it concerns the enterprises referred to in the previous paragraph, item 2, the trade union organisation also has an obligation to appoint the necessary staff required to accommodate essential public services. The said staff provides services, but only to the extent required to encounter essential public services. In relation to its appointment, that staff has to follow employer’s instructions, but only to the extent of maintaining essential services.
How is the emergency staff determined?
The emergency staff is determined by special agreement between the representative trade union within the company and the enterprise’s management.
Provided a respective agreement has not been signed, the Law anticipates the procedure of one, essentially ineffective, judicial appointment of emergency staff as follows:
By 5th November each year, either the employer, or the trade union call the other party for negotiations. The agreement must be arrived at by 25th November at the latest, otherwise the parties are obligated to resort to the OMED mediation procedure, which is mandatorily concluded within 15 days with the mediator’s proposal. If one of the parties does not accept the proposal, each party is entitled to address a judicial committee that specialises in this issue. This procedure usually lasts 4 to 6 months; hence half of the following year slips by without the appointment of emergency staff. If a strike is called during this period, the employer finds himself at a disadvantage given that he is faced with the trade union’s goodwill to provide emergency staff, as they perceive the need. If the strike is unlawful, the final judgement is made by the civil court, which is delivered in practice after the termination of the strike, provided that this is brief.
How is the emergency staff calculated?
In order to calculate the number that needs to be appointed by the trade union, the workers not on strike are also counted. If the number of workers is sufficient for the provision of services as provided by the Law, additional staff does not need to be appointed.
Is the recruitment of strike-breakers permitted during a strike?
This is prohibited. However, the employer maintains the right to make adjustments in orderto cover vacancies, such as the appointment of non-striking workers that usually performother tasks or the transfer of staff to other branches or offices, or even the working of overtime, etc.
Can an employer proceed with lock-out?
Lock-out is explicitly prohibited by Law. Discussions are under way for the introduction ofthe right to lock-out.
When is a strike declared unlawful?
When the material and formal conditions that are required for lawfully exercising the right to strike do not exist, such as the calling by a non competent trade union, the lack of legal purpose, the non-notification towards the employers, the non-appointment of emergencystaff or the non-invitation to public dialogue. Even if the above cumulatively occur, a strike can be declared unlawful if the right to strike is abused.
When is a strike considered to be abusive?
Case law covers a broad range of circumstances that render a strike abusive, eg:
- when time chosen causes social unrest
- when circular strikes are chosen in different departments of the enterprise so as to disrupt alternately the enterprise’s operation
- when, due to the strike, the enterprise risks financial ruin pursuant to the obvious violation of the principle of proportionality.
Can a strike be prohibited via a preliminary injunction?
This is explicitly prohibited by Law even if the call for strike is manifestly deficient. However, the Law provides for the rapid completion of the regular procedure and the shortening of various deadlines so that emergency cases can be heard within five days from the employer’s petition. The court decision though is frequently issued after the strike has ended.
Are salaries paid during a strike?
No. In fact, in the case of a strike, the employer’s objective inability to employ non-striking workers is attributed to the labour side, thus the employer is exempt from the obligation of paying salaries to non-striking employees even if they are willing to work. However, there must in fact be an objective inability to employ staff. The mere fact that their employment is detrimental for the employer does not exempt him.
What are the other repercussions of a lawful strike?
In order to calculate the compensation paid due to a dismissal, the seniority benefit, the entitlement of promotion, the entitlement of leave, etc., the employee’s participation in a lawful strike is taken into consideration. Given that the employee’s contract is suspended, so is the employee’s relationship with the social security institution and consequently insurance contributions are not paid.
It is also prohibited to dismiss an employee due to his participation in a strike.
