The Right to Strike in the EU

The Right to Strike in the EUThe complexity of the norms

and safeguarding efficacy

edited byCarmen La Macchia

preface byFabrizio Solari

The research was realized with the financial funding of the European Commis-sion (Call for proposals VP/2010/001) and it is published in two versions: Eng-lish and Italian.

© Copyright by Ediesse, 2011Ediesse s. r. l.Viale di Porta Tiburtina, 36 - 00185 RomaTel. 06/44870283 - 06/44870325Fax 06/44870335

In Internet:– Sito: www. ediesseonline. it– E-mail: ediesse@cgil. itProgetto grafico: Antonella LupiImmagine di copertina: Giuseppe Migneco, Mondine (particolare), 1952,da CGIL. Le raccolte d’arte, Ediesse, 2005

Abbreviations 17

Prefaceby Fabrizio Solari 19

Presentationby Stefano Oriano 23The project «The right to strike in Europe» 23The method and the phases of the research 24Results and Perspectives 25

List of the Authors 27

List of the Union Organizations 29

List of the Institutional Representatives 31

The protection of the strike in the internal nationallegal systemsCarmen La Macchia 331. Introduction 332. General remarks 35

2.1 Contextualization of the strike in the hierarchy of internalsources 35

2.1.1 Parties authorized to proclaim a strike 372.1.2 Definition of the strike 38

2.2 Formation of the union delegation 382.2.1 Associative, elective and mixed models 402.2.2 The Associative model 402.2.3 The Elective model 43

Contents

2.3 Regulation of the Collective Agreement 442.3.1 Use of referendum for subscribing collective agreements 452.3.2 Collective agreement and the will of the membership 452.3.3 Recent tendencies in industrial relations 47

2.4 The cases Viking, Laval, Ruffert 482.4.1.Complexity of the case analysis 482.4.2 Debatable interpretations by European judges 522.4.3 Economic freedoms and constitutional rights 552.4.4 Multi-level safeguarding of the strike 59

3. Exercising collective action: the rules 613.1 Formal and Procedural requirements (immunity, referendum) 613.2 Internal limits 653.3 External limits 663.4 Features of national legal systems 683.5 No-strike clauses 703.6 Employers reaction during a strike 703.7 The lock-out 713.8 Effects of the strike on the employment relationship 723.9 The non-striking employees during a strike 73

4. External elements linked to the effectiveness of the rightto strike 74

5. Alternative dispute resolution mechanisms (arbitration, conciliation,mediation) 75

6. Conclusion 776.1 National features and safeguarding effectiveness 776.2 Twenty-seven different velocities for freedom of association 776.3 The tyranny of the majority 796.4 Pathology of the EU legal system 806.5 Primacy of EU law and protection of trade union rights 836.6 Working hypothesis 846.7 Final Remarks 87

Schema of the topics covered in the national reports 89

NATIONAL REPORTS

BulgariaPlamenka Markova 931. General Legal Framework for Labour Law 93

1.1 Implementation of international legislationinto domestic law 931.2 Formation of union representation in order to subscribecollective agreements 951.3 Trade union representation and activity in the workplace 97

1.4 Discipline/Regulation of the collective agreement 991.5 Reflection on the Viking and Laval judgments 1011.6 Means of protection in case of violation of the collectiveagreement 1011.7. Consultation of workers for signing the collective agreementor for the strike call 102

2. Regulation of the right to strike 1022.1 The right to strike as a fundamental right 1022.2 Sources 1032.3 Persons authorized to proclaim a strike (legal ownership) 1032.4 Procedures and proclamations 1042.5 Limitations on the right to strike 1052.6 The exercise of the right to strike in different sectorsand categories of workers 106

3. Trade union and strike 1073.1 Reasons for the strike 1073.2 Methods of the strike 1083.3 Unlawful strikes 1083.4 Sanctions in the collective conflict 108

4. Adhesion to the strike 1094.1 Modalities of adhesion 1094.2 Effects of the lawful strikes on the employment relationship 1094.3 Consequences of the unlawful strike 1094.4 Wildcat strikes and strikes called by occasionally organizedworkers 110

5. Employers during the strike 1105.1 Anti-union conduct 1105.2 Lock-out 1105.3 Consequence of the strike on no-striking workers 111

6. External elements linked to the effectiveness of the strike 1116.1 External elements impeding the strike 1116.2 External elements supporting the strike 1116.3 Forms of international support for union activity 111

7. Alternative means of dispute resolution 112

FranceAntoine Lyon-Caen 1131. The right to strike, fundamental right 1132. Strikes, illegal movements, abusive strikes 1143. The right to strike and its impact on labor relations 1174. The employer during a strike 1185. Effectiveness of the right to strike 119

5.1 Factors that contribute to make the right to strike harder 1195.2 Factors that facilitate the right to strike 119

6. Conflict Resolution 1207. Current Problems 120

GermanyEva Kocher 1231. General regulations of labor law 123

1.1 Implementation of international legislationinto domestic law 1231.2 Formation of union representation in order to subscribecollective agreements 1231.3 Trade union representation and activity in the workplace 1241.4 Discipline/Regulation of the collective agreement 1251.5 Reflection on the Viking and Laval judgments 1261.6 Means of protection in case of violation of the collectiveagreement 1261.7 Consultation of workers for signing the collective agreementor for the strike call 126

2. Regulation of the right to strike 1262.1 The right to strike as a fundamental right 1262.2 Sources 1272.3 Persons authorized to proclaim a strike (legal ownership) 1272.4 Procedures and proclamations 1272.5 Limitations on the right to strike 1272.6 The exercise of the right to strike in different sectors andcategories of workers 128




6. External elements linked to the effectiveness of the strike 1346.1 External elements impeding the strike 1346.2 External elements supporting the strike 134


ItalyGiuseppe Ferraro 1351. General regulations of labor law 135

1.1 Implementation of international legislationinto domestic law 1351.2 Formation of union representation in order to subscribecollective agreements 1361.3 Trade union representation and activityin the workplace 1371.4 Discipline/Regulation of the collective agreement 1391.5 Reflection on the Viking and Laval judgments 1431.6 Means of protection in case of violation of the collectiveagreement 1451.7 Consultation of workers for signing the collective agreementor for the strike call 145


3. Trade union and strike 1513.1 Reasons for the strike 1513.2 Methods of the strike 1523.3 Unlawful strikes 1543.4 Sanctions in collective conflicts 154

4. Adhesion to the strike 1554.1 Modalities of adhesion 1554.2 Effects of the lawful strikes on the employmentrelationship 1554.3 Consequences of the unlawful strike 1564.4 Wildcat strikes and strikes called by occasionally organizedworkers 156

5. Employers during the strike 1575.1 Anti-union conduct 1575.2 Lock-out 1585.3 Consequence of the strike on non-striking workers 158



PolandAndrzej Marian ĝwiątkowski 1611. Regulation of the right to strike 161

1.1 The right to strike as a fundamental right 1611.2 Sources 1641.3 Persons authorized to proclaim a strike (legal ownership) 1661.4 Procedures and proclamations 1661.5 Limitations on the right to strike 1671.6 The exercise of the right to strike in different sectorsand categories of workers 168

2. Trade union and strike 1692.1 Reasons for the strike 1692.2 Methods of the strike 1702.3 Unlawful strike 1712.4 Sanctions in the collective conflict 173


4. Employers during the strike 1794.1 Lock-out 1794.2 Consequence of the strike on no-striking workers 180



RomaniaAlexandru Ticlea and Tiberiu Ticlea 1851. General regulations of labor law 185

1.1 Implementation of international legislation into domestic law 1851.2 Formation of union representation in order to subscribecollective agreements 1861.3 Trade union representation and activity in the workplace 1861.4 Discipline/Regulation of the collective agreement 1871.5 Reflection on the Viking and Laval judgments 1891.6 Means of protection in case of violation of the collectiveagreement 1921.7.Consultation of workers for signing the collective agreementor for the strike call 192



4. Adhesion to the strike 1984.1 Modalities of adhesion 1984.2 Effects of the lawful strikes on the employmentrelationship 1984.3 Consequences of the unlawful strike 1984.4 Wildcat strikes and strikes called by occasionallyorganized workers 198




SpainAntonio Baylos Grau and Nunzia Castelli 2031. Introduction 2032. Strike action, collective dispute and lockout: constitutional position

and conceptual clarifications 2043. The legal regulation of the right to strike: Spain’s unusual regulative

situation 2054. Ownership and exercise of the right to strike 2065. Limits on the right to strike 208

5.1 Formal and procedural requirements: notice, constitutionof the strike committee and advertising 2085.2 Control over the objectives of the strike: external limitsand illegal strikes 2095.3 Control of strike procedures: internal limits and unfair strikes 211

5.4 Balancing strike action with other constitutional right andinterests: strike action in essential public services 212

6. Residual nature of other techniques: compulsory arbitrationending the strike 216

7. The effects of strike action on industrial relations, on employmentcontracts, on corporate powers, and on social benefits 217

SwedenLaura Carlson 2191. General regulations of labor law 219

1.1 Implementation of international legislation intodomestic law 2191.2 Formation of union representation in order to subscribecollective agreements 2201.3 Trade union representation and activity in the workplace 2201.4 Discipline/Regulation of the collective agreement 2201.5 Reflection on the Viking and Laval judgments 2211.6 Means of protection in case of violation of the collectiveagreement 2211.7 Consultation of workers for signing the collective agreementor for the strike call 222







United KingdomKeith Ewing 2311. Introduction 2312. No Right to Strike in the United Kingdom 2323. Right to Strike and Convention Rights 2343.1 New Approach in the European Court of Human Rights 2353.2 Implications of the New Approach 2364. Right to Strike and International Standards 2374.1 The ILO 2384.2 Council of Europe’s Social Charter 2395. Back to the Right to Strike in the United Kingdom 2415.1 De-Railing the RMT 2415.2 Grounding Cabin Crew 2436. The Human Rights Act 2446.1 Crashing the Metrobus 2456.2 Stalling in the Court of Appeal 2467. Fresh Approach to Convention Rights 2478. Conclusion 250

Acknowledgements 253

The Right to Strike in the EU

In the Viking, Laval and Ruffert decisions, the European Court ofJustice «chose a path that is both softer and more sophisticated: herecognized the nature of fundamental social rights [...] but placedthem on the same level as the freedom of establishment and freedomto provide services. If all these rights are considered equivalent –and the court’s reasoning can be summed up as such – in case ofconflict, the sides have to be balanced. Once the necessity for balanceis established, the game is up. This technique, as is well known, al-lows the judges a very wide degree of discretion and this discretionhas been used to sacrifice the right to strike and the freedom of col-lective bargaining in favor of freedom of establishment and provi-sion of services»

Mario Giovanni Garofalo, Costituzione, lavoro e libero mercato,in L’attualità dei principi fondamentali della Costituzione in mate-ria di lavoro, ed. by E. Ghera and A. Pace, Jovene, Napoli,2009, p. 158

17

ACAS Advisory Conciliation and Arbitration Service (United Kingdom)ARAN Agenzia per la Rappresentanza Negoziale della Pubblica amministrazio-

ne (Italia)art. /artt. article/articlesBAG Bundesarbeitsgericht (Federal Court of Labour, Germany)BALPA British Airline Pilots Association (United Kingdom)BetrVG Betriebsverfassungsgesetz (Act on Works Councils, Germany)BNS National Trade Union Block (Romania)BVerfG Bundesverfassungsgeright (Corte Costituzionale federale tedesca)CJEU Court of Justice of European UnionEUT European Union TreatyTFEU Treaty on the Functioning of the European UnionCartel ALFA National Trade Union Confederation (Romania)c. c. Civil Code (Italy)CCNL National Collective Agreement (Italy)CCJ Constitutional Court Judgments (Spain)CCOO Confederacion Sindacal de Comisiones Obreras (Spain)CE Constitución Española (Spain)CEACR Committee of Experts on the Application of Conventions and Recom-

mendations of ILOCFREU Charter of Fundamental Rights of the European UnionCGIL Italian General Confederation of WorkCGS Commission for ensuring the implementation of the law on strikes in es-

sential public services (Italy)GT Confédération Générale du Travail (France)CITUB Confederation of Indipendent Trade Unions of BulgariaCRBDGB

Costitution of Bulgarian RepublicDeutscher Gewerkschaftsbund

DLRT Real Decreto-Ley de Relaciones de Trabajo (Spain)D. L. Law decree (Italy)D. Lgs. Legislative decree (Italy)ECHR European Court of Human RightsECJ European Court of JusticeEPSU European Federation of Public Service UnionsETUC European Trade Union ConfederationGG Grundgesetz (German Constitution)

Abbreviations

ABBREVIATIONS

18

IGBCE Mining, Chemical an Energy Industry Union (Germany)ILO International Labour OrganizationITUC International Trade Union ConfederationL. Law (Italy)LC Labour Code (Bulgaria)LO-S Landsorganisationen i Sverige (Sweden)LPL Ley de Procedimiento Laboral (Spain)NICA National Institute for Conciliation and Arbitration (Bulgaria)NUJ National Union of Journalists (United Kingdom)OG Official Gazette (Romania)OJEC Official Journal of the European communityOJEU Official Journal of the European UnionOPZZ All-Poland Alliance of Trade Unions (Poland)Podkrepa Confederation of Labour (Bulgaria)RSA Enterprise Trade Union (Italy)RSU Enterprise worker’s unit (Italy)SC Spanish ConstitutionSCLDA Act on Settling Collective Labour Disputes (Bulgaria)SPD Sozialdemokratische Partei DeutschlandsSIMA Interconfederal Service of Mediation and Arbitration (Spain)STC Sentencia Tribunal Constitucional (Spain)SWS Self Employed Workers’ Statute (Spain)TC Tribunal Constitucional (Spain)Trib. Ordinary Court (Italy)TU Trade UnionTUC Trade Union Confederation (United Kingdom)Ver.di Vereinte dienstleistungs-gewerkschaft (Germany)

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These introductory pages to the volume The right to strike in the EU: The com-plexity of the norms and safeguarding efficacy are intended to explain the logicalprocess and cultural motivations behind the decision of the CGIL to undertakea study of regulations on strikes and to publish the results of the research.

In the most recent period of its history, Italy has been subjected to the versa-tile and obsessive concern of the Berlusconi government to change the regula-tory framework of industrial relations and labor law. This assiduous governmentinitiative has also focused on the right to strike, threatening new restrictionsaimed well beyond the ambit of essential public services, a sector currentlyregulated by LN 146/1990, as amended by LN 83/2000.

Almost simultaneously, decisions by the EU Court of Justice (Viking. Laval,Ruffert) have demonstrated a «European» front on the question of the strike, ina new version of the conflict between the right to collective action and the rightsestablished by the Treaties, that is, the freedoms of establishment and of theprovision of services.

The decisions of the European judges have preoccupied both national andinternational unions, because of the implication that new and disquieting limi-tations on collective action are in the making.

The idea for a comparative study on the right to strike emerged in this con-text, and was presented to and approved by the European Commission. Itseemed in fact worthwhile that the CGIL carry out a detailed analysis of theregulations of the European Union member states on the exercise of the right tostrike. For this purpose we selected a group of nine «sample» countries, balanc-ing the choice between states with a long membership, and states that havemore recently acceded to the EU. The study was conducted in collaborationwith the ETUC, the trade unions of the countries involved in the research, anddistinguished jurists from each state who authored the national reports.

The primary aim of the study was to assemble a thorough informational basisregarding the legislation and jurisprudence on the strike issue, to provide na-

* CGIL Confederal Secretary.

Prefaceby Fabrizio Solari*

FABRIZIO SOLARI

20

tional and European trade unions and the involved legal experts with an in-strument of knowledge for establishing common platforms in the wider Euro-pean and international context, in order to guarantee trade union rights instrike action.

The experts’ reports carefully and thoroughly illustrate the current status ofthe right to strike in nine EU member states, giving a comprehensive, and inmany ways original and interesting overview of regulations and issues. We canthus be well satisfied with the work carried out. With regard to an understand-ing of the various legislative norms, the project has also provided the neededanswers. Our aim now is to create common initiatives in the wider Europeanand international context to guarantee the right to strike that we consider es-sential for the overall protection of the rights and interests of the most vulner-able party in the employment relationship.

Indeed, a great number of concerns about the «health» of the right to strikehave been raised here. The national reports and the meetings between the un-ions have brought to light the dissimilarities between the national regulations, ageneral problem for ensuring efficacious protection for the exercise of collectiveaction both in countries that constitute the historic core of the EU, and in thoseof more recent accession. The impairment of this right is the result of multiplefactors ranging from a decrease in unionization rates, the prevalence of free-market policies, and the manipulation of the safeguarding of strikers’ rights, initself a fair and shareable concern, but one which is too often used as a pretextto limit the exercise of the collective action. It is baffling, for example, that inthe event of a strike in the United Kingdom, the cradle of trade unionism, theTUC can be called to compensate for damages provoked by the employer onthe simple premise of failures in the strike proclamation procedure. Also amatter of great concern is the condition of the new member states: although theright to strike is safeguarded in their new Constitutions, it is unsupported bylegislation, and collective bargaining meets with numerous obstacles in itsstruggle to gain a foothold, also due to the complex social, political and eco-nomic scenarios in those countries.

To summarize, the study shows that in practice, at the national level the rightto strike faces imbalanced and complex conditions. At the supranational level,moreover, a dark shadow has been extended by the decisions of the EU Court ofJustice, exacerbating tensions and fueling new conflicts between national sys-tems, which differ in their own trade union histories and in the standards ofprotection enjoyed by collective action.

The issues raised by the Viking, Laval, Ruffert decisions are still calling for at-tention and resolution. The trade unions are alarmed but remain anchored to aperspective still far more rooted in a national rather than a European dimension.

The new level of conflict reflected in the decisions, which pit employersagainst workers, and workers against workers from other unions, does not endnor is resolvable at the national level.

PREFACE

21

The European Court’s solution treats the conflict by invoking «the generalinterest» that should prevail over the opposing special interests of workers andemployers.

Both history and labor law teach, however, that the «general interest» is ameaningless concept unless contextualized in specific and tangible interests.

National and international labor unions have all already accepted limitationsto the right to strike for the protection of the concrete and fundamental rightsand interests of persons (i.e., health, basic needs, security). They do not, there-fore, fear comparison with the various other interests protected by the Treaties.These interests must, however, be specified, exposed, and investigated in theirreal, manifested dynamics, and not only as they appear in the rarefied spaces oflegal decisions and laws.

These are our motivations for including studies of both the data of experi-ence and the data of jurisprudence in the research presented here. The resultsof the analysis of the information collected advocate for the necessity of resolu-tion of the issues posed by the processes of economic integration, a resolutionthat must be found in the international fora of the industrial relations system,without wishfully resorting to the formula of an abstract correction of a subjectthat is still «amorphous», but rather with the willingness to agree upon a ruleonly after a careful examination of the circumstances characterizing the indi-vidual case.

It is in fact clear that the answers and the solutions to the problems posed bythe freedoms enshrined in the Treaties must be found in negotiations at aEuropean level. The «import» of new restrictions on the right to strike handeddown by the Community jurisprudence, however, is not acceptable. Collectiveaction is a fundamental right in the Italian Constitution and in the constitutionsof many other member states, as well as in the European Charter of Funda-mental Rights, which cannot be sacrificed to economic interests that express thefreedom of establishment and freedom to provide services.

The ETUC’s proposed solution for amending the Treaty with the introduc-tion of a clause to prohibit Community institutions from interfering with theright to strike protected at the national level, is a goal to be pursued. In theimmediate future, however, it does not seem one that will be easy to actualize.

While waiting for a response from supranational policy that will deal equita-bly, it is hoped, with the interaction of social rights and economic freedoms, wecertainly cannot allow that issues of overriding importance such as the right tostrike be regulated by the occasional rulings of the Court of Justice or by thenational courts. It is necessary that the unions belonging to the ETUC find oc-casion to meet in order to define common strategies that can also be effective atthe national level.

It is clear to everyone, in fact, that a generalized system of rules to define aproper balance between economic freedoms and social rights is the best way ofcombatting social dumping initiatives among the countries.

FABRIZIO SOLARI

22

Defining legal and political prospects that are certainly innovative to addressthe problems of European economic integration is the focal point of the indus-trial relations in each member state, and not only. The policy of the States mustalso be to advance towards a shared European sovereignty and to overcome«special interests».

The need for more Europe [...] with growing evidence has become mandatory in aworld, shaken as it is by the crisis we are currently experiencing, in which no individ-ual European country, not even the biggest and most efficient one, can «save itself byitself» or play a significant role using its own forces alone (Speech by the President ofthe Italian Republic Giorgio Napolitano at the opening Ceremony of the AcademicYear of the Collège d’Europe Bruges, 26/10/2011)

The economic crisis sweeping the western world, and Europe in particular,has unfortunately taught us with exceptional harshness, that it is employees,whatever their nationality, who pay the most negative consequences. Delibera-tion and unified action by national and international trade union organizationsis the only means to prevent the degradation and repeal of rights acquired overcenturies of social struggle.

23

The project «The right to strike in Europe»

This volume, published also in Italian version, presents the results of research

on the right to strike in nine European countries: Bulgaria, France, Germany,

Great Britain, Italy, Poland, Romania, Spain, and Sweden.

The time has been ripe for some time for a comparative study on the right

to strike, for reasons that Fabrizio Solari analytically explains in the preface to

the volume, which range from the progressive reduction of the right and its

aims – common to all European countries – to the dearth of studies focusing on

this topic. The new issues raised by the EU Court of Justice decisions on the

Viking and Laval cases have made it even a more appropriate and timely ini-

tiative.

On this basis, for each of the countries concerned, we instigated a thorough

and detailed investigation of the laws governing the exercise of the right to

strike, giving special attention also to countries that have recently joined the

European Union.

A thorough study has been devoted to both the national case law (departing

from constitutional law) and the Community case law and the relationship be-

tween national and supranational jurisdictions, in order to examine the prob-

lematic issue of the guarantee of trade union rights in the European zone and

scrutinize the circumstances in which the strike – in most member countries

classed as a right – can come into conflict with the freedoms of establishment

and movement.

This study therefore aimed at uniting descriptive and reconstructive aims

with proactive intentions able to translate into the configuration of viable sce-

narios for application on the part of national and European trade unions.

The project, headquartered in the CGIL departments directed by the con-

federal Secretaries Nicola Nicolosi and Fabrizio Solari, obtained the support of

* Lawyer - Head of CGIL Legislative office.

Presentationby Stefano Oriano*

STEFANO ORIANO

24

the ETUC (European Trade Union Confederation), and the adhesion, as part-ners, of the trade union CGT (Confederation Generale du Travail, France),CCOO (Confederación Sindacal de Comisiones Obreras, Spain), and Lo-S(Landsorganisationen i Sverige, Sweden). The following trade unions of othercountries interested in the research and participant in the work include:Podkrepa (Confederation of Labour, Bulgaria); DGB (Deutscher Gewerkschafts-bund, Germany); Ver.di (Vereinte Dienstleistungs-Gewerkschaft, Germany);TUC (Trade Union Confederation, Great Britain); OPZZ (All-Poland Alliance ofTrade Unions, Poland), Cartel Alfa (National Trade Union Confederation, Ro-mania). The representatives of trade union partners and participants, whom wewarmly thank, are listed in the index. The European Commission approved theresearch and provided financial support within the Social Dialogue and Indus-trial Relations projects. The contribution of the Commission was particularlyimportant and significant, especially considering the fact that the initiative fallsoutside the usual patterns of this type of research, both for its scientific profile,and for the composition of the steering committee and the large group of par-ticipants, which unites legal and labor competencies.

The method and the phases of the research

In the preliminary and preparatory phases of project, we were fortunate tohave the collaboration of a talented group of experienced teachers of labor lawand labor relations, which served as the scientific research committee, includingPlamenka Markova (Bulgaria), Antoine Lyon-Caen (France), Eva Kocher (Ger-many), Keith Ewing (Great Britain), Giuseppe Ferraro (Italy), Andrzej Swiatkow-ski (Poland), Alexandru Ticlea (Romania), Antonio Baylos Grau (Spain), LauraCarlson (Sweden) and Carmen La Macchia (Italy), who then had the task of co-ordinating the scientific research and the steering committee. The union lead-ers of the partner countries in the project were Renata Tretiakova and AnaisFerrer (CGT), Begona Del Castillo e Francisco González Moreno (CCOO) andClaes-Mikael Jonsson (Lo-S), who were integrated in the steering committee. Agroup of collaborators of the legal experts including Daniel Blackburn (UK),Nunzia Castelli (Spain), Sudhof Clemens (Germany), Marcin Wujczyk (Poland),and Tiberiu Ticlea (Romania), also provided valuable assistance throughout theduration of the initiative.

In the implementation phase of the project, we were immediately faced withthe difficulties incurred by the substantial differences in the regulations of vari-ous countries, both within the historic core of the Community – with France, It-aly and Spain on the one hand, and Germany and the Northern Europeancountries on the other, and Great Britain in an unconventional position – andwith respect to newer Member Countries, those recently released from totali-tarian systems. The realization that the heterogeneity of the systems would be

PRESENTATION

25

no small impediment given the comparative nature of the research, led thesteering-group to draft a schema for the preparation of the national reports.

A first draft was approved during an early meeting (Rome, November 2010),and subsequently the schema was expanded and refined in light of the initialresults (Madrid, January 2011), resulting in a quasi final version, which becamethe index of the national reports presented here, except for the general regula-tion on labour law in individual countries that was excluded from the publica-tion. The general content of the work therefore concerns the regulation of thestrike from the constitutional framework (if any), the relationship between tradeunions and strikes, modalities of adherence to the strike by individual employ-ees, the position of employers during the strike, external elements (if any)linked to the effectiveness of the strike, and alternative means of conflict resolu-tion.

The complexity and breadth of the research also led to the realization – inaddition to the full reports – of a summary report for each country, which ispublished in this volume.

During the course of the work, the individual studies were refined, leading upto a general seminar that closed the implementation phase of the research(Berlin, June 2011), attended by all interested parties and trade unions, someemployers’ unions, representatives of public administrations and a large dele-gation of trade unionists and experts from the host country.

On this occasion, the national reports were presented, and a comparison be-tween them was made. A first evaluation of the results by the union side was car-ried out in a round table discussion on the «Exercise of the right to strike andlabor relations». A significant contribution to the work was provided by repre-sentatives of the independent conciliation, administrative and monitoringauthorities, who discussed their functions and activities. These valuable contri-butions too will be published in the on-line archive.

In the evaluation phase that ended with a meeting (Stockholm, July 2011) ofunion leaders and legal experts, a first comparative analysis of national reportswas begun and the operative proposals were examined.

Results and Perspectives

The results of the study were significantly higher than expected thanks to thehigh level of the scientific and unionist analysis, the original and innovativeconclusions, and the vast amount of valuable material produced and documen-tation collected.

From the examination of national reports there emerged – despite the greatdifferences in regulations – a common assessment: the strike, still considered afundamental instrument of emancipation of the workers, is not adequately pro-tected in national legislation. In this context, European trade union policy must

STEFANO ORIANO

26

thus seek to ensure to strengthen the effectiveness of the strike in all membercountries.

A further objective was also added to the project, one which shows its excep-tional value: to offer to the national and European trade unions and legal op-erators, a useful instrument of knowledge, which can contribute to social dia-logue and the definition of common platforms of rules and practices on the dis-cipline of the relationship between the strike and economic freedoms, as well asthe protection of the rights of workers affected by the phenomena of globaliza-tion of the markets.

Some working guidelines, analytically described in the essay by Carmen LaMacchia, were then examined. For some there was a unanimous consensus,while for others different assessments were expressed, a circumstance that hascontributed to the variety and richness of the topics covered.

As already mentioned, due to space limitations it has not been possible topublish more than a synthesis of the reports and a comparative examination.The complete results of the research, however, including the copious documen-tation will be made available to those interested, in a computer database and anelectronic magazine under construction. We are also considering the idea of asecond edition of this book, with the full versions of the reports and the contri-butions of the trade unions.

We hope that the conclusion of the project and the publication of this bookare not the end of the study activities on the right to strike in Europe, but ratherthe first step in a research activity to be continued in all the countries involvedup to now, and to be extended to other countries in Europe and beyond.

27

BULGARIA Prof.ssa Plamenka Markova, Bulgarian Academy of Sciences -Sofia.

FRANCE Prof. Antoine Lyon-Caen, Université de Paris Ouest - Nan-terre La Défense.

GERMANY Prof.ssa Eva Kocher, Europa - Universität Viadrina, Frank-furt/Oder.

ITALY Prof. Giuseppe Ferraro, Università degli Studi di Napoli«Federico II».

ITALY Prof.ssa Carmen La Macchia, Università degli Studi di Mes-sina.

POLAND Prof. Andrzej Swiatkowski, Jagiellonian University - Cracovia.ROMANIA Prof. Alexandru Ticlea, Universitatea Ecologica din Bucur-

esti.SPAIN Prof. Antonio Baylos Grau, Universidad de Castilla - La

Mancha.SWEDEN Prof.ssa Laura Carlson, Stockholm University.UNITED KINGDOM Prof. Keith Ewing, King’s College London.

Members of the working team: Federica Allegritti, Daniel Blackburn, NunziaCastelli, Annalisa Corradi, Gabriella D’Aloja, Lorenzo Maria Dentici, MatteoMaria Mutarelli, Luisa Paniccia

* Disclaimer: The essays represent not the views of trade unions, but only the views of theauthors.

List of the Authors*

29

Union organization promoter of the projectCGIL, Italy, Italian General Confederation of Work: Monica Ceremigna (Euro-

pean Secretariat), Antonio Filippi (Network and Sector Department), Lu-crezia Frittoli (Head of European Project Office), Franco Nasso (General sec-retary FILT CGIL), Nicola Nicolosi (Confederal secretary), Stefano Oriano(Head of Legislative Office); Fabrizio Solari (Confederal Secretary), RosarioStrazzullo (Head of Network and Sector Department).

Union organizations partners of the projectETUC, European Trade Union Confederation: Walter Cerfeda (Confederal sec-

retary).FRANCE, CGT, Confédération générale du travail: Anais Ferrer (Conseillère

confédéral: Droit, Libertés et Actions Juridiques); Renata Tretiakova (Con-seillère confédérale: Espace Europe/International).

SPAIN, CCOO, Confederacion sindacal de Comisiones Obreras: Begona DelCastillo (Coordinadora del área de Europa en la Secretaría Confederal deInternacional de CCOO), Francisco González Moreno (Secretaría de AcciónSindical de la CS de CCOO).

SWEDEN, Lo-S, Landsorganisationen i Sverige: Claes-Mikael Jonsson (Legal ad-visor, Department of Working Life).

Union organizations that participated in the researchBULGARIA, Podkrepa, Confederation of Labour: Oleg Chulev (Executive Direc-

tor of Institute for Social, Economic and Trade Union Research - Podkrepa);Lyubka Georgieva (International Affairs Department); Veselina Starcheva(International Affairs Department).

GERMANY, DGB, Deutscher Gewerkschaftsbund: Helga Nielebock (Director ofLegal Department); Walter Torsten (Officer Labour Law).

GERMANY, Ver.di, Vereinte dienstleistungs-gewerkschaft (United ServicesUnion): Peter Berg (Counsel lawyer).

List of the Union Organizations

LIST OF THE UNION ORGANIZATIONS

30

POLAND, OPZZ, The All-Poland Alliance of Trade Unions: Piotr Ostrowski (In-ternational Co-Operation and European Integration Section).

ROMANIA, ConfederaĠia NaĠionala Sindicală «Cartel ALFA», National TradeUnion Confederation: Radmilo Felix (General secretary FederaĠia Mecani-cilor de Locomotiva); Cecilia Gostin (Equality Commission); Dumitru Istrate(Departamentul International); Luminita Vintila (Departamentul Interna-tional).

UNITED KINGDOM, TUC, Trade Union Confederation: Tony Burke (Unite As-sistant General Secretary and TUC General Council); Elena Crasta (SeniorPolicy Officer in the TUC Brussels office); Sarah King (TUC Brussels officer);Hannah Reed (Senior Employment Rights Officer Equality and EmploymentRights Department TUC).

31

Gabriele Bishoff (Economic and Social Committee of the European Union).Mario Eylert (Judge at the Federal Court of Labour, Germany).Martin Borrego Gutierrez (Director of SIMA - Interconfederal Service of Mediation

and Arbitration, Spain).Renate Hornung-Draus (Businesseurope).Nikola Kondev (Expert of NICA - National Institute for Conciliation and Arbitration,

Bulgary).Richard Pond (EPSU - European Federation of Public Service Unions).Vincenzo Valentini (General Secretary of the Commission for ensuring the implementa-

tion of the law on strikes in essential public services - Italy).

List of the Institutional Representatives

33

1. Introduction

In this introductory essay a careful consideration will be offered of the lawsrelated to the strike in the nine countries of the European Union (hereafter EU)to clarify the differences between trade union systems and the issues that EUmembership has brought to the system of industrial relations, and whetherthese problems tend to require answers valid for the entire European territory.

Reports drawn up by lawyers and academics at universities in all the countriessurveyed here describe each national experience and its reaction to the innova-tions brought about by the European legislation and jurisprudence, in supportof the large market zone created by the Treaties.

The methodological perspective utilized here is unusual. Numerous, in fact,are the documents that deal with labor laws in Europe as Communitary laborlaw. Instead, those that consider the reverse route are far less frequent.

This precise methodological choice has a well thought-out motivation thatarises from the unions’ concern after the Viking, Laval and Ruffert decisions,which have appeared not only to union representatives but also to many re-searchers as signs of the pathology of the expanded system, with a tendency tonegatively impact the national systems.

In their abstractness and general uniformity, European laws break into thenational systems, which are historical structures created out of a long sequenceof events during which the single institutions, including unions, found theirniches and stability, each legitimizing the other.

As is known, the ties accepted by the States with the signing of the Treaties aresuitable not only for establishing mutual obligations between the contracting Statesbut also for conferring rights and obligations to private parties. The incorporationof the European laws within internal law systems is potentially destabilizing for thepreviously attained balance within each established social and political structure.

In this regard, the material presented in the English report is impressively

* Professor of Labour Law, University of Messina (Italy), Facult of Law. E-mail: [email protected].

The protection of the strike in the internal national legal systems Carmen La Macchia*

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eloquent (see English report). A methodology is therefore needed to study theinternal systems in which the European law must find hospitality.

Moreover, with regard to collective action, the methodological choice of tak-ing the national systems as a starting point of the analysis is almost obligatory.The referral of powers from the national States to the European dimension af-fects only certain subjects, all of which are related to the need to create a singleEuropean market.

The strike is a matter excluded from EU competence, and therefore method-ologically requires that research in this area be conducted in a comparativemanner, particularly bearing in mind the significant differences between civillaw and common law. Studying the internal rights in the phase leading up tothe introduction of European law also means examining how the «uniform» lawhas been, and is being, revised and adapted to the specificity of each single le-gal system, a profile that has been overlooked, as is evident in the wording ofart. 6 TUE, 288 TFUE and 28 CdfUE, by the same law of Community origin.

The process of European integration involves the abandonment of the se-mantics of national rights in the name of a new common language that is com-pleted in the next stages, from the basic statement at the European level to theoperational and sometimes specifying phases of the legislation of the individualnations. And yet, promulgation of this law does not guarantee a full correspon-dence between the start and finish, nor implicates an effort to detect if the finaleffects have produced new differences between countries.

A study of the internal systems of trade unions is the best way to investigatethese «final effects». Such a study necessarily begins with a careful survey of thenational disciplines, the essential basis for any activities of interpretation andhermeneutics, which can subsequently favor processes of reconceptualization andgeneralization. Other international sources (OIL, CEDU, European Council)that dictate a common feeling in the safeguarding of the strike, contribute to anenrichment of the complex situation. Even with respect to this kind of law, the«final effects» are poorly investigated and, as we shall see, the internal imple-mentations of the protective laws show profound differences, so that, in some ju-risdictions the international law remains in the dusty book of good intentions.Almost all the internal systems have a dual model of transposition of Communityand international laws. Thus, they require that to make international laws man-datory in international relations, a formal act of receipt be realized according tothe methods of national legislative production. Collective agreements, however,at least among the nations surveyed, do not seem to play an important role inthe implementation operation of Community and international laws.

The effect of the dual model is an implementation of the international andcommunity laws with many different velocities. It can readily be supposed thatthe mediation of the states will not ensure full consistency, completeness andimplementation of the law.

The supposition is corroborated, for example, by the report on the evalua-

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tion of the United Kingdom’s compliance with the labor provisions set forth inthe European Social Charter, submitted on December 16, 2010 by the Com-mittee of experts of ILO, which ascertained a difference in ten out of the 13provisions examined.

Indeed, we cannot know the degree of implementation of the Communitylaws in the internal judiciary systems, considering that there is no controllinginstitution for the effectiveness of the laws.

The direct efficacy of the Community laws is, therefore only a presumption (orrather an aspiration), and is something that can only be ascertained by the Europeancourts and only where the issue of conformity is brought up for their examination.

In the European imagination the aim of the individual states’ yielding of sov-ereignty in favor of the EU should be the building of a «uniform rule». Thisutopian image ignores the fact that between Community law and internal lawthe channels of communication are constituted by the sources (in a traditionalsense) by the Community and national jurisprudence and legal culture which donot intersect in a logically ordered manner, but simply because they co-exist.

It is surprising that this knot of laws and implementation procedures doesnot attract the attention and concern of those involved in Community law, thatis the European political authorities, legislators, and magistrates.

2. General remarks

2.1 Contextualization of the strike in the hierarchy of internal sources

Freedom of association in reality comprises three freedoms: the freedom ofcoalition (i.e., of association), freedom of contract, and freedom of trade unionaction. These are the three pillars of the union: organization, collective contractand direct action (mainly strikes).

It is useful to remember that historically, freedom of association is a productof the most mature liberal political regimes, those that by the end of 19th cen-tury saw freedom of association as a mandatory requirement for a regime re-spectful of liberal principles. «The freedom to negotiate would be reduced tothe right of the principal to starve its labor if the latter were deprived of free-dom of association», as a member of Parliament in the newly united Italy af-firmed. Without the right to strike, collective bargaining for the union would bereduced to a mere collective «begging», as the German Federal Labour Courtexplains (BAG (GS) 10/06/1980, AP No. 64 und (GE).

The union systems examined here bear the mark of this itinerary in the his-tory of ideas in their constitutions and in the laws for the implementation ofconstitutional principles.

All the countries surveyed in this study are long-time adherents of the Euro-pean Council, of the ILO, and the international norms dictated by the latter,

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though naturally with different schedules of ratification of the international lawsinto their own internal legal systems.

But even prior to the accession to the European Union of the states formerly oc-cupied by the Soviet Union, Community legislation had at least partially penetratedthe internal judiciary systems of these countries, through bilateral agreements.

In the majority of the countries surveyed, striking is a constitutional right.The constitutional status of the strike is defined in several ways. It is explicit insome countries (Bulgaria, Romania, Italy, France, Spain) even if it has beenagreed that the law may limit the exercise of the right to strike to ensure theconstitutional rights of others with whom it may be in conflict (Italy, France,Spain). As is well known, the exception among countries that were the earliestto join the EU is the United Kingdom, where the strike is not a fundamentalright, but rather a freedom supported by a number of exceptions to the com-mon principles of contract and civil offence. In Poland, a law of 1982 replacedby an act of 1991, still maintains the ambiguous legal status of the strike be-tween that of a freedom and that of a right.

In the countries of the former Communist Bloc, the constitutional changesthat occurred following the changes in political structure in 1989 struggle toachieve correspondence in specific laws and are still in a phase of transition to-wards the establishing of models of industrial relationships inspired by thefreedom of contract. In Romania, it was only in May of 2011 that a law providedfor the abrogation of much of the previous system.

In Bulgaria, for example, industrial relations are conducted mainly in a tri-lateral form and in national negotiations. In Poland it is only since 1991 thatthe employers’ representation is no longer exclusively entrusted to the organsof government, and that private employers enjoy freedom of association in in-dustrial organizations.

The constitutionalization process has started, but still has difficulty establishingitself, while the totalitarian forms of state decline. The main reason is that, after along tradition of central control and given the difficulties of the transition process,the government has preferred to keep the economic and social reforms undercontrol, while waiting for the creation of strong associations of employers.

However, the strike enjoys constitutional protection in both Romania andPoland. It should also be remembered that in Poland the extraordinary story ofthe trade union Solidarnosc forced the recognition of the right to strike in1982. In Bulgaria the Constitutional Court has recognized the social function ofthe strike as «a constitutional guarantee of the wish of Bulgaria to take its placeas a democratic state and society».

The systems differ by being either heteronomously regulated or by favoringthe independence of laws established by collective autonomy. The two repre-sentative extremes are Italy and France.

In France the Code du Travail, in fact, analytically regulates the proceduresfor the formation of representative institutions of workers, identifies the per-


37

sons authorized to accede to negotiations for the specifications of collective bar-gaining, and dictates the rules of validity and effectiveness of the collectiveagreement. More recently, Law No. 2008-789 of August 20, 2008 «portant ré-novation de la démocratie sociale et réforme du temps de travail», has pro-foundly innovated the system.

The power resulting from the constitutional recognition of the right to strike issometimes obstructed by lower-ranked legislation enacted prior to the implemen-tation of the Constitution. In Spain, for instance, regulation of the right to strikegoes back to a royal decree of 1977 kept alive by the interpretation of constitu-tional law and pending the ratification of a law for inclusion in the constitution.

The strike receives indirect constitutional protection under judiciaries inwhich it is instrumental for the exercise of freedom of association. This lack ofautonomy of the strike with respect to other rights has important effects in thedifferentiation of national regulations, particularly with regard to the entitle-ment of rights.

2.1.1 Parties authorized to proclaim a strikeIn countries where the strike is not functional for collective bargaining, the en-

titlement of this right lies with the worker as an individual right, even though itsexercise is collective. This means that a worker may join a proclaimed strike evenif it does not involve his own workplace, or may join a spontaneous strike (Italy).

In Romania, the action of calling a strike is the prerogative of representativetrade unions, as well as of coalitions of workers that demonstrate a specific nu-merical consistency of members or workers, respectively.

In Bulgaria, strikes can be declared by a spontaneous coalition, but only if thecoalition itself has a 50% adhesion to the strike proposal among the employees.

In countries where collective action is instrumental for union freedom, as aright to associate, to have an independent representation for the defense of theworkers’ interests the strike is a union prerogative.

In Sweden, the right to undertake union action is protected by the Constitu-tion, but it is a collectively entitled right available to trade unions as well as tosingle employers and associations of employers. The strike of a workers coali-tion is therefore not permitted.

In Germany, the right to strike is not expressly stated in the Constitution.Constitutional law has defined it as instrumental to the freedom of associationand to the right of every citizen to form and join a trade union. The strike,therefore, is a collective prerogative. Proclamation of a strike, in fact, is the actof a trade union with sufficient bargaining power, for instance demonstrated bythe number of its members. Spontaneous strikes are therefore illegitimate. Thispeculiarity of the German system stems from the close link between strike andcollective bargaining that links the strike to a specific dispute. Strikes can onlybe called with the aim of obtaining a collective agreement. Due to this profile,in 2010 the European Committee of Social Rights (Conclusions XIX-3 2010

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Germany) of December 2010 declared the German system incongruent with art.6 c. 4 of the European Social Charter.

In this regard, the English judiciary holds a position of absolutely originality.According to British law, the strike is not a fundamental right, but a freedomsupported by a number of exceptions to the common principles of contract andtort. The strike is therefore the prerogative of the unions.

Only a formally organized action by the union in accordance with the proce-dures prescribed by law makes the union immune to being held liable for dam-ages.

Only employees and workers can invoke the right to strike under Polish law.A strike is lawful when it is organized by a local or national union. No other or-ganization or institution chosen by the workers has the right to organize a legalstrike (Poland).

In the constitutions of some countries, including Sweden and Poland, enti-tlement to the right to strike is reserved a priori, to trade unions. In the Englishjudiciary, collective entitlement is deduced from the procedures relieving thestrike from the consequences of civil action.

2.1.2 Definition of the strikeThe constitutional characterization of the strike as an instrumental right or a

right that is autonomous from the freedom of association or from collectivebargaining does not appear to affect its definition, which assumes broader ornarrower meanings depending on variables constituted by the features of thelegal systems of each country.

Thus in some countries the strike is generically defined as «any form of col-lective and voluntary interruption of work in a business enterprise» (Romania) oras «an act of disturbance carried out in a peaceful and nonviolent way by a groupof workers to demand improvements in financial or general working conditions»(Spain).

In other countries the definition of a strike is more precise and restricted. InPoland, the strike consists in «abstaining from work in order to resolve labordisputes regarding the terms and conditions of employment, wages, benefitsand trade union rights and the freedom of workers and employees who enjoythe freedom of association in trade unions». In France, the strike is an absten-tion «organized to support professional claims».

The definition of strike is in any case a jurisprudential formulation in all thecountries surveyed with the exception of Romania, where it is regulated by aspecific law.

2.2 Formation of the union delegation

The formation of trade union representation undoubtedly has a remarkableinfluence on the effectiveness of collective action. The distinction is clear be-


39

tween the systems covered by law and those regulated by collective autonomy,whose core is the relationship between the association and subscribing member(Italy).

A secondary distinction concerns systems in which the law aims to regulatecollective bargaining and those in which the law regulates trade union rights,including the strike action.

The United Kingdom, for example, adheres to the second type of system.Unions seeking recognition acquire a «certificate of independence», a series ofadministrative, fiscal, and civil benefits and safeguards for the union name.They are also required annually to comply with a number of requirements con-cerning certification of their members and budgets.

The recognized unions have the right to appoint their own representatives inthe workplace, who also enjoy authorization for time off to perform their unionduties and leaves of absence paid by the employer through the union.

Representation of the labor union as a function of union association must bedistinguished from union representation as a function of the signing of collec-tive bargaining agreements. Not all trade unions representatives are indeed en-titled to underwrite collective contract agreements. The procedures for ap-pointing representatives (elective or through association) is not indicative itselfof the right to underwrite collective agreements. There are mixed systems ofrepresentation: electoral and associative, with differing competencies. In Ger-many, company management councils are assigned co-administrative powers. InSpain as well there are two types of representative bodies of workers in theworkplace:

a) the collective and unitary representative body created by law (the companymanagement council and delegates of the employees);

b) representatives of unions (union branches and delegates engaged in unionactivity in the workplace). Differently from Germany, however, in Spain strikeaction can be proclaimed by both bodies, which creates contradictions andthe overlapping of competencies.

In some countries trade union negotiating teams are composed on an infor-mal basis, and decisional power is left to the union organization (Germany) andcan be supplemented by experts (lawyers, economists, etc.) (Romania).

For some unions, the act of joining the union creates a strong link betweenthe association and its members (Germany) with external effects of selection byorganizations. In Bulgaria, the union organizations that are representative at anational level are evaluated according to the number of their enrolled membersand their presence nationwide. Approval must be granted by an administrativeauthority. The union organizations are enabled to assist their members in courtsof law (Bulgaria).

More recently, we see a widespread proliferation of trade unions that repre-

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sent specific occupations with strong negotiating power due to the role playedby their members in the organization of production (Germany, Bulgaria).

Trade union pluralism strengthens union bargaining power when severalpolitical and ideological options coexist in the same organization, as happens inPoland, Germany, Sweden and the United Kingdom.

In Sweden, there are about 60 unions and 50 employer associations. Overall,there are over 100 contracting parties in the Swedish labor market, amountingto over 650 collective bargaining agreements. In Sweden, the LO is the um-brella organization for almost all the national unions. The largest and mostrepresentative trade unions in Germany are associated within the same organi-zation, the Confederation of German Trade Unions (DGB), which has a strongcategorial character. Thus, a contract signed by this union becomes erga omneseffective.

2.2.1 Associative, elective and mixed modelsIn the history of the trade union movement, representatives are selected ei-

ther through association or election. In the countries surveyed here, thesemodels are neatly distinguished relative to the form of union representation atthe national level. In the context of the workplace, representation takes hybridforms, and models prevail in which associative and elective forms are co-present. Each classification holds margins of agency, which can be useful increating order under various circumstances. For this reason, even for thosecountries with mixed characteristics this form of representation has been con-sidered a firm association with one or the other model, taking as a nullifyingcriterion the prevalence of elements belonging to one of the models, or thehistorical legacy from which the form of the unions in a specific country origi-nated.

2.2.2 The associative modelIn the associative model, representation is characterized by the associative

bond deriving from the act of enrollment by the worker in the trade union asso-ciation (Italy).

The United Kingdom, birthplace of the labor union, exported the associativemodel based on union enrollment throughout the world. In recent history, asdiscussed below, this model has been significantly downsized, maintaining,however, the strong sense of the fundamental relationship between the workerand the union. This means, for example, that employees can subscribe to a un-ion even if the latter is not represented in the member’s workplace.

In such circumstances (which British trade unions do not favor because of therelatively high cost of assistance to members), the union can interact with theemployer, assisting the worker in legal or disciplinary proceedings, but cannothave other relations with the employer either with regard to the contract or fortrade union activity.


41

Since June 6, 2000 a statutory recognition procedure is in force.1 The proce-dure applies to workplaces with 21 or more workers (i.e., not applied to smallworkplaces), in the event that the employer refuses to deal with a union.

If a union is able to demonstrate the support of at least 40 percent of partici-pants (in the form of occasional petition signatures or union membership) inthe bargaining unit,2 an independent body, the Central Arbitration Committee(CAC), automatically grants legal recognition. This allows the union to appointits representatives in the workplace and to enjoy trade union rights and theright to negotiate wages with the employer.

To gain legal recognition, unions that are unable to show the required per-centage may, as an alternative, show the favorable vote of at least 40 percent ofthe employees in the bargaining unit. This double threshold means that a highmark in favor of the union may be insufficient to obtain recognition if, for ex-ample, the turnout is low. If it fails to achieve this quorum, the union seekingrecognition loses the right to present itself again for three years.

The associative model is also present in Germany. Here only a union able toimpose a collective agreement with normative value according to the law oncollective bargaining (Tarifvertragsgesetz, TVG) is considered a Gewerkschaft(union) in the strict sense of the word.

In the German model, however, trade union representation expresses a dualmodel in workplaces: trade union representation as an expression of its mem-bership (associative model), and works councils as an expression of both work-ers who are enrolled and those not enrolled in the company (elective model).Both systems are regulated by law.

The negotiating team is elected by union members. Usually a company hasonly one trade union party (the union member of the DGB). In this way Ger-man unions that belong to the DGB (confederations of trade unions responsiblefor union politics and support more than for negotiations) avoid competitionand conflicts of interest with the others. Collective bargaining is the responsi-bility of trade unions, and collective action as well can only be proclaimed bythe union.

The representation of works councils is not based on voluntary association,but is an elective representation regulated by law. Council members are electedby all employees of the company.

The current law of 1972 related to the establishment of works councils re-quires the election every 4 years of works councils in all companies employingat least 5 employees.

These have the right to collective negotiation in all areas in which they areentitled to co-management (Sec. 87 of the Act on Company Councils): discipli-

1 Relations Act of 1999.2 The bargaining unit is determined by the union but control over the reasonableness of the op-

tion chosen belongs to the CAC.

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nary sanctions, working hours, control systems of workers, industrial planning,etc. These collective agreements at the workplace or company level are bindingfor all employees of the employer.

The law of company councils also regulates the relationships between collec-tive agreements of works councils and collective agreements between the unionsand the employers or their associations. The latter agreements take precedenceover those produced by the works council. In fact, since they are less influencedby economic pressures and by the constraints of the company’s size, theseagreements are the most genuine expression of freedom of association guaran-teed by the Constitution (art. 9 par. 3).

In relation to the employer, works councils have rights derived from law. TheWorks Council Act of 1972 not only requires that the employer finance the ac-tivities of the work council, but also it authorizes the councils to acquire rights torequire information and consultation, and to impose co-determination. In acertain number of fields the employer cannot make a decision without the con-sent of the works councils. The works council must report its own activities tothe employees four times a year, but is not subject to dismissal.

The works council furthermore cannot declare a strike even if the majority ofthe members of the works council are also union members and therefore havethe right to participate in a legal strike.

In the negotiations the unions employ specialist lawyers to assist their mem-bers in any legal conflict with their employers and can represent their membersin civil proceedings. This service is usually free, with legal expenses (includingthe opponent’s lawyer, in the case of loss) covered by the union.

Members of the union are thus greatly shielded, since they are able to open alegal dispute with their employers without assuming the relative financial burden.

In Poland, «representative» union legal status is granted only to historicalworkers organizations, such as: All National Organization of Trade Unions -OPPZ, the National Commission of independent self-governing Trade Union«Solidarity», which have the right to take part in activities of the three-partyCommission for Social Affairs, regulated by a law of July 6, 2001. Other unionsmay be considered representative only if they prove to be at least 10 percent ofthe workforce or no less than ten thousand people comprising both workers andemployees. In Poland, however, it only requires ten workers to form a union.

In Bulgaria, the criteria for determining an association’s representativenessare dictated by law.

To be representative, an organization must meet the following requirements:

1. at least 50,000 members;2. present in at least 50 companies each with at least 5 employees;3. local representatives in more than half of the municipalities in the country

and a nation-wide body;4. status as a legal entity, acquired pursuant to art. 49 of the LC.


43

The union organizations have the right to represent their members in legalproceedings regarding individual labor disputes. They cannot conclude agree-ments related to claims or rights of workers without the consent of the workers.

Some unions are organized on the basis of the trade or professional qualifi-cation, e.g., Free Trade Union Aviation, which mainly organizes ground work-ers in the aviation field.

Art. 7 of the 1986 Labour Code provides for bodies representing the work-ers, which are elected in the workplace with more than a two-thirds majority ofthe assembly. Such entities are not responsible for negotiations, but can assistworkers in specific disputes that have arisen in the handling of the employmentrelationship.

2.2.3 The elective modelThe elective model is that in which representation of the trade union is con-

stituted as expression of the will of the workers manifested through voting.In Spain, art. 28. 1 of the Constitution and the Ley Orgánica 11/1985 estab-

lish that the general representation of workers interests is entrusted to the rep-resentative trade unions.

The degree of representativeness is reflected by the number of votes receivedby the trade union in the elections (in the workplace) of the works council rep-resentatives.

The law distinguishes between three types of union representation:

a) Trade unions that have received at least 10 percent of the votes in the civilservice workers elections at national level.

b) The representatives of the Autonomous Communities (Basque Country andGalicia), unions that have obtained at least 15 percent of the vote in theworkplace elections of works councils.

c) The basic representation is accorded to the unions that have obtained in aspecific geographical area or trade sector, at least 10% of the memberselected by representative bodies of employees in a firm, or in public admini-stration.

These unions enjoy the general representation of interests in public institu-tions, and may enter into collective agreements with general effectiveness.

In Spain, the dual organizational model (associative and elective) for repre-sentation in the workplace, partially inherited from the Franco period, com-prises two structures, the first known as the «works council» (elective), and thesecond, the union representation (associative) denominated «union section».The lack of clear rules of jurisdiction raises issues of coordination and competi-tion between the two structures.

In France, the system of worker representation is regulated by the law thatselects the representative unions on the basis of seven criteria: independence

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(meaning union action free from conditioning by the employer), the number ofmembers and union contributions, seniority (minimum two years in the profes-sional field or geographical area corresponding to the negotiation level) andleverage, characterized chiefly by activity and experience, respect for republicanvalues, financial transparency and the voting results.

To obtain representative recognition, the unions must meet the above re-quirements and at the various negotiating levels, receive a certain number ofvotes in specific elections organized for the constitution of the employees’ rep-resentation. That is, they should obtain at least 10% of the votes cast in the firstround of the most recent elections of members of the works council, or of thesingle extant trade union delegation of employees or, failing that, of the em-ployees’ delegates, whatever the number of voters.

In workplaces in France representation is articulated according to the dualmodel: entities composed of members elected by the workers (whose electionresults, as we have seen, become significant for the identification of representa-tive unions) and bodies whose members are appointed directly by the unions.

In principle, the elective bodies do not have the power to negotiate collectiveagreements even if they represent the interests of the whole community. Theydo, however, have a limited ability to negotiate in firms with fewer than 200employees in which there are no trade union delegates, and only for measureswhose implementation is subject by law to a collective agreement. The negotia-tion is subject to the approval of a joint committee set up at the productive unit.

2.3 Regulation of the Collective Agreement

The function of the strike in the definition of the collective agreement is wellknown.

The common denominator of all the manifestations of self-defense is the ex-ercise of economic pressure in defense of collective interests. This pressure isusually aimed at the counterparty in a trade union dispute. Regulation of col-lective bargaining is therefore an essential part in the understanding of theprocedures that mark the dates, parties, and contents of the strike event.

The regulation of collective bargaining has to do essentially with the erga om-nes efficacy and the selection of persons responsible for negotiating and if nec-essary, empowered to take the bargaining beyond the sphere of the union’smembership.

Collective bargaining is regulated by law in most of the countries surveyed (i.e.,Bulgaria, France, Germany, Poland, Romania, Spain, United Kingdom). Theprocedures for defining it differ in reference to the instruments considered validfor reaching the agreements. These instruments are an expression of the will ofthe workers when the validity of agreements is subject, entirely or in part, to dis-cussion by the workers. They are an expression of the will of the members whenthe validity of agreements is subject to judgment by the union representation.


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2.3.1 Use of referendum for subscribing collective agreementsIn Bulgaria, only the effects of collective bargaining are regulated by law.

Trade union pluralism bows only to the necessity of ensuring a uniform and re-liable regulation of labor relations within the workplace. Thus, if the unions areunable to present a joint proposal, the employer is obliged to deal with the un-ion whose project was previously approved by the employees’ general assemblyby a majority of more than 50%. The Minister with the relative competency mayextend the collective agreement erga omnes, if the parties so request (Bulgaria).

In France, a minority of workers is sufficient for validity of agreement. Theagreement, in fact, is valid if signed by one or more representative trade unionsthat have received at least 30% of the total votes cast in favor of unions recog-nized as representative. One or more representative trade unions that receivedthe majority of the votes in the elections for recognition of union representativ-ity can request that the agreement be declared invalid.

The agreement can be temporary or permanent and has continuing validityuntil the validation of a new agreement. All individual employment contractswith signatory employers who adhere to the organization of signatory employ-ers are regulated by the provisions of the agreement. Erga omnes effectivenesscan be acquired by means of a decree by the Minister of Labour after a proce-dure established by law (Extension Order). The decree may extend the terms ofthe agreement to all firms in the commodity sector related to the said agree-ment thus validated by the Minister, and sometimes even make it applicable torelated sectors where collective bargaining is absent (decree extension).

In Spain, the bargaining is regulated by a law establishing requisites to ensuretrade union representativeness for purposes of the definition of a collectiveagreement and, in institutional settings, representation of the interests. Thepriority requirement for selection, however, is constituted by the number ofvotes received by each union in workplace elections. The collective agreemententered into in respect of the procedings of the law, has erga omnes validity.

2.3.2 Collective agreement and the will of the membershipIn Romania, the power to negotiate and sign collective agreements or to join

tripartite bodies representing the interests of workers is regulated by law.The lower levels of bargaining may not introduce pejorative clauses with re-

spect to the clauses of the higher levels. The law requiring the employer to re-spect the stipulated collective agreements extends the agreements erga omnes.Both the trade unions and the employers can be held responsible for the viola-tion of collective agreements.

At a national level in Romania, to acquire representative status, a union mustmeet three fundamental conditions. That is, it must have 1) the legal status ofconfederation; 2) a membership equal to at least 5% of the labor force em-ployed in the state-controlled national economy; and 3) local union offices in atleast half of the regions of Romania, including the cities in the municipality of

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Bucharest. At the corporate level the union must be able to prove that its mem-bership comprises at least half plus one the total number of employees.

In Romania, collective bargaining is mandatory only for production unitswith more than 20 employees. The delegation is appointed directly by the un-ion. The delegation may be supplemented by experts (lawyers, economists, ex-perts, etc.) whose purpose is the technical assistance of the trade union delega-tion. The signing of collective agreements is the responsibility of union leaderswho participate in collective bargaining, and it has erga omnes effectiveness.

In the United Kingdom, too, regulation of collective bargaining has beenmade law. The employer is obligated to bargain with the union that can show ithas majority support (i.e., 40 percent membership in the form of both occa-sional signers and subscribers). Otherwise it must proceed to a consultation ofworkers, and receive a favorable vote of at least 40 per cent of all employees inthe production unit. An independent body certifies the recognition. Most of thecollective agreements are still signed, however, using the older system of freerecognition between parties.

Also, collective agreements in the United Kingdom are the product of col-lective autonomy expressed in the form of association. The British system doesnot have mechanisms of erga omnes extension for collective agreements. Nego-tiative legal norms and principles of case law coexist, however, and create alarge set of minimum standards for a wide range of matters (e.g., minimumwage, working hours, health and safety, discrimination, dismissal, etc.) whichcan not be waived.

In Poland, the employer has an obligation to negotiate with the unions onspecific subjects, and any negotiated contracts will apply to all workers, regard-less of union membership. Contract and union negotiations for state-ownedenterprises maintain an authoritarian character typical of the historical state-controlled practice. The negotiating parties are the union and the Minister orthe local administrative structure, depending on the level of the bargaining. Forevery state enterprise, the administrative authority submits a proposal to theworkers councils. This shows that the employer associations have no real powerin the negotiation or finalization of collective agreements.

Collective agreements are stipulated for an indeterminate period of time,though fixed-term contracts are also possible. In the latter case, an agreementautomatically expires at the end of its established term. Regardless of its term,fixed or not, an agreement may be terminated at any time with the consent ofall parties or unilaterally with notice (three months). In the private sector,similar collective bargaining practices exist.

It should be noted that in the countries surveyed, the use of the referendumon the draft agreement reached by the parties in collective bargaining is an in-strument that is rarely used and always voluntary (Italy).

In Germany, the law does not intervene on the composition of the represen-tation, nor does it regulate legal requirements, validity, or the effects of collec-


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tive agreements between «unions» and employers or associations of employers.Collective agreements have a direct effect on an individual’s terms of employ-ment only if the employee is a member of the signatory union, and the em-ployer is a member of the signatory association of employers, or part of thecollective agreement itself. Both social partners: employers and unions, can askthe government to extend collective agreements erga omnes.

Similarly, in Sweden there is no legal regulation of collective agreements,which are legally binding for both parties to the agreement, and for the mem-bers of organizations that have reached such agreements. There are no proce-dures for extension of collective agreements with erga omnes effectiveness.

Collective bargaining in Sweden is regulated by the agreement between par-ties, and is structured on three levels and arranged through a referral from onelevel to another.

2.3.3 Recent tendencies in industrial relationsWarning signals of the deterioration of solidarity between the professional

categories are indicated in several national reports.The German report notes that recently a highly aggressive trade unionism

has appeared in the union panorama. Strikes by these organizations are greatlyfeared by employers, and can result in extremely advantageous collectiveagreements for these unions and their membership. The phenomenon hassparked debate regarding the respect for the principle of proportionality in re-lation to the equality of the parties in conflict. The question over whether pro-portionality is actually respected is raised when, for example, a strike by a smallgroup of workers brings the entire nation to a standstill. A part of the juridicalliterature has considered such strikes as lacking the requisites of proportional-ity. They are, in fact, proclaimed to gain benefits for a small group, against theloss of the many.

Another disquieting phenomenon is that of the change in the hierarchy ofthe levels of collective bargaining in the direction of a greater and more exten-sive role of enterprise bargaining (Italy).

In Romania, the law has recently abolished national-level bargaining. Onlythe corporate, group level still exists, for the business sector and it is compul-sory only for firms with more than 20 employees. In the United Kingdom, too,bargaining is highly decentralized.

In Germany as well, in recent years we have witnessed the proliferation oftrade unions and collective agreements, which are the effect of a law that pro-motes collective enterprise bargaining. In fact, in some cases this legislationpermits exemption clauses in the terms of pay and conditions required in col-lective agreements, but prohibits that such waivers are introduced directly intothe individual contracts. This encourages employers to stipulate collectiveagreements. In recent years, in fact, collective agreements at the corporate levelhave multiplied (Tarifvertrag). Thus, in order to facilitate the stipulation of

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corporate contracts, employers are induced to abandon their associations, to thepoint that some of these associations have begun to offer employers member-ship «without respecting the collective agreements» stipulated by the associa-tions, thus forcing the unions to bargain individually with the corporations.

The proliferation of contracts also generates another phenomenon.It can happen that an employer is obligated to respect more than one collec-

tive agreement in relation even to different categories of employees (collectiveplurality). The Federal Labor Court has ruled on the issue of competition orconflict between collective agreements, determining that the employer must bebound to a single collective agreement («Tarifeinheit», collective unity), andthat the choice between agreements is regulated by the principle of lex specialis(cf., for instance, BAG 11.8. 1992, AP n. 124. zuArt. 9 Arbeitskampf GG) ac-cording to which the contract that is closest to the situation in need of regula-tion is that which prevails.

To prevent that the proliferation of collective agreements at the establish-ment level, which prevail over the national contract due to the specific contextof their regulatory power, should weaken the hegemony of the collectiveagreements stipulated by the most representative trade unions, in June 2010the German Confederation of Trade Unions (Deutscher Gewerkschaftsbund,DGB) and the Confederation of German Employers (Bundesvereinigung Ar-beitgeberverband der Deutschen, BDA) came to an agreement on collectiveautonomy and bargaining units. This agreement has been much contested sinceit amends the law on collective agreements (TVG) and, in the case of competi-tion/conflict between collective contracts, gives the priority to the collectiveagreement stipulated with the union subscribing the greatest number of em-ployees in that company. If this agreement between the Confederation of TradeUnions (DGB) and the Association of Employers (BDA) were to be transposedinto law, it would have important consequences on the regulation of the strike.Union organizations with less representation would be inhibited from striking ifthere was a collective agreement in force with a «representative» union, withinthe firm concerned. The law implementing the agreement, in fact, would makeit possible to extend the obligation of accord contained in the agreement signedwith the most representative union, to all other unions present in the firm.

We are witnessing, then, a strengthening of the role of enterprise bargaining.In Romania, the law has recently abolished national-level bargaining. There

is only the enterprise level, by group, for business sector and is compulsory onlyin firms with more than 20 employees.

2.4 The cases Viking, Laval, Ruffert

2.4.1 Complexity of the case analysisThe Viking, Laval and Ruffert decisions have raised a dual problem: the

conflict between the economic freedoms and social rights stipulated in the EU


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Treaties, and the conflict between Community law and domestic law in relationto national constitutional rights.

The second aspect opens strong tensions, since it invests the national assetsof government in the conflict between economic freedoms and historically de-termined social rights.

A third aspect concerns the problem of the possible conflict between interna-tional laws (European Convention for the Protection of Human Rights andFundamental Freedoms of 1950, the Conventions issued by the InternationalOrganization of Labour in the ONU) and Community laws in relation to socialrights.

To methodically analyze these matters, it will be useful to briefly summarizethe cases in which the Court of Justice has ruled.

1) Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’sUnion v Viking Line (Judgment, 11 December 2007)

Viking, a Finnish company that operates the route between Tallinn (Estonia)and Helsinki (Finland), to beat the Estonian competition decides to changeflags, and register its ship in Estonia with the aim of stipulating a new collectiveagreement with an Estonian union. It communicates its decision to the FSU, theFinnish seamen’s union, in which the members of the crew are enrolled.

The FSU calls the strike while the international trade union (ITF) to which itis affiliated orders its members not to engage in negotiations with Viking, whichturned to the national court asking for the withdrawal of the ITF circular andcessation of any FSU behavior impeding the exercise of the rights which Vikingenjoys under article 43 EC. The judge rules in favor of the request of the Vikingand condemns the behavior of the organization as an unlawful restriction of thefreedom of movement of the workers and of their freedom to provide servicesunder articles 39 EC and 49 EC.

The dispute before the Luxembourg justices has two aspects: 1) whether arti-cle 43 EC has a direct horizontal effect, giving a private company rights to beinvoked against another private party, in this case against a collective actionproclaimed by a union; 2) if the collective action of a union, in the case it shouldconstitute a directly discriminatory restriction according to art. 43 EC, can inprinciple be justified on the basis of the exception to public order under art. 46EC: a) taking a collective action (including strike action) is a fundamental rightprotected by Community law and/or b) because it involves the protection ofworkers.

On the one hand the Viking ruling says that the provisions of the Treaty areformally addressed to the Member States but that they also confer rights to theparties in compliance with the obligations to which the States are bound. In ad-dition, the prohibition on violating a fundamental freedom provided for by aprovision of the Treaty with an imperative nature also applies to all agreementsregulating the employment in a collective way (see, to that effect, Judgment

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April 8, 1976, Case 43/75 Defrenne ECR. 455, paragraphs 31 and 39). There-fore, it admits the horizontal effect of the rules referred to in art. 39 and 49 EC.

Regarding the second aspect, for any assessment it refers to the nationalCourt, which must consider the applicable national and contractual legislation,and ascertain whether the FSU had any other way, less restrictive of the free-dom of the company (stabilimento), to bring about the successful conclusion ofthe collective negotiations underway with Viking, and if that trade union hadexhausted all possible courses of action to avoid a collective (strike) action.

2) Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet (Judgment 18 Decem-ber 2007)

The Laval, a Latvian company, posts 35 workers at the L&P Baltic Bygg AB(hereafter the «Baltic»), a nominal Swedish company 100% incorporated by La-val, to carry out construction work on a school building in Vaxholm. The termsof employment of the 35 workers are regulated by a collective agreementstipulated with the Latvian construction workers’ union. The Swedish trade un-ion Byggettan, which has no members in the Baltic, asks Laval to subscribe tothe collective agreement for the construction work at the Vaxholm building siteand, secondly, to guarantee the placed workers a salary equivalent to that en-joyed by the Swedish workers, and thus far superior to that provided for by theLatvian collective agreement. Moreover in subscribing the Swedish collectiveagreement on building trade, the Laval would be bound to respect all theclauses thereof, including those relating to pecuniary obligations with respect tothe Swedish trade union (an amount equal to 1.5% of total gross wage) and theinsurance company FORA (0.8% of total gross wage as a «surcharge» or «specialbuilding supplementary» and to 5.9% of total gross wage or several insurancepremiums).

Laval rejected the demands and the Swedish trade union initiated its actionby blockading the Vaxholm worksite (the picketing obstructing the delivery ofgoods to the worksite, and blocking the Latvian workers and vehicles from en-tering). The Laval seeks the assistance of the police, who refuse to take actionsince the collective action undertaken by the union was legitimate under na-tional law. The Swedish trade union Elektrikerna also initiates an action of soli-darity, which effectively prevents Swedish companies belonging to the employ-ers’ organization of electricians to provide services to Laval. The Baltic, unableto meet its commitments for the construction of the school, is forced to submitto the termination of the contract with the town of Vaxholm, and declares bank-ruptcy. The Laval turns to the Swedish Court, which in turn refers to the Com-munity Court with the following queries:

– If the collective action exercised in the form of blockading, with the purposeof inducing a foreign services provider to sign a collective agreement in thehost country is compatible with EC Treaty rules (articles 12 and 49 EC) on


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the freedom to provide services and the prohibition of any discrimination ongrounds of nationality, as well as with Directive No. 71/1996;

– If the proscription in the Swedish legislation that prohibits a trade unionfrom taking collective action to break a collective agreement stipulated byother parties also extends to previously stipulated foreign collective agree-ments.

3) Case C-346/063, Dirk Rüffert v Land Niedersachsen (Judgment 3 April 2008)A law in force in Lower Saxony regarding public contracts requires that in

the ambit of construction works and public (passenger) transport, the contract-ing public institution award contracts only to companies that pay the wages es-tablished by collective agreement in the place where the work will be carriedout. The Objekt und Bauregie, a German company, wins a contract for struc-tural work for the building of the penitentiary of Göttingen-Rosdorf, and sub-contract the job to a Polish company that offers the 53 workers employed on theworksite only 46.57% of the expected minimum wage. The German judgecharged with ruling on this issue, turns to the Community Court to verify thecompatibility of the German Land law with the provisions on freedom to pro-vide services sanctioned by article 49 EC.

The Viking, Laval and Ruffert cases have previously been treated as verysimilar events. If examined with care, however, they reveal significant differ-ences that require underlining.

In the Viking case we are talking about pure legal shopping. The companyconcerned does not make use of any of the freedoms provided for by the Trea-ties, such as freedom of establishment, since it does not even change its head-quarters, or the freedom to provide services, because it does not post any of itsemployees. It simply changes the flag of one of its ships. In short, it finds anexpedient to enable it to pay its own Finnish employees lower wages. The na-tional and community Courts do not perceive this or else believe that they areextending the concept of «establishment» and «providing services» beyond theliteral meaning, to the point that it coincides with the generic «freedom of en-terprise».

The Laval case effectively materializes one of the hypotheses regulated by theDirective of Services No. 71/1996.

The Ruffert case expresses a breach of the internal legislation on public con-tracts.

The lowest common denominator among Viking, Laval, and Ruffert is in thesource of the disputes, that is, an incomplete or imperfect national legislationthat fails to comprehensively regulate the phenomenon of transnationality, andthe consideration of the strike as an undesirable event because capable of hin-dering the company’s aims.

To limit our comments on these decisions to the parameters of the matterbeing addressed in this inquiry, only the Laval case will be treated. In the other

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two cases, in fact, elements are present that could produce confusion in thisanalysis.

2.4.2 Debatable interpretations by European JudgesThe regulatory framework in which the case can be traced back comprises in

the first place the provisions of the Community.With articles 49 and 50 EC, the Member States committed themselves to al-

lowing a service provider established in another Member State to move aboutfreely with all its staff in their territory in a position of absolute equality withother national service providers.

A special regulation was dictated for the freedom of establishment and free-dom to provide services with regard to terms of employment (labor relations?).

Directive n. 123/2006 states that the host country will apply its own legisla-tion with regard to the safeguarding of employment to the company exercisingthe right of establishment.

Directive N. 71/1996 establishes, in the interests of employers and their per-sonnel, the terms and conditions of employment applicable to the employmentrelationship, in the event that a company established in one Member State postsworkers temporarily in the geographical territory of another State. It is for thenational legislation in compliance with the Treaty and with the general princi-ples of Community law, to lay down a nucleus of mandatory rules for basic pro-tection to be observed in the host country by employers who post workers.

Member States may also regulate different aspects from the list of matterscovered by the directives, provided that they are provisions of public order orrules established by collective agreements (art. 3 c. 10) declared universally ap-plicable. That is, established provisions «that must be respected by all compa-nies located in the geographical area and in the professional or industrial cate-gory concerned» (art. 3 c. 8).

In the event that these are lacking, the States can «make use» «of collectiveagreements or arbitrations which are generally applicable to all similar compa-nies in the geographical area and in the profession or industry concerned,and/or collective agreements finalized by the most representative social partiesat the national level, and which are applied throughout the national territory»(art. 3 c. 8).

The addressees of this regulation are the States, and it is quite clear from anexamination of the cases that the failure of the national legislation to providean exhaustive and precise application to the Directive has left unregulated largeareas of the phenomenon of transnational provision of service.

In the absence of legal rules, to help with the relations between private par-ties there is a general framework contained in the Rome Convention of 19 June1980 on the law applicable to contractual obligations (OJ No L 266, 9. 10.1980), which came into force on 1 April 1991 in the majority of Member Statesand was subsequently adopted in Regulation (EC) No 593/2008 of the European


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Parliament and the Council of 17 June 2008 on the law applicable to contrac-tual obligations (Rome I).

Article 3 of that Convention provides, as a general rule, the free choice oflegislation by the parties. In the absence of choice, the contract shall be regu-lated in accordance with article 6, paragraph 2, by the law of the Country inwhich the employee habitually carries out his work under the contract, even ifhe is temporarily employed in another country, or, the employee carries out hiswork in more than one country, by the low of the country in which the com-pany’s main office is located, the law of the country where the company’s head-quarters is found. The exception to the rule is constituted by terms of employ-ment that have elements that are strictly linked to one country in particular,which will then determine the applicable law.

In essence, since the Swedish law had failed to apply article 10 of the Direc-tive, Laval could have availed itself of the law provided for by the Convention of1980 which enabled it to apply the collective agreement of the country of originto posted workers.

The Court of Justice moves in this legislative framework but does not limit it-self to the strict assessment of the proper implementation of EU rules withinnational law (so-called «vertical efficacy»), going beyond to tread the thornypaths of the implementation of Community law in relationships between privateindividuals (so-called «horizontal efficacy») and relationships between Commu-nity law and constitutional rights.

In fact, the Community Court states that «art. 49 EC. [...] confers to individu-als rights that they themselves can legally enforce, and which the national courtsmust protect» (paragraph 97 Laval).

In broad terms, the reasoning of the Community Court is easy to follow. Theprovisions of the Treaties adhere to a truly consistent legal principle. To the extentthat Member States devolve jurisdiction to the European Union, this right com-pletes the national legislation. The freedom of establishment and provision of serv-ices constitute an obligation that cannot be disregarded even if it comes into conflictwith the constitutional rights over which Community law has no jurisdiction.

Economic freedoms and the right to strike must necessarily be coordinated(not balanced), using as a regulating criterion the principle of proportionality.In other words, the Community Court states that the holders of the rights offreedom in the provision of services and establishment can act against anyone(be they public or private parties) who impedes their freedom.

Any conflict between economic freedoms and constitutional rights must beresolved by applying the assessment of proportionality.

This approach of the Community Court raises several concerns of an herme-neutic order.

The judgments seem, in fact, to ignore the goals of trade union action, safe-guarded by many European national constitutions. Indeed, with great clarity,the judge of the Laval case states that a Member State’s trade unions’ exercise of

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the right to take collective action to induce transnational companies to sign acollective agreement (the clauses of which differ from the laws establishingterms and conditions of employment that are more favorable with regard to thematters listed in article 3, No 1, first paragraph of article. a)-g) of Directive96/71, while others relate to matters not covered by that provision) can discour-age or make it more difficult for these companies to carry out «productive ac-tivities», and that it therefore «constitutes a restriction on the freedom to pro-vide services pursuant to art. 49 EC» (paragraph 9).

This conclusion has provoked great alarm in the trade unions and amongacademics. The strike is by definition a collective abstention from work in orderto put economic pressure on the employer. In describing the strike as a collec-tive action that can «discourage or make more difficult», the Community Courttautologically echoes the definition itself of the term strike, which in its legalsense (national, supranational, and international) is safeguarded with defensesof a high order. And yet, quite dismissively the Luxembourg Court demotes thestrike from its rank assigned by the system of values consolidated in Western le-gal systems, reducing it to a mere «restriction of the freedom to provide servicespursuant to art. 49 EC».

The Community judge’s statement is both disconcerting and intimidating in itscrude inaccuracy. Regarded with calm detachment, it appears radically flawed.

The Community Court, in essence, seems to claim that the regulation of theemployment of posted workers is authoritatively provided for by the nationallaw implementing the Directive, and that any action aimed at calling that levelinto question violates the pactorial laws. The argument, however, is not consis-tent. The States have the obligation to ensure the freedom to provide services.They are thus prohibited from discriminating between domestic and foreigncompanies. The Directive of Service provides basic safeguarding of workingconditions. These basics are not the last threshold of conditions applicable toposted workers. Member States, in fact, can not prevent hosted companies fromcontracting obligations with private parties that are more onerous than thoserequired by law. In other words, if using the proper means of collective auton-omy the unions succeed in obtaining more favorable terms with the consent ofthe employer, this cannot be considered a violation of the Treaties.

A conclusion to the contrary would lead to a negation of the very roots of thefreedom of collective action, and even of the freedom of competition. It would,in fact, create situations of discrimination against domestic companies, whichalone would remain exposed to the collective action. This consideration, whichis obvious at the political level, is useful in any case to shed light on the legalimplications. Because the content of the State’s obligations can never be ex-tended to include a commitment to create a condition of immunity from collec-tive action for the exclusive benefit of the transnational enterprises, the conclu-sions of the Community judge are in error, being unsupported by the dictate ofthe legislative Directive n. 71/1996.


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The obligation of the State, as well as of all the parties required to complywith the pactorial laws ends after guaranteeing all companies the same condi-tions and therefore the same exposure to collective action. The differences be-tween systems of industrial relations is unquestionably one of the parametersused by companies to evaluate the costs of investment. This evaluation takesplace in a dimension of relations characterized by the greatest contractual free-dom of private parties.

It should be stressed, therefore, that the special legislation on the safe-guarding of working conditions in transnational companies, aims at identifyinga level of minimum guarantee to avoid the «regulatory shopping» allowed bythe Rome Convention, but does not allow transnational companies in the hostcountry to enjoy a privileged position compared to domestic companies.

2.4.3 Economic freedoms and constitutional rightsIn the early ’70s, this theme was the focus of the Constitutional courts, espe-

cially those of Germany and Italy, which had assumed the prerogative of exer-cising an association of compatibility of the Community legislation with internalconstitutional principles. A repeatedly declared adherence of the Communitylegal system to national constitutional principles and the principles containedin international charters of human rights has, over the years, reassured the na-tional Courts.

The Viking, Laval and Ruffert decisions have once again raised the questionof the relationship between economic freedoms and constitutional rights in aregulatory framework that is much changed with respect to the 1970s.

In reality, there is ample recognition in the decisions under examination ofthe collective autonomy and its rights, and it therefore seems excessive to builda barricade to defend the right to strike.

The acknowledgement, reiterated even in the sentences under consideration,of the right to take collective action as a «fundamental right which is part of thegeneral principles of Community law for which the Court guarantees respect»(paragraph 91 Laval) is sufficient reassurance.

New values, however, have found their way into the Community judiciary, in-cluding the freedom to provide services and the freedom of establishment. TheCommunity Court states proudly that restrictions on such freedoms are onlyadmissible where such restrictions pursue a «legitimate objective compatiblewith the Treaty» and are justified by «overriding reasons of general interest,provided that they are necessary to ensure the realization of the aim, and donot go beyond what is necessary to achieve it».

Thus, the European Union has its own value system, which only partially cor-responds with the internal value systems of the States; it cannot, however, over-lap these.

The affirmation of the Community judge, according to which in the absenceof provisions that fully activate the directive for safeguarding the national in-

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dustrial relations systems, economic freedoms prevail over national constitu-tional rights, thus appears excessive.

This conclusion is questionable not so much in terms of the «ethical» valuesthat inspire the EU, but rather because the States have not wanted to establish ahierarchy between the Constitutional law and the Community law. The con-cerns raised by the constitutional courts, especially those of Italy and Germany,have been overcome only by virtue of the explicit adhesion of the Communitylegislation and its judges to the respect for fundamental rights. The surrepti-tious affirmation of a hierarchy between economic freedoms and constitutionalrights could raise new objections by national constitutional courts.

A fairer and more balanced solution to a conflict between jurisdictions couldbe found by abandoning unconvincing hierarchical criteria pulled from thesources, and instead, making better use of the parameters established by therules regulating the application of the Charter of Fundamental Rights of theEuropean Union.

First of all, this means that such a conflict has to pertain to matters within thecompetences of the European Union.

The competence rules are found in the provisions relating to the interpreta-tion and application of the Charter.

The first rule is set forth in art. 28. It reaffirms the general principle of na-tional legal systems that give full autonomy to collective parties, and the free-dom to negotiate and stipulate agreements. The rules regulating collective bar-gaining and contracts must in principle reflect the freedom of collective parties.

The first parameter is, therefore, the respect of the collective individualautonomy.

Among possible ways to resolve the conflict between legal systems, solutionsthat guarantee the lowest level of compromise of the autonomy of collectiveparties should be chosen. To this end the States could greatly contribute withlegislation regulating the phenomenon of transnationality, more attentive tosafeguarding internal systems of industrial relations.

The second parameter is specified in article 51, requiring the principle ofsubsidiarity in the application of the Charter. The third parameter (art. 52).prescribes two precautions in the introduction of limitations to the exercise ofthe rights recognized by the Charter: the respect for the «essence» of thoserights and the principle of proportionality. These limitations should be func-tional to the protection of «objectives of general interest recognized by the Un-ion or the need to protect the rights and freedoms of others» (art. 52 c. 1).

Finally, the fourth parameter directly binds the Community authorities andthe courts to interpret the provisions of the Charter in harmony with the «con-stitutional traditions common to the Member States» (paragraph 4 of Rule 521).

In the Laval case, the judge had make a decision using the Community leg-islative elements at his disposal, and hence with the rules of Community law.With the Treaty of Lisbon, the Charter of Fundamental Rights takes on the


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same legal value as the Treaties. Thus, if cases similar to those of Viking, Laval,and Ruffert should re-present themselves, the Luxembourg Court may makedecisions different than those adopted. It must, however, be stressed that inCommunity law the right to strike does not prevail over economic freedoms.

The new connotation of the Charter in the Community legislation may, how-ever, affect a very significant aspect for guaranteeing the right to strike. Imple-mentation of the Charter can, in fact, inhibit the direct (horizontal) effective-ness of pactional laws when they are in conflict with constitutional rights. Theparameters of competence required by the Charter, in fact, make it difficult toconfigure a horizontal effect of the pactional laws on matters affecting the rightto strike.

It is opportune to premise this by observing that for matters within their ex-clusive competence, the Member States are free to determine how to exercisetheir rights although they are «obliged» to respect Communitary law. There-fore, as both internal legislation and European law (article 281 of the Charter ofFundamental Rights) provide, the right to strike can be subject to restrictions inrelation to the «conformity» of the right to collective action with the need tosafeguard the rights protected by the Treaty.

Similarly, Community case law can also dictate the parameters of «confor-mity» by referring to those already formulated in the Viking, Laval, Ruffertcases. Economic freedoms, in essence, are subject to limitations justified on thegrounds of the protection of workers, «provided it is ascertained that» such re-strictions are «necessary to ensure the realization of the legitimate purposespursued» and do not go «beyond what is necessary to achieve that goal» (Vi-king), in accordance with the principle of proportionality.

Such an assessment is the exclusive competency of the Community Court.The national court has a more limited horizon of investigation, and is unsuitedto rule on matters of an indefinite nature that affect both the domestic andcommunity populations.

The Community judge is required, as previously stated, to respect the pa-rameters for implementing the provisions of the Charter, which allows him toassess the collective action and its effects on economic freedoms, while also con-sidering the regulations set forth in art. 28 in the Charter. What is extremelydebatable, on the other hand, is assigning a Community judge with a specificcompetence directed at defining limitations on the rights sanctioned in nationalconstitutions. Even more unlikely is the hypothesis that the enterprise can di-rectly oppose the trade union action (contrary to what the judge of the Vikingcase states) in order to obtain effective compensation pronouncements in re-gard to subjects for which the judge has no competence.

It should in fact be reaffirmed, that the European institutions, while givingwide recognition to social freedoms, have very limited competency on theregulation of national industrial relations.

This does not mean that in matters regarding the strike, if economic free-

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doms are involved the Community judge must abstain, but rather that in his as-sessment he must respect the regulatory and industrial relations context inwhich the episode occurs. It is also evident that the dispute over the posting ofworkers will be posed in terms that can differ completely depending on the spe-cific internal union system context that gave rise to the issue. It is illuminating ifwe examine several of these contexts.

For example, in Romania (see the report) it would be illegal to call a strikeagainst a transnational company that changes its ship’s name, as in the Vikingcase, in order to pay the employees less. The law in Romania allows only unionsthat are already parties to a collective agreement to proclaim strikes. On thecontrary with reference to the Laval case, the Romanian law n. 344/2006, whichaccommodated Directive No 96/71/EC, extends to «posted workers, [...] workingconditions established by the Romanian law and/or the collective labor agree-ment at the national and industry level». In essence, in Romania the law pro-vides posted workers greater protection than that required by the either the Di-rective or Swedish legislation.

And Bulgaria too provides for minimum wages and working conditions di-rectly established by law, even if negotiated with the social partners.

These two briefly described examples serve to demonstrate that the Commu-nity judge has important limitations in attempting to find solutions that allowrestrictions on the right to strike in the application of the principle of propor-tionality, which can not be separated from consideration of elements closelylinked to the arrangement of national industrial relations systems, over whichthe individual states have the exclusive jurisdiction. Even assuming that, in hisexamination of the strike event, the Community judge wanted to be respectfulof the historical and social dynamics of the various internal systems, the risk ofaltering sensitive national institutional scenarios could not be avoided.

The decisions of the Court of Justice on the Viking, Laval and Ruffert caseshave, in fact, produced sometimes disruptive effects on the domestic law. In theUK the strike, as is known, is not a constitutional right. The threat of massivedamage compensations in the event of a judicial decision of the Court of Justicethat qualifies the strike as a violation of the freedoms guaranteed by the Trea-ties, can force the union to withdraw from the action even if it is legitimate un-der English law.

Potentially, however, the effects of these decisions can affect all countries,even those in which the strike is a constitutional right. The economic freedomsprovided for by the Treaties can, in fact, as is clear from the decision of theCourt of Justice, configure themselves as additional limitations to the right tostrike. Furthermore, the competency and proportionality criteria as a meas-urement of the legitimacy of the strike risk handing over the collective action tothe discretion of governments and to judicial interpretation.

Also resulting from the Viking, Laval and Ruffert case decisions, is the fact thatSweden was forced to «correct» its own legislation. The Community judge (in


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2007) and then the national judge (in 2009) both affirmed the need to limit col-lective action by restricting its legitimacy to questions on the fundamental aspectsof the employment relationship (wages, working hours, discrimination and work-place). Two paragraphs were added to the law that implemented Directive ofservices N. 678/1999, in which it is asserted that the strike action intended to forcethe employer to conclude a collective agreement is legitimate only if it is intendedto equalize the terms of the work relationship and the terms of the collective na-tional industry contract relative to minimum wage and other basic conditions, andthat the demands of the unions must be controlled by an administrative authority.

All the foregoing examples demonstrate that the intervention of Communityjudges on matters related to the strike meets with serious difficulties, given theconstraints placed by the parameters on the interpretation sanctioned by theCharter.

The foregoing observations also lead to the conclusion that the Lisbon Treatyhas clarified the correct dynamic between judiciaries regarding economic free-doms and social rights. In the absence of an express hierarchy between Commu-nity rules and constitutional provisions, the Community judge, when responsiblefor examining disputes arising from the exercise of the strike, is only able to con-demn the state for the non-implementation of Community law if it is shown thatthe prejudicial effect of the right of establishment or of provision of services is thedirect cause of the collective action and, therefore, of the failure of the legislatorwho did not effectively protect economic freedoms. The law applicable to trans-national companies depends, in fact, on the modalities in which the domestic lawshave incorporated the principles contained in the Directive. The Communityjudge may, therefore, contest the State that did not fully implement art. 3 c. 10 ofthe Directive, for not having permitted the transnational companies to evaluatethe expediency of the posting operation, and thus for having negatively affectedthe companies’ exercise of the freedoms guaranteed by the Treaties.

2.4.4 Multi-level safeguarding of the strikeThe strike is protected at multiple levels: national, Community, interna-

tional. The norms regulating these safeguards not homogeneous. Not surpris-ingly, then, conflicts may arise between the rules and the decisions related tothe different levels.

The European Union member countries belong simultaneously to all levels ofthe production of law in Europe (national, supranational, and international); acircularity in the effects of decisions taken by the various international bodies isthus physiological.

A typical example of multi-level effects induced by the decisions of the judgesof Luxembourg is that of the BALPA case: the strike called by the BALPA (Brit-ish Airline Pilots Association) against British Airways (BA) and immediatelycalled off after a formal notice was filed by the airline that threatened (recallingthe Viking and Laval rulings) a compensation of 100 million pounds a day if the

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strike were to be ruled illegitimate. Despite having exhausted all the proceduresunder British law, the BALPA was forced to give up the strike action.

Requested in 2010 for a report on the implementation of Convention n. 87,the ILO committee of experts expressed an opinion on the conformity of re-strictions on the right to strike introduced by case law in the Viking and Lavaldecisions to Convention n. 87, with specific reference to the BALPA case. Whilerefraining from judgments on the merits of unions, the ILO considered theconcerns of the BALPA as not unfounded, recognizing that those judgmentshave created a serious obstacle to the exercise of the rights provided for byConvention n. 87. Of particular significance is the reference of the Committeeto the different scale of values employed by the ILO with respect to those in-voked by the EU. In the first there is no consideration of economic freedoms aslimitations of the exercise of the right to strike.

It must be stressed, however, that the application of conditions that are infe-rior to those already established by collective bargaining constitutes a seriousviolation of the traditional trust in the negotiative freedom of the parties inBritish industrial relations. A recent controversy at the East Lindsey oil refinery3

has clearly demonstrated the strength of this tradition, and that it even appliesto employers who post workers in Great Britain. In such cases, spontaneousstrikes have forced employers to accept the terms required by the situation.

Strong conflicts, could arise, however, between the Community and nationallevels in the countries in which the definition procedures of the collectiveagreement is established by law, and minimum wage is authoritatively fixed forall employers.

In France on the basis of the work code, a foreign employer would in anycase be held to respect wage minimums even if this may not be correct with re-spect to Community obligations. Art. 18 § 1 of the Work Code clearly estab-lishes that the clauses of an individual work contract, even in the case of a con-tract underwritten in another country, cannot be less advantageous for theworker with respect to what is indicated in the collective agreements.

The French judges, however, would have difficulty agreeing with the positionof the European judges who ruled in the Viking and Laval cases. The constitu-tional right to strike establishes, in fact, that the State should abstain from anyevaluation of «reasonableness» of the motives. In Poland too, State authoritiesdefine minimum wage. The statute that regulates minimum wage, approvedOctober 10 2002, allows for the negotiation of the annual minimum wage. TheCouncil of Ministers prepares the draft agreement that functions as the basis ofnegotiations, which are then communicated to the three-part Commission(Government, and the social partners).

In Sweden the Laval case provoked special concern because no procedure existsthere for the erga omnes extension of collective contracts, nor is there any legisla-

3 See English report.


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tion on minimum wage. Collective agreements determine salaries fixed accordingto category, but these agreements are not declared to be generally applicative.

German law is applied to all enterprises in the country, irrespective of theowner’s nationality. The unions could legitimately proclaim a strike against aforeign enterprise operating in Germany. In a case of conflict between collectiveaction and the freedoms established by the treaties, the Constitutional courtcould overrule any European act or provision. The unions could theoreticallydemand that the federal Constitutional court declare decisions by the Court ofJustice null and void, on the basis of insufficient competency.

The BALPA case well explains the prismatic effect of the protection of thestrike at the international level, and the difficulty of identifying possible con-vergences. When the European Union accedes to the ECHR, several legal knotscould well be resolved. By acceding to the ECHR, the EU accepts its rules andalso its jurisdiction, and can therefore be held responsible for compliance withthe standards to which it is bound in the relevant fora.

Until then, the situation is more fluid. The legislature and the judges of theEuropean Union must take into account the rules of the ECHR, but are notbound to their strict adherence.

In the Charter, however, a principle is affirmed that would regulate any con-flict between multi-level laws. Art. 53 provides that between domestic law,ECHR law and EU law, the provision most favorable to the worker must prevail.In other words, the national judges and even the judges of Luxembourg arealso obliged to assess the various regulatory contents and choose, in the case ofa hypothetical introduction of limitation on the right to strike, the «less restric-tive» solution as possible.

3. Exercising collective action: the rules

In the legal systems examined, the strike meets procedural limitations andlimitations that result in restrictions on the freedom of trade union action.These restrictions do not always coincide with the type developed from thedoctrine of the internal and external limitations to the right to strike, a typewhich being still valid, has been adopted here to simplify the exposition.

A clear distinction must be made between countries where the freedom tostrike is compressed in order to guarantee equal constitutional rights, andcountries in which it meets limitations in reference to the conflict with simpleprivate interests (Bulgaria, Romania).

3.1 Formal and Procedural requirements (immunity, referendum)

In all systems, the strike meets procedural limits of various kinds, sources,and intensities. The most widespread obligation is that of giving notification.

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In some countries (Italy, Spain, France) the law lays down special rules for es-sential services.

There are no legal limitations to the right to strike in Germany and Swedenand France. Work councils may proclaim a strike if the majority of its membersdecides in favor.

In some countries the proclamation of a strike is subject to consultation.In Germany there are no particular restrictions on the right to strike, except

for the observance of the principle of proportionality, which is the key criterionfor assessing the legitimacy of any type of strike. The social partners themselves,with the collective contract, determine rules of the strike.

In essential public services such as hospitals, a minimum of service is sup-posed to be maintained. The same holds true for the field of communications.Strike action cannot be exercised during the term of a contract and relating tothe matters regulated by it, or regarding the interpretation of the collectiveagreement. The Court may intervene to force the union to stop the strike in thecase of a serious violation of the principle of proportionality.

In Sweden, social partners independently agree on the restrictions placed onthe right to collective action. The most important of these agreements is theFramework Agreement concluded in 1938 by the SAFe LO. The agreementcontains provisions, among other things, for the avoidance of labor conflictswith devastating effects on socially relevant services. The Swedish Parliamentalso has the power, provided for in the Swedish Constitution, to terminate a la-bor conflict that threatens the society. This type of intervention occurred onlyonce, in 1971. The government, however, cannot limit the rights of the partiesto undertake collective actions. It can receive this power only through an act ofthe Riksdag (Swedish Parliament), the only entity competent to adopt legisla-tion restricting the right to strike.

In Sweden the union proclaiming the strike must announce the action at leastseven days prior to its effectuation, to the employer and to the national office ofmediation. The notification, even when the parties are linked by a collectivecontract, is not obligatory if a strike is called for the failure or delay in the pay-ment of wages. Nor is the disclosure obligation due in the case of legitimate im-pediment, that is, when the communication would nullify the efficacy of theunion’s collective action.

The law regulates the strike in Romania, Poland, Bulgaria, United Kingdom,and Spain.

In Romania strikes are proclaimed by representative trade unions, with thewritten consent of at least half the number of its members, or alternatively, by aspontaneously formed group of workers who have acquired, with regard to theproclamation of the strike, the adherence in writing of at least a quarter of thetotal number of employees present in the affected production unit. Moreover,the legality of the strike is also affected by a mandatory procedure of conciliationbetween the parties, which takes place in the facilities of the Ministry of Labor.


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In Bulgaria, the party promoting the action must exhaust all possibilities ofnegotiation, before going on strike. In addition, in order for a strike to be con-sidered legal, several conditions must be complied with: a referendum on theaction, in which the strike proposal receives a favorable vote of at least 50% ofemployees of the company affected by the strike; and a written notice to theemployer at least seven days before the strike. During the abstention from work,the strikers must in any case stay on the workplace premises.

Workers can hold warning strikes lasting, in certain cases, for one hour, with-out prior notice to the employer. In other cases, the strike must be communi-cated to the employer with at least seven days notice.

In accordance with the law on the conciliation of labor disputes (ASCLD), inBulgaria the right to strike is guaranteed in all sectors of the economy, but thenegotiating parties are obliged to conclude a written agreement at least threedays before the action of the strike about the guarantee of basic services.

The agreement must provide that, during the strike, workers and employeeswill ensure the conditions for the conduct of those activities which failure toperform could threaten or cause irreparable damage in the following areas: a)the life and health of persons in need of urgent medical care, or who are hos-pitalized for medical treatment; b) the production, distribution and supply ofgas, electricity, heating, utility organizations and public transport services, tele-vision and radio or telephone services; c) public, private or environmentalproperty; d) public order.

If an agreement cannot be reached, either party may ask the National Insti-tute for Conciliation and Arbitration to resolve the matter using a sole arbitra-tor or an arbitration committee.

In Poland, the strike must be preceded by negotiations. The Law on theresolution of labor disputes requires the employer to respond immediately tothe trade requests related to clauses, working conditions, wages, benefits andtrade union rights and freedoms. The labor conflict can start the third businessday following the submission of the requests to the employer, unless the latterbegins the negotiations.

A strike that does not observe the procedures is considered illegal. Theseprocedures include: a union structure competent to decide on the declarationof a strike; the exhaustion of negotiations, mediation procedures, and possiblyany arbitration procedures; the support of the majority of workers (a vote favor-able to strike with at least 50% plus one of all the voting workers); presentationof proper notification of the decision to strike to the employer at least five daysbefore the strike.

It is possible to hold a warning strike, but only once and for no more thantwo hours. In the United Kingdom the strike does not have to observe specialformalities, but if the workers want to protect themselves from a possible legalaction by the employer, they must observe a procedure required by law, the firststep of which is a referendum on the proposal to go on strike.

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The consultation aimed at members of the union that is promoting the strikeand not generically to all employees affected, must observe the following steps:

Notice to the employer seven days before the vote, with information aboutthe content of the consultation. The union must provide a list of categories ofemployees involved in the consultation and their workplaces (TULRCA 1992, s226 aa). In the case of a national strike the notice for the employer may consistin a document of several hundred pages, given the large number of individualworkplaces. The information provided should be as accurate as may be rea-sonably asked, compared to the information available to the union. The unionmust also provide «an explanation» (TULRCA 1992, s 226 (2B) of the numbersindicated.

At least three days before the referendum, the union must submit a writtennotice to the workers involved, and give the employer a copy of the ballot. Thelaw also provides for the appointment of a Technical Coach qualified for theballot scrutiny if the number of workers involved is more than 50. The scruti-neer has to produce a report on the conduction of the vote.

After the consultation, the union must inform the members of the union andthe employer of the election results and make known the results (number ofvotes cast, number of those in favor, those against and the abstentions). Com-munication must be timely.

If a majority of members have expressed a favorable opinion the employermust be notified at least seven days before the strike in a communication indi-cating the starting date if the strike is of indefinite length, or indicating the be-ginning and end date if it has fixed terms.

The strike must begin within four weeks from the vote (eight weeks if a col-lective agreement in force in the company). The ballot scrutiny is a complexand expensive task for the unions. A strong electoral result can convince anemployer to grant the request without waiting for the strike, but the complexityof the current system and the burden of communication are an objective limita-tion on the exercise of the strike.

The procedure is not mandatory but the union that does not use it does notenjoy immunity from legal action and may be subject to a compensation fordamages. The employer may then apply to the High Court (the ordinary civilcourt) for an interim injunction to block the action.

Injunctions have devastating effects on collective action because the succes-sive application requires a period of time that definitely affects the action. Themere non-ascertainment evidence of a violation in fact produces the repeal ofall rights and immunities.

Moreover, these injunctions are granted quite easily even for small proce-dural mistakes (for example, a slight delay in communicating the results to theemployer, or incomplete data communication).

If a union chooses to ignore the order, it may incur in criminal penalties(fines or even imprisonment) or even be persecuted for contempt of court. This


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action is not, however, in practice, a feature of modern industrial relations inthe UK.

The interest of third parties also affects the granting of the injunction on thebasis of a simple presumption of harm. The pinch is that the measure comeswhen the procedure of a referendum, which has a significant cost for the union(independent scrutineer, postal communications to the workers and to the em-ployer) has taken place and also been successful.

In Spain the strike is subject to formal and procedural restrictions.The strike must be declared in written form within five days before (ten days

in the case of essential services) its implementation. The notice must contain theobjectives of the strike, the attempts to resolve the differences, the date ofcommencement of the strike and the settlement of the strike committee, a bodyrepresenting the strikers imposed by law (maximum twelve people).

This atypical representative body is also responsible for ensuring the safety ofpersons and equipment, and of concurring with the employer for the designa-tion of workers who must perform these services, which are not the same asthose foreseen in the essential services.

Notification is not required in case of general strikes.

3.2 Internal limits

In France the legal system negates the legitimacy of the political strike, sincesuch a strike does not concern questions relative to the improvement of wagesor working conditions, but rather represents a protest aimed at governmentalpolicies and, therefore is considered an abuse of the right to strike.

Political strikes are, however, justified in the case in which the State is theemployer. Recently, the legal system has also considered with greater tolerancecollective actions proclaimed in the private sector to protest against, for in-stance, a specific socio-economic policy. Strikes of solidarity for political reasonsautomatically constitute a case of abuse.

Collective actions alternative to strikes are reserved a more controversial le-gal treatment in the countries surveyed.

In several countries there is a certain freedom in the forms (permanent as-semblies, abstention from overtime…) (Germany, United Kingdom, Poland). InGermany, the slowing down of activity is prohibited, while boycotts are permit-ted (the later completely forbidden in France). The work council may in fact putpressure on the employer so that he will select companies that apply collectiveagreements. Forms of boycott have been put into practise through text mes-sages communications to the clients of some companies. And communicationvia internet is, in the most recent period, an instrument widely used by unionsto denounce the anti-union behaviour of firms.

The function of the union has never been historically contained strictlywithin the limits of the contract, even if the political function of the union is

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now more complex and versatile than ever before. One should recall in the pastthe covenant of unity of action between the Confederation of Labour and So-cialist Party but also the example of British Trade Unions, whose links with theLabour party are notoriously tight. For the current moment it is sufficient torefer to the experience of the trilateral negotiations and the role of social part-ners within the community system.

The political strike is strictly opposed in France, Bulgaria, Romania, andGermany, but while political strikes are declared illegal they have been toler-ated, in fact, when they covered vast areas of workers. Spontaneous political andsolidarity strikes are allowed in Spain and Italy.

More tolerated is the sympathy strike (Bulgaria). In Romania, forms of thestrike that do not consist in an actual work stoppage are not legitimate. Thestrike of solidarity is permitted but must be limited in time, to a working day,and the employer must be given advance warning at least two days before thedate of the strike.

In France, the law denies the legitimacy of the political strike, since as it doesnot pertain to issues related to improvements in wages or working conditions,and has determined that this case lacks the character of an act in support ofprofessional or work requests, but when it is a protest against government pol-icy. This is considered an abuse of the right to strike, and a serious crime of thestrikers. But strikes against the state are justified where the state is the em-ployer. For a long time, collective actions organized in the private sector toprotest against, for example, a certain economic social policy have been consid-ered an abuse of the right to strike, but now they are justified. Sympathy strikesfor political reasons automatically constitute a case of misuse.

In Sweden, a strike that was not foreseen at the conclusion of a collectivecontract is illegal even when it originates from the violation of terms of the col-lective agreement. Therefore, even political strikes not formally prohibited mayrun up against the limitations set up for the protection of the business activity.

Recently, a case law less restrictive for solidarity strikes has been established.The virtual strike consisting in obliging the employer to pay the salary for thework day regularly provided, as well as an equivalent amount also paid by theemployer to a charity institution, seems to be a completely Italian invention. Itis an institution quite unknown in the laws examined.

3.3 External limits

All the union systems examined exclude certain categories of workers fromthe strike, in general these being police personnel, the staff of the Judiciary,and the Armed Forces (Germany, Spain, France, Bulgaria and Sweden).

Civil servants suffer unjustified restrictions on the right to strike. In Bulgariaand Poland, public employees have the right to declare symbolic strikes only.Even in Sweden, the civil service law contains some provisions restricting the


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collective actions of officials exercising public powers. Germany takes a very re-strictive position quite unusual among the founding countries of the EuropeanCommunity. The Beamten (about a quarter of German civil servants), unlike theworkers and employees, have no right to strike. The restriction is anchored onthe provisions of the Constitution under which the work of the Beamten is one ofservice and loyalty to public law (art. 33, fourth paragraph, of the Constitution).This argument raises doubts because it extends in an exaggerated way the con-tent of a provision that, as drafted, does not seem to justify the sacrifice of afundamental right, the right to strike, an integral part of freedom of association(art. 9, third paragraph of the Constitution).

France with the same determination as Germany for Beamten, in the name ofthe purity of the concept of «subordination» excludes all self-employed workers(even if financially dependent).

In the UK, the only categories excluded from the strike are the police andthe armed forces. An exception to this rule concerns the prison officers onwhich the government is reaching an agreement.

In many countries the exercise of the right to strike is given a special regula-tion on essential services.

In France, a law of 2007 has introduced procedural limits to the right tostrike in relation to the public transport of passengers. In the public transportservice on the ground, there must be a plan for guaranteeing services duringthe strike that is made public by the companies in charge of public services. Thequantum of service is commensurate with the size of collective action. The de-termination of the mode of service and the contingent of personnel exemptedfrom the strike is defined by a union agreement.

Before a strike is declared, the unions are required to attempt a reconcilia-tion. Finally, the workers concerned are required, no later than 48 hours beforethe strike, to communicate their adherence to the strike.

In Romania, the strike has limits for the staff of any type of transportation,and for the staff employed in essential services, i.e., health care, telecommuni-cations, radio and public television, municipalities and services for the publichygiene, gas, electricity and water. The strike is allowed for these services withthe guarantee of the functioning of at least one third of normal activity.

In Italy, the law individuates the essential services for which certain rulesmust be respected by the exercise of the right to strike: the notification (tendays), the predetermination of the length of the strike, an interval betweenstrike actions, the use of cooling and conciliation procedures, the guarantee ofminimal services. These minimums are defined through an agreement betweenthe social partners, or if this is lacking, by an administrative act by an inde-pendent Authority.

In Spain the Government has the right to identify the essential services andthe extent of the service. Appeals to the court to dispute the decisions of publicauthorities is allowed. The public services were individuated include: health and

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social security, public transportation, communications (postal, telephone, inter-net access, television and radio, both public and private), energy, administra-tion and social welfare, administration of justice, prison administration, highereducation, public finance (Bank of Spain, FNMT, Customs), public works andtraffic, organs of state administration and self-employment, social welfare. Inthese services the public authority imposes a minimum service guarantee duringthe strike identified on the basis of the following criteria: duration of the strike,personal and geographical area involved in the strike, and the possibility of al-ternative services.

Strike rules in Spain observe guiding criteria that deserve to be highlightedhere.

First of all, restrictions on the right to strike in Spain are justified only if theabstention involves other fundamental rights. The impact of the strike on theeffective exercise of other fundamental rights is also measured, both for thetemporal duration of the strike and in respect to the principle of proportional-ity of the sacrifices.

In other words, the government authority, in the definition of essential serv-ices must choose, as far as this is as possible, the solution which is least restric-tive of the right to strike and to evaluate whether there are alternative forms forthe protection of fundamental rights that create less disturbance for the right tostrike.

3.4 Features of national legal systems

The formula «arrangement limitations» is intended to indicate the restric-tions to strike related to specific features of the different legal systems. Theprinciple of freedom to associate, in fact, assumes forms and content in relationto the concrete political, economic and historical characteristics of each country.

The most significant characteristic of some of these contexts concerns theevaluation of the legitimacy of the strike in relation to its motivations, in par-ticular, to its close connection to collective bargaining (Germany, the UK, Swe-den, Romania).

In the UK the present law, introduced by a Labourist government in 1974,heavily modified by the Thatcher government and inserted into the Trade Un-ion and Labour Relations (Consolidation) Act 1992, has been modified by theMajor government in 1993 and revised (largely unsuccessfully) by the Blair gov-ernment in 1999 and 2004. Even with all the changes in the law of 1992, thestrike still does not acquire the status of a right, but enjoys only a sort of «im-munity» for union organizations from a liability action on the part of the em-ployer. The strike receives greater protection only if the unions subordinate thestrike call to the consultation of workers as provided by TULRCA (see above).

TULRCA 1992, art. 219, however, provides that collective action is not sub-ject to civil liability only if it is carried out during a collective dispute (trade dis-


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pute). Art. 244 rigidly defines «trade dispute» as a dispute between workers andtheir employers, exclusively or mainly regarding one or more of the followingarguments:

(A) terms and conditions of employment,(B) tasks, termination or suspension from work,(C) the sharing of work or functions between workers or groups of workers,(D) disciplinary sanctions,(E) membership in the union,(F) privileges for union representatives and union activities.

This restricted ambit in which the immunity operates is a serious limitationfor a collective action. In fact, if a dispute arises against a holding company thatcontrols a certain number of subsidiaries, each of these is regarded as the em-ployer against whom the action is directed.

This limited definition prevents the extension of immunity to political strikesand sympathy strikes (the latter is admissible only if it concerns the same em-ployer).

A turnaround has been felt recently with the Court of Appeal decision inRMT v. Serco Ltd and ASLEF v. London and Birmingham Railway Ltd, whichhas recognized the shortcomings of the English system that actually «does notconfer any right to strike» but also the importance of international laws that ex-plicitly recognize the right to strike. The English court has expressly recalledthe rulings of the European Court of Human Rights in Strasbourg that claimthe right to strike as part of the right to freedom of association provided byfrom art. 11 of the European Convention on Human Rights.

The principle of proportionality in assessing the legality of the strike is thebalance to ensure equality between the parties in the conflict. Several legal sys-tems take inspiration from this principle (Germany and Sweden).

In Sweden, the discipline of strike hinges on the principle of proportionality,of which the strike as the last resort is one aspect.

Case law has dictated some guidelines to prevent the strike from providingirreversible damage to the company or the public (protection of machinery andequipment, precautions to prevent a damage disproportionate to the employeror others, etc).

If the strike does not respect the principle of proportionality, the LabourCourt may take action to prohibit the strike. The illegal strike may be subject toclaims for damages. Even in Germany collective action must respect the princi-ple of proportionality.

In the countries of the former Communist Bloc, the previous regime’s aspi-ration to cooperation between employer and employee remains in the currentlegislation and constrains the strikers, for example in Poland, to collaborate inthe preparation of measures for the maintenance of the enterprise. In Bulgaria,

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for the duration of a strike, the workers are obliged to be present in the facili-ties of the company if it coincides with their time of ordinary service.

3.5 No-strike clauses

Peace clauses as an obligation to refrain from striking during the period whenthe collective agreement is in force and in respect to matters covered by theagreement, are found in many countries. These strengthen the bond between thecontracting parties, and are particularly valued in those jurisdictions in which therelationship between association and member is strong (Sweden and Germany).

A union system regulated by law does not seem to constitute a prerequisitefor the introduction of such clauses. In France, the law does not impose an obli-gation to agreement. To limit collective actions, they refer to a provision of theLabour Code which states that the signatories of an agreement are required todo nothing that might compromise the agreed upon services (art. L2262-4 ofthe Labor Code), although this is a norm without efficacy. The same is true forPoland. Nor is the UK an exception, because the peace clauses do not existsince the collective agreements do not have legal validity.

With respect to the truce clause, we must also refer to the duty to refrainfrom those strikes that are set to alter the stipulations of a collective agreementduring its validity. Exceptions are permissible with regard to the interpretationor claims that do not change the agreement or even in case of violation by theemployer of the existing agreements (Spain).

In Poland, the peace clauses are not mandatory but indirectly the law re-quiring compliance with the covenants forces the parties not to declare strike onthe contents covered by the agreement. The individual worker is not bound bythe peace clause obligation if he does not belong to a union and he is notobliged to respect the union discipline. Nor is it binding on workers who aremembers of the union. In the Polish trade union system, with his registration aworker does not automatically give the union a mandate to represent him. Theunion, in fact, has the power to act on behalf of its members and the obligationto negotiate terms and conditions of employment on equal conditions for allworkers, regardless of their union membership.

In Sweden, strike action aimed at changing the terms of a collective agreementis illegal. The obligation to maintain social peace is not only related to what is ex-plicitly regulated in the collective agreement, but also to the integrative collectivecontract. The peace obligation persists throughout the term of the contract.

3.6 Employers reaction during a strike

The anti-union conduct, that is, the behavior of the employer intended toprevent or limit the exercise of trade union freedom is very differently evaluatedby the observed union systems.


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In Germany, the reaction of the employer to the strike enjoys a certain levelof protection: he can use temporary workers to replace strikers or pay an incen-tive to convince them not to strike. However, collective agreements may provideterms against retaliation. In Sweden, both sides are free to take industrial actionand so to react to the strike.

In France, the employer may redistribute the workload among the variousproduction facilities or hire out new workers. The law, however, prohibits thehiring out with long-term contracts and the use of temporary workers to replacestrikers.

In the United Kingdom as well, during a strike, the employer cannot hire outnew workers to replace strikers through an employment agency. He cannot turnto an agency to replace workers during a strike. This is considered a crime, forwhich the agency would be punishable with a fine of up to £ 5000. But the em-ployer can directly recruit temporary staff or may use managers, etc. to coverthe tasks of workers on strike.

The attitude towards anti-union conduct is more severe in other countries. InRomania, the employer cannot hire out other workers to replace strikers and hecannot take anti-union actions.

In Spain, retaliation for the strike action is banned. The employer may nei-ther replace workers on strike by hiring other workers, nor he can use mobilityactions to replace striking workers either within the same production unit or inthe same geographic area.

3.7 The lock-out

The systems are differentiated in their attitudes towards lock-outs as a sus-pension of activity by the employer, defined by Swedish law as «in order to con-vince the striking workers to accept certain working conditions». In 1947 LuigiEinaudi, the second President of the Italian Republic, argued that «the right tostrike and the right to impose lock-outs are two factors or conditions of an eco-nomic system that is based on freedom». Giuseppe Di Vittorio, general secretaryof the CGIL in 1945, replied by referring to the arguments of the distinguishedlate 19th century jurist Francesco Carrara, namely,

1) that the strike is meant to bring about a redistribution of wealth and lock-outs are meant to concentrate it further in few pockets;

2) the ability of the strikers to resist is limited by the material necessities of life,while the resistance of the employer in the lock-out is unlimited;

3) there can be an misuse of lock-outs for speculative gains;4) the strike is the only weapon in the struggle of the working class, while capi-

tal certainly has no need of the lock-outs to maintain its social dominance.

Di Vittorio’s argument prevailed.

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In many countries, the lock-out is not considered a right. Romania and Po-land allow for the legitimacy of this action only in situations when productiveactivity has been seriously compromised. In Spain lock-outs are allowed as a re-action to a collective action that endangers persons or property.

In France, the employer cannot close the company, in retaliation. The law,however, allows an employer to proceed with the closure of the company or or-ganization, during a strike, at least when there is an obvious inability to guar-antee the commercial or factory operations.

Sweden and the United Kingdom, however, consider the lock-out a legiti-mate reaction to the strike. In Sweden, the lock-out is not commonly applied byemployers, despite the absence of any legal prohibition.

In Germany, the case law builds on the principle of «equality in the conflict»,or on the possibility of equality, to recognize the right of collective action to theunions and to the employers as well.

A particular modality of lock-out realized by the employer is that of extend-ing the collective labor dispute to employees who were not involved in the un-ions. This particular interest in the lock-out by organizations of German em-ployers is justified by the fact that unions in Germany are not only referred tostrikers, but also to workers affected by the lockout, a dispute subsidy.

This dispute subsidy usually comes to about two-thirds of monthly salary. Inthis way any enlarged collective dispute becomes a financial conflict. Extendingthe number of workers involved in the conflict who must be supported by theunions themselves, employers are able to weaken the economy of the trade un-ions and thus sap their vital force for the struggle.

3.8 Effects of the strike on the employment relationship

The strike thus causes the suspension of the contract and is therefore notgrounds for dismissal. It follows that the employer is exempt from the paymentof wages during the period of the strike. This rule, the legal basis of all systems,has many nuances. The loss of wages is partly compensated in some countries. InBulgaria and Poland, the striking workers do not receive remuneration but arecovered by social security. In Sweden and Germany the union coffers provide.

In France the strike suspends the execution of the contract and cannot justifythe dismissal or other sanctions. It involves the suspension of work which inturn causes the loss of wages. This deprivation must be strictly proportional tothe duration of the interruption. If the strike ends with the signing of a collec-tive agreement any clauses can be identified for the payment of the salary lostduring the strike. When the strike is legal, but is accompanied by unlawful acts,the constitutional protection remains but the workers who have personallycommitted a serious error can be fired. Misuse of the strike is a concept used tojustify the lock-out by the employer and the suspension of payment of the sala-ries of non-striker workers. An orientation that prevails in legal systems should


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be noted, namely that a loss of wages is not envisioned when the strike origi-nated because of the malpractice of the employer; must involve a violation: thatis was an intentional and serious breach of his obligations, and that it affectedfundamental rights.

In English law the right of the striking worker to abstain from the work is notrecognized, and he is therefore exposed to all the consequences of the em-ployment contract: suspension of pay, compensation for damage, and dismissal.Not admitting the principle of the suspension of the contract, for English lawthe strike is a violation of the work contract. The worker thus does not have theright to lose wages equivalent to the duration of the strike; often, in fact, em-ployers withhold more of the salary than was warranted by the actual durationof the action.

With the Employment Relations Act 1999 there has been a significant exten-sion of protection on an individual level, however; this act recognizes as unjus-tified a firing due to a worker’s participation in a collective action protected bythe immunity procedure, if the dismissal occurs within twelve weeks of thestrike.

In the case of the industrial action that is not protected by immunity, theemployees have no protection and can be fired if they participate in trade unionaction unless the employer discriminated, firing only some and not all strikers.

The English law does not recognize the principle of suspension of the con-tract in case of strike. The strike is considered a breach of the employmentcontract. Therefore, the worker has no right to lose the salary equivalent to theduration of the strike. Employers, in fact, often retain the salary in excess of thisduration.

In Spain the strike suspends the labor contract and, therefore, the mutualobligations. Workers during the strike enjoy unemployment benefits.

In Bulgaria, the evaluation of the strike is referred to judicial decision, whichends within ten days. For the duration of the strike the workers are required tobe at the workplace during their working hours. Participation in a legal strike isnot a legitimate reason for dismissal. The workers do not receive payment dur-ing the strike but are compensated through a specially created fund.

In Poland, the strike does not constitute legal ground for the imposition ofthe dismissal or disciplinary action. During a legal strike the support of theeconomic burden falls solely on the workers union. Workers who abstain fromwork illegally may be subject to disciplinary sanctions.

In Sweden during a legitimate strike, the terms of work are suspended. Theactions of an illegal strike may be subject to civil liability.

3.9 The non-striking employees during a strike

In general, if during a strike the employer cannot continue or maintain pro-duction activity, he is exonerated from his obligations with regard to non-

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strikers. In Bulgaria, the worker who did not participate in a strike, but is un-able to perform his duties because of other workers on strike, is paid as a case ofsuspension from work due to force majeure. In any event, workers not strikingcannot be paid less than the minimum monthly wage established by law. InRomania, the workers who do not participate in a strike are entitled to receive75% of their wage, since it is a temporary cessation of the activities of the em-ployer. In Sweden, the employer cannot refuse to pay wages due to the strike,and the same is substantially true also in the United Kingdom.

In France the employer must pay the non-striking workers, but is free of thisrequirement if the circumstances make it impossible for the continuation ormaintenance of the activity.

4. External elements linked to the effectiveness of the right to strike

There are many factors «external» to the parties that can influence the courseof the conflict. In particular, in the society of the image and global communica-tion, solidarity of the public opinion can be decisive. In addition, the new mediasuch as the Internet, of growing importance for influencing public opinion, canbe used by unions in preparation for, and during a strike.

Apart from Spain, however, the media does not seem particularly interestedin trade unionism. In Spain, the Constitutional Court has affirmed the duty ofthe media to make public the correct information with respect to the motiva-tions underlying the conflict, and employee participation. Here, public infor-mation on the strike must be presented in a neutral manner. This signifies thatthe public media cannot package the information so as to reduce the incidenceof the strike, or discourage participation in it. In Bulgaria, the media are usu-ally interested in strikes, but given their dependence on certain government orcorporative interests they are rarely neutral.

International solidarity between unions is an important supporting factor inthe effectiveness of the strike. The Laval case in Sweden has received much in-ternational support. The United Kingdom has cultivated a strong internationalcommitment. Much of this concerns the ties with their former colonies. The useof English in all former British colonies has also fostered a deep level of in-volvement. Historically the links with Australia, Canada, the Indian sub-continent and the rest of Africa were stronger than the relations with Europeantrade unions. The activity in the Council of Europe and European Union, how-ever, has increased the European commitment of British trade unionists.

The countries of the former Communist Bloc have been greatly assisted inbuilding the foundations of a new labor legislation by international bodies.Technical and political assistance has been a very important element in thisprocess.

In France, the international action of French trade unions has been very firm


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in some cases and in others limited to exchanges of information and somewhatformal meetings. Federations and unions of companies and works councils areactive in international action in large groups, particularly across national borders.

The financial strength of the union as shown by the Swedish trade union isthe best means to support the strike action.

Among the factors that obstruct the strike, the threat of judicial retaliation byemployers must be underlined (Germany, United Kingdom).

As the case BALPA (see below), in the face of the potential danger of havingto answer to damages caused by the strike on the basis of arguments advancedby the employer, who in contrast with the European legislation sustained theinapplicability of immunity for collective action, the union was placed in asituation of intolerable difficulty.

For the effectiveness of the strike, the credibility and authority which theunions have in their national context is also of great importance.

In Germany, unions have historically been regarded with great appreciationby the German population, and have persistently high rates of sympathy in thepolls. Therefore it is not always possible for employers to communicate theirpoint of view successfully, for example through the media.

5. Alternative dispute resolution mechanisms (arbitration, conciliation, me-diation)

The instruments of mediation and conciliation of collective conflicts are part ofthe history of the trade union movement. Institutions that rely on collective agree-ments and which are founded, therefore, by the will of the parties (with the excep-tion of the Fascist episode in Italy, when a mandatory judicial resolution of disputeswas inserted by the Mussolini government into the Labour Charter of 1926).

In the most recent period, these instruments have received special attentionby the legislatures in particular with reference to the strike and the institutionsof independent authorities.

The institutions of mediation and conciliation of collective disputes are vol-untary in all the countries surveyed though in general they little used (seeFrance, Sweden).

In the United Kingdom, the Trade Union and Labour Relations (Consolida-tion) Act, 1992 established an Advisory Conciliation and Arbitration Service(ACAS), an independent public body that has jurisdiction over collective labordisputes. Under the law, ACAS has a general duty to promote the improvementof industrial relations, and can offer advice, conciliation and arbitration servicesto the parties engaged in a collective dispute.

Both employers and unions tend to seek a collective conciliation when theyreach a stalemate in negotiations and have a willingness to reach an agreement.ACAS offers a way out of stalemate negotiations.

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Sixty-nine percent of collective disputes are brought to the attention toACAS, which offers a completely volunteer service. In essence, both parties mustagree to the request for assistance. However, ACAS can also autonomously pro-pose itself to the parties in order to reconcile the dispute.

Instead in Romania and Italy, mandatory preventative conciliation proce-dures are foreseen with reference to collective action.

In Spain, the law provides that the Government, at the proposal of the Min-istry of Labour (also with reference to the strikes that do not involve essentialservices), taking into account the duration or the consequences of the strike, thepositions of the parties, and the potential serious injury to the national econ-omy, may impose arbitration. The decision of the government to impose com-pulsory arbitration may be appealed in court.

Once an arbitration decision is made public, employers and workers are re-quired to comply, and the labor authorities may impose penalties for its violation.

In Germany there is no legal requirement to use alternative dispute resolu-tion with respect to a strike, although some Länder provide procedures for theconciliation of collective disputes between the parties on a voluntary basis. Somecollective agreements provide mechanisms for compulsory conciliation and ar-bitration.

In Romania, the parties jointly may voluntarily decide to resolve the disputeby arbitration.

In France, the law provides three procedures for prevention and conflictresolution: conciliation, mediation and arbitration. All are voluntary.

In Bulgaria either party may utilize procedures for mediation and/or arbitra-tion provided by the National Institute for Conciliation and Arbitration-NICA,which aims to promote voluntary conciliation of labor disputes between em-ployers and collective workers. Arbitration is experienced at the written requestof both the parties.

In Poland, a mediation procedure may be initiated only at the request of theunion. If the conduct of the employer has made any negotiation impossible forthe union, the strike may be declared immediately. The decision to make use ofarbitration is the responsibility of the union. The employer does not have thepower to initiate arbitration proceedings, nor to withdraw from them. Theaward of arbitration has two effects: it can have the value of a recommendationonly, though non-binding upon the parties, unless one of them has not ac-cepted it. In such a case it is binding if the award was accepted by the union.

In Sweden, the law provides for conciliation and arbitration, mediation orcase-load. Arbitration is relatively rare. Arbitration in labor disputes within theunion organization itself is very widely used. The Swedish National MediationOffice is authorized to resolve collective disputes through mediation, and incase of failure to reach a resolution, the dispute must be resolved in court. Thejury that considers the matter before the Labour Court usually consists of threejudges and four legal representatives appointed equally by both the parties.


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6. Conclusion

6.1 National features and safeguarding effectiveness

It is too ambitious a task to even attempt to summarize the work that hasbeen carried out at international meetings, through e-mail communication, andin the national reports produced by the designated scholars from each of thenine European countries under examination.

In the following pages the attempt will be made to give form to the discussionthat has filled the foregoing text, and to identify firm points within the multifac-eted wealth of collected material, aspects which, among many others of greatinterest, imposed themselves with the greatest force on the writer’s attention.

These aspects are most closely related to the discourse on the method chosenfor the research project, also mentioned in the introduction to this paper.

6.2 Twenty-seven different velocities for freedom of association

The study showed that the adherence to the principles set out in the interna-tional charters is only formal. The union systems of the nine countries exam-ined show significant differences in the implementation of the right to strike.These differences are not neutral. Resolved in different ways, respecting the so-cial and historical context of national policy, however, they bring about thesame result: the ineffectiveness of the collective action.

On the contrary, the legislation or the weakness of trade union system pre-vents or suppresses the effects of the strike.

It is distressing to see that, after checking on the effective implementation ofsocial rights, from the freedom of association and the right to strike, to thefreedom of bargaining, in many areas the nine systems tested were found to bedeficient, some even widely inadequate.

Serious contradictions and severe failures show an inexcusable lack of prepa-ration for that ideal society founded «on the values of respect for human dig-nity, freedom, democracy, equality» set by the TUE in article 2.

The verdict is harsh because some of the most unprepared countries arethose with the longest adhesion to the European Union.

The former Communist Bloc countries are more aware of their lack andmore determined to overcome it. With great courage the reports expose thehypocrisy of systems that seem to only decorate their judiciaries with the merefurnishings of European employment legislation.

In fact, despite the ostentatious diligence with which such governments im-port the EU directives (such as equal treatment, prohibition of discrimination inemployment, etc.) and the rules of international charters of fundamental rights,even many years after the advent of the new democratic system, unions are stillstruggling to establish their rights as a set of rules freely negotiated by the par-

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ties in collective agreements, and these rights instead remain the product ofunilateral standardization by the central government.

The Polish report points out that even though the old Polish Constitution didnot guarantee to workers the right to strike or gave unions the right to organizestrikes, a decade after the adoption of the Constitution of the Republic of Po-land the will to introduce fundamental reforms, individual or collective, to laborlaw is still missing.

Essentially all the countries analyzed present contradictions and deficienciesthat only minimally respect the guarantees that the international charters pro-vide to the strike.

In this regard the situation of the right to strike in the United Kingdom isthe most difficult and demeaning with respect to international standards. Mak-ing the strike hostage of the employer means, it must be stated very clearly, todelete that right. It is no coincidence that among the EU countries the UK hasthe lowest percentage of its workforce covered by a collective agreement (only35% of UK workers are covered by a collective agreement).

Other national legislations too seem far from the formulations contained inthe international charters that aspire to provide «strong» protection for thestrike.

Qualifying the strike as a functional element to the definition of a collectiveagreement (Germany) is an objective limitation on the autonomy of trade un-ions in the evaluation of the interests of workers to be supported, precluding forexample the political or solidarity strike (Germany, Sweden, Bulgaria, Romania,United Kingdom).

It should be underlined that in these countries, however, an internationalstrike in support of the economic policies to promote employment would bedifficult to achieve. In some cases the instrumentality of the strike compressesunion pluralism, giving in the final analysis an unjustified privilege to largertrade unions (Poland).

A further limitation on the autonomy of trade unions is given by the exces-sive restrictions of the forms of striking (Spain).

Other factors that weaken the effectiveness of the strike are: the freedomgiven to employers to react to collective action with lock-out or replacing strik-ing workers (Germany, Sweden), the abnormal extension of the notion of es-sential services to which applies a discipline restricting the right to strike (Italy),and the prohibition of strikes by civil servants (Germany).

Authentic harassment, finally, lacking any justification, is shown by the impo-sition on the strikers to be present in the workplace for the duration of the ab-stention in Bulgaria, and the endless list of procedural constraints unions mustfollow in the proclamation of a strike in the United Kingdom. The overall im-pression is that in its implementation, the protection of the strike endorsed byEuropean and international law meets with the barricades of national legal sys-tems, which dampen, sometimes to the point of disabling, this protection.


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It seems, therefore, that the value of the strike as an essential means of pro-tecting workers cannot rise to the general principle of the common Europeancountries, since the protection is articulated and differentiated in terms of un-dermining the effectiveness of national rules. The governments seem to treatthe trade union rights recognized in the acquis communautaire as if they weregoods in a catalog to be selected a quid, quomodo, by governments to transposeinto domestic law. The consequences of this technique can give rise to new so-cial «dumping» among Member States.

6.3 The tyranny of the majority

An interesting aspect that clearly differentiates the systems observed is thatregarding the relationship between a trade union and its members, in particularas concerns the strike call, the relationship between a trade union or even anoccasional group and the audience of workers involved (Bulgaria, Poland). Thesituation emerges clearly in union systems in which the proclamation or effec-tuation of a strike is subordinated to the acquisition of impossible majorities orto the need for multiple steps before a strike can take place. It is obvious thatthese rules imposed on unions reduce the effectiveness of the strike and in-crease the bargaining power of employers.

The Polish report so pointedly emphasizes that the passage to the new Pol-ish Constitution in 1997 was made possible thanks to the organization ofstrikes and other protest actions in 1981. The assemblies of spontaneous coali-tions of workers with the aim to organize strikes were recognized by the em-ployer and especially by governmental authorities. The strikes were regardedas a legitimate manifestation of workers aimed at the right demanding of theireconomic, social and professional interests. These demonstrations were possi-ble in the former Popular Republic of Poland, in a system in which the strikeenjoyed only weak guarantees. Today the situation is quite different. The ILOConventions 87 and 98 as well as the European Social Charter of 1961 havebeen accommodated into the domestic Polish judiciary. It is indeed paradoxi-cal to note that nowadays the events of 1981 would not be possible. By lever-aging on the national legislation the Polish government could repress thestrikes, declaring them illegal.

The paradox of the Polish system reported by Andrzej Swiatkowski in his na-tional report is highly evocative and brings out a problematic issue that is onthe inside of the trade union movement and which strongly characterizes thedifferent systems. It raises, in fact, many concerns with reference to the guar-antees recognized by international laws, the subordination of the strike call tothe consent of the majority of workers.

The deliberation of the strike is a manifestation of will that forms in a group(whether very extensive or consisted of a few workers) and is the result of theparticipation of the members of such group to the stages and development of

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the deliberative will. As such, therefore, the declaration of intention to strike isthe final act of a process in which only a portion of workers participated.

The accession – by means of vote – of those who did not participate in theformation of the strike call, is an act placed on a level of legitimacy that is ex-traneous to the notion of union freedom as an expression of the organization ofthe interests completely free from any bond.

Subordinating the strike call to the vote of a majority of workers who are af-fected as employees and not as members to the trade union or simply as par-ticipants in the formation of the strike call, goes beyond the aim of protectionafforded by the right to freedom of association and is unacceptable.

Historically, unions started as «shop clubs», as associations of the most mili-tant workers in the same company, which took the form of a union when or-ganized in a dimension that goes beyond the individual company and its em-ployees. The organization of the interest expressed by a trade union is there-fore not reducible to purely and simply the employees of a company or morecompanies involved in the strike call. Subordinating the proclamation of thestrike to vote of employees (members and non-members) is to undermine thevery essence of the union and therefore, the freedom of association, which con-sists above all in freedom to collective action deemed more appropriate to pur-sue, independently, the contractual policy. The principle of freedom of associa-tion, in systems where the strike is bound to the affirmative vote of a majority,obeys to an ideological vision of the union as a carrier of the «class» of workersvery different from the pluralist and democratic inspiration that is inspired byinternational warranty rules of the strike.

These rules, a synthesis of Weber’s conceptions of the modern state, assigneda role to social groups such as unions, which are positioned between the indi-vidual pursuing individual interests and the state that seeks to act as a summaryof public interests, in the production of rules for the regulation of collective in-terests and the promotion of substantial equality, quite peculiar to pluralisticdemocracies. The foreclosure vote of the strike, expressed by an indistinct ma-jority of workers does not seem, therefore, consistent with the principles offreedom of association.

6.4 Pathology of the EU legal system

The dissociation between the general rule and its application certainly de-rives from the resistance of national governments to the full realization of tradeunion rights, but also, in no less measure, from serious weaknesses in the legalsystem of international relations between Community law and domestic laws.

The Viking, Laval, Ruffert decisions are the symptoms of a pathology of thelegal system that, in giving priority to the rights necessaries for carrying outthe common market, is entitled to ignore the differences between domesticsystems.


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Community Law is preordained for the creation of a large common market.4

It has no jurisdiction over the strike and collective bargaining.The European legislator and the judge are not concerned with the connec-

tions with the different national legal systems that are working towards a har-monization, but instead practice a form of law projected to overcome obstaclesto the realization of economic freedom, rather than to consolidate rights. TheCommunity Court therefore does not investigate or detect the similarities ordifferences between the systems, presenting them, in the prospect of the Char-ter of Fundamental Rights, as cornerstones of European law in progress, butlimits itself to the pursuit of objectives in accordance with its competencies,aimed only at lubricating the functioning of the market rules.

Thus, matters like the freedom of establishment and the freedom of the pro-vision of services have an objective force of law, even at the national level. Thedomestic judges are required to give the Community law direct application,while also observing the principles of international protection of trade unionrights only to the extent and in the manner prescribed by domestic legislation.5

The national courts of member states, however, apply the precepts andnorms of the EU, without having to await the prior removal of conflictingrules. Of immediate application too are the directives not implemented whichestablish rights for individuals, provided that these guidelines are sufficientlydetailed and that the deadlines for transposition into national law have beenexceeded. This is a direct effectiveness that, in the triangulation of relationsbetween individuals and a state in default is no longer contained only in thevertical dimension between the individual and the state, but indirectly extendsto relationships between individuals, as evidenced by the Viking e Laval deci-sions.

A chaotic and formless scenario of system and rules forms the background tothe relationship between European law and national judiciary, and favors thespread of regulatory «shopping» by the companies always on the lookout forbetter market conditions, even in regard to social rights. It is advantageous tocompanies to be able to choose the most favorable conditions for their profits.It is a disadvantage for the workers, since their ability to choose the most expe-dient of national systems is certainly limited.

4 The Union shall establish an internal market. It shall work for the sustainable development ofEurope based on balanced economic growth and price stability, a highly competitive social marketeconomy, aiming at full employment and social progress, and a high level of protection and im-provement of the quality of the environment. It shall promote scientific and technological advance.(art. 3 c. 3 Treaty on European Union).

5 Right of collective bargaining and collective actions. Workers and employers, or their respec-tive organisations, have, in accordance with Union law and domestic laws and practices, the right tonegotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts ofinterest, to take collective action to defend their interests, including strike action. (Charter of fun-damental rights of the european union article 28).

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The pathology of the European legal system is well exemplified in the moti-vations of the Viking, Laval, Ruffert decisions. The Court of Justice, in fact,does not question the right to strike, rather forcefully supporting its recognitionwithin the EU law; however, it declares its equivalence with the freedom of es-tablishment and freedom to provide services. These freedoms are binding onmember states and are officially added to the catalog of national freedoms.

The concerned reaction of the trade unions to these decisions by the Court ofJustice reveals, however, the deficiencies in trade union policy, which is unableto provide adequate answers to the inexorable conflict between the economicintegration process between member states and social protection systems thatwere and have remained tenaciously national. In fact the issue is not to findremedies to the downward game of the protection of workers in the Europeanmarket, but the unsolved problem of redefining social rights into both the do-mestic and European dimensions. Starting with the legal means they alreadyhave, the trade unions have the responsibility to protect and strengthen themost advanced union rights at the European as well as the national level, and toconstruct juridical techniques which will enable the replacement of the genericformulations of the Treaties (inviting the states and unions to «observe socialrights») with valid precepts to be observed in the definition of the implementa-tion policies of the common market.

Indeed, the European zone originated by the Treaties only recently has madeits borders receptive to fundamental rights. The main vocation of European lawfrom its origins to the present is, in fact, the creation of an area without internalfrontiers in which the principles of an open market economy with free competi-tion dominate. The protection of competition is a general principle of Commu-nity law and has a central role in the free movement of goods and capitalamong European countries.

In EU law the exigencies of market regulation, therefore, continue to prevailover the promotion of the values of the individual; thus, with a certain risk itcan be said that a real change in European regulations for the protection of thestrike will occur when the juridical discourse regarding the person of the workerand his rights becomes European.

In short, a European legal system of the market exists, while a European le-gal system for labor is still only on the horizon.

Correctly said, the unions fear an approach that aims at the unification ofsystems through a uniform law regulating the system of national trade unions,and in this regard they agree in confirming the lack of competence of theEuropean Union. It is also true, however, that it is useless to have a unifiedprotective norm if it is interpreted in different ways. Union organizations mustadopt a common idiom and common conceptual instruments. Only in this way,one more time, just as in other periods in labor history, will the strength of un-ion organizations compensate for the weakness of the worker in the great Euro-pean market.


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6.5 Primacy of EU law and protection of trade union rights

The rank assigned to the Charter of Fundamental Rights in the Treaty ofLisbon has given rise to much hope that the EU can be seen as a guarantor of aprocess of harmonization of trade union rights at the highest level.

It is quite likely, however, that this hope will be dashed. The European legis-lature and the Community judges are, in fact, very unsuitable as guarantors oftrade union rights.

First of all, the Treaties do not confer any powers to the Europe governmentwith respect to trade union rights; such rights are instead retained expressly asthe exclusive jurisdiction of national laws. The Community judge, therefore, inapplying the rules that guarantee economic freedom must consider the tradeunion rights sanctioned by the Charter, but within the limits of a process of co-ordination and not of the prevalence of the latter over the former.

National judges too are obliged to comply. Although the EU treaties do notregulate the primacy of European law over national law as a fundamental princi-ple, the European Court of Justice as far back as 1964 affirmed that leadershipas «the fundamental principle of Community law», and logical consequence ofthe quality of the member states of the European Union. The autonomy andunity of European law are a prerequisite to ensure the proper aims of the Trea-ties. The paralyzing consequence of the efficacy of regulation and case law by thelegislature or the national court stands in direct contrast to the pactional con-straints. Following the Treaty of Lisbon the question of primacy received astrong sanction in the Declaration 17 Final Act of the IGC 2007, although usinga softer formula than that which was adopted in the European Constitution.

But even if trade union pressure at the European level should lead to greaterattention from the European authorities in favor of trade union rights, thiswould still not be enough.

In fact, easy methods of avoiding compliance to the states’ obligation to re-spect the European norms, are found in the European judiciary itself.

The Community judge is not empowered to substitute a national regulation, andin the case of ascertained failure to fulfill obligations established by a state, he mustturn over the responsibility of applying necessary measures to the organs of thestate in question. This does not mean that implementation of the Community obli-gations is totally turned over to the state or to the discretion of the national courts;more concretely it means that internal systems can minimize the impact of theEuropean standard. This defensive reaction of the states obviously has easy justifi-cation with respect to matters reserved to the exclusive competence of the states.

In other words, while economic freedoms enjoy a regulatory path and an ex-ecutive instrument – the principle of primacy, privileged and binding (albeitwithin the limits of national rules for implementation), social rights instead areleft with a protection that is unfit for expansion beyond national borders, andare forced into national trenches if they belong to union systems with a strong

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guaranty, but remain vulnerable in trade union systems with low coverage, dueto the insufficiency of the European norms in this regard.

As has happened in the Viking, Laval, Ruffert cases, the degenerative proc-esses of the market fall on workers and force the unions to defend themselveswith national standards and inadequate means compared to the Europeanregulatory context, and therefore can only have a very limited efficacy.

It should be acknowledged, in fact, that the EU is not yet the Federal Unionimagined by Altiero Spinelli, and thus cannot function as the ideal container forall the rights and social freedoms guaranteed in the domestic judiciaries. And itis a romantic syndrome to believe, without any historical support, that the meredeclamation of rights is a guarantee of their effectiveness.

6.6 Working hypothesis

The conclusions of this study can briefly summarized as follows.1. Domestic regulations on the exercise of the strike differ greatly from each

other, with different levels of effectiveness. The European trade union policymust therefore try to strengthen the effectiveness of the strike in all membercountries. Adherence by the member countries to the principles set out in in-ternational charters is insufficient for this scope, and each country necessitatesspecific techniques of gauging the effectiveness of the protection.

2. In EU law, the necessity of regulating the market continues to prevail overthe advancement of social rights. The aim of the EU is, in fact, the creation ofan area without internal borders in which dominates the principles of an openmarket economy with free competition. This aim is also functional to the im-provement of employment and living conditions of European workers. Howevera European legal perspective on individual workers and their rights is missing.The harmonizing technique, if separated from the connections with the variouslegal systems, can lead to «social dumping» rather than to consolidating or ex-tending rights. It may not even reach the equalizing goal if countries interpretthe «unifying» norm at different levels of intensity.

The coordination of trade unions in a networks of trade union policy on thematter of trade union rights, which goes beyond the suffocating narrowness ofthe European competency, can lead to greater protection of the strike in allmember countries, and promote forms of collective action at an internationaldimension. As a famous master of legal science wrote6, international law per-forms its function only if it is given effectiveness, that is, if it is accepted by itstarget audience – the citizens of the member states – otherwise it does not exist.

The foregoing considerations lead us to the formulation of several workinghypotheses.

6 H. Kelsen, Introduction to the problems of legal theory, Oxford, 1992, p. 50.


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1) The modification of the TreatiesThe CES Committee has responded to the problems posed by the Viking, La-val, Ruffert decisions by proposing a new revision of the treaty in order to in-clude a Social Progress Protocol.

This proposal is certainly important because it aims at strengthening thetrade union rights at the European level, but in practice it does not seem realis-tic.7 In any case, it would not promptly resolve the insufficient state of imple-mentation of such rights in domestic systems, and would perhaps delay thedefinition of any remedy in support of the right to strike, which is insteadneeded in a timely manner and with a guarantee of effectiveness.

The urgency of the intervention in support of union rights becomes, how-ever, more pressing precisely because of the severe economic crisis that hasstruck the world economy, which will probably be used by governments as a jus-tification to disable the labor conflict, that is, to prevent the workers’ organiza-tions from participating in the choices involved in economic recovery. As shownby the dramatic situation in Greece, Ireland, Italy and Spain, all elements of asystem (hence also the unions) are involved in the dynamics of economic inte-gration, and are overwhelmed by the process. The economic crisis has erasedany illusion unions may have had of being able to protect workers’ interests,relying only on national systems of social welfare.

2) The European agreement on the strike extended to 27 countriesAn agreement at the European level could contribute to resolving the com-

plex issues raised by the Viking and Laval cases, Indeed, the European Com-mission and the French Presidency had tried to promote negotiations by invit-ing the social partners (ETUC/CES, BUSINESSEurope, CEEP, UEAPME) tojointly consider the consequences of Viking, Laval, Ruffert. On March 19, 2010,the parties submitted a «Report on the Joint Work of the European Social Part-ners on the decisions of the Court of Justice in the Viking, Laval, Ruffert andLuxembourg cases, that revealed a large distance between the relative positionsof the employers’ representatives and the workers’ representatives. Subse-quently, by order of the president of the European Commission Josè ManuelBarroso, on 2 May 2010 Mario Monti presented a report in which it is acknowl-edged that «both national systems of industrial relations and the exercise of theright to strike might have to adjust to fit with the economic freedoms estab-lished by the Treaty».

He stresses that the ECJ rulings pre-date the entry into force of the LisbonTreaty, which explicitly sets out the social market economy as an objective forthe Union and makes the European Charter of Fundamental Rights legallybinding at Treaty level. These elements should shape a new legal context, in

7 Historical experience shows that any extension of the European powers in social matters hasfound great opposition in all member countries.

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with the issues and concerns raised by the unions should hopefully find anadeguate response. He defined a more reassuring juridical picture for socialrights.

He holds it necessary, however, to avoid that such delicate questions are en-trusted «to occasional future litigations before the ECJ, or national courts».

He therefore proposes to define «a targeted intervention to better coordinatethe interaction between social rights and economic freedoms within the EUsystem. The issue is to guarantee adequate space of action for trade union andworkers to defend their interests and protect their rights in industrial actions,without feeling unduly constrained by single market rules.

The Commission plays an arbitration role, as already happens with theregulation (CE) n. 2679/98, and can request the Member State concerned toremove the individuated obstacles to the free movement of goods by a givendeadline. The proposal should be agreed upon by the social partners, which in-stead have very distant positions.

The study of nine domestic systems, therefore, revealed large, often surpris-ing differences between countries. The most significant differences involve therelationship between the public authorities and the trade union in the strikecall. There are common elements or in any case shared principles in the differ-ent national contexts that could form the guidelines of a European agreementon the strike of all member unions of the ETUC, who should commit, with thesupport of the international trade union organizations and in the fora of theEuropean social dialogue, to rendering effective the guidelines agreed upon inthe different domestic systems.

On the basis of this examination of the nine EU countries, possible points ofconvergence may be indicated for the following aspects:

1. Trade union freedom is the expression of three interdependent freedoms:freedom of association, freedom of contract, freedom of trade union action.

2. The strike must be effective, that is it must exercise significant economicpressure upon the overall activity and interests of the employer.

3. The procedures for the proclamation of the strike imposed by law must notreduce the effectiveness of the strike.

4. Limits to the exercise of the strike are only justified by the need to guaranteethe fundamental rights of persons.

5. The possible consultation of workers before the strike call is voluntary.6. The non-payment of wages during the strike is proportional to the duration

of the abstention.7. The more widely diffused press, radio and television stations are required to

give correct information on the reasons for the strike organized by trade unions.8. European strikes must be exonerated from observing national regulatory

provisions regulating the strike.


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3) The Agency for conflict resolution between economic and social freedomsThis study has also demonstrated that the European legal framework ex-

presses a strong imbalance between economic and social freedoms (to thebenefit of the first), an imbalance that derives from the fundamental aim of thetreaties to achieve a truly common market. It is necessary that the European ju-diciary finds the adequate forms to create the appropriate balance betweeneconomic and social freedoms, in order to avoid that trade union rights (betterexpression of the history of European legal systems) remain mere declarationsin the international charters or even are subjected to impairment within do-mestic legal framework.

In pursuit of this goal, it may be useful to establish Authority that is inde-pendent from both the member states and EU policies, which would have thetask of examining, in the specific and concrete, the occasions of conflict betweenthese freedoms and give an authoritative evaluation. The new Authority shouldalso have the task of promoting and supporting trade union rights, and the de-velopment of strong and effective labor relations in the European Union mem-ber countries.

A potential model for this independent body was outlined by the EuropeanUnion Agency for Fundamental Rights by Council Regulation (EC) No168/2007, established in Vienna (Council Regulation (EC) No 168/2007 of 15February 2007).

It should be a streamlined structure comprising two bodies: a steering com-mittee jointly appointed by the European trade unions of employers and work-ers, and a scientific committee appointed by the same organizations.

6.7 Final Remarks

The phenomenon of European integration is built on a set of rules producedby Community law and national laws. A thorough knowledge of their innerworkings and their interactions is the unavoidable starting point of every viewaimed at overcoming the dysfunctions that weaken social rights at a national level.

With this research we have sought to provide both information and consid-erations to stimulate a constructive dialogue between trade unions but alsoamong practitioners of law, in order to define joint initiatives with a view toovercoming the narrow and inadequate space of the national dimensions.

In the dialectic among the multiplicity of national judiciaries, the researchunit has constantly mobile boundaries, but can record meetings and generaterules that are the expression and the guarantee of such moments.

This has been our pledge. We have not unveiled a formula to give the strikethe same effectiveness in all member countries, but we have certainly gained abetter awareness of the way forward. It will be the task of trade unions to notpermit that in the coming years another opportunity for bringing efficacy to so-cial rights is wasted.

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1. General regulations of labor law

1.1 Implementation of international legislation into domestic law1.2 Formation of union representation in order to subscribe collective agree-

ments1.3 Trade union representation and activity in the workplace1.4 Discipline/Regulation of the collective agreement1.5 Reflection on the Viking and Laval judgments1.6 Means of protection in case of violation of the collective agreement1.7 Consultation of workers for signing the collective agreement or for the

strike call

2. Regulation of the right to strike

2.1 The right to strike as a fundamental right2.2 Sources2.3 Persons authorized to proclaim a strike (legal ownership)2.4 Procedures and proclamations2.5 Limitations on the right to strike2.6 The exercise of the right to strike in different sectors and categories of

workers

3. Trade union and strike

3.1 Reasons for the strike3.1.1 Political strike3.1.2 Solidarity strike3.2 Methods of the strike3.2.1Anomalous forms of striking3.2.2 Forms of collective action different from the strike3.2.3 Virtual strike

Schema of the topics covered in the national reports

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3.3 Unlawful strikes3.4 Sanctions in the collective conflict

4. Adhesion to the strike

4.1 Modalities of adhesion4.2 Effects of the lawful strikes on the employment relationship4.3 Consequences of the unlawful strike4.4 Wildcat strikes and strikes called by occasionally organized workers

5. Employers during the strike

5.1 Anti-union conduct5.2 Lock-out5.3 Consequence of the strike on no-striking workers

6. External elements linked to the effectiveness of the strike

6.1 External elements impeding the strike.6.2 External elements supporting the strike.6.3 Forms of international support for union activity.

7. Alternative means of dispute resolution

NATIONAL REPORTS

The following reports are a synthesisof the much extensive research

published on www. cgil. it

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1. General Legal Framework for Labour Law

1.1 Implementation of international legislation into domestic law

In its historic development, after gaining independence in 1878, Bulgariahas shaped its legal system based on the systems of Continental Europeancountries. The Civil law (Labour law included) is regulated by a hierarchy ofnormative acts, adopted by the state through its various bodies. The Constitu-tion (CRB), the Labour code(LC) and various Acts adopted by Parliament arethe most important sources of labour law. The Government is also entitled toadopt normative regulations of various rank through explicit delegation in theActs adopted by the Parliament.

The sources that are not adopted by the state are one of the most significantnovelties in the development of the contemporary Bulgarian labour law – col-lective agreements, internal labour regulations (art 181 LC) and decisions of theEmployees’ General Assembly (art 6 LC). The development of these sourceslimits the state» monopoly», enshrines the self-regulation and supplements theregulation of employment relations.

The case law as legal source is a controversial issue in Bulgarian legal theory.Opinions divide as to whether the decisions of the Constitutional Court (CC)concerning the interpretation of the CRB, are sources of law and further on,whether the CC becomes a «positive legislator» through such decision making.There are also discussions whether the interpretative decisions of the Supremecourts – Supreme Administrative Court included, are in fact source of law. Someeminent civil law academicians acknowledge them as source of law as they areformulated in general and abstract manner and are binding the judiciary andthe administrative bodies. The leading doctrine in the Bulgarian labour lawhowever denies the character of these acts as source of law.1

1 Prof. Vassil Mratchkov, Labour Law, 7th ed. 2010, Sibi, pp. 99-100.

BulgariaPlamenka Markova

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One of the major problems after the political changes in 1989 was to create alegislative framework within which the new social actors could freely interactamong themselves. The LC (adopted in 1986) has been amended, with specificreference to the role of the parties in industrial relations, the creation ofmechanisms of tripartite cooperation, the conduct of collective bargaining, theconclusion of collective agreements, the setting up of new forms of workers’participation in undertakings, the regulation of the right to strike and the pre-vention and settlement of labour disputes.

International lawSpecial general clause pertaining to the relationship between international

law and national law has been included in the Bulgarian constitution - CRB,adopted in 1991. This provision introduces the rule of moderate monism in therelationship between international law and national legislation, establishingprecedence in application in case of collision between domestic and interna-tional law, however without affecting the Constitution. Art. 5 (4) CRB proclaimsthe primacy of international treaties. International law automatically incorporatesthrough ratification and publication in the State Gazette. All international con-ventions that are in force are directly binding in case they are self-executing. Asmost of them are not self-executing domestic acts of various rank are adoptedin order to implement them depending on the subject matter. In the case of theILO instruments Bulgaria follows the procedures of art. 19 para 5 of the ILOConstitution.

Bulgaria has ratified the fundamental ILO conventions, the ECHR, theEuropean Social Charter, as well as the two UN Covenants on human rights.

EU legislationAccording to the doctrine in Bulgaria the provisions of the CRB, even such

regarding fundamental rights, cannot be applied in contravention with theTreaties and the law adopted by the Union.2 Bulgaria is a new EU member andthe EU law enjoys in the Bulgarian legal space a universal and direct effect and hasprecedence over national law in case of collision. The CRB does not provide ex-pressly the primacy of EU law over national constitutional law in case of colli-sion. However, the primacy exists and stems from the transferred constitutionalcompetences in favour of the EU (art. 85(1)1), from the fundamental principlesof CRB (art. 4 and 5(4)), and from the existing legislation.

The directives are transposed into domestic law by passing appropriateimplementation measures.

The regulations have direct effect.

2 E. Drumeva, The Primacy of EU Law over National Law, in Juridical World, 1/2009, pp. 11-24.

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1.2 Formation of union representation in order to subscribe collective agreements

The industrial relations system in Bulgaria does not entail conditions or re-strictions which in practice make it very difficult for large numbers of workersand employers in certain categories to establish organizations for furtheringand defending their economic and social interests. The internal legislation atpresent is based on the international labour standards and includes the CRB(art. 12, 44 and 49 para 1) and the LC (art. 4, 33, 37, 42, 45, 46 and 49). Thefreedom of association, de facto and de jure, to establish organizations is theforemost among TU rights and is the essential prerequisite without which theother guarantees enunciated in international sources would remain a dead let-ter. However, the legislation draws a distinction in that regard for certain cate-gories of occupation or persons such as certain public servants-police and mili-tary, judiciary, executive and managerial staff.

The legal status of TUs is based on three groups of issues:

– the TUs as non-profit associations and the recognition of their legal person-ality. The LC in art 49 stipulates that TU organizations attain the status oflegal person upon registration under the procedure established for registra-tion of non-profit associations;

– the TUs being non-profit associations for mutual benefit are set up to repre-sent and protect the interests and rights of their members. This is in line withart 49. 1 of the Constitution and art. 4 of the LC and guarantees their auton-omy.3 In previous versions of the LC, given the existing TU monopoly in thepast, the TUs represented the interests of all workers;

– the rights of the TU associations.

TU bodies in enterprises are entitled to participate in drafting all internalrules and regulations which pertain to labour relations, the employer beingbound to invite them to do so.

The national leaderships of TU organizations or bodies or persons they haveauthorized, are entitled to participate in the discussion of issues referring to thelabour and social security relations of employees of ministries, other institu-tions, enterprises and local government bodies.

TUs also participate in collective bargaining and conclude collective agree-ments. According to the LC the union representation in collective bargaining

3 LC article 33 (1) Trade union organizations and employers’ organizations are entitled, withinthe bounds of the law, to autonomously draw up and adopt their statutes and rules, to freely electtheir bodies and representatives, to organize their leadership, as well as to adopt programmes ofaction. (2) Trade union organizations and employers’ organizations shall define their functionsfreely, and shall perform them pursuant to their statutes and the law.

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depends on the level of bargaining. Article 51 a of the LC states that within anenterprise the collective agreement (CA) shall be concluded between the em-ployer and a TU organization.

Where more than one TU organizations exist within one enterprise they haveto submit a common draft. Where within the enterprise the TU organizationsfail to submit a common draft, the employer shall conclude the CA with that TUorganization the draft of which has been approved by the general assembly ofthe employees by majority of more than 50% thereof.

In the case of CA on industry and branch levels article 51b and at municipallevel 51 c provide that the CAs by industries, branches and at municipal levelshall be concluded between the respective representative organizations of em-ployees and of employers on the basis of an agreement between their nationalorganizations, which shall set forth general provisions in respect of the scopeand the procedure framework of the industry and branch level agreements.

The criteria for representative TUs organizations are regulated in the LC.According to article 34 representative organizations of the employees on na-tional level are those that have:

1. at least 50 000 members;2. at least 50 organizations with not less than 5 members each in more than half

of the industries set forth in the National Classification of Industries;3. local bodies in more than half of the municipalities in the country and a na-

tional managing body;4. capacity of legal entity, acquired pursuant to article 49 of the LC.

The Council of Ministers- CM has set forth the procedure for verification ofcompliance with the criteria for representativeness as per articles 34 and 35 LC.Organizations of the employees are recognized by the CM as representative onnational level upon their request. The CM issues decision within three monthsfollowing the receipt of legitimate request by the interested organization. Thedenial of the CM to recognize as representative an organization of employeesmust be supported by reasons and shall be notified to the interested organiza-tion within 7 days following the issue of such decision. The interested organiza-tion may appeal the denial before the Supreme Administrative Court. All divi-sions of organizations recognized as representative on national level shall bealso recognized as representative at the respective level.

Representation before the CourtTU organizations and their divisions are entitled, upon the request of em-

ployees (non-menbers as well), to represent them at court in cases of individuallabour disputes under art. 357 LC, of collective disputes and on legality ofstrikes.

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1.3 Trade union representation and activity in the workplace

The power and presence of TUs is determined by various factors: the level ofmembership, in absolute terms and relative to employment; the unity and co-operation inside and outside the union movement; the relationship with em-ployers, governments, political parties and other social organisations; leader-ship, internal organisation and membership participation; sound finances; acoherent value system or ideology; and the standing of the unions and theirleaders in public opinion. The composition of TU and union membership, theirrepresentation among different categories defined by skill, sector, gender, sec-tor, age, nationality and status in the labour market is relevant for understand-ing the policy choices of unions.

TU structures and internal organizational dynamics have been central factorsshaping union choices in a time of deep societal transformation. The prioritiesand behaviour of workers’ organizations during transition have been dependenton the origin and identities of the confederations and the relationships amongthem. The context in which TUs operated and the experience of economic,ideological and political pressures, has in turn intensively influenced internalunion restructuring and reforms, as well as inter-union relationships and iden-tities.

The former state-controlled TU made the choice of reorientation to convertitself from «transmission belt» (Lenin) into independent and democratic workers’organization through radical internal reforms. In Bulgaria the Constitutionalcongress of CITUB declared union independence, voluntary membership andthe confederative principle as the basis for internal reforms in 1990. The re-sulting initial proliferation of branch federations within CITUB, which led tofragmented sectoral representation and led to reallocation of power centres,was followed by a degree of consolidation-a process that has helped maintainthe unity The new alternative TU which emerged as dissident anticommunistmovement had to decide whether to transform into actual labour union. CLPodkrepa combined two roles during the early democratic changes – as TU andas reformist political mopvement. Few years later, it officially declared its ori-entation toward the classic model of protection of workers’ rights and interestsand social dialogue – a difficult process that resulted in a rapid decline of mem-bership. Different identities and political orientations in the early 1990s re-sulted in a proliferation of TU centres and sharp inter-union confrontation.

In Bulgaria confederation support tends to be focused in the public sectorwith strong and active federations in education, health, utilities and similarpublicly owned or large privatized sectors. A lack of policies for the consolida-tion of industry organizations in the fast-growing service sector seems to be theweak point.

Present union structures and policies do not adequately reflect the existingcomposition of membership by social groups, particularly women and youth.

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TUs in Bulgaria have applied different approaches towards unprotectedworkers in the informal economy. Informality is undermining solidarity by re-placing possible collective action with individual survival strategies. Results ofattempts to organize informal workers are less tangible however, as there arelimited organizational capacities to address the needs of this diverse and dis-persed segment of the labour force.

The distinctive route from state-controlled to independent unionism maps atrajectory of discontinuity in TU evolution. Bulgarian TUs were not able to relyon past experiences and traditions for their orientation in fundamentallydifferent environment of emerging liberal market economy. The situation inBulgaria differs substantially from the evolution of TUs in Western Europe asthey had in the last 20 years to revisit legacies and traditions to reformulatetheir goals.

The 1990s witnessed a deep reform in decision making principles and prac-tices at the former state TUs.

At present only KNSB4/CITUB (Confederation of Independent TUs in Bul-garia) and Confederation of labour CL Podkrepa5 have the status of representa-tive unions at national level, although other confederations have also beengranted this status in the past. In 2007, the LC was amended, changing theprocedure for establishing representative status. There is now a clear timetablefor submitting requests for representative status, including the need to re-establish status every four years, and a clear requirement to ensure the infor-mation provided in support of the request is accurate. KNSB has always beenlarger than Podkrepa and figures complied for the most recent TU census in2007 show 328,000 members for KNSB and 91,000 for Podkrepa.

Both KNSB and Podkrepa have a similar structure of affiliated industry fed-erations/unions. There are 35 in the case of KNSB, of which the largest is theteachers’ union, with some 75,000 members. KNSB also has five associated or-ganizations representing the self-employed, farmers, home workers and others.CL Podkrepa has in total 24 industry federations and four associated organiza-tions with 2,138 TU sections at company level. It also has 143 municipal struc-tures.

Bulgaria also has a few small unions that split from Podkrepa CL in the mid1990s. At certain points, they have been recognised as nationally representativeand participated in tripartite social dialogue structures (1994–1997). Althoughthey still have some branch and local organisations, they do not meet the repre-sentativeness criteria.

Some TUs are organised on the basis of a kind of professional principle andare not affiliated to any branch or national TU organisation, nor do they have

4 KNSB/ ɄɇɋȻ is the abbreviation of the Bulgarian name - Ʉɨɧɮɟɞɟɪɚɰɢɹ ɧɚ ɧɟɡɚɜɢɫɢɦɢɬɟɫɢɧɞɢɤɚɬɢ ɜ Ȼɴɥɝɚɪɢɹ. It is also used in trade union documents published by ETUC, ITUC or ILO.

5 Ʉɨɧɮɟɞɟɪɚɰɢɹ ɧɚ ɬɪɭɞɚ «ɉɨɞɤɪɟɩɚ».

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many affiliated local organisations. These include the Free Aviation TU, whichmainly organises land aviation workers, the Bank TU, the Academic Union, the Na-tional Police TU and the Union of Firefighters. The activities of the TUs at theworkplace were brodly described in the previous section-1. 2. To these can beadded the participation in Health and Safety committees at enterprise level andin the strike committees.

TUs remain unconvinced regarding the relevance of other forms of interestrepresentation as a remedy to the representation gap, particularly at the newprivate sector. This is partly due to socialist legacies and unsuccessful earlierexperiments involving workers in company decision making. This attitude hasbeen further reinforced by attempts of liberal governments to introduce workcouncils, overcoming collective bargaining rights, which unions perceived as anact of hostility and a step to deliberately undermine their influence. While thelack of representation at private companies and the need to comply with EU di-rectives for works councils both called for action, a mechanical transfer of Euro-pean practices has been avoided.

This places Bulgaria in the group of European countries like Greece, Maltaand the Baltic states with weakly institutionalised bodies of employee represen-tation, alongside or instead of TUs, and with weak rights vis-a-vis management.

1.4 Discipline/Regulation of the collective agreement

The CRB / 1991 introduced in art. 496 the freedom of association principlewhile the right to collective bargaining is not explicitly regulated but could bederived from the freedom of association. The LC, in Chapter IV – articles 50-60, provides the legal regulation of collective agreements. (CA). CAs regulate is-sues of labour and social security relations of workers which are not regulatedby mandatory provisions of the law. The CA by definition do not contain clauseswhich are more unfavourable to the employees than the provisions of the law.Only one CA may be concluded at the level of enterprise, branch and industry.

Obligations to negotiateThe individual employer, the group of employers, and their organizations

are obliged to:

1. Negotiate with the TUs to conclude a collective agreement;2. Make available to the TUs:

a) the CA concluded which bind the parties on the basis of sectorial, regionalor organizational affiliation;

6 Workers and employees shall be free to form trade union organizations and alliances in defenseof their interests related to work and social security.

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b) timely, authentic and understandable information on their economic andfinancial position which is significant for the conclusion of the CA; provi-sion of information the disclosure of which could cause damages to theemployer may be refused or granted subject to confidentiality. In case offailure to perform the obligation to provide information the employersowe indemnity for damages inflicted. The employer is deemed to be indelay if he does not fulfil his obligation to negotiate within one month,and to provide information within 15 days after the notice.

The TU organizations in the enterprise, upon request of the employer at thestart of negotiations for CA, must provide information on the actual number oftheir members.

Conclusion and RegistrationThe CAs are concluded in writing in three copies – one for each of the par-

ties, and one for the respective labour inspectorate, and have to be signed bythe representatives of the parties. The written form is a requisite for the va-lidity of the CA. The CA must be registered in a special register with the la-bour inspectorate in the area where the employers’ seat is located. Collectiveagreements of a sectorial or national relevance must be registered with theExecutive Agency «General Labour Inspectorate». The amendments in the LCat the end of 2008 introduced new provisions for sending a copy of CA in theNational Institute for Conciliation and Arbitration (NICA) This body is re-sponsible for establishing and maintaining the information system of collec-tive agreements.

Entry into Force and DurationThe CA comes into force as from the date of its conclusion, insofar as it does

not provide otherwise. It is deemed concluded for a term of one year, insofar as itdoes not provide otherwise, but not for more than two years. The parties may agree forshorter terms of validity of individual clauses of the agreement. The negotia-tions for conclusion of new CA shall start not later than three months prior tothe expiry of the term of the current agreement.

The CA is applicable to the employees who are members of the TU organi-zation signatory to it. The employees who are not members of a TU organiza-tion that is a party to a CA may accede to a collective agreement concluded bytheir employer by applications in writing submitted to him or to the leadershipof the TU organization which has concluded the agreement, under terms andprovisions determined by the parties to the agreement, such as may not becontrary to the law or evading the law, or such that are offensive to the goodmorals.

Where the CA on industry or branch level has been concluded between allrepresentative organizations of the employees and of the employers in the indus-

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try or the branch, the Minister of LSP may, upon their joint request, extend theapplication of the agreement or of individual clauses thereof to all enterprisesof that industry or branch.

The special Act on Civil Service does not regulate the right of collective bar-gaining in the narrow sense of the term, nevertheless under its’ section 44(3),TUs are able to represent and defend the rights of civil servants and social secu-rity issues through proposals, requests, and participation in the drafting of rele-vant internal regulations and ordinances, as well as in the discussion of issues ofeconomic and social interest. The TUs have referred the issue to the ILO su-pervisory mechanism.

1.5 Reflection on the Viking and Laval judgments

There have been no discussions on the possible impact of Laval and Vikingcases in Bulgaria up to now. This might be due to the fact that Bulgaria is thecountry with the lowest wages in the EU and in practice it is difficult to have thesituation which brought to the cited cases.

The minimum wage is settled in Bulgaria by the Government after consulta-tions with the social partners according to art. 244 of the LC. After 2003 the so-cial partners also negotiate the «minimum social insurance thresholds» whichactually serve as branch or sectoral minimum wages and which cannot be belowthe national minimum wage. In case the partners cannot reach an agreementthe CM settles the minimum social insurance thresholds by administrative act.This means that foreign employers who operate in Bulgaria would have to takeinto account the minimum wage on the respective level, set up with mandatoryrules. The major part of the Directive 96/71/EC has been transposed into aseparate and special regulatory act – the Ordinance of the CM on theconditions and procedure for posting workers from the MSs or from thirdcountries to the Republic of Bulgaria. This main transposing regulation isaccompanied by and supplemented with provisions from the EmploymentPromotion Law, the LC and the Ordinance on the conditions and procedure forthe issue, refusal and revocation of work permits of foreigners in Bulgaria. .According to the data submitted by the Employment Agency, the number ofposted workers from MSs of the EU and from third countries in Bulgaria isapproximately 120 workers for the period 2007-2009.

1.6 Means of protection in case of violation of the collective agreement

In case of violation of the CA actions in court may be instigated by the partiesto the agreement, as well as by any employee who is subject to the application ofthe agreement. The claim may be filed by the TU-party to the agreement whenthe violation concerns the TU rights in it or a large group of employees (mem-bers or non member who acceded the agreement)

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The dispute in case of violation of the CA could be settled under the SCLDA– through negotiations, voluntary arbitration and strike.

1.7. Consultation of workers for signing the collective agreement or for the strike call

No referendum is necessary for signing collective agreement. As mentionedabove in case there are two drafts of the CA submitted by different TUs theworkers vote in order to decide which draft will be negotiated. A strike can bedeclared after a vote among workers in case 50% of all workers in the enterpriseor the unit concerned vote in favour as per art. 11.2 SCLDA. The majority vote iscalculated on the basis of all workers and employees in the respective enterprise, includingthose who are absent due to objective grounds- on leave, on sick leave or business trip, etc.This rule has been critisized by the ILO CEACR, e.g. in the reports from 2005-2009, as it limits the right to strike.


2.1 The right to strike as a fundamental right

The CRB adopted in 1991 contains provisions, which constitutionalize labourlaw, i.e. they permeate its content and determine its development. This «Con-stitutional block» is expressed in the following: a) building up the social state(paragraph 5 of the Preamble of the CRB); b) protection of labour (article 16);c) the incorporation of the most important labour rights into the Constitution –the right to work and its free exercise, the right to fair labour remuneration,free TU and employers’ association, the right to strike, etc. (articles 48, 49, 50,etc.); d) the activity of the Constitutional Court and its jurisprudence in inter-preting the CRB and exercising supervision on the constitutionality of laws andtheir compliance with the ratified international treaties (article 149, paragraph1, items 1, 2 and 4).

As for the recognition of the employees’ right to strike under article 50 of theCRB, although in this respect the Constitution came later than the Act on Set-tling Collective Labour Disputes, which was adopted on 6 May 1990, it intro-duced three essential points in its regulation. First, it raised the juridical rank ofthis right, turning it from a right under the legislation into a right under theConstitution, with all the favourable consequences for its juridical protectionensuing from that: irrevocability by way of a law, compliance of the law with it,etc. (article 57 CRB). Second, this determined its social purpose as being a rightfor the protection of the collective economic and social rights and interests ofemployees. Thus a gap was filled in the legal regulation of the right to strikeand, in view of its nature, it was appropriate for this gap to be filled by the Con-stitution. Third, the Constitutional provision has laid down that the conditions

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and procedure for the exercise of the right to strike is determined in a separatelaw- the 1990 Act on Settling Collective Labour Disputes and its subsequentamendments and supplements. In its Decision No 14 dated 24 September 1996on Constitutional case No 15 of 1995 (OJ, No 84 of 1996), the ConstitutionalCourt gave an obligatory interpretation of article 50 CRB regarding the right tostrike. In this Decision the CC has reasonably extended the social purpose ofthe right to strike, pointing out its role of: «a constitutional guarantee that Bul-garia will develop as a democratic and social state». Along with that, the Courthas admitted «by way of exception» a restriction of the right to strike in twocases:

a) for certain civil servants who exercise authoritative powers on behalf of thestate and ensure its functioning;

b) for employees in certain branches and activities, such as production, distri-bution and supply of electric power, communications and healthcare.

According to the court: «the suspension of performance on the part of em-ployees in these spheres through an effective strike would endanger the life andhealth of large parts of the population, which is inadmissible in view of the stateprotection of the citizens’ life and health – article 4, paragraph 2, article 28, ar-ticle 52, paragraph 3 and article 57, paragraph 2 of the Constitution».

The above exposition provides grounds for the conclusion that the constitu-tionalizing of Bulgarian labour law is undergoing a process of being extendedand deepened. It contributes to the affirmation of the protective function of la-bour law, this being its invariably inherent, immanent main function.

2.2 Sources

The legal sources are: the Constitution,1991 the Settlement of Collective La-bour Disputes Act,1990 the Railway Transport Act of 2000 art. 51 on minimumservices, the Civil Servants Act art 47 that prohibits the right to strike.

2.3 Persons authorized to proclaim a strike (legal ownership)

The workers are entitled to the right to strike which is considered to besubjective right but executed collectively. This means that it belongs to eachworker/employee, who participates personally in the strike. At the same time itis characterized as collective right as it is executed together with other workersand employees. It manifests itself as collective at the stage of taking decisionfor going on strike. A single worker/employee can not go on strike if his/heractivity is not supported by at least 50% of the employees in the enterprise. In-dividual employee can not proclaim strike in order to defend his/her vestedrights.

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2.4 Procedures and proclamations

From the viewpoint of conflict settlement, a strike is meant to be the last re-sort. Thus, all means of negotiation must be exhausted before a strike can becalled. The strike is not a single act, but rather a process with the distinct con-secutive stages – declaring, course and termination.

The law requires a TU to follow the procedures for resolving collective dis-putes before initiating a strike. First, when, under the collective bargaining anagreement is not reached under art. 3 or art. 4,7 of the SCLDA given that me-diation and or voluntary arbitration under art. 58 have been requested, or theemployer does not fulfill undertaken obligations, the workers may strike bytemporary interrupting the performance of their duties. The law does not spec-ify when, where and on what occasion these duties are not fulfilled. The doc-trinal interpretation is that these duties are related to the already existing in-dustrial dispute in the previous phases – during the direct negotiations or dur-ing mediation. These two conditions are alternative – any of them is sufficientfor declaring a strike. These two conditions are required for declaring a warningstrike as well.

The solidarity strike is not under the first set of conditions, as with it the work-ers do not claim their own interests but support other workers/employees intheir demands.

Second, the decision to call a strike, as well as defining its lenght and starting point,must be made by a majority vote of the workers/employees. This is valid for all types ofstrikes. The majority vote is calculated on the basis of all workers and employ-ees in the respective enterprise, including those who are absent due to objectivegrounds – on leave, on sick leave or business trip, etc. This rule has been cri-tisized by the ILO CEACR, e.g. in the report from 2005 and 2009, as it limitsthe right to strike. Participation in the voting does not bind the worker/employeeto participate effectively in the strike. This could bring down the number of ef-fective strikers and vice versa, a worker /employee who did not participate invoting may participate in the strike itself.

Third, the employer must be notified at least seven days before the strike regardingthe duration of the strike and the body which will lead the strike. The period iscalculated in calendar days, not in working days following the general principlesof the civil law in Bulgaria. The period is the minimal standard, which means

7 Art 4. (1) (Amended - SG, vol. 25 - 16 03 2001). When no agreement has been reached or someof the parties refuse to negotiate, each one of the might try to settle the agreement through media-tion and/or voluntary arbitration with the cooperation of the trade unions, employers organizationsand/or the national Institute for conciliation and arbitration. (2) Negotiations under the previousparagraph may last up to 14 days or longer in case the parties have agreed to a longer period.

8 Art. 5 (1) Besides the order under the preceding article, the dispute can be referred for settle-ment by a single arbitrator or an arbitration commission, under a written agreement between theparties.

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the notification could be made earlier as well. The purpose of the notification isto give chance to the employer to prepare for the strike, to carry out negotia-tions in order to agree in writing on the minimum services to be maintained,defined in SCLDA art. 14 para 1.9 Solidarity strikes may be called in support ofa lawful strike. Employees may engage in a one-hour warning strike withoutprior notification to the employer.

2.5 Limitations on the right to strike

Art. 57 of the CRB envisages that the fundamental civil rights are irrevocable.Rights shall not be abused, nor shall they be exercised to the detriment of therights or the legitimate interests of others. In this sense the limitations to theright to strike are regulated in the SCLDA. There are categories of public offi-cials who are prohibited from exercising the right to strike as they are denied tocertain extent of freedom of association, right to organize and colletive bar-gaining. These are employees of the Ministry of National Defence and theMinistry of Internal Affairs; the army engineering corps and other armedforces; and employees of the courts, judiciaryt including prosecutors and inves-tigation bodies.10 The civil servants are another group with limitation to theright to strike According to art. 47 (1) of the Civil Servants Act when therequirements connected with the official and insurance relations are not metthe civil servants shall be able to declare «strike». The implementing of thestrike shall be accomplished by carrying and mounting appropriate signs and symbols,protest posters, ribbons etc without terminating the fulfilment of the civil service. Duringthe strike the representatives of the civil servants and the body of appointmentshall make efforts for solving the disputed issues.

This rule has been considered as denial of the right to strike and the TUshave filed a collective claim with the Council of Europe.

In cases when the employer is not the only one affected by the discontinua-tion of work, e.g. strikes in the essential services, certain categories of work-ers/employees are restricted from striking or there is enforcement of the obli-gation to continue to work at a minimum level.

9 SCLDA art. 14. (1) The workers and the employers are obliged to provide, by a written agree-ment, conditions for the performance of the activities during the strike, whose failure to fulfill ordiscontinuation can create a danger for:

– life and health of citizens who are in need of emergent or urgent medical care or of thosecitizens who are treated in a hospital;

– production, supply distribution, transmission and delivery of gas, electricity and centralheating; the satisfactory communal and transport servicing of the population and for stop-ping the TV and radio broadcasts as well as voicemail telephone services;

– inflicting irreparable damages to the public or personal property or the environment;– the public order.10 See the DECISION No. 14 of September 24, 1996 ON CC No. 15/96 by the Constitutional

court in support of the ban.

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According to article 16 para 4 of the SCLDA, employees in the followingcategories of work were denied the right to strike: distribution or supply ofelectric power; communications and health services; SCLDA was amended in2006 by removing the ban on the strikes in distribution or supply of electricpower and in communications and health services after a successful collectivecomplaint of the TUs under the European Social Charter and recommendationfrom the Council of Europe.

According to article 14 of the SCLDA, in certain areas of activity, the workersand the employer must reach a written agreement on measures that ensure thefunctioning of services at a satisfactory level during the strike. This applies tothe proper functioning of public services, public transport, and radio and televi-sion broadcasts. The measures must ensure the avoidance of irreparable dam-age to public or private property or to the environment, and must not cause abreach of law or public order. The parties must reach such an agreement atleast three days before the strike begins. If the parties are unable to reach anagreement, the matter is referred to binding arbitration.

An example of such restriction is section 51 of the Railway Transport Act of2000, which provides that, where industrial action is taken under the Act, theworkers and employers must provide the population with satisfactory transportservices corresponding to no less than 50 per cent of the volume of transportationthat was provided before the strike. In its observation,11 the ILO CEACR requestedthe Government to amend section 51 of the Railway Transport Act. The CEACRestimated that the 50 per cent requirement for minimum service was excessive.

The last limitation is the temporary ban on strikes in case of natural calam-ity/earthquakes, floods etc. or the related urgent and indispensable rescuingand restoration operations. The ground of this limitation is in art 57.2 of theConstitution.

2.6 The exercise of the right to strike in different sectors and categories of workers

The Bulgarian labour law does not make difference between private andpublic sector employment relations. As mentioned above there are special actson the civil service strictu sensu, military and police staff and judiciary whichprovide specific regulation in certain areas, although the LC serves as subsidiarylegal source. Self-employed are not considered to have the right to strike as theydo not fall into the typical employment relationship pattern. A central featureof the traditional employment relationship in Bulgarian labour law, is the hier-archical power of employers over employees. It combines three related ele-ments: (i) the power to assign tasks and to give orders and directives to employ-ees (directional power); (ii) the power to monitor both the performance of such

11 ILCCR: Examination of individual case concerning Convention No. 87: Freedom of Associa-tion and Protection of the Right to Organise, 1948 Bulgaria (ratification: 1959) Published: 2008.

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tasks and compliance with orders and directives (power of control); and (iii) thepower to sanction both improper or negligent performance of the assignedtasks and given orders and directives (disciplinary power). The presence of hier-archical power in a working relationship, has been the element that distin-guishes employment from self-employment, and accordingly is the access key tothe wide range of regulations set up to protect employees in the different juris-dictions. The workers /employees may be employed in the public or privatesector – the regulation is identical. The self employed and contract workers are notcovered by the LC.


3.1 Reasons for the strike

According to art. 16 SCLDA the unlawful reasons /according to their objec-tives/ for strikes are:

1. demands of the workers/employees that contradict the Constitution;2. purely political demands;3. settlement of individual labour disputes;

Strikes are not admissible:

1. when the requirements of art. 3, 11, para 2 and 3 and art. 14 SCLDA are notmet, as well as on issues on which there is an agreement or an arbitrationaward;

2. during a natural calamity or the related urgent and indispensable rescuingand restoration operations;

3.1.1 Political strikeThese could be strikes demanding changes in state authorities, or the form of

government, for the activities of the political parties, etc. These demands couldbe raised in execution of other constitutional rights – e.g. art. 43 CRB regulatesthe right to meetings and demonstrations;right to associate in politival parties-art. 11, 12 and 44 CRB. Nonetheless demands for changes in the economic andsocial policies of the Government are not considered to be purely political, asthey protect the economic and social ineterests of workers/employees.

3.1.2 Solidarity strikeAccording to art. 11. 4 SCLDA the workers may declare solidarity strike in

support of a legal strike of other workers. It aims to put more intensive pressureon certain employers, who are facing already real strike and state bodies, in or-

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der to enhance the chances for successful outcome of the basic strike. The pro-cedural rules for declaring a solidarity strike are the same as for a normal strike.Solidarity strikes could not last longer than the basic strike.

3.2 Methods of the strike

3.2.1 Anomalous forms of strikingNo.

3.2.2 Forms of collective action different from the strikeAccording to art. 9 SCLDA for satisfying their demands each party to a col-

lective dispute can act upon the other, without interrupting their work, by or-ganizing public meetings, demonstrations after working hours, information tothe public through the mass media or another legal way.

3.2.3 Virtual strikeThe national legal system and the practice in Bulgaria do not know virtual

strikes. There is no legal definition of strikes, but broadly the interpretation ofarticle 50 of the CRB and art. 11. 1 and 2 of SCLDA leads to the following defi-nition – the strike is organized temporary suspension of labour duties for im-plementing the work assigned by the workers/employees in defense of theircollective economic and social interests. Given this understanding «virtualstrikes» could not be considered to come under the Constitution or SCLDA.

3.3 Unlawful strikes

Strikes are considered to be unlawful only if the competent court has pro-claimed them as such. According to art. 17 of SCLDA the employer, as well asthe workers who are not striking, can put up a claim for the establishment ofthe unlawful character of a declared, proceeding strike or strike that has alreadyended.

The claim has to be put up at the district court of the habitual residence orheadquarters of the employer. The case shall be heard within seven days in anopen session, by the order of the Civil Procedures Code, with the participationof a prosecutor. The Court is due to enact its decision within three days fromhearing the case. The Court decision is final and it must be announced to theparties immediately.

3.4 Sanctions in the collective conflict

There is no explicit sanction for the TUs in the law. For participating in anillegal strike the workers could be disciplinary and property liable according tothe provisions of the LC and of the other laws.

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4.1 Modalities of adhesion

Industrial or social conflict is an inherent part of industrial relations. Theright to bargain for better conditions implies the right to strike as a means toexert pressure should negotiations reach an impasse or fail. The exercise of thisright, constitutes a high-profile aspect of industrial relations in terms of publicimpact and media coverage. As pointed already the right to strike belongs tothe worker but can be exercised only collectively.

4.2 Effects of the lawful strikes on the employment relationship

For the period of striking the individual employment relationship is tempo-rarily changed – the work function and the related to it duties are not per-formed. However new duties related to the strike are set for the strikers. For theduration of the strike the workers are obliged to be at the premises of the en-terprise during the working hours established for them. The strikers cannotundertake activities, which hinder or create additional difficulties for the nor-mal process of activities beyond their duties. Prohibited is the creation of obsta-cles or difficulties for the workers who do not participate in the strike, to con-tinue their work during the strike. Participation in a legal strike is not a lawfulground for dismissal. The workers do not receive labour remuneration for thetime of participating in a strike. For this period they can be compensatedthrough especially created strike fund. The fund is established at the will of theworkers, with their own funds or with the funds of the TUs. Block up of thestrike funds during a strike is prohibited.

For the time of participation in a legal strike the workers are entitled tobenefits from the public insurance funds under the general terms, and if thestrike was acknowledged as illegal – only if they have been voluntary insured.The time of participation of the workers in a legal strike shall be considered asinsured length of service (art. 18 SCLDA).

4.3 Consequences of the unlawful strike

The consequences of participation in illegal strike are unfavourable for theworkers:

– workers could be disciplinary and property liable according to the provisionsof the LC12 and of the other laws. It has to be noted that it is important to findfault in participating in the illegal strike;

12 Articles 186-198; Chapter Nine Work discipline Section III Disciplinary Liability; art 333 LC.

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– the time of participation of the workers/employees in an illegal strike shallnot be considered as insured length of service- per argumentum a contrarioof art. 18, para 4;

– for the time of participation in an illegal strike the workers/employees arenot entitled to general sickness benefit from the public insurance funds un-der the PAYG pillar. They could receive benefits from the voluntary insur-ance scheme only if they have been voluntary insured.

The social consequences are related to the lost trust in the organizers of thestrike.

4.4 Wildcat strikes and strikes called by occasionally organized workers

Spontaneous strikes are not explicitly regulated. In the early years of thetransition spontaneous protests did occur but later on due to failure to curb thenegative consequences of privatization and the shift of power in favour of em-ployers they diminished giving place to regular strikes.


5.1 Anti-union conduct

The Bulgarian legislation has prohibited the lock-out, either offensive or defen-sive. Art. 20 SCLDA stipulates that after declaring the strike and during the timeof a legal strike, the employer cannot discontinue the activity of the enterprise or apart of it, and fire workers with the purpose of preventing or stopping the strike;frustrating the satisfying of the demands. The prohibition is general and is rele-vant for all grounds of firing, enumerated in art. 328 and 330 LC (Termination ofEmployment by Employer With and Without Notice). The SCLDA allows discipli-nary action to be taken for participation in an unlawful strike, but in order to im-pose a disciplinary sanction, the rights and procedures set out in the LC (articles186 to 198) must be fulfilled. Prior consent of the labour inspectorate for personswho are specifically protected under article 333 of the LC shall be considered. Thedoctrine however considers when analysing art. 120 LC that the employer canchange the place and the nature of work of employees in case of production neces-sity. This is temporary measure changing already existing employment relation-ships and it solves only separate, partial issues.

5.2 Lock-out

During a legal strike the employer has no right to employ new workers on theplace of the strikers, for the purposes of preventing or stopping the strike or of

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frustrating the satisfaction of the demands; unless it is necessary for the activitiesunder art. 14,1 – minimal services, for the duration of the strike. The strike is con-sidered to be legal until through art. 17 the court has declared its unlawful char-acter. After the court has declared that it is unlawful both firing of workers andemploying workers is not done in breach of art 20 and 21 of the SCLDA.

5.3 Consequence of the strike on no-striking workers

Those workers who do not take part in the strike benefit from certain rights:the right to continue working if possible; financial rights, consisting of wages, inthe case of continuing work, and certain payments if activity can no longer con-tinue.

According to article 18(5) SCLDA «Worker who has not participated in astrike but due to the strike of other workers was unable to perform his duties,shall receive remuneration as in a case of stoppage beyond his control».13


6.1 External elements impeding the strike

Unions do not have sufficient strike funds. In certain cases there is clear lackof public support for strikes, depending on the sector affected. Passive attitudeor lack of solidarity from other TUs also diminishes the relevance of strikes. Of-ficial statistics on strikes is scarce and usually not used in debates or negotiations.

6.2 External elements supporting the strike

Media are usually interested in strikes but given their dependence on theGovernment or on some corporative interests they rarely are neutral. Regula-tion of media is still developing and self regulation has been started but inpractice objectivity and impartiality is not a common feature.

6.3 Forms of international support for union activity

International solidarity and cooperation have traditionally been major di-mensions of TU action and at no point in TU history has such cooperation been

13 The general rule in the Labour code on labour remuneration in case of stoppage and produc-tion necessity is set up in article 267: The employee shall be entitled to his gross labour remunera-tion for stoppage through no fault of his. An employee shall receive no labour remuneration for theduration of a work stoppage caused through a fault of his. For the time of performing other workdue to production necessity the employee shall be entitled to the labour remuneration for the workperformed, but not less than the gross labour remuneration for his basic work.

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so central to TU survival and strength. The affiliation to ETUC and ITUChelped unions to direct and accelerate internal reforms. International affiliationhas conferred a degree of legitimacy vis-s vis other national social partners andhas strengthened the credibility of TUs. They have profited from the supportand the expertise of the international TUs in submitting collective claims in theCouncil of Europe under the European Social Charter and to the supervisorybodies of the ILO.

The Bulgarian TUs have shared experience and knowledge with their coun-terparts in the Western Balkans through participating in some subregional ILOprojects and programmes.


Pursuant to art 4.1 of the SCLDA, in the event of disagreement betweenemployees and employers or their representatives, each of the parties can callfor mediation and/or arbitration either under the aegis of TU or employers’organizations and/or of the National institute of conciliation and arbitration. In2001 the SCLA has been amended in order to set up the National Institute forConciliation and Arbitration- NICA, which aims to promote the voluntary set-tlement of collective labour disputes between employers and workers. TheNICA carries out its activities according to SCLDA and its own Rules. The arbi-tration disputes are considered on the grounds of a written request by the par-ties in an open session with summoned parties. The disputes must be consid-ered in two sessions at the most, as the recess between them cannot be morethan 7 days, unless the parties have agreed on different period. The arbitrationaward has to be declared in correspondence with the acting legislation in writ-ing, within three days from the date of the last session. The arbitration commis-sion must take decision by a common majority.

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1. The right to strike, fundamental right

1.1. The right to strike in France is a fundamental right, meaning that it is aright proclaimed and guaranteed by the Constitution (formally, it is dedicated,in the same terms as in the Italian Constitution, by the Preamble of the 1946Constitution, which the Preamble of the 1958 Constitution refers to).

This dedication and guarantee have two different effects. On one side, onlylegislation can regulate the right to strike. The right to strike is not a possiblesubject (issue) to collective bargaining, except when legislation, precisely, givesa real responsibility to collective bargaining. This responsibility, nevertheless,can only be limited. On the other side, it is of the responsibility of the Constitu-tional Court, in its control procedures of legislation’s constitutionality, to ensurecompliance, by the legislation and the jurisprudence, of the right to strike. It isonly in the name of norms of the same constitutional value that the legislationcan limit the exercise of the right to strike.

1.2. The legislative interference in the right to strike are very few. Generalprovisions exist to protect the workers who use their right to strike: in substance,these provisions provide that the right to strike doesn’t interrupt the contractand that the worker can be in no kind of dismissal or penalization for partici-pating to a strike. A limit exists, which consists in a worker’s gross misconduct.

In public services there are other provisions about the right to strike. Someare common to all public services: they are essentially procedural. The law es-tablishes an obligation to notice a future strike by the representative trade un-ions. This notice activates in principle a negotiation phase.

These provisions prohibit in principle rotating strikes in public services.Other provisions are specific to certain public services. Exceptionally, some

officials are denied the right to strike, but in practice they use their workinglayouts to take part in the strike. In some services (including the emblematicexample of public transport), the provisions go beyond the notice and providein the name of the protection due to certain fundamental rights, the mainte-

FranceAntoine Lyon-Caen

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nance of an activity during a strike and terms of assignment to maintain part ofthe activity.

Neither the collective bargaining agreement (which targets a wide range oftopics) nor the collective convention (which has a limited topic, but follows thesame rules as the collective agreement) regulates the right to strike. The onlyexception is when the legislation delegates specifically and so circumscribed, tocollective bargaining, the task of fixing the procedure for implementing legis-lation. This delegation exists actually only in regular public land transport.

1.3. The form commonly used to define the ownership of the right to strike isknown in other countries: it is an individual right for workers with a collectiveexercise. In French law it is well established: the right to strike is a personalright. Under French case law, it is a right for the dependent worker. In otherwords, the independent worker is not concerned, unless the legislation has ex-tended the scope of the labor law rules, which is the case for several categoriesof economically dependent workers.

Every dependent worker is concerned, within the limit of the obligations onofficials entrusted with state prorogations. Even when the legislation stipulatesthat the representative trade unions have the exclusive ability to start a strike, asin public services, the right to strike stays an individual right. In the event of astrike, workers may not strike, and then they commit no misconduct, by strikingwithout a regular union, but only if his intention was drawn by irregularity. Fi-nally, as a personal right, there is no requirement that several workers from thecompany strike together. The worker uses regularly his right, if he joins a col-lective movement that grows beyond the company, even if he is the only onefollowing the strike in his company.

1.4. In France, the right to strike is proclaimed and protected as a specificright. Formally, on one side it is distinct of trade union freedom, of which it isnot an expression, on the other side of collective bargaining. Collective bar-gaining has a constitutional basis in the right to participate proclaimed in the1946 the Constitution Preamble, which refers to the current Constitution Pre-amble. The right to strike is therefore never treated as an auxiliary to the rightto collective bargaining.

The identity of the right to strike provides strong reasons to preserve itscharacter of individual right and establishes no legal relationship between strikeand collective bargaining.

2. Strikes, illegal movements, abusive strikes

2.1. The law gives no definition of the strike, meaning the movement whichis granted by constitutional protection. It is case law that establishes a defini-

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tion. It is constant. Strike is defined as «a concerted work stoppage in support ofbacking employment-related demands». This definition is important because itserves to delimit the area of rules, statutory and above all case law, meant to en-sure the exercise of a constitutional right.

a. The movement is to «support backing employment-related demands». Formallythis expression echoes the ban on political strikes. But the courts interpretbroadly what a legitimate purpose to strike is. Indeed, they do not consider thatthe professional claims are necessarily requests that can likely be satisfied by theemployer. The professional claims can cover everything related to the workerscondition. Since this condition depends, partly, of government policy, standardsset at various levels, the requests may, remaining professional, target actions anddecisions emanating from public authorities (Parliament/Government) or na-tional professional organizations or branches (sectors). A strike against political,economic or social government choices corresponds to the definition of thestrike given by case law and results in the application of protective rules. Thestatus of solidarity strike is more uncertain. Solidarity within the company is ad-mitted when the solidarity beneficiaries embody collective interest. Solidaritybetween workers of different companies falls within the scope of protection whenclaims are made so they appear a shared collective interest.

b. Strike requires «concerted work stoppage». Reference to concertation isquite flexible: it implies that a certain number of workers act, but it is not neces-sary that they belong to the same company if the claims go beyond the com-pany. French law remains, however, attached to a strike conception whichmakes the strike protections specific to a work stoppage. This does not meanthat other forms of collective action can take place regularly but they will notbenefit from the protection attached to the strike. They may, where appropri-ate, take advantage of the freedom to demonstrate, freedom of expression ortrade union freedom.

2.2. Collective action that does not match the definition in case law, is an il-legal strike, or rather, in the words of some contemporary decisions an illegalmovement (unless the action benefits from the protection granted to freedomto demonstrate and freedom of expression or trade union freedom).

Actually, to the worker who is involved, it means that he is exposed to a sanc-tion, and even a possible dismissal, which is not then dependent to the exis-tence of gross misconduct as there is no strike.

It is necessary to separate an illegal movement, which is to say a collective ac-tion that does not meet the definition of the strike, from two other situations.

During a strike, it may first occur to illegal acts, such as a false imprisoning, aviolent picket, or destruction of property. These illegal acts do not lead to dis-qualification of the strike and its participants benefit from the protections thatare under constitutionally protected rights. The authors of the illegal acts ex-

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pose themselves to sanctions. The responsibility being personal, no penalty maybe imposed on a participant of the strike, unless there is evidence that he hascommitted an unlawful act. A trade union, meanwhile, has no vicarious liability.The trade union itself shall only be liable if called by its leaders, to commit un-lawful acts.

It is still possible that a strike first lawful, becomes an abusive strike. Abusivestrike, in French law, is a strike which leads not only to disruption of productionbut a «disruption of the business», that is to say that it endangers the survival ofthe company. The criteria for abuse are therefore in the effects of a strike. Thenotion of abusive strike, identified by law cases, has for function to justify theemployer’s initiatives, such as the closure of the company and therefore thesuspension of the wages of non-strikers. Itself, the closure does not justify theloss of the strikers’ guarantees, unless it is proved that the striker had taken anactive part in generating the abusive activities.

2.3. In general, the liability of a union can only be initiated if the facts canfault him personally charged.

In particular it has no vicarious liability even if the striking workers are un-ion members. It is also inconceivable that a union is responsible by virtue ofinaction.

A union is therefore liable only for direct harmful consequences of wrongfulacts that may be charged (at a decision or instruction of an organ of the union).And this conception of responsibility plays, whether it’s an illegal movement –movement that does not meet the definition of the strike – of illegal acts madeduring a lawful strike or an abusive strike.

Criminal sanctions are only conceivable if illegal acts were committed duringa strike and that these acts result in criminal indictments. But again the respon-sibility of a union cannot be initiated if the unlawful acts due to it. There existsno administrative penalty that may be applied in industrial conflicts.

2.4. French legislation remains committed to the strict connection betweenstrike and work stoppage. The status of forms of collective action that do not re-sult in a stoppage of work is variable. Some forms of collective action are in-tended to be protected under other fundamental rights, such as freedom of as-sociation for example, or freedom of expression. It is still not sure that the callfor a boycott of certain products or the calls for sending mass e-mails have suchprotections.

Other forms of industrial action, which are often forms of a strike, raise nu-anced assessments of the judges. Thus, the picket is accepted if not accompa-nied by too much constraint on the non-striking workers. The occupation ofworkplace, mechanism which has been an undeniable resurgence in recentyears, is not always punished by the judges sometimes sensitive to the means ofexerting pressure and expression.

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3. The right to strike and its impact on labor relations

3.1. In the private sector, there is no notice requirement. A strike can betriggered by a group of workers at short notice (provided, widely understood,the group continues satisfaction of professional interests). In this sense strikesmay be spontaneous. And as no initiative is required from a union, French leg-islation does not know the concepts of official strike and unofficial strike.

The only requirement is the objective work stoppage (to support the profes-sional claims). Therefore, there are no pure intention strikers. The workerwhose job is not programmed is not a striker. A worker, whose work is alreadysuspended, due to illness for example, is a non striker as well.

In public services, a previous strike notice is necessary. It can be given by oneor more trade union with representative status. The notice must be accompa-nied by an indication of the motives and methods of the strike, leads to an obli-gation to negotiate, which, however, often remains formal. In public land trans-port each regular employee who intends to join the strike must announce it tohis employer, two days before stopping work.

3.2. The right to strike is, in principle, immune against any reaction of theemployer. In other words, it is analyzed as the effect of a suspension of the exe-cution of the contract and does not justify dismissal or other sanctions. Such pa-ralysis of the employer’s powers, normal corollary of the exercise of a right(with a constitutional value) is required by legislation.

The disciplinary sanction and dismissal issued in response to a strike arevoid, allowing the dismissal victim employee to request reinstatement. Alsoprohibited are discriminatory measures, such as the bonus paid to non-strikers.So that an employer can claim not to pay a bonus, he must deal in the same wayall absences. Paralysis of the powers of the employer stops with a workers grossmisconduct. Gross misconduct is the most important fault on the scale. It in-volves an intention to harm the employer or the company. It allows an immedi-ate dismissal with no compensation. In the event that the collective movement isunlawful and does not meet the definition of the strike, gross negligence is notrequired for the employer to punish participants.

3.3. The right to strike results in the suspension of the execution of workwhich leads to the privation of salary. This denial must be strictly proportionalto the duration of the stoppage.

In France, there is no compensation for strikers of any kind. Unions have noways to support the strikers and, when they have the financial support, it mightbe contested. At most, there are some local events of solidarity. At the end ofthe conflict are negotiated the financial consequences of the strike, with possiblepayment by the employer of strike days.

It is an obligation for the employer to pay a compensation equivalent to the

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lost wages, in case the origin of the strike is in a serious violation of the em-ployer regarding fundamental obligations towards his employees.

3.4. French legislation knows, as we have already mentioned, three categoriesof collective movements or illegal actions, the consequences are not the same.

When the collective action does not meet the definition of the strike and doesnot benefit from the protection granted to other fundamental rights, the em-ployer may use his power, including dismissals, which can be selective. If ap-propriate, a judicial supervision concerning a valid reason (real and serious) canbe required.

When the strike is legal but is accompanied by illegal acts, the right to strikeguarantees must be applied: can only be penalized, if necessary by the dis-missal, workers who have personally committed gross misconduct. There is nocollective responsibility. The same rule occurs in case of abusive strikes, a no-tion which, as already stated, is primarily used to justify the closure by the em-ployer of the company and the suspension of payment of wages to non-strikers.

4. The employer during a strike

4.1. The first register in which the employer can react is the record of disci-plinary power. Which is, in principle, paralyzed in front of a strike: no sanctionsor dismissal. The employer covers his disciplinary powers against workers per-petrators of gross misconduct which supposes the workers had an intention toharm the employer or the company.

4.2. More complex, is the employer’s power of organization. In France theemployer does not have a right to close the company, in advance or by retalia-tion. Lockout is not a concept enshrined in French legislation. However, caselaw allows an employer to proceed with the closure of the company or institu-tion, during a strike, at least when there is an obvious impossibility to ensure allbusiness operations. The employer has, on the contrary, the ability to reorgan-ize the production during a strike. There is no ban on offshore production,changing the location of non-strikers or even recruiting new workers. However,legislation prohibits the recruitment by fixed-term contracts and the use oftemporary workers to replace the strikers. The prohibitions are limited andcannot be extended without a particular text. There is no general dispositionensuring through criminal law protection of the right to strike. What legislationprotects are the strikers exercising their right and this protection is primarilyintended to individual relations between worker and employer. The employerstill has the ability to search for the responsibility of the unions, the union rep-resentatives and even the workers. But the responsibility that follows the gen-eral rules of civil liability of whom the employer is pursuing for serious miscon-

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duct and damage arising directly from this fault. This use of civil liability variesover time and circumstances.

4.3. The employer must provide work as much as possible, and pay non-striking workers. He is released from this obligation if he determines that cir-cumstances make it impossible to continue or maintain business.

5. Effectiveness of the right to strike

5.1 Factors that contribute to make the right to strike harder

Strike leads the strikers to significant sacrifices. They lose their salary and ifmultiple but modest initiatives exist to constitute «aid» to the strikers, there isno institutionalization of payment or compensation for strikers. This is a factorthat weighs heavily on the right to strike. And this factor is even heavier in thecontext of high unemployment – every family is affected – and stagnation orloss of purchasing power of wages of a large part of the workforce.

Though, the loss of pay sums up the French tradition of the strike action,collective action but action in which everyone agrees freely, action as much forpressure than for collective expression. The comprehensive vision that thejudges have about strike may be explained by their awareness of the sacrificessupported by the strikers. Imagining a payment fund by the unions is quite illu-sory. Trade unions in France have very limited resources. The unionization rateis low. The amounts of contributions, on average, are low and resources otherthan contributions are allocated to key tasks of trade unions (such as training).Alone, the success of a strike, with an agreement on the payment of strike days,counterbalances to this factor that can be considered structural. Another factorweighing on the right to strike: is the regular reporting by officials of employ-ers’ organization, and now by politicians, the archaic (alleged) of the strike. Thestrike would be from another time, some say, once a great movement is emerg-ing. This denunciation of strike archaism is now a double denunciation ofprivileges (alleged) benefited by workers who, relatively, use the most their rightto strike, that are civil servants and public officials. The fate of strikes – and theright to strike – is due to an increasing extent in public opinion, to witness, butalso sensitive to the impact of strikes on the daily lives of other workers andtheir families, yet sensitive to collective action found to be legitimate responsesto sudden relocations, closures or organized bankruptcies.

5.2 Factors that facilitate the right to strike

There doesn’t seem to be a general factor that would make the exercise ofthe right to strike easier. Especially the media doesn’t have general obligation

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to report faithfully collective movements. The most that can be said is that theexistence of effective pluralism of information, of a public broadcasting sector,with a diverse but significant unionization of journalists, avoids excess.

As partial factors of support for labor law, there is to be mentioned that somestrikes generate sympathy, to those who do not join the collective actions. Wehave already talked about «strike by proxy». We should also mention the openunderstanding demonstrated by the judges, who said with such force that theyhave no right to give their opinion about the merits of a claim, or to ordainmore systematic expulsion of strikers occupying the workplace and report theoccupation or to justify an action by the seriousness of a situation.

6. Conflict Resolution

Proposed to the protagonists of a conflict, there are three procedures, or-ganized by the legislation: conciliation, mediation and arbitration. It’s about theprocedures that legislation uses the word «conflict», a term that could be inter-preted as providing such procedures a wider field than the strike.

Indeed, the question is rather pointless because these procedures, which usecan only be voluntary even if the local public authority, the Prefect, has a ca-pacity of suggestion, are rarely considered.

Judges, for their part, are sometimes able to offer conflict protagonists, me-diation, especially when they are asked to order the eviction of strikers occupy-ing the work premises or where legal action is to provide information to staffrepresentatives. This mediation, a judicial source or, if you prefer, in theshadow of the judge, has its own course: it does not reproduce the model pro-posed by the Labor Code.

Mostly, conflict resolution is and remains the collective bargaining, leadingto agreements that have diverse content, named» protocols» or «end of conflictagreements».

7. Current Problems

It is necessary to distinguish.

a. The right to strike is, there is no doubt, made of an exercise more difficultand less effective. To this «contraction» of the right to strike, several factors, in-cluding, perhaps even the weakening of the trade union movement, but also thefaculties available to larger companies of a certain size, to neutralize the effectsof strike.

This «contraction» of the right to strike most likely varies in intensity and in itsmanifestations, from one country to another.

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Therefore, even if the EU institutions are sensitive to this «contraction» it isdifficult to imagine what could be a European initiative. Moreover in manycountries, the largest reserves are expressed, particularly from trade unions, onthe intervention of legislation in the field of collective action. These reserves,very strong at state member level, have no reason to be lower in respect of aEuropean legislation.

However, there is a dimension where the right to strike should create acommunity initiative: the recognition of the legitimacy of collective action on aninternational scale. It is surprising that capital and companies have an interna-tional dimension of freedom, although workers do not have a proven ability totake action of the same size.

b. The right to strike is achieved by the EU legislation itself, through thelimits imposed gradually on behalf of the ECJ called fundamental freedoms ofthe Treaty. (Freedom of establishment, freedom to provide service...) Can thistype of damage justify European initiatives?

Different actions could be considered.

– There is first the weapon of criticism– The jurisprudence of the ECJ is, of course, particularly critical. It involves

fundamental legal choices, on which the construction of Europe stands: theEuropean institutions have normally no jurisdiction to review national sys-tems of industrial relations. Furthermore, every right of each State Memberhas, in its own way, organized coordination between the collective actionright of and the market right.

– An «anti green paper» could be designed to show that everywhere on the sideof the trade union organizations and experts, this jurisprudence only notmeets criticism.

– Then there is the possible path of European negotiations, including sectors,to establish the obligation for service companies to respect the working con-ditions and normal remuneration of the country of execution of the service.

– Finally, there is a possible way for a legal action, so, through the discussion ofa national decision that applies the legislation of the ECJ, to challenge thelaw before the European Court of Human Rights.

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Only EU Regulations are directly binding. Due to the dualistic approach ofthe German Constitution all EU Directives and other international law has tobe transformed into domestic law previous to its application. EU-Directivesand international law is usually implemented by parliamentary legislation. AsGermany is a federal system, international law has to be adopted either onFederal or on State (Länder) level depending on its content. If the content issubject to regulatory competences exercised by the Federation (Bund), thetransitory act is a Federal law. Otherwise the transition takes place on the State(Länder) level. Inclusion in collective agreements is not considered sufficient.International treaties (other than the EU treaty) which have been ratified byParliament as well as implemented international law are of the same rank asregular German law, only the German Constitution rests superior to interna-tional treaties.

German courts are obliged by the «effet-utile» of EU-law to interpret domes-tic law in accordance with the EU-legislation whenever possible. This is not thecase for other sources of international law to the same extend. But as the Ger-man Constitution (Grundgesetz) has a generally friendly approach to interna-tional law the courts have to take international law (such as ILO conventions)into consideration.


Legislation does not provide rules for the subscription of collective agree-ments. It is up to the trade unions themselves to set up respective rules in theirstatutes. Usually, a commission is elected by the trade union members, whichwill represent the union, back up the negotiations, discuss the ongoing collec-tive bargaining process and decide about proposals as well as acceptance or re-

GermanyEva Kocher

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fusal of proposals. The signature itself will be fixed by the person(s) legally rep-resenting the trade union in question.


The largest and most representative German trade unions are associatedwithin the Confederation of German Trade Unions, DGB (Deutscher Gewerk-schaftsbund). The eight trade unions affiliated in the DGB unite 6.2 millionmembers (2010 figures). Since the German trade unions were due to politicaldifferences and adherence to several political parties unable to unite during theWeimar Republic (1919-1933) the DGB unions understand themselves as politi-cally neutral in order to bundle their force effectively. Even though they areopen to Christian and conservative members it can nevertheless be said that thetrade unions affiliated in the DGB have political positions in tendency close tothose of the Social Democratic Party (SPD). Each of the DGB unions is coveringone sector of industry or service (one company =one union-approach). For ex-ample the Mining, Chemical and Energy Industry Union (IG BCE) is open forall employees working for companies who operate in that sector. This way theIG BCE can negotiate collective agreements for all employees of the respectivecompanies. It is also ensured that the trade unions affiliating in the DGB do nothave to compete for members within one and the same company.

There are several other trade unions not member of the DGB. Most of themexclusively represent employees of certain professions. Some of them representemployees of vital importance for the employing company such as railway en-gine drivers or airplane pilots. Those trade unions are able to conclude com-paratively favourable collective agreements for their members. The contrary istrue especially for so called «Christian Trade Unions» who are much closer tothe employers than the DGB-unions are. The Christian unions usually concludecollective agreements less attractive for the employees and are neither willing toinitiate strikes nor to participate in strikes called for by other trade unions.

Germany has a dualistic system of union representation in workplaces. Atfirst only trade unions can bargain on the employees’ side for collective agree-ments. Since these agreements have regulatory function for numerous employ-ees their negotiation is one main activity of the trade unions.

A second form of union representation in workplaces is the Works Council.Works Councils can be established in companies according to the Act on WorksCouncils (Betriebsverfassungsgesetz, BetrVG): Members of the Works Council areelected by all employees in the company. Although German trade unions wereagainst the establishment of Works Councils in the first place, it is now commonthat Works Council members are at the same time trade union representatives.The Works Council represents all workers concerning various issues and conflictswith the employer which may occur. Larger enterprises are subject to «Mitbes-timmung» –codetermination. In these enterprises the Works Council has the right

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to conclude collective agreements with the employer concerning certain issues ifthey are not already subject to a collective agreement between the employer and atrade union, see Sec. 87 of the Act on Works Councils (BetrVG).

Historically one company was only bound by one collective agreement even ifthere were several concurring collective agreements theoretically applicable.This changed due to a landmark decision of the Federal Labour Court in 2010.Since any union might now negotiate a separate collective agreement for theirmembers, it is possible that more and more unions representing smaller groupsof employees will appear.


Relevant legal regulation stems from:

1) the Constitutions (Federal and State) (see under 2. 2.),2) the Act on Collective Agreements (Tarifvertragsgesetz, TVG from 1949,

which was adopted even shortly before the entry into force of the Constitu-tion) as well as the Works Councils Act,

3) the Act on the Posting of Workers,4) case law (which is not binding),5) the by-laws/statutes of employers’ associations as well as the by-laws/statutes of

trade unions.

The Act on Collective Agreements (Tarifvertragsgesetz) regulates the legalrequirements, validity and effects of collective agreements between «trade un-ions» and employers or employers’ associations.

Collective agreements only have direct effect on individual employment re-lation if the employee is member of the signing trade union and the employeris member of the signing employer’s association or party to the collectiveagreement himself.

It is also common to declare the respective collective agreement applicable bya stipulation in individual employment contracts. The individual agreementsare then automatically changed according to newer collective agreements theemployer or his association signs with the trade union.

In some cases collective agreements can be declared universally applicablefor all employees working in certain sectors by the Federal Government. Bothsocial partners, employers and the trade unions have to demand the Govern-ment to do so. Since Germany has no universally binding minimum wage somesectors experienced a race to the bottom of wages. This is especially the case insectors with low union and employer’s association adherence. Such an environ-ment makes it almost impossible to conclude far reaching collective agree-ments. To compensate this it is necessary to declare existing collective agree-ments universally applicable.

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German law applies to any undertaking in Germany, regardless of the na-tionality of the holder. The actions and/or judicial instruments do not differ inrelation to foreign firms or foreign undertakings. The application of Germanlaw is regulated by the Rome I-Regulation. Unions could legally call for strikeconcerning a foreign enterprise operating in Germany. The fundamental free-doms of the EU-Treaty might however play a role to assess whether or not astrike against trans-border corporate activity protected under EU-Law is lawful.


Violations of collective agreements cannot be answered with strike by theemployees. As the collective agreements have regulatory power comparable tolaws any violation can be brought to court. The individual employee has toclaim his rights as they are stipulated in the collective agreement. Trade unionscan also take legal action against the employer, but have to disclose the namesof their members to the court and consequently to the other party of the judi-cial conflict-the employer. Since trade unions hesitate to disclose their mem-bers’ names, they rarely take legal action against the employer. Trade unionscan however launch media campaigns in order to convince the employer tocomply with the collective agreement.

1.7 Consultation of workers for signing the collective agreement or for the strike call

Trade unions are not legally obliged to organize a referendum prior to a strike.Some trade unions’ statutes stipulate that a referendum has to be held before theunion calls for strike. Referenda are quite effective means to mobilize the ownmembers and to show the employer that the union is ready to call for a strike.



The German Federal Constitution (Grundgesetz) does unlike as some State(Länder) Constitutions not expressively include a fundamental right to strike.This is why Labour Courts held for a long time that constitutional rights werenot involved when deciding upon the legality of a strike. Art. 9 para. 3 of theGerman Constitution however guarantees the right of every citizen to form andadhere to collective organisations (so called «Koalitonsfreiheit»). As coalitionscan only act for their members effectively if they are allowed to strike in certaincases, the right to strike is considered to be fundamental part of the freedom of

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association. Nevertheless the fundamental right to strike can unlike to otherfundamental rights not be exercised individually. Only trade unions can legallycall for a strike. That is why the right to strike is generally considered to be anindividual right which is in collective (the unions’) ownership.

2.2 Sources

The right to strike is (as mentioned) neither expressively regulated in theFederal Constitution, nor in regular parliamentary laws. Is constitutional originand its shape have been elaborated by the Federal Labour Court (Bundesarbeits-gericht, BAG) and the Federal Constitutional court (Bundesverfassungsgericht,BVerfG) in numerous cases of these court’s case-law. The judicial literature hasalso contributed to this process.


Strikes can only be initiated by trade unions. A collective organisation has toprove sufficient bargaining strength in order to be considered as a trade union.Only organisations of certain strength, especially in terms of members, are con-sidered as trade unions. If a union is not sufficiently strong, the presumption isthat it is not able to negotiate with the employer as an equal partner which isthe reason why it is not supposed to participate in collective bargaining or in-dustrial action. Workers cannot go on strike without a trade union behind. Socalled «wildcat-strikes» are therefore not legal.


There are no strict procedures provisioned by laws. Nevertheless unions usu-ally follow a scheme of actions leading to a strike as last resort. The strike has inany case to be the «ultima-ratio» the last resort for the trade union when it isimpossible to come to an agreement with the employer peacefully.


The overall limit to strikes (as well as to lock-outs) is the principle of propor-tionality. This principle has been elaborated by the Federal Labour Court innumerous decisions. A strike can as mentioned only be the ultima-ratio, the lastmeans after failure of negotiations. It can only be called for in order to achievea collective agreement. The strike must not be motivated or carried out in a wayto eliminate the opponent. After its end works have to be recommenced asquickly as possible.

Strikes cannot include those works which have to be carried out in order tomaintain essential services to the population for example in hospitals. Strikers

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have to provide that the machinery is not destroyed or severely damaged andthat no harm is done to the environment or neighbours.

Strikes have to be terminated instantaneously if a preliminary injunction is is-sued by a Labour Court forbidding the strike.


A larger number of public servants have employment contracts not subject toprivate but to public law. Those servants, so called «Beamte», have a very strictobligation of fidelity to their employer and are therefore not allowed to go onstrike. This is also the case for soldiers and judges.

The two main Christian Churches (Lutheran and Roman Catholic) are notincluded by regular collective negotiations. They determine the working condi-tions and wages in joint commissions with the employees and have until nownot been subject to strikes.

Both, for civil servants and church employees’ changes might come in thenear future. The mentioned restrictions for these groups may not comply withthe European Social Charter. It is therefore possible that the German systemwill change with regard to this issue.

For several other groups such as home workers, self employed but dependedworkers, freelancers in press and media, temporary agency workers and ap-prentices additional regulations apply. Even if employees of these groups arenot always connected with an employer by an employment contract (freelancers,self employed) they can conclude collective agreements with the employers.This is however difficult as self employed workers cannot effectively act againstthe other side with collective actions as the employers are less dependent fromself employed workers.

In the press and media sector the Freedom of Speech (art. 5 Para. 1 of theGerman Constitution) may limit collective conflicts. The media cannot be inca-pacitated by collective actions.



Lawful reasonsA strike is only permissible if it pursues an aim that can be regulated in an

operative term of a collective agreement. Mixing up lawful and unlawful aimsmay make the strike unlawful as a whole.

Any claim can only be lawful reason for a strike, if the claim is not alreadyregulated in an agreement which is currently in force since collective agree-ments create a peace obligation until their expiration.

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It is also in principle lawful to strike for a company-wide collective agreementwhilst a regional or sectoral collective agreement is still in force if the aims pur-sued by the strike are not exhaustively regulated in the regional or sectoral col-lective agreement.

After the expiration of a collective agreement it is also legitimate to strike fora companywide collective agreement in order to avoid that a single employer isbound to a regional or sectoral collective agreement whilst he would be eco-nomically able to grant better conditions for the employees in a company-widecollective agreement.

Unlawful reasonsAny other reason (i.e. a strike which does not intend to force the employer

into a collective agreement) is unlawful. Strikes cannot be used as a mean to en-gage the employer in any random conflict occurring in a company.

It is for example not lawful to strike against unfair dismissal, for back pay orif the employer does not comply with the collective agreement he signed. It isalso not admissible to strike if there is a conflict about the interpretation of anexisting collective agreement. All those issues have to be brought to court.

3.1.1 Political strikePolitical strikes occurred in the Weimar Republic (1919-1933) but are now

generally considered unlawful both by the literature and the Labour Courts.

3.1.2 Solidarity strikeSolidarity strikes are only admissible under certain conditions. First of all soli-

darity strikes can only be lawful if the strike they support itself is lawful. A tradeunion cannot lawfully support an unlawful strike. Secondly solidarity strikes musthave a connection with the main strike. This connection can be established if thesolidarity strike is able to influence the main conflict i.e. if the solidarity strike iscapable to increase the pressure already created by the main strike.


3.2.1 Anomalous forms of strikingThere are a number of alternative forms of protest. Nevertheless «protest»

can only mean an alternative way to force an employer or an employer’s asso-ciation into a collective agreement. Any other protest i.e. for political or socialreasons cannot be exercised as means to strike or as strike replacing action.

A commonly applied method is warning strikes. They can be of short or evenvery short duration (lasting of only several minutes) and/or carried out repeti-tively. Warning strikes are restricted by the principle of proportionality to acertain extend. They may not comply with latter principle if they do in their se-verity not differ from regular strikes. German Trade unions developed sophisti-

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cated strike tactics. As industrial companies are very closely linked together andnot stocking large amounts of raw materials and supply products they are vul-nerable for strikes in certain key companies. The whole automobile industry canbe stopped if certain suppliers are out of business for some time. Such tacticshave however become less attractive since employees in the affected industrialenterprises lose their right to get paid in these cases.

3.2.2 Forms of collective action different from the strikePicket-lines are generally admissible as long as they do not result in a com-

plete blockade of the employer’s premises. Picketing can also be used as ameans to keep customers away or to endorse non striking workers to take par-ticipate in the strike.

It is also lawful to boycott or to issue boycott appeals concerning the em-ployer’s company.

There are additional lawful actions such as to take off-days collectively or toconsult the Works Council in extensive or excessive way. Employees have anumber of rights connected with the Works Council. For example the WorksCouncil has the right to organize a companywide assembly with the entire staff.Such an assembly can last several hours or even days. Workers can collectivelyrefuse to work overtime. Inadmissible are however, according to the FederalLabour Court, go-sick and go slow strikes. Sabotage is illegal and subject tocriminal prosecution. Unlawful actions such as a go-sick strike or sabotagemight lead to immediate dismissal of the employee. Recently, a new alternativeform of protest occurred, the so called «flashmob» where activists subversivelytry to stop the employers’ business.

3.2.3 Virtual strikeThe German trade unions use the internet to communicate their positions

and to launch campaigns against certain employers known for bad workingconditions or anti-union behaviour. There were also incidents where activistsattacked some companies’ internetservers. This has until now however not beenthe case in a collective conflict.


The State and its authorities have an obligation to stay neutral and not to in-volve themselves in industrial conflicts. This is why the German authorities aregenerally reluctant to intervene. However they do so in certain cases. Feloniesfor example committed during strikes will be punished according to the crimi-nal law. The police can stop a strike if it is grossly illegal and/or violent or if thecompanies’ machinery poses danger to third parties or the environment be-cause it is not maintained.

The Labour Courts can interdict any strike for example if the strike does not

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comply with the principle of proportionality. In this case the employer can de-mand the Labour Court to issue a preliminary injunction in order to stop thestrike instantaneously.


The trade unions as legal persons cannot be subject to criminal sanctions.They can however be subject to civil claims brought to court by the employerssuffering from illegal strikes endorsed by trade unions. These claims can in thefirst place aim to stop the strike for example by a preliminary injunction. Pre-liminary injunctions end a strike instantaneously and are only issued by the La-bour Courts under certain conditions. The employer has to argue plausibly thatthe strike is manifestly illegal and causing severe disadvantages for the employer.

Secondly an employer who was subject of an illegal strike can demand theunion to compensate all damages suffered during the strike. Unions may beable to exonerate themselves if there was no fault on their side. Additionallyunions might be held responsible for damages their representatives caused orfor degradations caused by participants of picket lines.

No strike clauses exist, but are not commonly content of collective agree-ments. If they are included they are deemed valid and any strike contrary to ano-strike clause is illegal. Additionally collective agreements create a peace ob-ligation. Any collective action such as strike is prohibited as long as a collectiveagreement is in force. Only after a collective agreement expires and negotia-tions for a new one commence collective action can legally be taken.



Employees can liberally participate in any strike which has been called for by atrade union. Union membership or a declaration to the employer is not necessary.


Lawful effects of a legal strikeThe employment contract of striking employees with their employer is sus-

pended during strike. Going on strike might have various effects on the socialsecurity situation of employees since the social security system is widely depend-ent from a persons’ status as employee. As long as the employment contract issuspended the workers are not considered employees in the sense of the Codeson Social Security. Nevertheless employees rest inside their health insuranceand are also entitled to welfare payments if they cannot support themselves.

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Handling of wages for striking employeesAs the contractual relation to the employer is suspended, the employee is not

entitled to demand wages. Union members may get a certain amount of moneyfrom the unions but this is subject to the unions’ statutes.

Employees who do not participate in strikes can in principle demand to getpaid if they go to their workplaces. Only if the whole company has to be closedtemporarily as a result of the strike, non striking employees cannot claim theirwages.

Strikers can generally not demand any public subsidiaries unless they are inexistential financial difficulties. The State is due to its neutrality not allowed tosupport striking employees financially. Otherwise the economic consequencesfor the striking employees would be considerable less severe and hence the em-ployer’s position weaken.

Consequences for the trade unionTrade unions generally pay their members a certain amount of money dur-

ing strike. Additionally they may be held responsible for example if their repre-sentatives voluntarily cause damages to the employer’s property. Collectiveagreements usually include a nonvictimisation clause according to which anyclaims concerning damages are excluded.


With respect to the individual employment relationship: how are individualemployees sanctioned under the law for unlawful strikes? Any employer can re-act to unlawful strikes with the instruments provided against employees who donot fulfil their work contract obligations regularly. Usually, a dismissal wouldnot be permissible without prior warning. Striking employees may also be suedfor damages they caused either because the company was out of business and/orbecause the employee damaged property. Any criminal offense committed dur-ing a strike is subject to prosecution by the competent authorities. If howeverthe unlawful strike leads to a collective agreement any claims or retaliationagainst striking workers can be excluded by a non-victimisation clause.

Consequences for the trade unionIf a strike is unlawful the employer’s side can in the first place demand any

trade union which is organizing unlawful strike to stop that activity. Secondlythe employer can demand compensation for his losses suffered during thestrike and for damages to his property. Although claims of that kind can sumup to comparatively high amounts employers rarely if ever pursue them. In ad-dition the trade unions might be able to exonerate themselves if a comparableaction has already been deemed lawful by the Labour Courts. In such a case theunion did not commit fault in calling for strike.

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Spontaneous strikes, so called «wildcat strikes» occur but are illegal unless atrade union takes them over. In case of such an «adoption» a spontaneous strikebecomes legal.



The constitutional protection of associations (art. 9 para. 3 of the Constitution(GG)) applies equally to employers. The German vision on the legality of certainindustrial action is widely influenced of the idea of a fair and equitable battlecarried out on even ground. Employers and employer’s association thereforecannot be deprived of any means to defend themselves against collective actionstaken by trade unions. They can try to replace strikers with non striking employ-ees or agency workers. No worker can however be forced to perform strikebreaking work. This is also the case for unemployed or temporary agency work-ers hired during a strike in order to replace the strikers. Employers can offerpayments to endorse workers not to participate in strike. They cannot recordstrikers on «black lists». Against illegal actions originating from the employer le-gal action can be taken by the union. Collective agreements also mostly contain anon-victimisation clause which prohibits any retaliation subsequently to a strike.

5.2 Lock-out

Employers can lock-out employees in reaction to a strike but lock-outs didnot occur in Germany since 1984. According to the judiciary employers cannotbe left without any possible answer to a strike carried out by a union. Any lockout has however to be in compliance with the principle of proportionality.There are several limitations to the right to lock-out employees. Lock-outs canfor example not be selective i.e. only applicable for trade union members. Thelegal effect of a lock out is that the employment contract between employer andemployee is suspended. Formerly employers dismissed their employees in or-der to lock them out which is now considered as not proportional.


Not striking workers are generally entitled to demand their wages as theiremployment contract is not affected by a strike they do not take part in. It ishowever possible for the employer to close the whole company down temporar-ily. The employer can proceed that way if production seems not possible or

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profitable because of the strike. If the employer closes his enterprise, the entirestaff does not get paid anymore. This is called «cold-lock out».


International solidarity and an increasingly strong connection between theEuropean and international trade unions is part of all DGB (German Coalitionof Trade Unions) Unions values and general policies. This includes support ofinternational collective actions. The German trade unions assess however thatthe exercise of solidarity between the European trade unions is still (even ifthere are examples of successful cooperation) in its beginnings whereas marketsare open and businesses are already operating internationally.


The difficult economic parameters, a persistently high unemployment rateand the possibility for employers to relocate or downsize their businesses arehaving negative effects on the trade unions’ ability to mobilize. Another problemis that the German labour market has become more flexible allowing it to re-place striking workers easier. Also German trade unions suffered a loss of mem-bers and the employers’ adherence to employer’s association is diminishing. It istherefore increasingly difficult to conclude sectoral collective agreements.


The German population historically has a friendly view on trade unions andtheir actions. Unions consequently receive high rates of approval in polls. An-other aspect is that companies try to give their products a social image. Theyare therefore vulnerable on this side for example if unions publicly attest badworking condition or extremely low wages.


There is no legal obligation to use alternative dispute resolution with respectto a strike, although some «Länder» provide respective procedures for voluntaryuse by the parties. An arbitrator can however be called if the parties agree onthis. Especially in collective disputes with intense media coverage arbitrationregularly takes place.

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International laws to gain efficiency in the Italian internal judiciary must un-dergo a process of adaptation, which can be automatic or special. The auto-matic (or general) adjustment is scheduled for international custom by art. 10 ofthe Constitution, which states that «the Italian legal system conforms to thegenerally recognized norms of international law». The special adaptation, how-ever, concerns the international treaty law, and it may consist simply in an exe-cution order, or more frequently, in the so-called ordinary special adjustment,i.e., the approval of inner regulatory actions (usually of a legislative nature)needed to execute them.

The conventions of the International Labour Organisation (ILO) always re-quire a legislative act to produce effects in the internal judiciary (so-calledratification). Italy joined the ILO since the beginning, and is committed,through the Constitution (article 35, paragraph 3) to work for the protectionof the supra-national work. However, the conventions (and also the recom-mendations) of the ILO had a very limited influence on the evolution of theItalian labor judiciary, as the latter generally provided levels of protectionqualitatively and quantitatively higher than those considered by the interna-tional Community.

In terms of industrial relations, in particular the Italian Republic is bound toprotect freedom of association and the recognition of collective autonomy, as aresult of ILO conventions No. 87/1948 and No. 98/1949, concerning trade un-ion rights and anti-discrimination protection. Italy has not, however, ratifiedthe ILO Convention No. 154/1981 concerning the promotion of collective bar-gaining.

Italy has also implemented the main international conventions, such as theNovember 4, 1950 for the protection of human rights as well as fundamentalfreedoms (ratified by law August 4, 1955, No. 848), expressly referred to art.

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117 of the Constitution, together with the constraints arising from the commu-nity judiciary.

The rules of community judiciary can be distinguished in those with immedi-ate relevancy, such as rules contained in the treaties or in the legislations, andthose that require a state act of reception, such as the directives. These havehad an increasingly pervasive influence in the Italian labor judiciary. In factmany laws introduced recently in Italy concerning jobs are the results of EU di-rectives implementation, which are generally brought into effect in our countrythrough the enactment of a law of ratification.

In the Italian judiciary collective agreements cannot serve as acts of receptionof supra-national regulations (ILO or EU) since, given the failure to implementart. 39 of the Constitution and the consequent lack of erga omnes efficiency ofcollective agreements (see below), they do not affect all firms and workers andtherefore they cannot be considered equivalent to legislative acts. Through ne-gotiations, however, the social partners can anticipate the implementation ofadjustments related to supra-national legislation. In this way, collective agree-ments may in fact play a significant role to pre-determine the content of subse-quent acts, especially when concluded at an interconfederal level. These agree-ments, then, may also involve the Government, which can also assume the obli-gation to exercise its influence (and even its power to initiate legislation) toconform the adopting legislation act to the substance of the agreement betweensocial partners.


The Constitution, art. 39, provides a structured mechanism for the conclu-sion of collective agreements with erga omnes efficiency, attributing this poweronly to those unions, that have a legal existence and are registered in the spe-cific lists, with an internal arrangement of a democratic base.

Art. 39 of the Constitution, however, has not been implemented, and thusindustrial relations have developed in a framework of legislative abstention,with a consequent enhancement, on one side, of the most representative asso-ciations that aggregate the majority of workers in various sectors and, on theother side, of the rules of common law related to unofficial associations andcontracts. In addition, a particularly active and also quite creative role has beenexercised by jurisprudence, especially in the enforcement of the minimumwage provided in the contracts. A further consequence of the failure to imple-ment art. 39 of the Constitution is represented by the fact that the rules underwhich the unions delegations are formed to conclude national or territorialcollective agreements are autonomous for the different trade unions, which aregenerally responsible for the appointment by the governing bodies at variouslevels. Increased worker participation is expected in the formation of the en-terprise delegations that exercise collective bargaining inside their companies.

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The backbone principle of the entire Italian labor judiciary is the freedom ofunion association. This principle – which is reflected in the major internationaltreaties – is contained in the first paragraph of art. 39 of the Constitution, whichprovides that «union association is free». The law grants to the workers the rightto organize freely and, in its breadth, involves not only the methods of organi-zation but also the activities related to bargaining. On one side, it operates atthe level of private inter-relationships inhibiting any interference by employers,while on the other it acts as a public right of freedom to prevent even the Statefrom performing acts that may impair that freedom, so the Government is pre-vented from enforcing binding rules related to the unions tasks and methods.In addition, freedom of trade union shall be understood also as the freedom ofindividuals to choose which union to join or even to chose not to join any asso-ciation (called negative freedom).

The freedom of association and of trade union activity is subject to specialprotection in the Workers Statute (Law No. 300 of May 20, 1970), which con-tains a set of rules designed to ensure their effectiveness, in particular, the pro-hibition of discrimination against the workers for their union membership ortheir commitment in the trade union (art. 15 and art. 16); the rules intended toprotect the privacy of the worker in the workplace (art. 2, 3, 4, 6 and 8); theright to enlist new affiliates and to collect membership fees in the workplace;the right to suspend the activities performed by those employees called to holdmanagerial positions within their own association (art. 31); the prohibition of«convenience» trade unions, meaning those workers associations promoted orsupported by the employer himself (art. 17).

To this set of rules designed to protect any form of aggregation of workers inthe workplace it should be added the support legislation contained in Title IIIof the Statute, which consists in granting special privileges (right of assembly,referendum, protection of union leaders, paid and unpaid permissions to leave,posting right, right to have an office inside the company) to the union repre-sentatives who meet certain criteria of representativeness dictated by art. 19 ofthe Statute. More specifically, if art. 14 of the Statute guarantees all workers theright to organize freely and to carry out trade union activities within the work-place, art. 19 allows workers to form, in industrial and commercial enterprises,business trade unions (RSA) in each production unit with more than fifteen em-ployees. The law is silent regarding the structure of the RSA, so it is up to theworkers themselves who take the initiative for their establishment to determinewhether they should or should not have a membership and/or elective structure.Recently the corporate representations in art. 19 of the Statute have beenshaped as decentralized parts of the associations as opposed to unitary repre-sentations (RSU) designated primarily by all the workers whether they aremembers or not of the trade unions.

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According to the original formulation by art. 19 of the workers statute, theRSA could be constituted «in the ambit» of: a) the associations related to theconfederations most representative nation-wide, b) the trade unions, not affili-ated to such confederations, which are signatories of collective national or pro-vincial work contracts applied in the production unit». With the first selectioncriterion the legislature of 1970 had intended to link the trade unions to theumbrella organizations affiliated to the main confederations (so-called historicalrepresentation), believing that this connection would lead to a rationalizationand coordination of union dynamics. The selection criteria defined in letter b)of art. 19 of the Statute, however, was intended to preserve an element of effec-tiveness focused on the stipulation of collective national or provincial contractsapplied in the production unit (so-called technical representative), on the as-sumption that the contract activity was already satisfying the authenticity oftrade union representativeness.

Following the referendum of June, 11 1995 the entire letter a) and only thewords «national or provincial» in letter b) were removed from the law text. Con-sequently, the access to the rights referred to in Title III of the Statute has beenattributed to all (and only) the trade unions who signed a collective agreementapplied in the company, even at the enterprise level.

In each production unit more than one RSA can be set, according to the ex-istence of multiple trade unions meeting the requirements set by law. Over theyears, several legal provisions have attributed various functions to the RSA,typically in terms of monitoring the application of working conditions andabout information and consulting.

As mentioned, in addition to RSA, RSU (trade union unitary representatives)can also be constituted in the workplace. These bodies, of treaty origin, havebeen generalized by the Protocol of Agreement of July, 23 1993 signed by themain trade union confederations (CGIL, CISL and UIL) with the Governmentand Confindustria. With this agreement the main trade unions have establishedthe possibility of instituting the RSU through elections open to all workers in-cluding non-members, recognizing that institution as their own unitary RSAand therefore renouncing the constitution of individual RSAs.

The RSU are formed, for two thirds of the seats, through election by univer-sal suffrage and a secret ballot among competitive lists, while the remainingthird is assigned to the lists submitted by the trade unions who signed the labornation-wide collective contract applied to the production unit. The RSUs takethe place of the RSAs in their entitlement to all the powers and in the exerciseof all the duties conferred by law or collective agreement and the componentsof RSU also assume entitlement of the rights and prerogatives granted to theRSA executives by Title III of the Statute. To the RSU is also specifically recog-nized a true enterprise-level bargaining power «in the matters, with the proce-dures, the rules and according to the limits set by national collective agreementapplied to the production unit», to be exercised jointly with the competent ter-

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ritorial structures of trade unions who are signatories of nation-wide labor col-lective agreements.

In the public field, art. 42 of Legislative Decree March 30, 2001, No. 165,after repeating in Paragraph 1 the principle that in public administrations aswith the private employers «freedom and union activities are protected in themanner required by the provisions of law No. 300/1970», specifies that eachadministration, organization or administrative structure having at least 15 em-ployees, the unions that are admitted to the negotiations for the signing of col-lective agreements (i.e., those organizations which have a representation whichis not less than 5% average of the membership and electoral support proxies,art. 43 of Legislative Decree No. 165/2001), can form an RSA in accordancewith art. 19 of the Statute. The next paragraph goes on to say that regardinginitiatives, including ones which are disjointed from the union organizationsthemselves «a unitary body is also formed [...] representing all the staff throughelections in which the participation of all workers is ensured.» The compositionand the specific practices of RSU elections in the public employment sector aredefined by special agreements or national collective agreements and must in-clude in any case a secret ballot, the proportional method and the periodic re-newal, with the exclusion of the renewability of unitary representations.


The failure to implement art. 39 of the Constitution meant that this rule, as itregulates the collective agreement with overall effectiveness, plays an obstruc-tive role against any possible intervention aimed at regulating subjects, content,or the effects of collective bargaining, allowing it to develop in a basically inde-pendent manner.

The structure of collective bargaining can be described by examining thecharacteristics that it has historically taken. In the private sector the model de-velops from interconfederal agreements, national category contracts and de-centralized level contracts (i.e., so-called second level, company or local); in thepublic sector, symmetrically, the bargaining structure is built on the frameworkcontracts, national sector contracts and supplementary contracts.

Interconfederal agreements are contracts episodically concluded betweenopposed confederations (i.e., between horizontal structures, which incorporatethe trade unions of the single categories), and are generally related to mattersof general interest (such as, in retributive institutions, layoffs, constitution andoperation of unitary labor unions in private companies, organization of bar-gaining). Sometimes in these agreements, especially where they concern mat-ters of general economic and social impact, the Government takes part, assum-ing political commitments aimed at balancing, supporting and directing theagreements reached by the social partners (the so-called social partnership).The tripartite agreements are commonly referred to as «Protocols of Agree-

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ment» and have an abnormal legal connotation for their publicistic relevance,such that they are considered an expression of neo-corporative tendencies.

Sectoral collective agreements (also known as national collective laboragreements, CCNL) are stipulated, on one side, by the trade unions of the sin-gle professional category concerned, and on the other side, by the opposed as-sociations of enterprises operating in that specific productive sector. They arethe backbone of the Italian bargaining system because at that level is achievedthe regulation of labor relationships diversified in dependence on the specificcommodity sector involved. The national collective agreement is the one mostlyreferred to from the actual legislation mainly when it refers to the collectivebargaining for the integration of legal provisions and, according to some, theonly one actually considered in art. 39 of the Constitution, Sections 2, 3, 4(never implemented).

To integrate the discipline defined by the CCNL can then take a decentral-ized collective agreement (of an enterprise or, more rarely, for a precinct) thatmay relate primarily to matters delegated to it through specific postponementclauses contained in the referential CCNL.

Regarding the efficacy of the collective agreement, however, it should first bepointed out that in the collective agreement it is possible to distinguish a so-called normative part and a so-called mandatory part (some also speak of an in-stitutional part). The legislation covers all the provisions aimed at regulatingthe employment relationship (e.g., the remuneration payable to workers, super-vision of workers, working schedule, holidays, breaks and weekly rest, etc.) andis directly applicable to workers and employers represented by the signatory as-sociations. However, through various legislative techniques and exegetical op-erations by the labor judiciary, the collective agreement, either the category orthe company agreement, ends up having an applicative efficacy that goes be-yond the workers associated with the stipulating unions, and empowers the en-tire collectivity of reference. The mandatory part, however, relates to rules gov-erning the relationship between workers organizations and associations of em-ployers. In other words, the mandatory part consists of those clauses of the col-lective agreement through which the policyholders assume mutual obligations,which do not relate to individual employment relationships. Specifically, theseprovisions may include: trade union information, the organization of the differ-ent levels of bargaining, the procedures to be adopted for the contract renewal,the methods of election of representative bodies, etc.

Many and complex are the issues affecting the efficiency of the regulatorypart of the collective agreement, both objectively and subjectively. Objectively,under Italian law the relationship between the collective contract and the indi-vidual contract is inflexible in a pejorative sense (so-called, inflexibility inpeius). So the individual contract cannot establish treatments that are worsecompared to those that are required by the collective agreement, but onlyameliorative treatments. The pejorative terms that may be present in the indi-

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vidual contract will be automatically replaced by the more favorable laws ofcollective bargaining. The inflexibility, therefore, is called factual, and notmerely obligatory. Subjectively, a non-legislative enforcement of art. 39 of theConstitution has meant that collective agreements in our regulations were ef-fective only against the signatories parties (art. 1372 c.c.), i.e., against employ-ers and workers who have given to their trade unions a mandate to enter into aterm (so-called, collective agreement of common law). The collective agree-ment is called of «common law» since is stipulated by unrecognized associa-tions and is considered a contract between private parties governed by therules of common law of contracts (art. 1321 et seq.) concerning the situation ofthe regulatory contract.

In the current regulatory framework, therefore, at least formally, the nationalcollective labor agreement applies only to workers and employers participating intheir respective trade unions that have signed the same contract as a result of theconferred representative mandate (also implicitly) by the employee and the em-ployer at the time of enrollment. In many cases, the employer member of a unionstipulating a collective agreement, applies that contract to all his employees.

However, the law, as mentioned above, shows a clear trend for extending theeffectiveness of collective agreements to non-members of the trade union poli-cyholders as well, through various types of reception at an individual level,whether explicit or implied: explicit when the parties in the category contract ofemployment call for a specific category contract that will then become applica-ble even in subsequent contract renewals; implied when the parties are willingto submit to the contractual arrangements in fact consistently applied. Anotherfundamental technique of extension of the subjective effectiveness of collectiveagreements is a recognized reference to the minimum wage. Since the 1950s, infact, the law recognizes a full relevancy to the constitutional provision (art. 36 ofthe Constitution) which gives the worker the right of a wage in proportion tothe quality and the quantity of work done and sufficient to ensure him and hisfamily a decent standard of living, and identifies the salary set by the collectivebargaining (through the equitable use of the criterion in art. 2099, paragraph 2,c.c.) as an objective reference parameter, for the judicial determination of ex-tent remuneration. Other than that the law in most cases requires the applica-tion of collective agreements, for example, when companies are entitled topublic facilities and benefits, when working under public procurement (in whichspecifications must be explicitly added the constraint of respecting collectiveagreements). In more general terms, the law links the contribution to be paid tosocial security institutions to the remuneration provided for by national regu-latory agreements concluded by comparatively more representational tradeunions, even if different from the remuneration actually paid.

In the public sector, unlike what happens in the private sector, a procedureof collective bargaining is analytically regulated that actually assigns efficiencyerga omnes to collective agreements. In particular, the law provides a method of

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selection of persons who may participate in the collective bargaining based on amixed associative and elective criterion. Thereafter, the contract will be validonly if prepared by the majority of the participants. The law, in fact, requirespublic authorities to comply with all the obligations laid down in collectiveagreements (art. 40, paragraph 4 of Legislative Decree No. 165/2001) ensuringequal treatment to its employees and in any case treatments not worst thanthose covered by collective agreement of reference (art. 45, paragraph 2 ofLegislative Decree No. 165/2001). On the other side, collective agreements,which by law are all signed on behalf of a government agency (ARAN) with legalrepresentation, provide the obligation to include in the clauses of the individualcontract the clause specifying that the employment relationship is governed bycollective agreements in force over time, a clause that becomes binding for theparties of the individual contract when hiring with the signing of the contract bythe worker.

In private sector, the bargaining argument has been largely governed by theinterconfederal Agreement of July 23, 1993, an agreement between govern-ment and social partners, modified and innovated by the interconfederalagreement of April, 15 2009 which implements the framework agreement onthe reform of the contractual system, signed on January 22, 2009 by the gov-ernment and social partners (with the notable exception of the CGIL). The newprotocol has substantially if experimentally reformed (until April 15, 2013) thestructure of collective bargaining, with a number of important new features in-cluding: simplifying and reducing the number of CCNL; the foreshadowing of ageneral restructuring of the bargaining on two levels (national and local/busi-ness); three-year period contracts, both the national (with a connection betweenthe economic part and the legislative part) and for the second level model; theallocation of the national contract function to recover the purchasing power ofwages by adjusting to a new index (so-called, IPCA index of consumer pricesadjusted for the imported energy goods); the allocation of the second-level bar-gaining function to introduce remuneration linked to productivity; the oppor-tunity for second-level contracts to reduce even in peius national contracts todeal with business crises or to promote business development and employment.With regard to the renewal of contracts, in particular, the new agreement of2009 provides that every collective agreement redefines the timing and proce-dures for the submission of union demands, the initiation and the progress ofthe negotiations themselves. In any case, the proposals for the renewal of theCCNL should be submitted in sufficient time to allow the opening of negotia-tions at least six months before the expiry of the contract. In this way the so-called period of trade union ceasefire has been increased to 7 months (extend-ing from six months prior to the month after the expiration of the contract)from the date of submission of the proposals for renewal. If the parties duringthis period will proceed to take unilateral actions or direct actions, the otherparty may exercise the right to require the withdrawal or suspension of that ac-

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tion. The Agreement of 2009 also abolished the so-called contractual holidayallowance, which in term of the Protocol of 1993 had guaranteed (albeit onlypartially) the automatic revaluation of salaries in the absence of renewal of thecontract, foreseeing the possibility in its place to include in the individual na-tional contract a financial coverage for the workers in service on the achieve-ment of the renewal agreement.

Finally, after a period of conflict and controversy between the main confed-erations, a joint agreement on the regulation of industrial relations was re-signed, the agreement of June 28, 2011. It has a fundamental value, not onlybecause it is the sign of a new-found unity of action of the main trade unionsafter a long period of conflict, but also because it continues the tradition of aself-regulatory system for the main trade union confederations. Also, theagreement is of particular importance because it establishes a method of certifi-cation of the effective representation of each union based on a mixed system,associative and elective, that will reflect not only the members of various tradeunions, but also the votes received in the regular elections of the RSU. Thisverification is preliminary in order to conclude corporate contracts with a gen-eral effectiveness for the entire corporate collectivity, assuming they are ap-proved by most members of RSU. A quite different method is contemplatedwhen instead of the RSU, RSA governed by the Statute of workers are operative.The agreement does not directly affect the efficaciousness of the national col-lective agreement, the regulation of which is remitted to the category unions;however, it defines the criteria that can be used for the signing of an agreementvalid for the entire unit category: on one side, the possibility of participationallowed to all the unions that have reached a minimum threshold of represen-tation, on the other the approval of the agreement by a majority of the repre-sentatives. The agreement has also introduced some rules on the effectivenessof trade union ceasefire clauses established at the enterprise-level bargainingand, taking what was defined in the Agreement of January 22, 2009, envisagedthe possibility that corporative agreements can establish modifying agreementsin institutions of the national collective agreement, in accordance with proce-dures set in the same national contracts and, if not provided, also through thecollective bargaining agreement entered into by the union representatives in-side the company, in accord with regional category trade unions, in case ofbusiness crisis or of new and relatively significant investments, and in relation tothe institutions that regulate the schedule, performance and organization ofwork.


The Viking (ECJ C-438/05) and Laval (ECJ C-341/05) decisions have causedconcern and alarm in the Italian trade unions. Indeed, if art. 36 of the Consti-tution, by judicial intervention, in Italy would have resulted in the obligation for

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the companies Viking and Laval to comply with the minimum wage set by secto-ral collective agreements, it seemed that the two rulings limited, or at leastquestioned the main instrument of union pressure, i.e., the strike.

For the first time, in fact, the European Court of Justice, despite that theTreaties have no competence regarding strikes, intervened on the right of tradeunions to declare strikes, through seeking to balance potentially conflictingrights that are all recognized at the European level as fundamental, that is, theright to strike and the freedom of establishment and movement.

In the Viking case, the Court of Justice configured the strike as a last resortin resolving collective disputes, i.e., as an instrument of which legitimate usecan be made – under the principle of proportionality – only when all otheravenues of dispute resolution have been exhausted without effect. Looking atthe Italian legal system, it could then be considered that a breach of the arbi-tration or conciliation procedures prescribed by law (in the field of essentialpublic services) and by collective agreements (private sector) may affect the le-gality of the strike, stepping over sanctions prepared, respectively, by law No.146/1990 and collective autonomy, and laying claims for damages againstcompanies that undergo collective abstention. Further uncertainties, then,could involve the legality of strikes when not promoted for purposes of con-tract (e.g., for political reasons or protest) that, though present for a greatlength of time in the Italian legal system (see below), seems to be now ques-tioned at a community level, given the requirements of necessity and propor-tionality identified by the Court.

As for the Laval case, at first it might be argued that, if similar events occurin Italy, the union could legitimately call a sympathy strike that the Italiancourt could not repress. However, a careful examination of the decision maylead to results that are not very reassuring. In fact, as interpreted by the Courtof Justice, directive about the posting of workers sets rules of protection appli-cable to posted workers beyond which an unjustified restriction may configureitself on the freedom to provide services, and foreign companies may be re-quired to maintain the mandatory rules for minimum protection dictated (aswell as by law) only by national collective agreements applied in the hostCountry with generalized effect, and therefore capable of binding all compa-nies in the related sector. In Italy, since the collective agreement is devoid oferga omnes effectiveness, it could therefore be concluded that foreign compa-nies are required to meet only the minimum tariff clauses (due to art. 36 of theConstitution) and not the others. It could involve an indirect, but very perva-sive limitation to the right to strike, which would not be legally enforceablewhen union action was intended to impose the application of collective agree-ments: since the institutional and industrial relations system in Italy allowsdomestic firms not to apply the collective agreement, this requirement couldnot be imposed by means of the strike on companies from other membercountries.

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To describe the means of protection conferred to the social partners in theevent of breach of the collective agreement, it is necessary to distinguishwhether or not that breach relates to the mandatory, that is the normative partof the same agreement. In fact, in the case of violation of a type required con-tractual provision, the union that is a contracting party is entitled to legal actionfor breach of the contract (art. 1453 of the Civil Code) or to anti-union repres-sion of conduct (art. 28 of the Statute of Workers) where necessary conditionsare met (for example, this occurs when the employer violates the obligationspecifically provided for by the collective agreement, to inform or consult theunion, or to regulate a particular matter only after agreement with the unionand not unilaterally. Therefore in such cases the trade union could take legalaction to obtain the verification of the anti-union nature of that conduct and theremoval of the effects that follow it).

While, in case of violation by the employer of the contractual provisions re-lated to normative content, the trade union signing the agreement is not enti-tled to legal action as, in such cases, the infringed right does not belong to theunion, but to the individual worker, since such clauses regulate the employmentrelationship (except in the case where the circumstances are such anti-unionconduct – art. 28 art. 28 Workers’ Statute).


In the Italian legislation does not exist, except for the choice of trade unions(when they intend to submit the agreement to the opinion of workers), a mecha-nism for validation of the collective agreement by workers, that are those inter-ested by the effects of the same agreement (for example, the referendum). Al-though frequently the trade unions before signing a collective agreement submitthe proposed agreement to the employees concerned. Neither it is expected areferendum to call a strike, which remains a prerogative reserved for the tradeunions. However, recent government proposals, which would reduce the use ofthe strike, particularly in the transport sector, require forms of prior verificationby workers and their unions before the proclamation of a strike. Currently theseproposals are frozen and remain hotly contested by at least some trade unions.



Our system gives special attention to the collective conflict, and grants work-ers the right to strike which is the most effective form of self-defense.

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Article. 40 of the Constitution states that «the right to strike is exercisedwithin the laws that regulate it».

In this statement, art. 40 of the Constitution gives constitutional protection tothe strike, describing it not as a mere freedom but as a subjective right.

In the absence of a legal concept of strike and, until 1990, of any legislativeregulation, the content of the right to strike has long been sought in doctrineand jurisprudence, with the conclusion established since the 1960s, that it hasthe nature of an absolute and fundamental right. It is an instrument used byworkers to remove the economic obstacles that prevent the effective participa-tion in the political, economic and social development of the country (art. 3 ofthe Constitution). The nature of the strike as a fundamental right acts in boththe relations between the State and citizen (for this reason any action contrast-ing with the right to strike can not be issued) and in private inter-subjective re-lationships (for this reason in case of strike the employment relationship is sus-pended; the employee is not liable for breach of the contract nor can any disci-plinary sanctions be imposed to him; the employee is protected against any be-haviour of the employer intended to discriminate against the workers on strike).

Moreover the strike does not have to be practiced necessarily for contractualreasons. The right to strike is recognized for any kind of employee, regardlessof the nature of the working relationship and the nature of the performanceprovided, and can be used to pursue any interest (except for subverting theconstitutional order).

Doctrine and jurisprudence have allowed the identification of the constituentelements and the scope of action of this right.

The most authoritative legal doctrine has identified two qualifying aspects ofthe strike: the strike is collective with regard to the proclamation and the exer-cise, while the right remains the exclusive property of the worker as a funda-mental human right.

The Court of Cassation, referring to the concept used in the common sense,described the strike as «a collective abstention from work, prepared by a variety ofworkers, to achieve a common aim.». However it must be said that such a traditionalapproach is being increasingly questioned by a part of the doctrine.

In its essence the strike consists in abstaining from work, that is the adoptionof an opposite behavior to that resulting from the bond of employment: per-form the work activity. Meanwhile, the absence from work may assert as a formof conflict because there is an agreement among the participants, without whichthe absence from work cannot be considered socially a strike: there is no strikewithout solidarity among the participants.

2.2 Sources

As just mentioned, the fundamental rule in this matter is contained in art. 40of the Constitution.

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Several rules were also contained in the Criminal Code (in force since 1930).These rules, designed to prohibit the exercise of the right to strike, have gradu-ally been demolished by the jurisprudence of the Constitutional Court, which –especially in the post-constitutional period – has played a key role in setting therules and the limits of the right to strike.

Only in 1990 has a regulation governing the exercise of the right to strikebeen adopted which, however, is not general but has an ambit restricted to theessential public services (Law No 146/1990, as amended by Law No. 83/2000).

Moreover, for certain categories of workers some special disciplines also apply.Among these are flight attendants, for whom the services to be considered essen-tial are identified directly by law (art. 4, l. n. 242 of 1980), and workers at in nu-clear facilities (article 49 of 13 February 1964, No. 185). Even after the interven-tion of Law 146/1990, the provisions of the laws of 1 April 1981, No. 121, andJuly 11, 1978, No 382 still remain, which respectively concern police and army.


The configuration of the strike as an «individual right to collective exercise»is still dominant in the doctrine and in case law. This phrase sums up the viewthat, on the one hand, the right to strike is for individual employees and not forunions or other organized groups, on the other hand, as this right concerns theprotection of a collective interest, its exercise must necessarily assume a collec-tive dimension. From this point of view it is not necessary that the number ofworkers participating in the abstention is significant, as an event that involves asmall number of workers (at limit even just one) can be also considered a strike,when the nature of the interest pursued is collective. In this regard it should behighlighted that trade unions, while not being holders of the right to strike, inpractice assume its political control and determine its specific exercise by proc-lamation and management of conflicting actions.

Any trade union may call for a strike. In this regard it may be added that, be-ing the strike an individual right to collective exercise, on the one hand, theproclamation has only the value of a call for strike and does not represent a con-dition of legitimacy, on the other hand the declaration of a strike by a trade un-ion is a significant indication of the collective importance of the interests related.


In general there are no special procedures that must be followed for a striketo be considered lawful.

Special procedural mechanisms are provided for the exercise of the right tostrike in essential public services only. The law No. 146/1990 states some sub-stantial principles, leaving to union agreements or to regulations of the Guar-antee Commission, the individuation of the rules that affect the people who

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promote or participate in a strike, the workers and the companies or the ad-ministrations that provide essential public services.

Addressees of the law 146/1990 are all those companies and individuals whowork in essential public services «even if carried out in form of allowance or byagreement» «regardless of the legal nature of the employment relationship».Essential public services are services, run by private entrepreneurs or public en-tities, of which the public is the direct addressee and that furnish services es-sential to the citizens. The law no 83/2000 has extended the scope of the disci-pline even to the «collective abstention of work, for purposes of protest or cate-gory demands, by self-employed professionals and small entrepreneurs». Thus,lawyers, doctors, veterinarians, pharmacists and, as small business owners, taxidrivers and holders of licenses such as gas stations and truck drivers are re-quired to respect the regulation. The law no 146/1990 merely lists the funda-mental rights to which the legal regulation of the strike is applied, without dis-tinction, on the one hand, between independent and dependent working rela-tionships, and on the other hand, between public or private arrangements ofthe management of essential services. The list has a mandatory nature and in-cludes: the right to life, health, freedom, safety, freedom of movement, welfareand social security, education and freedom of communication. The law, then,specifically establishes in what services special rules and procedures must becomplied with in the event of a strike.

a) Period of notice: the individuals who call for a strike are obliged to commu-nicate in writing to companies or to administrations dispensing service – as wellas to the authority competent to enact the provisions of article. 8, Law No.146/1990, which should take care of the immediate communication to theGuarantee Commission – at least ten days before the strike, the duration, mo-dality, and reasons for the collective abstention from work. The period of noticeis intended not only to carry out the attempt to settle the conflict, but also toallow the administration or the enterprise dispensing service to prepare thenecessary measures to ensure the required performance, and allow users tomake use of alternative services.

b) The cooling and conciliation procedures: before the proclamation of the strikecooling and conciliation procedures must be carried out, mandatory for bothparties. With the provision for the compulsory completion of the procedures,the law no 83/2000 will essentially aim to avoid the strike, which should be usedonly when all possibilities have failed to find an agreed solution to the dispute.The law leaves it their identification to the contracts or collective agreements(or interim regulations). It allows the parties, who do not intend to adopt theprocedures set out in the agreements, however, to use those provided directlyby the law (in front of the Mayor or the Municipality, or in front of the Ministryof Labour, according to the local or national relevance of the strike).

c) The essential services: the law requires compliance with the performancenecessary to ensure, in their essence, the constitutionally protected individual

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rights, as defined by the same law n. 146/1990, and defers its identification tothe collective agreements or interim regulations. It is also expected that themeasures to enable the delivery of essential services can have «abstention fromthe strike of strictly necessary quotas of workers required to carry out the serv-ices». The Commission shall evaluate the suitability of the agreements enteredinto by the parties to ensure «the balancing exercise of the right to strike withthe enjoyment of constitutionally protected individual rights». For this purpose,it directly seeks the opinion of recognized organizations of consumers and us-ers. In the procedure for the determination of essential services, the Commis-sion may offer the parties «a proposal on all the essential services, proceduresand measures to be considered indispensable» on which the parties must rulewithin fifteen days of notification. If the parties are silent on the proposal, theCommission – if there are indications of the unwillingness of the parties toreach an agreement – shall adopt a temporary regulation, which indicates theessential services, the procedures for cooling and conciliation and other meas-ures of reconciliation, communicated to all parties who are obliged to observe ituntil they reach an agreement considered appropriate.

d) The minimum intervals: the law n. 83/2000 introduced the provision for aminimum interval to be observed between the carrying out of a strike and theproclamation of a successive strike even if by different trade unions.

The Commission of guarantee has made the provisions of law regarding theindication of the minimum intervals to be observed between the effectuation ofa strike and the proclamation of a successive one, immediately injunctive.

e) Labour injunction: by law, the Prefect, with regard to conflicts of local im-portance, or to the Prime Minister (or a Minister appointed by him) regardingconflicts of national or inter-regional relevance, are conferred the power toadopt by ordinance «the measures necessary to prevent infringement to theconstitutionally protected individual rights under article 1, paragraph 1» in theevent that the strike, because of an interruption or alteration of the functioningof public service, is likely to impair those rights.

Finally, in order to avoid the so-called announcement effect (i.e. the negativeimpact on the service already at the time of the proclamation of a strike thatmay or may not take place or not be successful), the law n. 83/2000 providedthat the revoking of the strike in essential public services is permissible onlyuntil information has been given to users: otherwise it is considered a tradeunion misconduct and as such is assessed by the Commission to guarantee theapplication of sanctions to those trade unions.


The right to strike is recognized to the generality of employees, regardless ofthe nature of the relationship and the nature of the service. A strike can bemade to realize any interest, except for subversion of the constitutional order.

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However, the jurisprudence has admitted the existence of external limits of thestrike, in the sense that this can not be legitimately exercised when it affectsother basic rights, guaranteed by the Constitution or provided by ordinary leg-islation. It thus cannot affect the fundamental interests (such as, for example,freedom of movement, health, safety, etc.) or prevent the exercise of sovereignfunctions. In this context, it is believed that the procedures for exercising thestrike may cause damage to production but not to facilities. To avoid such dam-age agreements are often stipulated according to which, in the event of a strike,a group of workers (controlled), at times chosen by the same union, does notabstain from work. When such agreements are not achieved, it is legitimate toclose the facilities for their safety, with consequent futility of the work perform-ance in the aftermath of the strike and until the resumption of production.

As mentioned above, in the event of a strike in essential public services, inorder to ensure the balancing of the right to strike with the enjoyment of con-stitutionally protected rights of the person, the law No. 146/1990 requires of theunions wishing to declare a strike, a number of obligations (notice period, thecompletion of the procedures of cooling and reconciliation, respect for mini-mum intervals, essential services, periods of exemption identified in the agree-ments and regulations of the sector).


In the context of employment, no differences regarding the ownership andexercise of the right to strike, nor in relation to different types of employmentcontracts (e. g. work-term or part-time, apprenticeship, working from home) orto professional categories, whether they are legal (workers, employees, execu-tives, managers) or contractual are found. The importance and uniqueness ofthe functions and duties assigned to certain categories of employees (both pub-lic and private), can determine situations that are incompatible with the inter-ruption of work. In this perspective, for example, the legislature has stated theprohibition of strikes of military service (article 8, l. No. 382/1978) and of thestate police (art. 84, l. n. 121/1981) and limits to strikes by workers engaged atnuclear facilities (articles 49 and 129 of DPR No. 185/1964) and by flight atten-dants (article 4, l. n. 242/1980).

The upward trend of case law has clearly expressed itself in relation to therecognition of entitlement to the right to strike in favor of categories of workersdifferent from the «employees», on the grounds that, given that the right tostrike is functional toward improving the life and work of underprotected per-sons, it is necessary to look to real social and economic conditions of weaknessrather than to the formal classification of employment. First, referring to theartisans and small traders with no employees, the Constitutional Court declaredunconstitutional (in contrast with art. 40 of the Constitution) the Penal Codelaw which equated their absence from work with a lock-out, which is criminally

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sanctioned. Subsequently, the Court of Cassation recognized the entitlement ofthe right to strike on the part of the self-employed, so-called parasubordinate,workers: in this case contractual medical doctors had undertaken their actionagainst the public entity of reference in order to obtain a modification of theconvention. Subsequently, the above mentioned trend has slowed, and, even ifconfirmed by law (the article 8, paragraph 2, l. n. 146/1990 provided for the is-suance of the order of injunction also for self-employed workers), has suffered asharp reversal from the Constitutional Court ruling of May 16, 1996, No. 171,in which lawyers’ abstention from hearings could not be qualified as a strike.



According to the traditional view, the strike, first of all, is permitted to protectthe professional collective interest of those who strike, and, therefore as a meansof struggle to influence the employer in order to gain economic and regulatoryimprovements. It is exercised as a protest action, or for reasons of solidarity oralso for the resolution of legal disputes that are relevant to the interpretation orthe same application of the legal discipline or of the trade union legislation.

3.1.1 The political strikeThe Constitutional Court has distinguished between the collective suspension

of the performance of work for obtaining or preventing regulations of a politi-cal or economic nature, which leads us back to the right to strike, and the pro-test of workers who instead attempt to influence the management of the generalinterests of the country, with particular regard to the form of government anddomestic or international policy, in which is recognized a simple manifestationof the freedom to strike, not punishable under art. Code 503. pen., or a purelypolitical strike. While, in the opinion of the Court, criminal law continues tomaintain a residual scope of application against insurrectional actions directedat the unlawful objectives of subverting the constitutional order and preventingor impeding the exercise of lawful powers, through which it expresses popularsovereignty.

The Constitutional Court has admitted that the strike may have the purposeof requesting the enactment of political acts, but this does not by any meansimply influencing the constitutional powers with the involvement of the tradeunions, nor does it mean to give workers a privileged position compared toother citizens; it means only to confirm what is already in the Constitution: thatthe strike is a suitable means, necessarily considered in the context of all the in-struments of pressure used by various social groups, of enabling the pursuit ofthe purposes of art. 3 of the Constitution.

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3.1.2 The solidarity strikeThe solidarity strike is the strike exercised not in the direct interests of the

workers on strike, but to support the claims of other groups of workers or toprotest against the violation of the interests or rights of a worker. According tothe Constitutional Court, the solidarity (or sympathy) strike is legitimate when-ever the court finds that «the affinity of the needs that motivate the agitation issuch as to indicate that, without the involvement of all in a common effort, theyare likely to remain unmet».


There are, within our legal system, procedures for exercising the strike withanomalous characteristics compared to the mere stoppage of work perform-ance.

In the 1960s the prevailing opinion was that the so-called abnormal forms ofstrike (such as a sudden strike, that is, without notice, or the chessboard strike)did not fall within the constitutional guarantee, thus configuring themselves asexamples of illegal conduct instead. According to this approach, in fact, the il-legality was rooted in the attitude of using the modalities of the suspension ofwork performance to cause damage considered as unfair, because greater thanthat caused by the ongoing and integral termination of work performance.

Case law too, in an early phase, considered these forms of struggle as illegal,justifying this approach based on an a priori notion of the strike (such as astoppage, i.e., contextual and continuous); or by an assessment of the injusticeor of the disproportion of the damage caused by the strike.

Subsequently, however, the Court of Cassation abandoned this evaluation,affirming that the strikes implemented in anomalous ways are not necessarilyillegal: according to the methods used, in fact, there should be a case-by case-analysis to evaluate whether the strike has resulted in damage to persons or tothe company’s productivity or not.

3.2.1 Anomalous forms of strikingAmong the many anomalous forms of the strike are:

a) the wildcat strike, which takes place at the same time as its proclamation andimplementation, with the cessation of work performance without prior no-tice;

b) the hiccup strike, which is carried out through a sequence of short periods,during the day, of cessation and resumption of work performance;

c) the chessboard strike, which consists in the subsequent suspension of the jobperformance of workers in different sectors, or offices or departments, whoare independent or linked in business organization, and is above all carriedout by the workers engaged in productive activities in order to hinder their

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execution across a wider area and for a longer period of time than that of ab-staining from work.

As already mentioned, the legitimacy of these forms of strike must be assessedon a case by case basis, depending on the modalities of their implementation.

The stoppage of overtime or of a part thereof, then, is considered legitimateduring a strike. There is in fact no rule that limits the amplitude of the strike tothe normal time only. With regard to the overtime strike in essential publicservices, the Commission of guarantee stated that it constitutes a form of striketo which apply the rules laid down in law No. 146/1990. In this case, the Com-mission clarified that its duration may not exceed thirty days; that the require-ment of period of notice must be observed as well as the predetermination oflength. The law No. 146/1990 is not applicable to stoppages of overtime workthat are specifically motivated as a collective refusal of work performance thatthe employees have considered as not justly required.

3.2.2 Forms of collective action different from the strikeThose means of struggle, which at times are used and do not consist in an ab-

stention from work, are alien to the very notion of strike. This concerns formsof struggle different from the suspension from work, but which are frequentlycarried out to support it, such as the marches and rallies held within or in closeproximity of corporate structures; the stays and assemblies of strikers for longeror shorter periods within the workplace structures; and the presence and/orpressure of unionists and strikers outside the workplace premises to explain thereasons for the dispute and to encourage undecided workers to join the strug-gle. Such initiatives may fall within the exercise of freedom of association and inprinciple should be considered entirely legitimate.

The occupation of company property instead constitutes an unlawful con-duct, which also provides for criminal penalties. The Constitutional Court de-clared constitutionally legitimate the criminal law provisions, highlighting,however, that to configure the crime of occupation of a company, there must bespecific intent constituted by the sole intention «to prevent or disrupt the nor-mal flow of work», from the existence of a crime derives, when the occupation istaking place on company premises in which production activities have alreadybeen interrupted for several reasons. In any case, the employer may resort tothe ordinary possessory actions (art. 1168 and 1170 civil code) to regain accessto the company buildings. Similarly illegitimate is the so-called retention ofgoods, that is, the behavior with which, during a labor struggle, workers preventgoods present at the company from being transported away from the company,in order to prevent the employer from continuing to feed the market.

Obstructionism (niggling application of the rules of business or of the in-structions of the employer) and non-cooperation (execution of the work per-formance without care and without taking any initiative) are also illegal.

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With reference to so-called picketing, namely the action of workers on strikeaimed at preventing access to the workplace to those not wanting to strike, thisaction may be considered legitimate or even constitute a crime depending onthe mode of its execution. When the picketing remains within limits of trying toconvince the dissenters, albeit using strong and decisive actions, it must be con-sidered lawful because falling within the constitutionally afforded protection tofreedom of expression (article 21 of the Constitution). If, however, the action ofthe strikers goes beyond, becoming physically violent or verbally threateningbehavior, it results in specific crimes (e.g., private violence).

3.2.3 The virtual strikeThe virtual strike, which has many times been carried out, especially in es-

sential services, up to now has gone unrecognized by our legal system. By vir-tual strike one here intends the continued performance of the work, but by vir-tue of special agreements with the unions, the devolution of the salaries ofstriking workers as well as a further sum to be paid by the employer towards afund for purposes of solidarity.

It is doubtful that this figure can be assimilated to the strike in the propersense with the consequent extension of the coverage of protection under arti-cle. 40 of the Constitution, since the virtual strike provides the normal courseof work and involves no organizational or productive discomfort for the em-ployer. Therefore without the express consent of the individual employee con-cerned, the suspension of his salary and the deposit into a specific fund cannotbe justified.


As already mentioned, in general in the Italian Common Law, strike illegiti-macy can only come from the eventual aim of subverting the constitutional or-der, or from a specific mode of operation that causes damage to people or tocompany equipment. In the field of essential public services, illegal strikes arethose that violate the provisions laid down by Law No. 146/1990.

3.4 Sanctions in collective conflicts

In general, civil and/or criminal liability for trade unions as well as individualparticipants can result in cases of illegal strikes.

In the sector of essential public services, Law No. 146/1990 establishes spe-cific civil penalties or administrative fines for unions that do not comply withthe procedures. Also, in cases of failure to comply with the order to resumework (see above), the same authority that issued the order may impose addi-tional administrative fines.

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Although the strike is a collective phenomenon, it is actuated by the individ-ual workers: it is the individual worker’s abstention from work that assumes thestatus of the constitutive element of the strike.


Common Law ascribes the details of the present case to the implementingbehavior of the strike, to which it connects a real suspension of the employ-ment relationship. Since it is the exercise of an individual right, the actuationof a strike cannot be considered breach of contract, since the interest of theself-defense of the worker prevails over the employer’s right to the perform-ance of work. Thus the exercise of the right to strike produces the suspensionof the two fundamental obligations of the employment relationship: the failureto provide work and the elimination of the obligation of the employer to payremuneration.

According to consolidated jurisprudence, the strike falls within the hypothe-ses that involve the suspension of pay. Such a suspension extends to accessoryelements of pay such as bonuses, as well as the wage provided for public holi-days that fall during the days of strike.

A problematic aspect of the consequences of the strike on the obligation forretribution is raised in the case of short or articulated strikes. Against the argu-ment that in such cases the withholding of wages should not be made in pro-portion to the duration of the strike but in relation to the decreased utility ofthe work performance, the prevailing jurisprudence holds that, in view of thefact that the of the work performance depends on the type of productive or-ganization, the remuneration is to be devolved to the employee not only whenthe working performance, as a result of the short or articulated strike, has fallenbelow a certain level of technical normalcy, without which it loses its own origi-nal identity.

Other problematical aspects addressed by case law regard the effects of thestrike with respect to the additional month’s salary, and other wage institutions.On the basis of the general principle of performance allowance set forth in theemployment contract, the deductibility of such payments in proportion to theperiod of strike was established. Also the paid leave introduced by the so-calledcollective regulation to compensate for the so-called suppressed holidays arenot to be granted, when due to the exercising of the right to strike on one ofthese days the work is not performed, and consequently no daily remunerationis paid.

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For some so-called anomalous forms of strikes (e.g., the hiccup strike andchessboard strike) it is possible that the employer is exempted from the obliga-tion to pay during the «breaks from work» only if the work performance, even ifoffered in accordance with the commitments and contractual obligations ofgood faith and fairness, is not effectively and profitably utilizable for the pro-ductive organization.

Unlike the obligation to work and the right to remuneration, the other per-sonal and union rights and some obligations of the workers remain in place. Inparticular, the remuneration rights related to the pending suit of the relation-ship and/or length of service, such as seniority, salary increases and career ad-vancement continue to accrue. The employee on strike still remains bound tothe compliance of obligations that not concern an immediate execution of theperformance of the service, as the duties of cooperation and compliance andthe obligation of loyalty.


If the strike is unlawful, it does not fall under the full protection guaran-teed by article. 40 of the Constitution. It follows the configurability of respon-sibility at both the civil and, where appropriate, the criminal proceedingsagainst the employee who has participated in an unlawful strike. In essentialpublic services, Law 146/1990 provides for disciplinary sanctions proportionateto the seriousness of the offense (with the exception of measures to settle therelationship) to the workers who refrain from work without complying with theterms contained therein. In this regard should be highlighted that in the eventof an illegal strike the Commission of Guarantee, while not empowered to ap-prove sanctions against individual employees, may request the application tothe employer, being able to inflict upon him, in case of default, an administra-tive fine.


In the Italian Common Law, except in the essential public services, a formalresolution prior to the strike call is not required, with a resulting legality ofspontaneous strikes.

On the contrary, in essential public services the proclamation must necessar-ily precede the collective abstention, at the risk of sanctions against both thetrade unions and the workers. It should be emphasized that the application ofsanctions is somewhat problematic when it is not possible to identify the pro-moter, that is when the collective abstention in essential public services is madeby coalitions of odd workers deprived of any organizational structures, since thespontaneous committees cannot qualify as trade unions. In such cases the

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Commission of Guarantee, once the illegality of abstention is found, can onlyinvite the employer to take the provided for disciplinary measures.



The right to strike may not imply any limitation on the freedom of economicinitiative of the employer (article 41 of the Constitution). In fact, the right tostrike may not be exercised so to affect the productivity of the company, that isthe possibility for the entrepreneur to continue to carry out that economic ini-tiative recognized as his right by art. 41 of the Constitution.

A problem dealt with by the Court of Cassation has been the replacement ofstriking workers. In particular, the Supreme Court was asked to considerwhether the conduct of the employer intended to replace workers on strike in-tegrates the extreme anti-union conduct pursued by art. 28 of the WorkersStatute (Law 300/1970). The Court of Cassation ruled that it is not an anti-union conduct if the employer, to limit the negative effects of the strike on theeconomic activity of his company, uses the personnel who have remained inservice, to carry out the tasks of the strikers, given that according to the neces-sary balancing between the right of economic initiative of the entrepreneur (art.41 of the Constitution) and the right of workers to strike (article 40 of the Con-stitution), the latter is not infringed when the former is exercised without vio-lating the law or the collective agreement for the protection of workers. In thisregard, the Supreme Court stated that the replacement of striking workers doesnot constitute anti-union conduct and may also occur with higher qualificationworkers or temporary workers, provided that: 1) the assignment of lower tasksto workers who have remained in service occurs exceptionally and marginallyfor specific business needs; 2) the use of temporary workers has been preparedin compliance with the program expected prior to the strike call and, if so, toan extent corresponding to the productive and organizational needs of thecompany.

In essential public services, the Law 146/1990 provides that the authoritiesand the public services provisioning companies are required to provide userswith the publication of the timetable of ordinary services, and along with it thelist of those guaranteed in the event of a strike and its times, defined by collec-tive agreements. The government and companies must also notify users at leastfive days before the starting of the strike, the manner and timing of service de-livery during its implementation and the measures prearranged for the imme-diate reactivation of the service, after the end of the absence from work. Ade-quate and timely information must be provided by public service broadcastersand newspapers, and radio and television broadcasters.

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5.2 Lock-out

In our legal system the lock-out has no constitutional protection. The Con-stitutional Court declaring the unconstitutionality of art. 502, paragraph 1, ofthe Penal Code, derived from the principle of freedom of association, underarticle. 39 of the Constitution, the lawfulness of the lock-out for contractualpurposes. It is, however, regulated by a much less favorable regulation than theone dictated for the strike and it is protected only as a freedom towards theState, with the continuation of civil tort. In fact with reference to the protestlock-out, the Constitutional Court observes that the freedom of union action, ofwhich the freedom of the lockout is the corollary, only affects «relations betweenemployers and workers», while the interests contemplated by Title III of Part Iof the Constitution that refer directly to the qualification of the subject strikingas a worker, legitimating the strike, do not inhere to the position of the em-ployer as such (but at most to the widest position as an entrepreneur). Thus theaction of the so-called lockout cannot be included in the protection provided byart. 39 of the Constitution.

The protest lockout carried out by operators with no employees, assimilatedto the strike, is deemed lawful because it does not violate the principle of equal-ity under article 3 of the Constitution, while the lockout made by operators withfew employees is deemed unlawful.

A rather uncertain border line exists between the lockout and the freeing ofthe non-striking personnel in the event of an articulated strike, justified by theemployer not in lockout terms but with the statement of the non-utility of theservices offered, and suitable, if then proven in court, to exclude any liability orpay any compensation and any prospects in anti-union terms.

The Court has considered the lockout fully legitimate in situations in which«the trade union struggle does not consist in the mere abstention from collec-tive work, but takes a different form from the mere strike characterized by theviolence of the events that affect, directly and immediately, the integrity ofequipment and workers in charge of them. In these circumstances the reactionof the employer who closes all departments of the industrial plant and admin-istrative offices is considered justified».

5.3 Consequence of the strike on non-striking workers

With respect to non-striking workers, the performance of work by these can belawfully refused, in cases where the employer considers it unnecessary and,therefore, their salaries can not be paid. In fact, in the event of a strike with apartial adhesion, the refusal of the employer to accept the work performanceoffered by the non-striking worker is justified (the entrepreneur is thereby ex-empt from the effects of default by the creditor with the consequent legitimacy ofnon-payment of wages) by the impossibility to use the provision itself in any way.

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In some cases, a factor that could obstruct the exercise of the right to strikeand its effectiveness is the lack of correct information about the reasons that leda trade union to call for a strike by the press and the news media in general. Infact, the reasons for abstention are not always disclosed by the media. This cre-ates a lack of information that might discourage the workers to take part in theabstention.


Differently from other countries, in Italy there are no funds to support theorganization of a strike. Any costs of organizing the strikes fall on the budget ofthe union proclaiming.


Very often during strikes, general strikes, category strikes of significant im-portance, or national events of particular importance, domestic labour unionsreceive the support of international and European trade unions, in order to de-velop and enhance the dialogue between them. Usually this support is ex-pressed through a letter of support and participation in agreement with thereasons for the protest. This letter is usually addressed by the internationaltrade union to the same trade union proclaiming abstention and to the gov-ernment of the country where the struggle action takes place.

It also happens very often that the ETUC itself promotes days of action at thesupranational level, involving all trade unions affiliated to it. These events areusually in direct opposition to the economic and social policies adopted by dif-ferent governments of EU member states that damage the rights of workers. Insuch cases, the ETUC after proclaiming mobilization calls on its member unionsto mobilize their own country and to organize information campaigns to work-ers to let them know the reasons for mobilization, strikes, demonstrations(which can be performed on the same day or on different days), in compliancewith and in support of the reasons for the protest.


Specific terms of cooling and dispute resolution may be contained in the do-mestic collective agreements.

As we have seen, then, in the field of essential public services, Law 146/1990

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imposes the obligation to carry out cooling and conciliation procedures beforethe strike call. The parties may invoke the procedures of cooling and concilia-tion provided for in the specific implementation agreements. Alternatively theycan choose a prior conciliation attempt at the administrative level (i.e., as ap-propriate, at the prefecture or municipality or, if the strike has national impor-tance, at the Ministry of Labour, art. 2, paragraph 2). The law does not stipulatea time limit within which the mediation, at the administrative level, must be ex-perienced. The Guarantee Commission has attempted to remedy this gap toprevent that the exercise of the right to strike has an excessive delay because ofinaction or delay by the competent authority. It held that, if the conciliationmeeting of the parties has not occurred within five working days following noti-fication of the request of the union, the Commission considers that the unionhas fulfilled its obligation to precede the announcement of the strike withcooling and conciliation procedures. Therefore, the strike can lawfully be heldwhen five days have passed from the conciliation request.

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Strikes in Poland do not enjoy the benefit of a long tradition. For the firsttime in the history of Polish labour law and industrial relations the right tostrike was written into a statute on trade unions passed by Parliament on 8 Oc-tober 1982.1 This particular piece of legislation was introduced after negotia-tions which took place in the second half of 1980 between the Solidarity tradeunion and the socialist government,2 At the request of trade union representa-tives, mostly members of Solidarity, which took part in the process of preparingthe statute until 13 December 1991, the Trade Union Act of 8 October 1982undertook an extremely casuistic approach toward legal regulation of the rightto strike, its scope and limits. It was written in this way because both parties tolabour disputes, the trade unions and the government, did not have any practi-cal experience in dealing with concerted activity in collective labour relations.

I do not want to give the impression that strikes did not occur in the socialistsociety prior to the late summer of 1989. A history of industrial relations in postWorld War II Poland, showed us that stoppages as strikes occurred on a regularbasis, especially during periods of political unrest in e.g. 1956, 1968, 1970,1976.3 At those times workers did not exercise their right to industrial action,since the right to strike had not been expressed in any statute or other act is-sued by the state, or in any collective agreement negotiated by trade union or-ganizations with an appropriate agency (branch) of state government acting as

1 Journal of Laws, No. 54, item 277. See commentary to this act written by G. Bieniek, J. Brol, Z.Salwa, Ustawa o związkach zawodowych. Komentarz (Trade Union Act. Commentary). Warsaw 1983.

2 On these negotiations, from a legal point of view, see L. Garlicki, Refleksje nad charakteremPorozumienia GdaĔskiego (Reflections on Character of GdaĔsk Agreement), PaĔstwo i Prawo (Stateand Law), No. l, 1981; M. Pliszkiewicz, Porozumienia ogolnpolskie i ich znaczenie dla prawa pracy,PaĔstwo i Prawo (State and Law). No. l, 1981; (State and Law), No. 6, 1981.

3 See W. Masewicz, Strajk (Strike). Warsaw 1986, p. 205 ff.

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an owner of the so-called «socialist means of production». Legal scholars de-scribed the state government, under such circumstances, as acting in two ca-pacities: either as a «direct employer» or as an «indirect employer». Althoughthe state did not bargain with its employees (civil servants) as a «direct em-ployer», it still took good care of their interests. The state adopted the philoso-phy of the well-known proverb: «If civil servants are good for their state, thestate government is good for its servants». Hence, civil servants, being employ-ees directly employed by the state, were not entitled to bargain with their em-ployer (the state) over terms and conditions of their employment.4 Therefore,collective labour law was not developed at all in that specific sector of economyin which the state government acted as a direct employer.

However, the situation was different when the state and its various agenciesacted as an «indirect employer». The majority of workers were and, as a matterof fact, still are employed by state-owned enterprises. In this sector of the na-tional economy there were no objections against strikes which were directed,not against the socialist state, but against any enterprise owned by the socialiststate. Socialist law in Poland was short of any legal sanctions against such «unso-cial human behaviour». It should be emphasized that while the strike was notconsidered a criminal offence, striking workers were nevertheless prosecutedfor minor offences against law and order, or any other type of «antisocial be-haviour». Mass gathering in a public place without an authorization from theproper state authority could serve, and often did serve, as an example of suchan offence. Moreover, such strikers were fired from jobs due to the cessation ofwork, which was considered a major breach of the employment contract.

Therefore, while technically speaking strikes were not prohibited by the so-cialist government, still – until the end of 1982 – there still did not exist thetype of freedom which could be enjoyed by workers without fear of administra-tive punishment. Therefore, in Poland it is difficult to define the legal status ofthe freedom to strike prior to its introduction in the statutory act enacted on lJanuary 1983. In reality however, some major strikes, like the one which wasorganized in «Lenin’s shipyard» in GdaĔsk by representatives of a free tradeunion movement - NSZZ «Solidarity», did enjoy a certain degree of freedom.Especially in the case of successful strikes, very few (if any) workers were pun-ished for taking part in an activity which was not officially recognized by thestate. It provides that in the arena of industrial relations, the balance of powerbetween representatives of workers and employers is far more important thanany legal regulation. Furthermore, until martial law was lifted, the right tostrike written in the Trade Union Act of 8 October 1982 was only a politicaldeclaration. Trade unions were allowed to return to political life after l January1983. For political reasons, the activity of the Solidarity labour union ceased

4 See Commentary to the Civil Service Act of 16 September 1982 written by A. Swiatkowski,Komentarz do pragmatyki urzĊdniczej (Civil Service Act. . Commentary), Warsaw 1988, p. 121 ff.

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until the outcome of the political negotiations between the opposition and thegovernment in the late winter of 1988 and the early spring of 1989. Since underthe Polish collective labor law trade unions enjoy a monopoly on exercising theright to organize lawful strikes, it was impossible to start any industrial actionbefore the trade unions were registered.5

The major battle, as far as the right to strike is concerned, took place in thecivil divisions of nineteen district courthouses throughout the country and theLabour and Social Security Chamber of the Polish Supreme Court. This battlewas expressed in the legal proceedings relating to the registration of new tradeunions which were set up with the governmental support after l January 1983.The most spectacular engagement took place at the request of the organizingcommittees of teachers and of food producers’ trade unions. According tochapter 5 of the Trade Union Act of 1982, strikes by workers employed at edu-cational institutions and enterprises engaged in the process of producing foodwere strictly prohibited. In 1983, a case was brought before the Supreme Courtby an organizing committee of trade unions seeking recognition and applyingfor registration of by-laws granting the right to strike to administrative employ-ees (those not engaged in teaching activities).6 A year later, in 1984, anothercase concerning the recognition of the right to strike by workers employed atstate collective farms was brought before the Supreme Court.7 In both cases theSupreme Court took quite a restrictive position denying the right to strike toany employee employed at any of the institutions listed in chapter 5 of theTrade Union Act, schools and food producers included, as mentioned above.However, it should be emphasized that under such circumstances the unionsare not waiving any individual statutory right to strike or collective right to or-ganize strike, as such any of those mentioned two kind of legal rights were notstatutorily recognized in the first place.8

It has to be stressed, however, that the right to strike declared by the TradeUnion Act of 1982 could not technically be considered a legal right within thelimits of both labour law and civil law. It cannot be exercised individually. Nojudicial organ would ever confirm a right of an individual worker to go on

5 On the question of trade union registration see G. Bieniek, «Sądowa rejestracja związków zawo-dowych» (Courts Registration of Trade Unions), Praca i Zabezpieczenie Spoãeczne (Labour and Social Se-curity), No. 3, 1983.

6 Supreme Court order of July 14, 1983 (I PRZ 38/83), OSNCAP (S. Ct. Reporter) No. 1, 1984,item 18.

7 Supreme Court order of January 27, 1984 (I PRZN 1/84), OSNCAP, No. 8, item 146. Both St.Ct. orders listd in footnote 56 and 57 were analyzed by A. ĝwiątkowski, Przegląd orzecznictwa SąduNajwyĪszego w sprawach z zakresu prawa pracy i prawa ubezpieczeĔ spolecznych za rok 1984 (Re-view of the Supreme Court Decisions in the Field of Labour Law and Social Security Laws, 1984),Warsaw 1986, pp. 62-64.

8 This topic was brought by A. ĝwiątkowski, Kompetencje związków zawodowych w sporachzbiorowych pracy (Scope of Power of Trade Union in Labour Dispute) [in:] Kompetencje związków za-wodowych (Scope of Power of Trade Union), ed. A. ĝwiątkowski, PWN, Cracow-Warsaw 1984, p. 349 ff.


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strike. No legal suit can be brought into a court of law against any person, mostprobably an employer, who dared to challenge this right and denied any actiontaken in order to exercise the workers right to strike.

At present, the strike is regulated by the Act of 23 May 1991 on labour dis-putes.9 Chapter 4 of the Act on Labour Disputes is entitled «strike», while chap-ter 5 of the previous act – the Trade Union Act of 1982 bore a title: «LabourDisputes. The right to strike». A comparative study of the two above-mentionedtitles while not raising the problem of the legal source of the strike any more, isstill trying to decide whether the strike is to be considered as a right or as afreedom. The new Trade Union Act passed on 23 May 199110 is quite similar tothe previous Act of 1982 as far as the scope of trade union internal power isconcerned. The trade union is allowed lo regulate it goals in its statute, consti-tution or by-laws, as well as to state the measures required to achieve thesegoals. Therefore, the trade union is perfectly eligible to organize a strike in or-der to protect worker’s economic, and professional interests. Clearly enough,the Act of 23 May 1991 on labour disputes defines a concerted activity called«strike» and sets the legal boundaries regarding the extent this activity can beexercised and still remain within the limits of the law. Since July 26th, 1991 (theday of an implementation of the Act of 23May 1991 on labour disputes), the actto strike has been recognized by the state as a fundamental freedom – humanright11 which can be exercised by workers in order to apply pressure on an em-ployer in matters concerning terms and conditions of employment, fringebenefits, social security benefits, trade union rights and freedoms. This freedomto strike derives from the right to associate, assemble and be free to expressone’s opinion in matters of economic, professional, social as well as political in-terest of blue and white collar workers.12 Therefore, the freedom to strike is anatural consequence of the right of an employee to competent representation,provided by a trade union under the principle of exclusivity of trade union rep-resentation guaranteed under Polish collective labour law.

1.2 Sources

Legal definition of the strike is provided in art. 17 § 1 of the act concerningcollective labour disputes. Strike is defined as collective work stoppage with

9 Journal of Law, No. 55, item 236 as amended.10 Consolidated act, May 31, 2001, Journal of Laws, No. 79, item 854 as amended.11 Supreme Court order of February 2, 2007, I PK 209/06, Monitor Prawa Pracy (Monitor of La-

bour Law) 2007, No. 8, p. 412.12 See A. Swiatkowski, Fundamental Principles of Trade Union Freedom in Poland, Political Sci-

ence Yearbook, Vol. 15, 1984, p. 93 ff; A. M. ĝwiątkowski, Ochrona praw czãowieka w Ğwietle prze-pisów prawa pracy i zabezpieczenia spoãecznego (Protection of human rights by labour law and so-cial security laws) [w:] KaĪdy ma prawo do... (Everybody has a right to...), C. H. Beck, Warsaw 2009,p. 23 ff.

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purpose to solve labour dispute concerning terms and conditions of work,wages, social benefits and trade union rights and freedoms of workers and em-ployees which enjoy the right to associate in trade unions (art. 1). In order todefine the right to strike it is necessary to interpret two different provisions ofthe act of May 23, 1991 concerning collective labour disputes: art. 17 § 1 andart. 1. It is also necessary to interpret provisions of the Trade Union Act of May23, 1991 in which the scope of power of labour unions is regulated. The right tostrike has been recognized by the State as a fundamental freedom which can beexercised by workers in order to apply pressure on an employer in matters con-cerning terms and conditions of employment, fringe benefits, social securitybenefits, trade union rights and freedoms. This freedom to strike derives fromthe right to associate, assemble and be free to express one’s opinion in mattersof economic, professional, social as well as political interest of blue and whilecollar workers». Therefore, the freedom to strike is a natural consequence of theright of an employee to competent representation, provided by a trade unionunder the principle of exclusivity (monopoly) of trade union representationguaranteed under Polish collective labour law.

The right to associate as well as the right of being represented by trade unionrepresentatives is prescribed in the Trade Union Act of 23 May 1991. It is alsoguaranteed in the Polish Constitution. This is in keeping with the national tra-dition according to which the right to disagree is one of the principle freedomsof human beings. Thus, the freedom to oppose, is deeply rooted in Polish con-stitutional history. It is derived from liberum veto.13

Within the legal boundaries established by the Trade Union Act, a trade un-ion organization is an independent body established by workers for the purposeof defending their dignity, their economic well being, and their moral integrity,both collective and individual (article 4). The trade union is established to rep-resent the workers’ professional and social interests (article 1). In order to doso, and in accordance with the Act on labour disputes of 23 May 1991 tradeunions are allowed to be involved in labour disputes with employers concerningnot only economic and social conditions of work, but also the right to associate,and trade union freedoms (article 1). Disagreement in some of the above-mentioned matters (conditions and terms of employment, wages, social benefits,trade union rights and freedoms) may result in a strike. The strike is recognizedin collective labour law as a weapon which can be applied by trade unions dur-ing industrial disputes. The Trade Union Act of 1991 grants workers the free-dom to use this weapon.

There are various criteria that can be used to make a theoretical classificationof strikes. From the legal point of view, the most important classification ofstrikes concerned classification according to the limits of legal regulations – le-

13 For further informtion see R. R. Ludwikowski, Continuity and Change in Poland, The CatholicUniversity of America Press, Washington, D. C. 1991, p. 23.


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gal strikes, or set them outside the parameters of collective labour law – wildcatstrikes.14 Legal strikes are protected by the act concerning resolution of collec-tive labour disputes. Art. 26 § 1 of that act states that anybody – any official or-gan using its power to obstruct the process of a labour dispute is subject to afine.

The 1991 law on collective labour disputes defnes the strike as an organizedstoppage of work undertaken in order to solve a labour dispute conceming eco-nomic, professional, social interest and trade unions’ freedoms (article 17 § 1)in conjuction with art. 1 § 1 of the Trade Union Act. The law does not stress aspecific organizational structure of the strike. It is understood, however, that thestrike has to be considered as an organized or coordinated type of activity sinceat least one group of workers has to be engaged in the labour dispute.


Only employees and workers can invoke the right to strike under the Polishcollective labour law. A strike is lawful when it is organized by the local or na-tional trade union. No other organization or body chosen by workers is entitledto organize a legal strike. All trade unions regardless of their affiliation, orien-tation, density or legal status concerning a representatively are entitled to or-ganize strikes. In practice, however, trade union monopoly to organize strikeswas not accepted. The famous strike in August 1980 in «Lenin’s» shipyard inGdaĔsk was organized by group of nonunionized workers headed by LechWaãĊsa. The trade union monopoly to organize legal strike at the beginning wasdeclared by the European Committee of Social Rights of the Council of Europeas the noncompliance with art. 6 sec. 4 of the European Social Charter. Laterthe Committee has changed its decision and declared the trade union monop-oly legal on the condition that the national labour legislation does not establishto rigorous requirements for setting up trade union.15 According to Trade Un-ion Act of 1991 it requires only ten indviduals, at least one of them employedwho decides to form trade union.


The strike has to be preceded by negotiations. The law on resolving labourdisputes obliges an employer to respond immediately to trade union demands

14 On the classification of strikes see T. ZieliĔski, Strajk (Aspekty polityczno-prawne) [Strike. Po-litical and Legal Aspects], PaĔstwo i Prawo (State and Law) No. 4, 1981; A. M. ĝwiątkowski, Strajk(Synteza zjawiska) [Strike. Synthesis of the phenomenon], Monitor Prawa Pracy (Monitor of LabourLaw), No. 2, 2011, pp. 68 ff.

15 A. M. ĝwiątkowski, Charter of Social Rights of the Council of Europe, Kluwer Law International2007, pp. 232 ff.

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concerning terms, conditions of work, wages, social benefits, and trade unionrights and freedoms. Labour disputes start on the third day after the trade un-ion request was presented to an employer who ceased to act, or rejected thetrade union’s demand. The employer’s response initiates the process of directnegotiations between the parties to an industrial conflict. Trade unions may is-sue a warning to an employer that should its demands be ignored, a strikewould be called within the next fourteen days, or later. The law on labour dis-putes does not contain any provisions concerning the way negotiations shouldbe conducted. The act on labour disputes gets no limitation on the length oftime that parties to an industrial dispute are required to negotiate. They areobliged to negotiate as long as it takes to reach an agreement, or establish thefacts relevant to the dispute. A signed agreement heralds the end of industrialconflict. A statement of fact-finding is a sign that the labour dispute approacheda higher level of negotiation.

Mediation proceedings may be initiated only by request of the trade union.Under former regulation – Trade Union Act of 1982 either party, or both ofthem acting jointly were allowed to transfer the collective labour dispute to me-diation-arbitration committee.16 A mediator is not empowered to take any deci-sion which disposes of the labour dispute. This is reserved for an arbitrator ifthe trade union desires a peaceful continuation of the settlement of the labourdispute. Lack of agreement during mediation proceedings allows the trade un-ion to call a strike.

Making a decision concerning a strike, the trade union is obliged to take intoconsideration what is it at stake. If the economic estimation is that workers aregoing to lose more than gain after declaring a strike, the trade union shouldthink twice before calling a strike. The law on resolving labour disputes doesnot implicitly provide that a strike decided upon without proper economic con-sideration of what can be gained and lost is considered an illegal one. There isno legal possibility lo ask for an injunction against a strike which by simplecomparison of possible gains and losses could be declared illegal by the labourcourt.


As already mentioned, a strike organized contrary to the procedural restric-tions is considered to be unlawful. Those restrictions are rather limited. In themost current amendment to the act on the collective dispute resolution proce-dures secret ballot on the issue of the strike was lifted, the cooling-off periodwas shortened from seven to five days. The need to obtain confirmation from

16 Supreme Court order of January 20, 1986 KASN 6/85, OSNCAP (S. Ct. Reporter), No. 1,1986, item 188.


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higher levels of the trade union organization vanished from recent legislationon the resolution of labour disputes. All changes were due to the complaintsthat the previous Trade Union Act of 1982 made the life of strike organizersquite difficult, and would not allow workers to go on strike legally. Under thepresent law on resolving labour disputes, the procedural requirements relatedto a legal strike are minimal. They include requirements concerning; a properbody to make a decision to go on strike (local trade union organization, or – ina case of larger strike – the relevant trade union federation); exhaustion of ne-gotiation, mediation, and eventually arbitration procedures, a majority supportof the involved workers and the submission of a proper notification of the strikedecision to the employer.

A strike called under any type of pressure is illegal. The law of resolving la-bour disputes provides that workers are free to participate or refrain from par-ticipation in industrial activity, which is quite understandable since workers arefree to strike, or continue their routine working activities. A trade union organ-izing a strike is obliged to put the issue to a vote of the working force. A strike islegal if 50% or more of the workers participating in the pool vote in favour ofthe strike. The law does not require secret ballot as it used to do under the pre-vious regulation (the Trade Union Act of 1982). The strike is considered to bean internal trade union matter and as such is free from any interference by anyof the state organs or legislative bodies.

Only a strike which is not contrary to the above-mentioned clauses is consid-ered legal. A trade union must deliver its decision and intent to organize a legalstrike to the employer, not less than five days before so doing. The law on re-solving labour disputes does not require, as was necessary under the previouslegislation (Trade Union Act of 1982), a longer cooling off period, or a writtennotice.


Certain categories of employed either do not enjoy the right to strike or cannot participates in strikes. Therefore procedure established by the act on reso-lution collective labour disputes is short of the last phase designed to bring thepressure by employees upon employers. Strikes are prohibited amongst police-men, secret service employees, fire fighters, prison guards, military personnel,and the border patrol. Civil servants employed in state and city administration,courts of justice, and district attorney offices are not free to participate in astrike. Therefore, it can be said that freedom to strike is in fact curtailed for allworkers employed at certain institutions, regardless of their official engage-ment, e.g., courts; all people employed in the same profession, e.g., militaryand paramilitary personnel; or workers performing jobs vital to certain humanand social values, including life.

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The purpose of a strike is quite vaguely defined. Being an economic weapon,the strike should be used by the trade union in order to bring economic pres-sure on the employer. According to article 17 of the act on labour disputes,workers go on strike for the sole purpose of solving labour disputes concerningtheir economic, social, professional interests and trade union rights and free-doms. The strike is employed as an aggressive economic weapon used by work-ers in order to put a pressure upon employers.

2.1.1 Political strikeStrikes could be classified according to their purpose. Trade unions may or-

ganize a strike in order to bring about economic pressure on the employer, atype of strike that is most common nowadays. In the past, strikes were organ-ized for political reasons. It has also happened that a strike was organized toprovide a warning against specific behaviours of certain government officials. Atrade union may choose to call a strike to demonstrate a certain attitude, e.g.,solidarity with problems faced by employees who are not allowed to strike. Inthe short history of the moder industrial relations in Poland, all types of strikesoccurred during the past decade of the 1980s – general, rotating, sit-down,wild-cat, and even jurisdictional strikes. The jurisdictional strike occurred whenthe government backed-up a certain trade union which was resented by theworkers.

The list of situations in which it is forbidden to strike is shorter under thenew legislation concerning the resolution of labour disputes. There is no free-dom to strike for those workers ernployed in jobs in which stoppage may en-danger human health and life, as well as pose a threat to the national security.

The Act on labour disputes does not prohibit political strikes. A few years agosuch a repressive clause was one of the most distinctive features of the TradeUnion Act of 1982. Quite an unsuccessful one, I might add, as most of thestrikes organized by Solidarity during the decade of the 1980s, concerned po-litical issues and opposition to political decisions taken by the socialist govern-ment.

2.1.2 Solidarity strikeSolidarity strikes may be organized by employees and workers employed by

other employer with the purpose to support interests or/and defend employees’rights of those employees which do not enjoy the right to strike (art. 22 of theAct on resolving collective labour disputes). Solidarity strike cannot last longerthan half of the working day (four hours).


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2.2.1 Anomalous forms of strikingPolish collective labour law is silent as far as this particular issue is concerned.

Only once in the most recent history of the Polish labour the Supreme Courtruled out the hunger strike as the proper method of protest. The hunger strikecannot be treated as the proportional action to the result which striking workerwants to achieve. Therefore the hunger strike is illegal because it violates art. 17§ 3 of the act on resolving collective labour disputes.17 Any of the methods listedin scheme of topics to be covered such as hiccup, chessboard or slowdown strikewere not considered illegal. Some of them were practiced.

2.2.2 Forms of collective action different from the strikeThe act on resolving collective disputes guarantee the right to all employees,

also these which do not posses the right to strike, to use the other forms ofprotest in order to defend their interests and rights mentioned in art. 1 of thatact (art. 25 § 1). Alternative forms of protest to a strike may be used to supportstriking workers. Those employees who participate in one of the alternativeforms of protest are obliged to carry on their employment obligations towardan employer against whom an alternative form of protest was organized. Theyare also obliged to behave according to existing rules of law. An employeestaking part in an alternative form of protest have to refrain themselves fromany activity risky to human life or health. The most popular forms of alternativeprotests to a strike enumerated by commentators are: picketing, boycotting, oc-cupation, secret strike, obstruction, lack of cooperation.18 Polish Supreme Courtruled that «hunger strike» cannot be treated as an alternative form of protest tostrike.19 Such alternative form of protest violates art. 25 § 1 of the act on re-solving collective labour disputes. An alternative forms of protest may be usedafter the procedural requirements proceeding organization of strike or anyother form of protest (negotiation, mediation or eventually arbitration) are be-ing completed. An individual farmers may start and proceed with alternativeforms of protest in such organizational form as decided by their trade union or-ganization (art. 25 § 2 of the act of resolving collective labour disputes).

The new law on resolution of labour disputes treats strikes not only as themost important trade union’s weapon of industrial action, but as the most im-portant weapon regulated by collective labour law. It is quite amusing, since in

17 Supreme Court order of November 11, 1997, I PKN 393/97, OSNAPiUS (Court Report) 1998,No. 17, item 511.

18 K. W. Baran, Zbiorowe prawo pracy. Komentarz (Collective labour law. Commentary), WoltersKluwer, Warsaw 2010, p. 475 ff.

19 Supreme Court order of November 11, 1997, I PKN 393/97, OSNAPiUS (Supreme Court Re-porter) 1998, No. 17, item 511.

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addition to strike, the other kinds of hostile actions – such as boycotts, hotcargo, picketing, hand-billing on the part of the trade union; and espionage,blacklisting, intimidation, coercion of employees, and interference with legaltrade union activities on the part of employer – have played and continue toplay a significant role in industrial conflicts.20 The boycott which is a concertedand organized withdrawal from economic relations with specific subjects, andhot cargo which is an embargo declaration on certain type of goods concerned«hot», are considered the most sophisticated industrial weapons. It is the prac-tice in some plants for the reason of workers solidarity. It is not regulated, how-ever, by Polish collective labour law.

2.2.3 Virtual strikeA virtual strikes are not being part of the Polish national legal scheme.

2.3 Unlawful strike

As already mentioned, a strike organized contrary to the procedural restric-tions is considered to be unlawful. Those restrictions are rather limited. In themost current amendment to the act on the collective dispute resolution proce-dures secret ballot on the issue of the strike was lifted, the cooling-off periodwas shortened from seven to five days. The need to obtain confirmation fromhigher levels of the trade union organization vanished from recent legislationon the resolution of labour disputes. All changes were due to the complaintsthat the previous Trade Union Act of 1982 made the life of strike organizersquite difficult, and would not allow workers to go on strike legally. Under thepresent law on resolving labour disputes, the procedural requirements relatedto a legal strike are minimal. They include requirements concerning; a properbody to make a decision to go on strike (local trade union organization, or – ina case of larger strike – the relevant trade union federation); exhaustion of ne-gotiation, mediation, and eventually arbitration procedures, a majority supportof the involved workers and the submission of a proper notification of the strikedecision to the employer.

A strike called under any type of pressure is illegal. The law of resolving la-bour disputes provides that workers are free to participate or refrain from par-ticipation in industrial activity, which is quite understandable since workers arefree to strike, or continue their routine working activities. A trade union organ-izing a strike is obliged to put the issue to a vote of the working force. A strike islegal if 50% or more of the workers participating in the pool vote in favour ofthe strike. The law does not require secret ballot as it used to do under the pre-vious regulation (the Trade Union Act of 1982). The strike is considered to be

20 See G. Bieniek, «Kilka uwag na temat pojĊcia akcja protestacyjna» (Some Remarks on the No-tion of Industrial Action), Problemy PraworządnoĞci (Problems of Justice), No. 5, 1983.


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an internal trade union matter and as such is free from any interference by anyof the state organs or legislative bodies.

Only a strike which is not contrary to the above-mentioned clauses is consideredlegal. A trade union must deliver its decision and intent to organize a legal striketo the employer, not less than five days before so doing. The law on resolving la-bour disputes does not require, as was necessary under the previous legislation(Trade Union Act of 1982), a longer cooling off period, or a written notice.

Strike organized contrary to the social peace obligation clause is illicit. Thereis no inclusion of peace obligation clauses in the collective agreements. Art. 240§ 2 of the Labour Code which was changed in 2000 states that parties which ne-gotiated and concluded collective agreement are obliged to respect its provi-sions in which their legal obligations were set up. The social peace clause writ-ten in article 4 sec. 2 of the law on the resolution of labour disputes limits in-dustrial disputes to matters regulated by social partners in collective agree-ments, not only to wages.

A social peace obligation is a waiver of the right to start a labour dispute.21

Bearing in mind that the strike is considered a last stage of industrial dispute,the question arises as to whether a peace obligation is a waiver of the freedomto strike, which as a natural human right cannot be waived. It is worthwhile tonotice that article 4 sec. 2 of the law on resolution of labour disputes does notmention workers and their freedom to strike. It refers only to trade unions andtheir right to organize a strike. Therefore, a peace obligation is a waiver of thetrade union’s right to use its major economic instrument for some economicconcessions made by an employer during the time that the collective agreementis in force. It is considered as a major concession which is presented by the em-ployer to trade unions, a concession which gives trade unions some access to thedecision-making process in matters of wages and other terms and conditions ofemployment The social peace obligation is understood by Polish collective la-bour law, as binding only on the trade union acting as a contracting party. Thesocial peace obligation does not have any legal implications upon a trade unionwhich is not a party to a collective agreement. Since the peace obligation is in-cluded among the obligatory provisions of the collective agreement, it does notaffect any individual contract of employment which is regulated by the collectiveagreement. Therefore, theoretically, as well as practically, the peace obligationdoes not affect the workers» freedom to strike. Notwithstanding, it affects theiropportunity to participate in a strike since their elected representative, thetrade union, is not allowed to generate its legal power to call a strike.

The question arises as to who is bound by the social peace obligation clause:the trade union, the individual worker, or both? There is no doubt that thetrade union is bound by the social peace obligation clause. However, the ques-tion is still valid as far as the individual worker is concerned. The peace obliga-

21 A. Swiatkowski, Poland..., cit., p. 157.

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tion clause deals with actions taken by actors acting within the confines of col-lective labour law. The employee, as mentioned above, is not one of them.Therefore, the peace obligation clause binds the workers en masse, and not in-dividually. The individual worker is not bound by the peace obligation clause ifhe/she does not belong to a trade union and is not obliged to comply with tradeunion discipline. It is not binding even on workers who are members of thetrade union. The agency theory was never popular in Polish legal doctrine.22 Onthe contrary, the trade union empowered to act on behalf of their members isobliged to negotiate terms and working conditions on an equal footing for allworkers, regardless of their trade union affiliation. A social peace obligationclause does not exert any legal influence on the normative part of the collectiveagreement. Since the normative part is only subject to the influence of theterms and conditions of the individual contract of employment, it is quite easyto understand why the peace obligation clause does not influence the worker’sindividual behaviour on the job. It defines matters which lie outside the norma-tive part of the collective agreement. Regardless of an existing collectiveagreement, there is always a legal opportunity to start industrial action in mat-ters lying either outside the scope of collective agreement, or by projecting thisaction on workers who do not feel obliged by promises made by the trade unionrepresentative. In either case it would be impossible to talk about violation ofthe social peace obligation clause.


Both trade unions as strike organizers and individual workers participatingin some kind of unlawful industrial activity are liable in tort (article 26 § 3 of thelaw on resolving labour disputes). A certain change in the philosophy of civil re-sponsibility – which is applicable in the case of infringement of the property ofthe enterprise – became evident since the change in ownership of means andtools of production was notified and accepted by the general public. Privateownership of enterprises requires greater care against actions which could causedamage. The strike is one of them. In a new political and economic environ-ment, legal scholars have to look at the strike not only from the strikers’ humanrights point of view, but also from property-oriented perspectives presented bythe private owner employer.

Organizers of either illegal strike or an alternative form of protest may besanctioned by an administrative and judicial authorities to fines and to a re-striction of one’s freedom (art. 26 § 2 of the act on resolution of collective la-bour disputes).

22 See A. Swiatkowski, Kolektywny aspekt w prawie pracy w ujĊciu porównawczym (Collective Aspect inLabour Law. A Comaparative Study), Archivum Iuridicum Cracoviensae (Cracow Archive of Legal Stud-ies), Vol. 15, 1982, p. 31 ff.


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There is no rules of conduct which must be followed by individual employeesparticipating in a lawful strike established in the acts issued by the state. Art. 21§ 2 of the act on resolution collective labour disputes imposes an obligationupon the strike organizers to collaborate with an employer in matters related toprotection of the enterprise’s property and continuation of those processes andinstallations which cannot stop without risk to endangered human life, health orreinstatement regular function of the enterprise effected by the strike. In thepast striking employees used to adopt the riles of conduct which ought to be re-spected by employees participating in strike. One of the was for example a totalban on alcohol during the strike.

Polish collective labour law is silent as far as the issue of modalitities of or-ganization and participation in strike is concerned. Only once in the most re-cent history of the Polish labour the Supreme Court ruled out the hunger strikeas the proper method of protest. The hunger strike cannot be treated as theproportional action to the result which striking worker wants to achieve.Therefore the hunger strike is illegal because it violates art. 17 § 3 of the act onresolving collective labour disputes.23 Any of the methods listed in scheme oftopics to be covered such as hiccup, chessboard or slowdown strike were notconsidered illegal. Some of them were practiced.


According to the Labour Code, workers are obliged to spend their companytime working effectively (article 100 § 2 sec. 1). A striking worker obviously doesnot perform his/her fundamental duty. For that reason, work stoppages couldbe easily looked upon as a breach of the employment contract. They could leadto summary dismissal due to illegal behaviour, or – even more convenient forthe employer – they may cause ex lege termination of the employment contract.Taking that into consideration, it was quite normal that striking workers de-manded the introduction of legal provisions guaranteeing them job securityduring a strike. That security is not based on the same rights enjoyed by a vaca-tioning employee. It would be too much to equate the rights of a striking em-ployee to those of an employee enjoying special protection against terminationof an employment contract with notice, due to personal or social reasons. But astriking employee enjoys special protection in a particular sense. He, or she

23 Supreme Court order of November 11, 1997, I PKN 393/97, OSNAPiUS (Court Report) 1998,No. 17, item 511.

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cannot be discharged from work due to reasons connected with the strike only.The law on resolving labour disputes provides that participation in a legal strikedoes not allow an employer to treat a striking employee as an evader of workregulations. Thus, a strike cannot be treated as a breach of work discipline.Therefore, collective labour law adopted the legal principle of suspension of anemployment contract in the case of a legal strike. The very fact that an em-ployment contract is suspended during industrial action does not mean that it isautomatically terminated by a worker who decides to refrain from working. Itdoes mean that work stoppage does not constitute legal ground for the termi-nation of a contract of employment by an employer due to disciplinary reasons.The worker is perfectly legitimate to excuse him/herself from working duties.During a legal strike, a worker is entitled to draw social security benefits (art. 23§ 2 of the act on collective labour disputes).

During a legal strike the economic burden of support for striking employeesfalls solely on their trade union. According to art. 80 of the Labour Code anemployee retains his/her right to wages for the work performed. An employerhas a legal obligation to remunerate not working employee only when that ob-ligation is set up by the act of law. In case of not performing work by a strikingemployee neither the act on resolution labour disputes nor any other act doesnot impose an obligation to provide so called guaranteed salary to an em-ployee participating in legal strike. Therefore, during legal strike an employeris relieved from obligation to provide wages to a striking employee. Trade un-ions are free to set up a special fund for the purpose of maintaining a minimalstandard of living for the striking workers. The strike fund is out of the reachof state and its administrative agencies. From the point of view of workersrights and privileges, the strike is treated on an equal basis, except for the lossof the remuneration which varies according to the actual rank and task per-formed of the specific striker. Theoretically, during the strike the employer isfree to terminate the employment contract, due to economic or disciplinarygrounds. Suspension of the individual contract of employment during thestrike does not prevent the termination of the contract for other reasons thanparticipation in the strike. Practically, however, a discharged employee willmost probably claim that he or she was fired because of his/ her perfectly lawfulstrike activity.


Workers who refrain from work under such circumstances, may be treatedas those who arbitrarily leave their jobs, or may be disciplined by the em-ployer. The Labour Code provides a variety of disciplinary measures againstan uncoordinated employee. One of these measures is a termination fromwork. Such a work stoppage which cannot be qualified as a legal strike couldbe treated by the employer Supreme Court recognizes various degree of ille-


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gality of strike.24 Only the most serious, conscious misconduct of an employeejustifies summary dismissal under article 52 § 1 sec. l of the Labour Code. Lessguilty striking employee may be dismissed with notice, transfer to lower posi-tion or disciplined.

There is no particular regulations concerning sanctions which may be ap-plied to en employees participating in illegal strike. An employers may appliedthe penalties listed in articles 108 and 109 of the Labour Code: admonition,reprimand, cash penalty not higher that one day remuneration for each day ofnot reporting to work, in total within given month one-tenth of the remunera-tion. An employer may also decide to terminate an employment contract withan employee engaged in unlawful strike or changed the terms and condition ofwork and/or degrade the level the wages with such employee. The kind of la-bour law sanction depends upon an ill will of striking employee and the degreeof illegality.

The economic consequences of strikes are expressed by certain economicdamages caused to the employer or to the general public. After all, the strike isthe economic weapon used to bring pressure on the employer and a third party(consumers, other employers, customers). There is a question only as to the ex-tent those damages have to be tolerated by affected subjects. The next questionis which party has to bear the responsibility for damages caused by an unlawfulstrike: the strike organizer, the trade union or the strikers? Taking into accountcivil law responsibility, there is no distinction between a lawful and an unlawfulstrike. Either one may cause damage for which somebody has to take legaã re-sponsibility. One of the fundamental principles of the modern Polish labour lawis that which assigns to the employer sole responsibility for the effective opera-tion of the undertaking. Strike activity is aimed at disrupting this operation.The law on resolution of labour disputes provides that an employer cannotcurtail his legal activities concerning management of the working crew that haddecided not to take part in an industrial action. The employer, or manager ofthe enterprise enjoys full power as far as protection of property which belongsto the enterprise under strike. The employer, or manager, is also obliged by lawto maintain whatever technical devices necessary for the operation of equip-ment and/or processes protecting well-being and human life, in addition to thesystem required for the reinstatement of regular activity after the strike is over.To cope with the above-mentioned legal duties the strike organizers, whoeverthey may be, are obliged by law to cooperate with the employer or manager re-sponsible for maintaining the enterprises under strike in proper shape (article21 of the act on collective labour disputes). Does that regulation mean that anytype of strike (lawful or unlawful) is privileged and not subject to the rules of thecivil law of tort? The basic principle is prescribed by article 415 of the Civil

24 Supreme Court order of February 7, 2007, I PK 209/06, Monitor Prawa Pracy (Monitor of LabourLaw), 2007, No. 8, p. 412.

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Code, and is applied to labour relations according to article 300 of the LabourCode. This principle states that everybody bears responsibility for damagesdone by their malevolent action. But it should be mentioned that even during alawful strike malevolent acts could be committed by the striking employees. Aswas mentioned above, article 17 § 3 of the law on resolution of labour disputesstates that an original lawful strike may become unlawful due to excessive de-mands presented by trade union. An unlawful strike is by definition a malevo-lent industrial action. Modern Polish collective legislation does not constitute anexception from the striker’s tort liability. Both trade unions as strike organizersand individual workers participating in some kind of unlawful industrial activityare liable in tort (article 26 § 3 of the law on resolving labour disputes). A cer-tain change in the philosophy of civil responsibility – which is applicable in thecase of infringement of the property of the enterprise – became evident sincethe change in ownership of means and tools of production was notified and ac-cepted by the general public. Private ownership of enterprises requires greatercare against actions which could cause damage. The strike is one of them. In anew political and economic environment, legal scholars have to look at thestrike not only from the strikers’ human rights point of view,25 but also fromproperty-oriented perspectives presented by the private owner employer.

Comparing legal solutions introduced to the Polish collective labour law sys-tem with those of the international standards, it is possible to conclude the Pol-ish national regulations dealing with strikes as well as the right to organisestrikes are not in accordance with the principles obligating other internationalcommunities to which Poland is a member of. This article has not analysed thestatute passed on the 23rd May 1991, dealing with collective dispute resolution.The below mentioned legal solutions introduced by the above statute, whichremain in force, irrespective of the fact they are in conflict with internationalcollective labour law standards, are as follows:

– Art. 20, a standard guaranteeing a trade union organisation (sec. 1) or anappropriate trade union body, mentioned in the statute dealing with severalwork establishment trade union organisations (sec. 2), the right to declare astrike. Other regulations within the statute of 23rd May 1991 dealing withcollective dispute resolution, use neutral definitions for describing the enti-ties authorised to organise strikes (art. 7(1), art. 17(3)). The cited regulationsgrant the right to organise strikes to «entities representing the interests ofthe workers». Trade unions were given the monopoly in organising strikesand other protest actions, by being regarded as «entities representing theinterests of the workers» in collective disputes with the employers, despite

25 Polish Supreme Court in its order of February 7, 2007 I PK 209/06, Monitor Prawa Pracy(Monitor of Labour Law), 2007, No. 8, p. 412 presented strike as the worker’s fundamental humanright.


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being one of the many organisations able to organise industrial dispute ac-tions. This is considered as a breach of the international standards. Takinginto consideration the order of time with which the collective dispute resolu-tion statutes were passed, 1991 and 1997 (the Constitution of the Republic ofPoland), it is possible to deduce, that the new Polish Constitution allows forthe concept of trade union monopolies that is in breach with internationalcollective dispute resolution standards. In order for national regulations tobe in accordance with international standards, amendments must be made tothe statute of the 23rd May 1991 and in the Polish Constitution.

– Art. 19(1) of the statute in question has defined the ban of the right to striketoo broadly, with regards to workers employed in jobs involving installationplants and heavy equipment. This work, when temporarily stopped due to astrike action, is considered to put the life and safety of the community at risk.Such broad definitions may be used to limit or even deprive the worker ofhis/her fundamental freedoms, the right to strike.

– Forcing the right to declare a strike to be dependent upon a majority vote ofthe workers supporting the action, on the condition that fifty per cent of theworkers comes to the ballot (art. 20(1) and (2)), creates an apparent drasticlimitation of the right to organise a legal strike. The legality of a strike ismade dependent upon the gathering of half the workforce, whereby halfshould show support for the strike.

Passing of the new Polish Constitution in 1997 was made possible thanks tothe organisation of strikes and other protest actions in 1981 carried out byworkers not associated in trade unions. Assemblies of ad hoc strike committeeswere acknowledged by employers and more importantly by governmentalauthorities acting on behalf of the governmentally owned workplaces, regardingsuch committees as valid entities able to organise such strike actions. Strikeswere considered as a legitimate manifestation of the workers, who were able totake advantage of their just right to have their economic, professional and socialinterests protected. This was made possible as there was a lack of labour lawlegislation dealing with strikes in the former People’s Republic of Poland. In-ternational standards expressed through the ILO No. 87 and 98 Conventions aswell as the European Social Charter of 1961, however, were widely known, al-though not necessarily ratified (in the 1980s during the valid striking period inPoland, the country still had not ratified the Charter). It was not until theemergence of a democratic and independent Poland, that the appropriate stat-utes were passed, enabling a legal platform for differentiating between the rightto organise a strike (which ensured exclusivity to trade unions) and the right tostrike as a subjective right assured to individuals, i.e. workers. Neither did thestatute of 23rd May 1991 nor the Constitution of 1997 provide protection for theright to strike by way of law. Concentrating solely on the three abovementionednational regulations, that are in conflict with the international standards of col-

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lective labour law, it is possible to argue that if the current regulations were inforce in 1981, governmental authorities would have had an easy opportunity tocounteract the strikes by being able to view the strikes according to the nationalregulations as illegal, regardless of the strikes being recognised according to theinternational labour law standards.

The most valid issue when assessing the 1997 Constitution in light of thedemocratic legal order of an independent country and its matters regulated bycollective labour law regulations, is for the Constitution to be adaptable to in-ternational standards as well as to other labour law regulations that are in ac-cordance with such standards. It is also crucial for international treaties to beratified, such as the Revised European Social Charter passed by the Council ofEurope on 3rd May 1996, which establishes a higher level of protection forworkers’ rights. Evaluating the Constitution in conjunction with the protectionof the right to strike, it is possible to deduce the Constitution was passed in alegal vacuum, isolated from most of the international collective labour law stan-dards. We should not allow for the following decade to be wasted in a similarfashion. We have to ratify international treaties, which assure, in today’s times, ahigh level of worker rights protection.


Any strike which is not organized accordingly with the rules stated in the actof May 23rd, 1991 r. on resolution of collective labour disputes is considered il-licit.


The Polish collective labour law does not mention any possible measureswhich an employer affected by strike may be egally taken.

4.1 Lock-out

There is no other action than lock-out which may be undertaken by an em-ployer as an retaliatory of preventive measure which could be applied againststriking or ready to strike employees. The legality of pronounce lock-out underthe Polish collective labour law is unclear.26 Generally speaking, from the fact

26 A. Swiatkowski, Lockout as the Old Labour Problem in the New Environment of a Post-Socialist Coun-try, in: Labour Law and Industrial Relations at the Turn of the Century. Liber Amicorum in Honour of RogerBlnapain, eds. C. Engels, M. Weiss, Kluwer Law Internaional, The Hague, London, Boston 1998,pp. 431 ff.


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that there is no legal recognition of the lock-out as an official employer’sweapon, some legal consequences are inferred as far as the individual contractof employment is concerned. However, by claiming the business necessity theemployer can achieve results similar to an offensive, defensive, or preventivelock-out, and the employer is free to terminate any type of contract of em-ployment with notice, with the privilege of considerably shortening the re-quired termination period. By way of declaring liquidation of the enterprise,or bankruptcy due to economic reasons, an employer terminates all employ-ment contracts on his own initiative. An implicit decision to lock-out is in facttreated as a collective termination of the employment relationship. Therefore,in fact, the exercise of the lock-out is subject to the same rule applied in thecase of an ordinary dismissal due to economic reasons, and is regulated by theLabour Code: article 361, and the Act of March 13, 2003 on Collective Dis-missals.


Article 21 § 1 of the law on resolution of labour disputes enables the em-ployer, or manager of the enterprise to take any action he thinks necessary inregard to non-striking employees. Tackling that issue from a collective labourpoint of view, non-striking employees could not be considered as strike-breakers if they resume their regular duties. The question becomes more com-plicated if non-striking employees agree to take over tasks performed by strik-ing employees. If this type of activity is not vital to maintain certain servicesnamed in article 21 § 2 of the law on resolving labour disputes, and those em-ployees who volunteered to perform an additional job at a lower rate, or thesame rate paid to striking workers who demand higher wages, the recruitmentof workers already employed could be considered as strike-breaking activity onthe part of an employer.

Non striking employees whom an employer struck by the strike is unable toprovide with work to carry on are entitled to wages guaranteed by art. 81 § 1 ofthe Labour Code since they are ready and willing to perform their regular tasks.An employer is obliged to pay them their hourly or monthly rates to which theyare entitled for showing their readiness to work. If those rates are not listed,non striking employees who are willing and ready to work are entitled to 60 percent of their salaries paid while they actively performed their working obliga-tions. In any case non striking employees cannot get less than the monthlyminimal wages established by the state accordingly to the Minimum Wages Actof October 10, 2002.27

27 Journal of Laws, No. 200, item 1679.

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The lack of financial resources of trade unions and an attitude of generalpublic toward strikes ought to play an important role in decision making proc-ess of prospective strike organizers whether or not to call on strike. Accordingto information provided by the most current Rocznik Statystyczny (Concise Sta-tistical Yearbook of Poland, Warsaw 201028 during past twenty years the numberof strikes fluctuated – went up and down. Compare the table:

Year Number of strikes Number of strikers % of employees Number of workingdays lost

1990 250 116 000 – –1995 42 18 100 – –2000 44 7 900 27,5 % 74,3002005 8 1 600 33,2 % 4002006 27 23 600 – –2007 1 736 59 900 – –2008 12 765 209 000 47,21 % 275,8002009 49 22 400 0,08 % 9, 100

This phenomenon took place due to the fact that according to last publishedresults of the pool conducted in May 1998 by OĞrodek Badania Opinii Public-znej - OBOP (Centre for Conducting Survey of the Public Opinion) 47 per centof the Polish population supported strikes while 46 per cent were against suchpressure upon employers.29

Taking into account of those figures I am inclined to say that any institu-tional parameters outside the law do not make exercising the right to strikemore difficult.


I did not conduct any research of press releases concerning the strikes whichoccurred in Poland. However, very brief survey of publications related to strikespresented on internet allows me to state that majority of the press opinionswere inclined to present a positive view toward strikes.

28 Table 11 (90) Strajki (Strikes), p. 153.29 Opinie Polaków na temat napiĊþ, strajków i najwiĊkszych problemów Polski (Opinions of Poles in matters

related to political and social tensions, strikes and the biggest problems in Poland), Warsaw, May 1998. In fa-vour of strike were young people (under age of 30). Against were older people who were better edu-cated.


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I could not gather any sound information in that matter. From time to timeon internet were reported some action undertaken by international trade unionorganizations, mostly British to support demands of striking Polish workers. Itseems that the above mentioned support was mostly moral since no informationrelated to any financial support was published.


The law on resolving labour disputes allows exercise of the freedom to strikein cases where labour disputes cannot be solved in any other way. The strike isconsidered by collective labour law as an ultima ratio type of industrial weapon.There are a few stages in the resolution of labour disputes: negotiation, media-tion, which are compulsory, and arbitration, which is an optional method ofsolving labour disputes.30 The use of the strike is the last stage in which the dif-ferences between the parties to the conflict may be solved. The law on resolvingcollective labour disputes clearly states that the strike can be activated by tradeunion organizations after unsuccessful completion of the above-mentioned pre-vious peaceful means of solving the industrial conflict. In principle, a strikewhich is called at the beginning of the industrial dispute, as often happens, isillegal. I wrote «in principle», since the current legal regulation on solving la-bour disputes allows trade unions to go on strike immediately, without havingto deal with negotiation, mediation, or arbitration requirements, if unlawfulemployer behaviour made it impossible for the trade union to start the neces-sary proceedings which usually ought to precede the decision to strike. There isalso an opportunity to call a legal strike without completing the earlier stages ofthe peaceful means of settling labour disputes, in case the employer decided todismiss the trade union representative responsible for conducting labour nego-tiations (article 17 § 2). Moreover, there is a severe shortage of legal sanctionswhich can be applied in case the trade union started the strike at an early stageof the industrial dispute. There is virtually no organ (either judicial or admin-istrative) responsible for solving this type of disputes responsible for adjudica-tion of strike legality. According to the Supreme Court order of February 17,200531 declaration of legality of the strike by the criminal court does not haveany binding influence upon the labour court adjudication employment caseconcerning participation in illegal strike by an employee summarily dischargedby the employer for taking part in illegal strike.

The law on resolving labour disputes provides that the trade union «may not

30 See M. Matey, Industrial Law and Industrial Relations in Poland, Kluwer 1988, p. 160 ff.31 II PK 217/04, OSNZbUrz (Supreme Court Reporter) 2005, No. 18, item 285.

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use its right to make a decision concerning strike», and at the same time presentthe case for arbitration (article 16 § 1). There are two important issues whichhave to be discussed in this respect. First, despite the fact mat the law uses theword «right» instead of «freedom» or «liberty» to start a strike, it does not implythat the unions enjoy the right to strike. What is meant under such circum-stances is that a trade union is entitled to postpone, or for the time being giveup its organizational opportunity to general workers’ freedom, or liberty to stopworking. There is a relationship between freedom or liberty to strike, and theright and duty to organize a strike after a decision is made by workers eager touse their freedom. The law of labour disputes does not differentiate betweenthe words «freedom to strike», which is used to describe what is purely a workersactivity undertaken en mass, and the action itself, «the right to strike» which canbe organized by the trade union. In article 16 § l of the law on resolving collec-tive labour disputes, the trade union is granted the privilege of postponing itsright to organize a previously announced industrial action, together with de-mands presented to the employer on the workers’ behalf. Secondly, the decisionconcerning arbitration depends entirely on the position of the trade union. Theemployer does not possess any formal power to initiate arbitration proceedings,or to withdraw from such proceedings. As far as the arbitration procedure isconcerned, the present law replaced a former one (Trade Union Act of 1982),which provided for compulsory arbitration with an advisory or binding award,depending on the decision of the party to the labour dispute. As far as the legalstatus of the arbitration award, the present law maintains two possibilities: First,The award might be an advisory award which does not bind the parties unlessone of them makes a statement to the contrary. If such a statement is made, theaward has only the legal effect of a recommendation. Secondly, the award mightbe of a binding nature, and the choice in this respect is imposed by the tradeunion only.

There two types of arbitration committees composed of one professionaljudge designated by the president of district labour court and six laymen, halfof it represent workers and the second half employers. One of those committeeis called a local one while the second one bear the name «the national arbitra-tion committee». Later one is attached to the Supreme Court Labour, Social Se-curity and Public Affairs Chamber. President of that chamber nominates a Su-preme Court justice who chairs the meetings of the arbitration committeewhose legal responsibility is settlement of «multilocal» collective labour disputes.Thus, local dispute involves interests of employees employed by one employerwhile «multilocal» dispute embraces demands presented to more than one em-ployer by employees employed by their respective different employers.32

32 See the Supreme Court order of January 26, 2006, III KAS 1/05, OSNZb. Urz. (SupremeCourt Reporter), 2007, No. 3-4, item 59.

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Romanian Labour Law, a branch of national law whose object of regulationconsists of labour social relations, comprises legal norms originating from dif-ferent sources: the Constitution of Romania, the Labour Code of 2003, statu-tory laws, other legal acts having power of law (Government ordinances, emer-gency ordinances and decisions), supranational regulations, collective labourcontracts. Jurisprudence is not a source of law.

The labour legislation was substantially modified in the first half of 2011.The most important amendments concerned the legislation on social partners,collective labour contracts/agreements, and collective labour conflicts (includingstrike action). To this effect, the Social Dialogue Law No. 62/20111 repealed allprevious, rather disparate regulations in this field.

According to the provisions of the Constitution of Romania,2 European leg-islation (with regard to EU directives), as well as International Labour Organi-zation standards are transposed/incorporated within the National System by law(articles 11.2 and 148). Collective contracts have no part to this effect.

The necessity to harmonize national labour legislation with international andEuropean law is provided for by article 276 of the Labour Code (Law No.53/2003), which states: «According to the international obligations undertook byRomania, the labour legislation will be constantly harmonized with the standardsof the European Union, the conventions and recommendations of the Interna-tional Labour Organization, and the standards of the international labour law».

The implementation of EU Law within the National Model started along withthe conclusion of the European Agreement of Association Between the Euro-

1 Law No. 62/2011 - Social Dialogue Law, published in the Official Gazette of Romania, Part I,issue No. 322 of May 10th, 2011; it went into force on May 13th.

2 The Constitution of Romania was adopted in 1991, and revised in 2003.

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pean Communities and Romania of 1993. The national legislation adopted af-terwards displayed reflections of European Community Law.

Nowadays, we may affirm that the Romanian labour legislation is the result ofEU regulations and directives, considering also that Romania is a EU membersince January 1st, 2007.

The implementation of ILO standards began in the year 1921, when Roma-nia, as a founder member of this organization, ratified the first internationalconventions. Despite having ratified 55 conventions, Romania observes in real-ity the other international standards as well, and the most important ones areintegrated within the national law.


The law does not provide for the means of establishing (designating) thetrade union delegation that shall represent the employees on the negotiationand signing of collective labour contracts. This is an internal matter of tradeunions, as an expression of their freedom, which may be provided for in thestatute of each trade union, or even decided ad hoc (on a case by case basis).

As a rule, the delegation is designated by the leading body of the respectivetrade union, and consists in the members of this body. The delegation may becompleted with various specialists (jurists, economists, experts, etc.) that aremeant to support the collective bargaining action, whether or not they are tradeunion members.

In practice, the trade union representatives mandated to participate in thecollective bargaining are also empowered to subscribe the collective contract.Therefore, the subscription of collective contracts is usually the task of the un-ion leaders participating in the collective bargaining.


Not all trade unions are equal with respect to their capacity to represent theirmembers in collective actions. Under Romanian Labour Law, the representa-tiveness of trade unions is established as a condition for trade union organiza-tions to negotiate and pass collective labour contracts or agreements, to declareconflicts of interests and call strikes, to participate in various tripartite organ-isms (for instance, in the Economic and Social Council).

The representativeness of trade unions is regulated by the Social DialogueLaw (article 51), and is centred mainly on the number of their members.

a) At national level, in the case of confederations, two main conditions must be met:– the component trade union organizations, which are comprised in the

structure of the confederation, must have a number of members of at least5% of the employed workforce in the national (State) economy;

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– the respective confederation must have territorial structures in at least ahalf plus one of the counties of Romania, including the Municipality ofBucharest.

b) At activity sector or group of units level, in the case of federations, the lawstates that the member organizations of the respective federation must have anumber of members of at least 7% of the employed workforce in the respec-tive activity sector or group of units.

c) At unit level (specific company/establishment), the essential condition whichmust be observed is that the number of members of the trade union must rep-resent at least a half plus one of the unit’s number of employees.

In opposition to the former regulation, under the new Social Dialogue Law of2011, only one trade union may be representative at the level of a certain unit.

There are approximately 5 500 000 workers, of which 4 500 000 are employedunder individual employment contracts, and the rest are civil servants. Therefore,the degree of unionization can be approximated around the value of 40%.

The activities of trade unions in workplaces are provided for by law and/or bytheir statutes. Under the Labour Code, trade unions have the right to representtheir members in case of employment conflicts (article 219).


A. The normative framework. The Constitution of Romania employs the expres-sion «collective conventions», stating: «The right to collective bargaining andthe binding force of collective conventions shall be guaranteed» (article 41.5).

The Labour Code defines the collective labour contract and establishes theprinciples of collective bargaining, as well as the binding force of this contract –as a law between the parties.

The special normative framework on the regulation of collective contractsconsists in the Social Dialogue Law No. 62/2011, which incorporates a special title(VII) entitled «Collective Labour Bargaining Negotiations».

In the case of civil servants,3 the legislator uses the expression collective agree-ments (Law No. 188/1999 on the Civil Service Statute). The Government Deci-sion No. 833/2007 represents the special legal framework for this category ofworkers.

B. The levels of negotiation. According to article 128 of the Social Dialogue Law,collective contracts may be negotiated at the following levels: unit,4 groups ofunits and activity sectors.

3 Civil servant stands for «funcĠionar public» in Romanian.4 Unit is the legal person that directly hires workforce.


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After the entry into force of the Law No. 40/20115 (which radically modifiedthe Labour Code) and of the Social Dialogue Law, the Romanian labour legis-lation does not provide any longer for the national level as bargaining level ofcollective labour contracts. Therefore, under the present regulation, we con-strue that the conclusion of a new collective labour contract at national level isnot henceforth possible.

In any case, the previous Collective Labour Contract at National Level, whichwas regulated within the period 1991-2010, was suppressed.

C. The compulsory and optional character of collective bargaining. According to article229.2 of the Labour Code and to article 129.1 of the Social Dialogue Law, col-lective bargaining is compulsory only at the level of units where there are over 20employees.

Therefore, collective bargaining is optional for small units (having less than21 employees), and also at the upper levels: groups of units and activity sectors.

D. Content of collective contracts/agreements. In essence, collective labour contractscontain clauses regarding wage and working conditions, working time durationand work schedule.

On the other hand, the content of collective agreements is limited; they can-not contain clauses regarding civil servant rights that are established by law(wages, rest time, etc.).

Collective contracts/agreements are subordinated to law; their terms mayonly be established within the limits and conditions provided by law, and ontheir conclusion the legal provisions regarding employees’ rights have a mini-mal character.

The rule is valid also with regard to the hierarchical structure of these con-tracts; the provisions of any upper-level collective contract are consideredminimal levels at which the collective bargaining of lower-level contracts com-mences.

Collective contracts/agreements are placed in a pyramidal hierarchy; thereare as many hierarchies (pyramids) as activity sectors in which this type of con-tracts/agreements are passed.

At the top of this variety of hierarchies (pyramids) stands the collective con-tract/agreement passed at the activity sector level; next there are the con-tracts/agreements passed at the level of groups of units that are constituted inthis sector; and at the base of the pyramid stand the units existing in the re-spective sector.

5 Law No. 40/2011 on the amendment of the Labour Code, published in the Official Gazette ofRomania («Monitorul Oficial al României»), Part I, issue no. 225 of March 31st, 2011; it went intoforce on May 1st. Afterwards, on May 18th, the Labour Code was republished - in the Official Ga-zette of Romania, Part I, issue no. 345 of 2011.

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The contract/agreement placed at the top of the hierarchy constitutes asource of law for the subsequent contracts, mainly for those passed at the levelof groups of units, and these latter, in their turn, for those passed at the level ofunits.

Contract clauses that do not observe the abovementioned rule – as constantlydecided by the judicial practice – are null in law and replaced with the more fa-vourable rights provided by law or by the upper-level applicable contract. If theemployer does not accept this mechanism, he shall be compelled to this effectby the court of law.6 Article 132. 4 of the Social Dialogue Law provides: individ-ual employment contracts may not include terms establishing rights at inferior levels tothose established by the applicable collective labour contracts.

The relationship between a current collective contract/agreement and thefollowing is governed by the principle according to which the new contract re-places the preceding. As a rule, in practice, the theory of gained rights is ap-plied, and thus the rights established in a contract must be considered as gainedrights on the bargaining of the future (new) contract. In the worst-case situa-tion, previous rights must be recognized in the same amount in the future aswell. Only as an exception, when the economic and financial results decrease,and the benefits diminish accordingly, the rule is no longer valid. It is consid-ered that the principle of pacta sunt servanda is applicable as long as the situa-tion is at least the same (rebus sic stantibus).

E. Legal effects of collective contracts or agreements. As we pointed out, according tothe provisions of the Social Dialogue Law, any collective contract constitutes asource of law and produces effects towards the employers and employees whomit refers to. This extension operates whether or not these employees are tradeunion members, and whether or not they have the quality of employees at thetime of the conclusion of the contract. There is also a duty of social partners toinclude within collective contracts/agreements, which are passed at the levels ofgroup of units and activity sectors, the units in which these contracts/agreementsapply.


A. Preliminary considerations. To develop this point, we must consider the fol-lowing:

a) In the Viking7 and Laval8 cases, the reasoning of the European Court ofJustice was based upon the confirmation of a hierarchy of norms, in which mar-

6 To this effect there is also article 142 of the new Social Dialogue Law.7 Case C-438/05 Viking [2007] ECR I-10779.8 Case C-341/05 Laval [2007] ECR I-11767.


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ket freedoms are placed on the highest level, and collective bargaining and ac-tion on a lower level. Indeed, the right to take collective action was consideredby the European Court of Justice «a fundamental right which forms an integralpart of the general principles of Community law».9

It seems, after the entry into force of the Treaty of Lisbon,10 that the circum-stances have somewhat changed. Henceforth, in a Union that «shall work forthe sustainable development of Europe based on [...] a highly competitive socialmarket economy»,11 the Charter of Fundamental Rights «shall have the samelegal value as the Treaties»12 (our underlining).

In other words, as far as this report is concerned, the Charter, which sets outthe right of collective bargaining and action, including strike (article 28), ac-quired the same legal value as the Treaties, which establish the market free-doms. Consequently, the right of collective bargaining and action, beforehandonly a fundamental right making integral part of the general principles of EClaw, is now a fundamental right included in European Primary Law, so as themarket freedoms.

We might be therefore tempted to affirm that, in general, the hierarchy ofnorms confirmed by the European Court of Justice in the Viking and Laval casesdoes not exist any longer. Certainly, we must take also into consideration thetwo relative exceptions: the United Kingdom and Poland, given their partialopt-out from the Charter.

With the future perspective provided by article 6.2 of the Treaty on Euro-pean Union, regarding the accession of the EU to the European Convention onHuman Rights, we must point out that the European Court of Human Rightsruled that the right to collectively bargain with an employer in principle is oneof the essential elements of the right to form and join trade unions, guaranteedunder article 11 of the European Convention on Human Rights.13 Furthermore,the Court upheld that this same article precludes a «blanket ban» on the rightto strike.14 Not to mention that all State members of the EU have ratified theEuropean Convention on Human Rights.

Whatever the case may be, given the programmatic nature of the Charter’s provi-sions, an answer from the European Court of Justice is necessary. To this effect,taking into account that there are new applicable legal grounds, while observingthe two opt-outs, a change in jurisprudence towards an «equal» confrontation

9 Par. 44 of the judgement in Viking; par. 91 of the judgement in Laval.10 On December 1st, 2009, therefore after the ECJ passed its judgements in Viking and Laval.11Article 3.3 of the Treaty on European Union.12 Article 6.1 of the Treaty on European Union.13 Case Demir and Baykara vs. Turkey, application No. 34503/97 [2008] ECHR 1345, 12 No-

vember 2008.14 Case Enerji Yapi-Yol Sen vs. Turkey, application No. 68959/01 [2009] ECHR 2251, 06 No-

vember 2009.

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between the right to collective bargaining/action and the market freedoms, withthe first prevailing over the latter, should not surprise.

b) There is a series of national particularities worth retaining:

– Romania is at the bottom of the European Union ranking in terms ofmonthly wages: the minimum wage is approximately 160 €, while the averagewage is approximately 300 €;

– under national law, strike is possible only if the negotiations related to theconclusion of the collective contract fail, and afterwards the trade union initi-ates a collective conflict, which is not settled on the occasion of conciliationand mediation procedures, as the case may be;

– any collective contract or agreement is a source of law and applies to all em-ployees of the respective level, whether or not they are trade union members.

B. Regarding the Viking case, a Romanian trade union whose members form thecrew of a vessel could protest against the intention of the owner that would aimto register the vessel under a foreign flag. However, the trade union could notlegally call a strike, taking into consideration that between the two parties thereis no collective conflict generated by disagreements related to the terms of thenew collective contract that shall be passed between them. And even if such astrike were called under these circumstances (or similar ones), we would alreadyknow the outcome from the decision of the Court of Justice of the EuropeanCommunities: the employer’s freedom of establishment has pre-eminence (arti-cle 49 of the Treaty on the Functioning of the EU and Regulation EEC No.4055/86), unless, of course, a change in the Court’s jurisprudence.

C. Regarding the Laval case, as we have previously pointed out, Romania hastransposed within the national law the Directive No. 96/71/EC of the EuropeanParliament and of the Council of 16 December 1996 concerning the posting ofworkers in the framework of the provision of services by the Law No. 344/2006.Under article 6 of this normative act, «posted workers of other Member Statesenjoy the working conditions established by Romanian law and/or by the collec-tive labour contract at national level and at branch level». Being an imperativeprovision, it imposes de jure to the foreign employer that posts workers in Ro-mania; therefore, no national trade union action is necessary in order to applythe collective contract.

However, the law of the host Member State does not apply to posted workerswhen it only ensures them a social protection at a lower level than the one theyenjoy under the law of the Member State of origin. To this effect, having in viewthat the pay level in Romania is amongst the lowest in Europe, it is the law ofthe State of origin that shall apply in most cases.


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Certainly, regarding other working conditions (health and safety at work,working and rest time, protection of pregnant women, of young persons andchildren), if these are favourable to posted workers, Romanian law shall be ap-plied (including the applicable collective contract).


Article 148 of the Social Dialogue Law provides that the execution of col-lective contracts is mandatory for the parties, and that the failure to complywith the duties assumed by this contract engages the liability of the party atfault.15 The generic use of the term liability leads to the conclusion that, in re-lation with the civil wrong (tort), any form of liability provided by law may beengaged.16 The party at fault may bear criminal liability, if the wrongful actmeets the material element of an offence, liability to disciplinary action, orpecuniary liability, provided the existence of a prejudice, etc. For the damagescaused to the trade union, the employer bears civil liability, as do the tradeunions for the damages caused to the employer. Failure to observe the clausesof the collective contract by one ore more employees engages their pecuniaryliability.17

The employer too bears, in his turn, an employment law pecuniary liability(article 253 of the Labour Code,18 regarding the damages caused to each em-ployee). It has been held, for instance, that the existence or non-existence of fi-nancial resources is irrelevant for the establishment or recognition of paymentrights provided by the collective labour contract.19

1.7.Consultation of workers for signing the collective agreement or for the strike call

A. As we pointed out in pt. 1.2, as a rule, the trade union representatives in thenegotiation and subscription of collective contracts are not designated by thetotality of members of the trade union, but by its governing body. Therefore,the participants in the collective bargaining are usually the same that sign thecollective contract.

15 To this effect there is also article 28.1 of the Government Decision No. 833/2007 regardingcollective agreements.

16 The Labour Code regulates the following forms of legal liability: disciplinary (articles 247 to252); pecuniary (articles 253 to 259); contraventional (article 260); criminal (articles 261 to 265).

17 Under article 254 of the Labour Code, employees bear pecuniary liability for the materialdamages caused to the employer by their guilt and in connection with their work.

18 Under article 253.1 of the Labour Code, the employer shall compensate the employee, in thesituation in which the latter suffered, by the guilt of the employer, a material or moral prejudicewhile fulfilling work or work-related duties.

19 The Court of Appeal of Bucharest, 8th civil division, for causes regarding labour disputes andsocial welfare litigation, Civil Decision No. 535/R/2007.

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B. On the other hand, the calling of a strike is decided by the vote of trade un-ion members, and of workers respectively, the necessary quorum being differentdepending on the quality of strike organizers. To this effect, article 183 of theSocial Dialogue Law provides that, as the case may be, the decision to call astrike is taken:

– by the representative trade unions participating in the collective labour con-flict, with the written agreement of at least one half of the number of mem-bers of the respective trade union;

– by the representatives of the employees with the written agreement of at leastone quarter of the number of employees of the unit or, as the case may be, ofthe subunit or compartment.



The right to strike is established by the Constitution of Romania within Sec-tion II, which is entitled «Fundamental Rights, Freedoms and Duties». Accord-ing to the constitutional text (article 43.1), «Employees have the right to strikein the defence of their occupational, economic and social interests». Under arti-cle 181 of the Social Dialogue Law, strike is defined as «any form of collectiveand voluntary cessation of work in a unit».

2.2 Sources

Aside from the Constitution, the right to strike is established by the LabourCode (article 233), which reproduces article 43. 1 of the fundamental law. Themethod of exercising the right to strike, the organization, the calling and thecarrying out of a strike, the preliminary procedures to calling a strike, its sus-pension and cessation are regulated by the Social Dialogue Law.

In the case of civil servants, the right to strike is provided for in article 30 ofthe Law No. 188/1999 regarding the Civil Service Statute, as well as in article35. 2 of the Law No. 7/2006 regarding the Parliamentary Civil Service Statute.


According to national law, the right to strike is an individual right held byworkers (employees, civil servants). However, it may only be exercised collec-tively, since a strike consists in the collective cessation of work (article 234.1 ofthe Labour Code). One worker only cannot call a strike; he must legally andnecessary be joined by a group of workers.


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Under article 27 of the Social Dialogue Law, the right to strike is held also bytrade unions. As a consequence, representative trade unions are entitled to or-ganize strikes. Only in the absence of such unions, the right to strike is held by therepresentatives of the employees (article 187).


The lawfulness of a strike is founded upon the existence of a collective delib-erations act: the decision to call a strike, taken by striking workers with the quo-rum (proportion) provided by law.

This decision must be taken during the existence of a declared collective la-bour conflict that arose following the refusal of the employer to negotiate thecollective contract/agreement or to accept workers’ claims, as well as in thesituation in which the parties did not reach an agreement concerning the con-clusion of the collective contract/agreement within the established period oftime (article 161 of the Social Dialogue Law).

The lawfulness of a strike is also conditioned by the compulsory procedure ofconciliation between parties, which is carried out with the support of the delegateof the Ministry of Labour, Family and Social Protection (articles 166 to 174).


The right to strike is prohibited to: judges, prosecutors, military personnel,and special status personnel of the public order body (article 202 of the SocialDialogue Law).

Furthermore, it is restricted for the personnel of any type of transportation,and for the personnel of essential services, namely those provided by establish-ments of health and social assistance, of telecommunications, of public radioand television, respectively by rail transport establishments, by establishmentsthat ensure common transportation and public sanitation, as well as the provi-sioning of the population with gas, heat, power and water. Strike is allowed inthese services with the condition of ensuring the functioning of at least onethird of the normal activity (article 205).


Romanian Law, in principle, does not establish any differences between thecategories of subordinated workers (employees and civil servants) regarding theright to strike. It does not make any reference however as to the self-employedon this matter. The solution is well expected, as long as these latter are not sub-ordinated to an employer, and their work is individual, not collective.

At the same time, there are no differences between public system employeesand private system employees. For instance, article 207 of the Social Dialogue

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Law provides that civil servants declare collective labour conflicts following theprocedure provided by this law for employees.

Nonetheless, as we previously showed (pt. 2.5), the law provides for certaininterdictions regarding this right (article 202), as well as limitations related toits exercise (articles 203 to 206).



The purpose of strike action is clearly defined by the legislator: the defence ofoccupational, economic, and social interests of employees (article 43.1 of the Constitu-tion and article 233 of the Labour Code). A strike that has in view other aims,for instance political, is illegal and therefore prohibited (article 190.2 of the So-cial Dialogue Law). For a strike to be legal, all conditions provided by law (thatwe mentioned at pt. 2.4) must be observed. Otherwise, the strike is illegal.

3.1.1 Political strikeArticle 190.2 of the Social Dialogue Law states that a strike cannot follow po-

litical aims. Consequently, a strike that follows such aims is illegal.However, a purely political strike is possible only in theory. In reality, there

are encountered strikes offering a combination of occupational and politicalaims. Indeed, sometimes, political measures affect the occupational interests ofworkers, and this justifies the allegation of certain political claims on the occa-sion of strike action.

The major strikes that took place in Romania, starting with the year 1990,implied also political claims, as long as the strikers demanded, among others,«the stoppage of the fraudulent bankruptcy of industry and agriculture», theycriticized the «economic policy» of the State, they demanded the resignation ofthe Government, of the Prime-Minister, and even of the President.

3.1.2 Solidarity strikeSympathy strikes are possible, in the purpose of supporting the claims laid

down by employees of other units pertaining to the same group or activitysector.

Such strikes are regulated as a strictly trade-union means of action; they maybe called by a representative trade union, affiliated to a federation or confed-eration of which makes part as well the trade union that organizes the initial,supported strike.

Sympathy strikes have a limited duration, of one business day at most, andmust be notified in writing to the employer at least two business days in advance ofthe work stoppage date.


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Romanian law on the settlement of collective labour conflicts is strict as to themethods of carrying out a strike and their typology. Certainly, the legal provi-sions in question have in view the carrying out of legal strike actions, and not ofillegal ones.

The participation in a legal strike is free; no one may be compelled to par-ticipate or to refuse to participate (article 191.1. of the Social Dialogue Law andarticle 234.2 of the Labour Code).

Moreover, such participation does not represent a breach of work duties.

3.2.1 Anomalous forms of strikingUnder article 184 of the Social Dialogue Law, there are three categories of

strikes: token (or warning) strikes, regular strikes, and sympathy (solidarity)strikes.

Other forms of strike – hiccup, chessboard, etc. – are neither regulated, northey have been encountered thus far. Consequently, as long as they are not apart of the national legal scheme, these forms of strike action are not allowed.To this effect, in the judicial practice it is held that: «The law does not incorpo-rate provisions regarding other categories of strike, such as go-slow strikes,work-to-rule strikes, selective strikes, or hunger strikes». Such strikes «cannot bedeemed licit under Romanian law inasmuch as they do not imply the collectivecessation of work». It follows that «they subscribe to the notion of improper exe-cution of employment contracts, and thus the employer may dispose discipli-nary measures depending on the gravity of the deed».20

Still, in Romanian practice have been encountered a number of peculiarstrike actions, not regulated by an act of law: Japanese strikes and work-to-rulestrikes.

3.2.2 Forms of collective action different from the strikeArticle 27 of the Social Dialogue Law lists the specific means that trade un-

ions have the right to use with a view to achieving the purpose for which theyhave been set up. Among these specific means are: petition, protest picketing,march, meeting and demonstration.

We could add here the complaints that Romanian trade union confedera-tions file with the international authorities, especially with the International La-bour Organisation, concerning several measures and actions of the RomanianGovernment that affect workers’ rights.

20 Court of Appeal of ConstanĠa, civil division, for causes with minors and related to family, aswell as for causes regarding labour disputes and social welfare litigation, Civil Decision No.258/CM/2007.

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Romanian law does not contain regulations as to go-slow (slow down) strikes,sit-in strikes, the possession/retention of the employer’s goods, etc. As a conse-quence, if such means were used in trade union practice, they would have an il-legal character.

3.2.3 Virtual strikesVirtual Strikes do not make part of the national legal scheme and have not

been encountered in practice thus far.


A strike is deemed unlawful when it is called or carried out with the non-observance of the legal provisions, or when it is continued after it was sus-pended or declared illegal. In other words, any stoppage of work that does notmeet the conditions set forth by an act of law constitutes an illegal strike, andwill be sanctioned as such.

For instance, under Romanian law, the following strikes are illegal21:

– wildcat (unofficial, unorganized, spontaneous) strikes;– strikes called by the decision of a smaller number of workers than required by

law;– strikes organized without exhausting the possibilities of settling the collective

conflict;– strikes called without prior noticing the employer (two business days in ad-

vance)22;– strikes called by workers that do not hold the right to strike;– strikes called by resorting to threats or violence against the participants, etc.


The Social Dialogue Law of regulates three forms of legal liability:

a) civil (reparative) liability in the purpose of covering the damage caused to theemployer due to the collective cessation of work by the participants and theorganizers of the illegal strike;

b) contraventional (administrative) liability consisting in a fine of 5000 to 10000LEI (approximately 1200 to 2400 €), imposed to those that obstruct the em-

21 See Raluca Dimitriu, Conflictele de muncă üi soluĠionarea lor [Labour Conflicts and Their Settle-ment], «Tribuna Economică» Publishing House, Bucharest, 2006, p. 231-232.

22 For example, it has been held that a strike is illegal if trade union members stop their workwithout prior notice and without exhausting the posibilities of settling the conflict of interests pro-vided by law (The Court of Appeal of Bucharest, 8th civil division, for causes regarding labour dis-putes and social welfare litigation, Civil Decision No. 1695/2009).


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ployer to continue its activity with the employees that do not participate inthe strike;

c) criminal liability, consisting in prison of 6 months to 2 years or a fine of20000 to 50000 LEI (approximately 5000 to 12000 €), for those that, bythreats or violence, obstruct or force an employee or a group of employees toparticipate in a strike or to work during a strike.

These forms of legal liability do not exclude the liability to disciplinary actionof those that commit a disciplinary offence related to the strike, thus breachingwork duties and not observing job description tasks.



There are two main modalities of participation in a strike. The first takesplace when workers participate in a strike after they voted the adoption of thedecision to call the strike. The second occurs when, even they did not partici-pate at the adoption of the mentioned decision, some workers join the strike,uniting with those that had (collectively) stopped work.


According to the Labour Code, the participation in a strike, as well as its or-ganization, under the law, does not constitute a breach of employees’ work du-ties (article 235). During a strike, the employment relationship is suspended dejure, in law (article 51.f of the Labour Code and article 195.1 of the Social Dia-logue law). As a consequence, strikers’ rights (including wage rights) are alsosuspended, with the exception of health insurance rights.


In the case of an unlawful strike, the situation is totally different. The cessa-tion of work is a wrongful act, a breach of work duties. Therefore, the employermay punish the guilty persons by initiating disciplinary procedures, which mayalso lead to their dismissal for cause. These persons may also be bound to coverthe damage caused to the unit due to the collective cessation of work.


Such unorganized strikes have been encountered in practice, but in a totallyisolated manner, in units of small importance, with a stoppage of work on short

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periods of time (a few hours a day). Employees protested using this approachdue to, for instance, the delays in the payment of wages or the unjustified low-ering of wages, the non granting of food vouchers, or the replacement of per-sons holding managing functions (for example headteachers), etc.



During a strike, the employer has the right to continue the activity with theemployees who do not stop the work, to claim the protection of his goods by thestrikers, and to ensure the continuous operation of machinery and equipmentwhose interruption might endanger the life and health of the people (articles193.1 and 194.1 of the Social Dialogue Law).

However, the employer is forbidden from hiring other employees to replacethose on strike.

No anti-union conduct of the employer is allowed. To this effect, article218.2 of the Labour Code prohibits «any encroachment act of the employer oremployer organizations, directly or through their representatives or members»,not only on the establishment of trade unions, but also on the exercise of theirrights. Following the same reasoning, it is provided that «the exercise of theemployee right to unionize is recognized at the level of all employers» (article220 of the Labour Code), and also that trade union organizations are inde-pendent of employer organizations.

5.2 Lock-out

The national legislator has not regulated the right of the employer to tempo-rary close the unit, as a retort against the employees’ strike. Therefore, the em-ployer could not resort to lockout, as long as Romanian law does not providefor this form of industrial action.

In the legal doctrine23 it is also held the opinion that the employer might re-sort to lockout in serious situations, which cannot be overcome other than byproceeding so, and namely:

– in situations when it is necessary to ensure the units’ order and security,which are endangered by a strike that, if it were to continue, might entail thelegal liability of the employer;

23 Ion Traian ûtefănescu, Tratat teoretic üi practic de drept al muncii [Theoretical and Practical Treatiseon Labour Law], «Universul Juridic» Publishing House, Bucharest, 2010, pp. 863-864.


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– when the employer, due to the strike, cannot ensure the functioning of itsunit.

A lockout would also be justified as a means of counteracting an illegalstrike.24


The workers that do not participate in a strike may continue their activity, ifpossible; in this case, they obviously have the right to payment. If such a possi-bility does not exist, they are entitled to receive – on the grounds of article 53.1of the Labour Code – 75% of their wage, since there is a temporary stoppage ofthe employer’s activity.



It has been noticed that the lack or shortage of financial resources acquiredas «strike fund» makes more difficult the exercise of the right to strike, but doesnot impede it. However, financial resources allow the development of a strikehaving increased chances of success.

The majority of known domestic strike actions have gained the public’s sym-pathy. However, when it manifests, public disapproval may constitute an in-hibitory factor for a strike. Generally, these situations have occurred followingthe stoppage/reduction of public services activity (for instance, at the nationalrailways and the subway), and if the reasons of the strike action have not beenbrought and thoroughly explained on time to the public opinion.


Trade union leaders consider that media reports influence and facilitate theexercise of the right to strike. Nonetheless, it has been noticed that strikes andother actions of protest have not been reflected starting from the determiningcauses. The press is more interested whether there are any incidents, if the an-nounced actions lead to disturbances, or to speculate the «gaucheries» or com-munication difficulties of action participants.

24 Certainly, it is necessary that the Romanian legislator regulate employers’ strikes, as well as heregulates employees’ strikes.

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Between national and international (European or world level) trade unionsthere is permanent dialogue, communication and information.

Thus, in 2003, the National Trade Union Bloc (BNS) participated with 60members at the Rome Euro-manifestation for the social dimension of the futureConstitution of the European Union. In 2005, all trade union Europe and theInternational Trade Union Confederation (ITUC) joined Romanians at the firstbattle for the defence of the Labour Code. In 2007, there were protests againstthe Bolkenstein Directive, and on December 2009, in Strasbourg, BNS joinedthe European trade union family for a protest against the project of modifyingthe Directive on working time.

At the end of 2010, Romanian trade unions lodged complaints with the In-ternational Labour Organization, the NETLEX Organization, and the Euro-pean Trade Union Confederation (ETUC), expecting that these institutions jointheir efforts to convince the Romanian Government that the approach of de-regulating the labour legislation is counterproductive. The complaint had leftwith no effect, as long as afterwards the Labour Code was modified, with all theopposition of trade unions.


The Romanian legislator is preoccupied with avoiding strikes. Besides theimposed restrictions and limitations, he regulates the conciliation of collectivelabour conflicts, as a compulsory procedure. In the absence of this conciliation,an eventually called strike is illegal.

He also established two optional procedures – mediation and arbitration –that may be used by the parties in the same purpose: avoiding the collective ces-sation of work by calling the strike.

Conciliation is a compulsory procedure, prior to calling a strike, provided bythe Social Dialogue Law (articles 166 to 174). Conciliation gives satisfaction tothe principle of tripartism, inasmuch as it is carried out between the parties inconflict, but with the participation of the delegate of the Employment Inspec-tion, and respectively of the Ministry of Labour.

This representative (delegate), after being informed by the strike organizers(as a rule, the representative trade union), calls the parties for conciliation, oc-casion on which he guides and supports them towards settling the conflict bycommon agreement.

These represent amiable methods of settling collective labour conflicts, whichare thus decided by consensus of the social partners. Mediation and arbitrationare compulsory if the parties, by common agreement, decided so before callingor during the strike.


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A. MediationAccording to article 1 of the Law No. 192/2006 on Mediation and Organizing

the Profession of Mediator, restrictively applicable also in the settlement of col-lective labour conflicts (under article 178.2 of the Social Dialogue Law), «media-tion represents an amiably settlement modality of disputes, with the support of athird person specialized as a mediator, under neutrality, impartiality and confi-dentiality conditions, and based on the free consent of the involved parties».

The mediator’s part consists in acting in all diligence so that the partiesreach a reasonable mutual agreement, within a reasonable time. For that mat-ter, the carrying out of mediation is possible only based on the parties’ coop-eration. If, following the mediation procedure, the parties reach an agreement,the conflict ends and the strike action is avoided.

B. ArbitrationArt. 179 of the new Social Dialogue Law provides that on the entire duration

of a collective labour conflict, the parties in conflict may decide by consensus tosubmit the disagreements between them to the arbitration of the Collective La-bour Conflicts Mediation and Arbitration Office, an institution within theframework of the Ministry of Labour, Family and Social Protection.

The decisions that shall be adopted to this effect are mandatory for the par-ties; they complete the collective labour contracts, and become executory fromthe moment of their adoption.

Consequently, if the parties resorted to arbitration, calling a strike is nolonger possible, inasmuch as the collective labour conflict ended by arbitral de-cision.

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1. Introduction

In the Spanish legal system, the right to strike is enshrined as one of the mostimportant fundamental rights, expression of the admission of workers as an or-ganised social group, of their power to safeguard their interests and, more gener-ally, of the political and social pluralism on which Spanish legal system as a wholeis based. The principle in question is expressed in article 28.2 of the SpanishConstitution of 1978 (hereinafter, the SC), that recognises that workers have theright to strike to protect their interests, and leaves it to the law regulating thesame to establish the guarantees for maintaining essential public services. Thesystematic placement of article 28.2 in Section 1, Chapter II of Title 1 of theSpanish Constitution, titled «On fundamental rights and public freedoms», de-termines that application of a special constitutional protection of the right. This issubstantiated in the necessity of (organic) law developing the same (articles 53.1and 81.1 of the Spanish Constitution) and on the predisposition of special proce-dural means and judicial protection proceedings before the common courts basedon the principles of preference and summary judgement (regulated in articles175 and foll. of the Labour Proceedings Law, hereinafter, the LPL), with furtherpossibility of appealing for protection to the CC (article 53.2 SC).

According to the reconstruction given by the CC itself,1 recognition of strikeaction as a constitutional right of the highest order is closely linked to, and ex-plained by, the threefold position of the constitutional lawmaker on:

1. The establishment of Spain as a social and democratic State governed by therule of law (article 1.1. SC) «which, among other things, means the legalisa-tion of the means to defend the interests of socially dependent groups andsegments of the population, including granting constitutional recognition toan instrument of pressure that secular experience has shown to be necessaryto enforce the interests of workers in social and/or economic disputes».

1 CCJ 11/1981.

SpainAntonio Baylos Grau and Nunzia Castelli

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2. The clause granting trade unions a social and political institutional role,charged with contributing to «the defence and promotion of the economicand social interests which they represent» (article 7 SC).

3. The clause on the effectiveness of the freedom and equality of individualsand social groups, which compels the public authorities to «promote condi-tions ensuring that freedom and equality of individuals and of the groups towhich they belong are real and effective», removing «the obstacles preventingor hindering their full enjoyment, and [facilitating] the participation of allcitizens in political, economic, cultural and social life» (article 9.2 SC). Strikeaction, then, is conceived as a «counterweight» that allows those in a situationof salary dependency to take up a position of strength to favour their inter-ests. The aim is to «re-establish the balance between two, economically une-qual parties» (CCJ 11/1981).

From this point of view, taken as a fundamental way of restoring the balanceof strength and power in industrial relations and, therefore, as an instrumentfor fulfilling the constitutional promise of material equality for all citizens, theright to strike in the Spanish Constitution of 1978 is an essential instrument forthe citizen-worker, as an individual and an organised social group, to partici-pate democratically in the construction of the social, political, economic andcultural order. The broad constitutional formulation of the right granted «toworkers in defence of their interests» (article 28.2 SC) corresponds therefore,and is consistent with, the democratic model of industrial relations ushered inby the SC; a model that assigns to the conflict of interest an active role in the in-stitutional system as an essential element for the dynamic, democratic partici-pation of all citizens.

2. Strike action, collective dispute and lockout: constitutional position andconceptual clarifications

Under the Spanish system, the expression «collective action» has no precisemeaning. The most similar concept would be «labour dispute», which could beunderstood as a broad concept, inclusive of all forms of «collective action».However, its technical use is different. Its historical origin can be found duringFranco’s regime when the expression was used as opposed to the term «strike».The collective dispute referred to conflicting positions taken in connection with«rights» or «interests» arising at a given level of labour relations, however itcould not be externalized by stopping work or disrupting the normal produc-tion process. The «collective dispute» was solved through the conciliatory actionof public authorities: the Labour Courts through the labour procedure and theruling ending de conflict, or the administrative authorities by means of a bind-ing award or decision. So the expression «collective action» appears as a concept

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contrary to the classical forms of collective action, namely going on strike, pro-hibited and punishable under Franco.

This semantic separation has pervaded the democratic system of industrialrelations based on the Spanish Constitution of 1978 too. It distinguishes be-tween the right to strike (article 28.2 SC) and the right of employers and work-ers to take collective action (article 37.2 SC). That is why the workers’ powers ofcollective self-protection find their true expression in the recognition of theright to strike, as well as the collective action provisions, located in the constitu-tional text immediately after those referred to collective bargaining, are con-strued as an allusion to the autonomous or voluntary mechanisms of solvingdisputes, mechanisms created by collective agreements. Other forms of disputenot comparable to the right to strike or other fundamental rights are also in-cluded, such as the right to assemble and demonstration. It therefore refers to acertain type of collective action by the workers on the use of company products,or avoidance of trade relations with the company, on which there is no public orcollective regulation. Thus, the right to strike is recognized as a fundamentalright that becomes independent of the concept of collective action.

A debated issue is whether lock-out should be recognized as collective action.The key question is whether the Spanish legal system, as the German one, allowsfor an «equal means» principle or a parallelism between the collective actionarising among the workers and that originating among the corporate sector. Theanswer is no. The Constitutional Court states that differences between the rightto strike and lock-out are so great that the legal treatment has to be different, asevidenced by the different placing within the constitutional text. The Constitu-tional Court argues that that parallel treatment is unfeasible due to a number ofreasons, buy mainly due to the different grounds of each concept: «strike is acounterweight designed to allow salary-dependent workers to establish a newmore favourable balance of power. Strikes tend to restore the balance betweenparties of unequal economic strength. On the other hand, lock-out implies giv-ing a greater amount of power to a party who already had power before». Fromthis point of view, based on the different functionality of each mean, lock-outmay only be allowed very restrictively: lock-out is possible when exercised by theemployer as a policing power, as a reaction to situations that endanger people orthings; that is, solely to preserve the integrity of persons, goods and facilities,and only for as long as is necessary to remove such causes and ensure the re-sumption of activity. Such specific and limited purpose recognized to lock-outprevents it from being regarded as a measure of «collective action».

3. The legal regulation of the right to strike: Spain’s unusual regulative situation

The emphasis laid by the democratic Constitution of 1978 on the right tostrike as the typical expression of the structural social conflict contrasts, none-


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theless, with the unusual regulative situation of the same. Indeed, the strike ac-tion having been formerly prohibited and criminalized under Franco, onlyfound its legal recognition after the dictator’s death, in full political transition,by virtue of Royal Decree Law of Labour Relations of 4 March 1977 (DLRT),enacted when freedom of association had still not been recognized. This lawdistrusted and, at times, was clearly hostile toward the forms of collective self-protection that were not functionalized towards labour costs regulation.

The contrast with the new constitutional model of right to strike, promptedto lodge an appeal on the ground of unconstitutionality before the CC to repealthe DLRT as being contrary to the provisions of the Constitution. The appealconcluded with the aforementioned judgment 11/1981 of 8 of April in which,partially upholding the appeal, the CC passed up to nine judgements of uncon-stitutionality directly against the DLRT. For the rest, the political transitionregulation was declared in accordance to the SC, albeit with the important pro-vision that its rules must be interpreted according to the constitutional guide-lines indicated in the judgement.

However, the absence of a law developing the right recognized in article 28.2SC implies that the current legal regulation governing the right to strike is stillcontained in pre-constitutional law (DLRT), albeit interpreted conform to thenew constitutional values and rights. This has raised numerous interpretiveproblems that have been brought before the Courts, reaching the ConstitutionalCourt by virtue of «amparo» action (procedure for the protection of funda-mental right). The judicialization of the right hinders the designing of generalrules, while conflicting rulings may issue at the same time, a problem onlysolved by resorting to the necessarily extensive casa-law of the ConstitutionalCourt and, more recently, of the Supreme Court. This makes very difficult tostudy the Spanish regulation of the right to strike.

4. Ownership and exercise of the right to strike

As we saw above, article 28.2 SC attributes the right to strike «to the workers»for the purpose of defending their interests. In order to clarify the concept of«workers», and so establish ownership of the right, constitutional law is consid-ered, a priori, to have referred to workers in the legal-material sense. Accord-ingly, the following workers are legally entitled: civil servants, statutory andadministrative staff, and, of course, those subjects with an employment contract.However, as we shall see later, in important sectors of the public administrationand public services, the right to strike is restricted by imposing essential publicservices. This restriction, however, is determined by the sphere in which strikeaction is to be taken, the so-called essential community services, and not by thelegal status of the owners with regard to their employment relationship.

A specific problem has arisen in connection with foreign workers. Organic

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Law 8/2000 of 22 December set a subjective restriction in this point. Parallel tothe restrictions imposed on the exercise of trade union freedom, article 11states that immigrant workers were holders of the right to strike, but such rightcould only be lawfully exercised provided they had obtained a work permit. Theclear opposition of this article to International Treaties and to the notion ofworker of article 28.2 of the Constitution as well as the very functionality ofstrike action as a right has been considered a sufficient element in order to le-gitimate the questioning of the constitutionality of the norm. The issue was set-tled by CCJ 259/2007, of 19 December 2007, which partially upheld the appeal,declaring the unconstitutionality and invalidity of that portion of the OrganicLaw that declared the legal right to strike by foreign nationals living in Spain tobe dependent on their being in possession of a permit to work in Spain.

Another problem stands up with respect to the entitlement and exercise ofthe right to strike on behalf of self-employed workers and a special type offreelancers know as «economically dependent self-employed workers» as de-fined in Act 20/2007, on The Self-employed Workers’ Statute (SWS). Jurispru-dence understands that they are entitled to strike insofar as they belong to atrade union, who may call a strike by virtue of its freedom of action. It is moredoubtful that professional associations of self-employed workers may assimilatethese typically trade unionist powers and tactics, however it has been arguedthat the professional associations’ – not unions – authority to call a strike is im-plicitly recognized in the provisions of article 19. 2 SWS that recognizes theirright to «exercise collective defence and protection of the interests of self-employed professionals».

Despite this broad interpretation of the subjective realm of the right to strike,there are categories of public officials who are prohibited from exercising theright to strike, in the same way as they are denied the right of freedom of asso-ciation:

– Members of the armed forces and bodies subject to military discipline, suchas the Guardia Civil (Civil Guards).

– Judges, Magistrates and Public Prosecutors while they are active, although inthis case there is no provision explicitly prohibiting the exercise of the rightto strike, yet the prohibition is deduced from their exclusion from freedom ofassociation stipulated by OLTUF of 1985.

– Members of the Security Forces, both state-level police officers and regionaland municipal police, notwithstanding their right to freely associate.

On the other hand, the strike action is defined according to the well-knowformula – with Italian and French precedents – as a right «individually owned andcollectively exercised». This formula’s immediate consequence is to prevent thecollective powers of calling strikes to become monopolized by trade unions. Hav-ing rejected an «organic» concept of ownership of the right to strike, which would


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make it directly depend on freedom of association, the Spanish system devisedthis right independently, allowing organizations representing workers, such ascouncils or staff representatives, or all of them assembled, to validly call a strike.This conclusion also applies to the civil service for Staff Committees, as confirmedby article 15 of the Public Servants’ Basic Statute of 2007 that recognizes the rightto strike as «an individual right exercised collectively». However, it should not beforgotten that the collective party with powers to call a strike is typically the tradeunion, and that article 2.2.d) OLTUF recognizes this right to any union, regard-less of its implementation or representation inside or outside the company, sothat in practice, the «unionization» of the right to strike is very relevant.

5. Limits on the right to strike

Based on the premise that «no right, not even constitutional rights, are un-limited», the CC explained that the limits imposed on the right to strike by or-dinary legislation are considered to respect said right and be constitutional tothe extent that they are justified by the need to protect other constitutionalrights and other constitutionally protected assets, and do not exceed the limitsof the basic substance of the right to strike.

The limits of the right to strike can be classified as follows:

1. Procedural and formal limits. For the collective exercise to be «recognized» asvalid by the legal labour system, it must comply with a number of requirementsregarding the strike call, prior notice and formation of a strike committee. Thisis what is known as a «strike call procedure» regulated in DLRT. These limitsare considered constitutional to the extent that they are not based on arbitrarycriteria, are aimed at protecting other constitutionally protected assets and in-terests, and include restrictions «which are not so rigid and difficult to fulfill thatin practice they make exercise of the right impossible» (CCJ 11/1981).

2. Limits to the definition and legitimate aims of strike action and strike proce-dures. For this purpose «external» limits, affecting the claims behind thestrike are differentiated from «internal» limits, or the procedures applied tothe strike itself. The CC lays particular emphasis on streamlining these as-pects of the DLRT to bring it in line with the Spanish Constitution.

3. Limits derived from the protection of other constitutionally protected fun-damental rights or assets.

5.1 Formal and procedural requirements: notice, constitution of the strike committee andadvertising

CCJ 11/1981 declared that certain constraints set by DLRT to consider asvalid a decision to go on strike did not conform to the Constitution. Thus, at

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present, work councils may call a strike when voted by the majority of its mem-bers without requiring a higher percentage of majorities, something that sug-gests an aim to obstruct the exercise of this right. Regarding the trade union,deciding to call a strike falls under the union’s own authority, so the only possi-ble conditions can be those self-imposed by the union in its statutes. The strikedeclaration agreement must be reported to the employer or employers con-cerned and to the labour authorities. It must be in writing and given with a priornotice of five days, or ten days for essential services. The notice must contain theobjectives of the strike, the efforts made to resolve differences, the date of com-mencement of the strike and the composition of the strike committee, the bodyrepresenting the strikers as statutorily required (article 3.3 DLRT).

When calling a strike, article 3.3 DLRT requires the appointment of a «strikecommittee» whose function is to «participate in all union, administrative or ju-dicial actions undertaken to resolve the conflict» (article 5 DLRT). The com-mittee is a body representing the striking workers who undertakes «from thetime of notice and during the strike» to negotiate with the employer in order toreach an agreement ending the strike with «the same effects as the terms of acollective agreement» (article 8.2 DLRT).

It is, therefore «the body which defends and negotiates with a view to reach-ing a solution to the conflict» (CCJ 11/1981). This atypical representative bodyof workers’ interests throughout the strike also undertakes to ensure the so-called maintenance services for the safety of persons and things, regulated inarticle 6.7 DLRT, although the appointment of employees to cover these serv-ices is agreed between the employer and the strike committee itself. Thesemaintenance services should not be confused with the minimum services pre-scribed by the governing authority in the strikes affecting essential services tothe community. Safety and maintenance services are considered to be «servicesrequired to ensure the safety of person and things, maintenance of premises,machinery, installations, raw materials and any other measures needed to en-able the enterprise to eventually return to business» (article 6.7 DLRT). Theemployer may not in either case impose or define such services (CCJ 80/2005 of4 April).

Based on article 6.6 DLRT, whereby «the striking workers may peaceful dis-seminate information on the strike and carry out fundraising without coercion»,CCJ 120/1983 of 15 December has clearly stated that the power of information,publicity and extension of the strike are an essential part of the right to strike.But these actions must be peaceful and non-violent. Coercive or intimidatingpicketing behaviour are not protected.

5.2 Control over the objectives of the strike: external limits and illegal strikes

Article 11 DLRT defines the objectives that the strike may pursue. This isdone in a negative manner by providing a list of strikes declared illegal or un-


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lawful according to their objectives. In this area, the filtering or editing effectedby constitutional case-law has been intense because the constitutional strikingmodel differs drastically from this restrictive view of the functionality of thisright. Indeed, the strike is a mechanism included in collective bargaining, butdoes not exhaust its many purposes in this area, nor in the wider scope of whatis technically known as a labour dispute. It is a means of industrial action andtherefore shares its overall goals, in defense of workers’ economic and socialinterests, both before the employers and public authorities; it is thereby under-stood that this is a right involving citizen participation taking part in the proc-ess of gradual levelling of material inequality foreseen in article 9.2 CE. Basedon these coordinates, the list of illegal strikes in article 11 DLRT focuses on po-litical strikes, sympathy strikes (secondary) or strikes against convention; thisarea has been used to explain the new constitutionally guaranteed content ofthe right to strike; the constitutional doctrine is summarized below.

Article 11 a) DLRT stipulates that a strike is illegal when «started or upheldfor political reasons or for any other purpose beyond the workers’ professionalinterests». The «non-involvement» factor of the workers in a claim that is «nottheir own» has enabled the CC to consider the constitutionality of strikes di-rected against decisions of public authorities when affecting the workers’ inter-ests, such as, for example measures applied to the employment market regula-tion, or restructuring the social security or health system. There are many ex-amples of actions by the political power and the public Administration that af-fect the interests of workers, whether active, inactive, or retired from the labourmarket, and in general all measures that restrict social citizenship situations.

A very similar approach has led the constitutional doctrine to legalize sym-pathy or support strikes.

Regarding strikes against a collective agreement, article 11 c) DLRT declaresillegal any strike «intended to alter the terms reached in a collective agreementwhile it remains in force» which implied an implicit peace-keeping duty uponentering into the agreement and coinciding with its legal term. The CC, how-ever, interpreted this prohibition in a narrow sense when saying that althoughthe provision does not allow strikes intended to alter what has been collectivelyagreed during its legal term, nothing prevents the strike while the agreement isin effect when its purpose is not strictly that of altering the agreement, such asrequesting its interpretation or making claims that do not involve amendmentof the convention. Besides these two cases of strikes claiming the interpretationof the agreement or those concerning matters and issues unrelated to the termsof the agreement, there are two other cases in which the objective of the strike isdirectly related to the terms of the collective agreement, yet it cannot be con-strued as grounds for illegality. Such strikes are the result of an infringement onbehalf of the employer or business association of all or any of the collectivelyagreed terms; in the second case, the strikes respond to the finding that therehas been an absolute and major change in the circumstances on which the

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agreement was based, whereby the rebus sic stantibus clause applies. Thus, theimplicit peace-keeping duty lasting throughout the legal term of the collectiveagreement has been severely restricted in view of the multipurpose nature ofthe right to strike, not confined – by virtue of constitutional recognition – to thelimits set for collective bargaining.

5.3 Control of strike procedures: internal limits and unfair strikes

Pursuant to article 7.2 DLRT, certain types of strike action are unfair. Theseinclude rotating strikes, strikes in strategic sectors and «work-to-rule» or Italianstrikes. The provision does not mention intermittent strikes, so this method isnot deemed abusive and is thus considered lawful. CCJ 11/1981 understoodthat in principle the abuse of rights doctrine had been correctly associated tothe strike issue, because the right to strike «requires proportionality and mutualsacrifices, so when these requirements are not observed, the strikes may be con-sidered abusive». The argument is very controversial, however abuse of rights isdeemed to be present in strikes that «achieve the inevitable participation ofnon-striking workers, so that the concurrence of just a few extends the strike toall», or when the strike causes a multiplier effect to the unrest generated, «thustriggering the destruction of the company organization and its productive ca-pacity only to be possibly overcome long after the strike has ended»; lastly,when the number of striking workers is formally and apparently reduced, thusreducing the number of people not entitled to wages, and real strikers pretendnot to be on strike; «this feigning is contrary to the mutual duty of loyalty andhonesty that remains notwithstanding the strike».

It is therefore about forms of expression linked to how the right is exercisedand not to the content of the strike. The issue was raised in the Spanish doc-trine with the Viking and Laval case, brought before the Court of Justice of theEuropean Union. There has been a very critical reaction to this doctrinal ap-proach that opposes strike action and economic freedoms.

In any case, this statutory statement on «unlawful or abusive acts» of the abovestrike types is not absolute, yet it creates a presumption that such forms of exer-cise are contrary to the principle of proportionality and of mutual sacrifices;however, this may be proved unfounded in each case, while the burden of proofis on the workers. The constitutional doctrine states that to determine that astrike is predatory, «damages to the company is not enough, it is necessary thatdamages should be serious and intentionally sought by the strikers beyond whatis reasonably required by the activity itself and the requirements inherent to thepressure necessarily involved in the strike» (CCJ 72/1982, of December 2, andCCJ 41/1984 of 21 March).

As to the intermittent strike, CCJ 72/1982 of 2 December, it was included inthis same doctrine when claiming the following: «when the strike exercised is notexpressly included» among the strikes declared illegal or abusive «it must be pre-


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sumed valid, while not excluding the possibility of it becoming abusive undercertain circumstances», so in these cases the burden of evidence of its abusivenature is on the employer.

There is a form of strike, regulated in article 7. 1 DLRT that differs from thegeneral predatory strike regime, whereby the workers occupy the workplace (sit-down strike). The CC has declared that the sit-down strike statutorily conceivedas illegal referred to the «illegal entry into premises or an illegal refusal to leavein response to a lawful order to leave», when the occupation threatens the in-demnity of persons and safety of property; however, in no way can it be consid-ered illegal to «simply stay in the workplace» or the peaceful occupation ofpremises, while it is not possible to invoke article 7.1 DLRT «to prevent theworkers’ right of assembly required to implement the right to strike and to settlethe conflict». The occupation is thus considered illegal when there is «obviousdanger of breaching other rights or of creating disturbances», in which case «theprohibition of remaining in the premises may be ordered as a control measure»,which refers to the lockout option as interpreted in CCJ 11/1981.

This same technique of the unlawful strike presumption applies to thosestrikes called without meeting the formal requirements laid down in DLRT,strikes with an irregular exercise procedure referred to in article 11 d) DLRT.

5.4 Balancing strike action with other constitutional right and interests: strike action inessential public services

The legal system applied to the right to strike in essential public services isbased on article 28. 2 SC, which states that «[t]he law governing the exercise ofthis right shall establish the safeguards necessary to ensure the maintenance ofessential public services». This precept means that a certain limit is imposed onthe right when it is exercised in a particular sphere, i.e. essential public services.In this case, the constitutional right to strike «gives way» when the services af-fected by the strike are received by the entire community. If this were not so, «itwould result in a more detrimental situation than that which would affect thestrikers if their claims were not met or their aims not satisfied». In other words,«the strike cannot impose the sacrifice of the interests of those for whom the es-sential services are destined» because «the right of the community to benefitfrom these vital services has priority over the right to strike» (CCJ 11/1981).

Hence CCJ 11/1981 states that «paragraph 2 of article 10 DLRT, which givesthe government authority the power to enact the necessary measures to main-tain essential community services, is not unconstitutional, as the exercise of thispower is subject to the jurisdiction of the courts and of the «amparo» action be-fore this Court». Indeed, in the opinion of the CC the establishment of suchmeasures cannot be left to the «discretion of the strikers» as a «sole rule», «as itis hard for those involved to be both judge and judged» (CCJ 11/1981).

And so the CC, in accepting a technique to guarantee the maintenance of es-

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sential services, validated a political option inherited from the Spanish politicaltransition, whereby the governing authorities (and the executive power insofaras government political authorities) are conferred powers to decide which sec-tors must be regarded as essential services and the imposition of a minimumservice in the event of strike action.

In summary, therefore, one might describe the current strike system regard-ing essential services as a regulation focused on government bodies – being«politically responsible, either directly or indirectly, before the general public(CCJ 296/2006) –, therefore having a strong public component.

The authorities, by virtue of the powers conferred to them by article 10.2DLRT, manage the conflict as regards essential services, and may impose re-strictive terms on the exercise of the right to strike for workers and civil servantsand their representative organizations. The development of regulatory instru-ments on the right to strike within the framework of collective autonomy issomething ignored by Spanish law, focusing exclusively on the intervention ofthe public authority without any participation from unions in the auto regula-tion of the right of strike in this sector.

It is true however that this government power is subject to supervision by thecourts, and that this jurisprudential review and assessment of the constitutionalcorrectness of the public authority’s acts should be emphasized, as it means therecognition of the creative and shaping role of the courts in the design of theprescriptive framework and the limits to which governmental interventions aresecured, so that the jurisprudence, particularly that of the CC by means of the«amparo» action, shall be the one to define the discipline of strikes affecting es-sential services. However, when assessing this issue as a whole, and withoutthere being a law developing article 28.2 SC directly inspired by constitutionalvalues, the most striking finding is the active intervention by public authoritiesin the restriction of the right to strike, without allowing or encouraging unionparticipation in self-regulation of the conflict, against which a subsequent judi-cial review is irrelevant to preserve the right to strike unfairly sacrificed in fa-vour of other rights at stake.

Aware of this, the CC itself calls on lawmakers – whose failure to implementappropriate legislation on article 28. 2 SC it criticises – to establish «appropriateprocedures», and «means of bringing the corresponding decisions to impose es-sential services under direct legal control» (CCJ 123/1990). This is because courtdecisions to set aside government decisions to impose essential services, afterthe strike, do not repair the damages that said decisions could have caused. Infact, the government’s ignorance or failure to comply with the limits imposedon the exercise of its powers simply results in the invalidation of the order toimpose essential services and, as applicable, the consequences of said order –mainly, penalties arising from declaring the strike illegal. This, however, is notgrounds for granting compensation as a means of re-establishing the integrityof the right unfairly violated.


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Summarized below are the most notable features of the regulation of suchstrikes, both in regard to defining the concept of essential service, and theminimum activity to be maintained during the strike, i.e. the minimum service.

5.4.1 The essential public service notionThe constitutional interpretation of what is meant by essential services in the

context of a strike, especially in CCJ 26/1981 of 17 July, led to a broader notionthan «urgent or indispensable services», and referred to activities that soughtthe satisfaction of fundamental rights, civil liberties and constitutionally pro-tected property, to be defined in each individual case. A broad, bottom-line orresults-based definition of essential services was therefore adopted. Accordingto this, essential services are those aimed at satisfying the fundamental rights,public liberties and constitutionally protected assets of people, this being theinterpretation that «best satisfies the principles inspired by the Constitution»CCJ 26/1981).

Thus, a truly general clause of the essentiality of the service as the limit to theright to strike was created, which prevented the a priori definition of the activi-ties involved (CCJ 51/1986 y 53/1986 of 24 of April and 5 of may, respectively).The CC provided a flexible application of the notion of essential service to beadapted depending on certain parameters to the specific circumstances of thecase at hand. In these services deemed essential the governmental authoritycould order the maintenance of a minimum activity, the so-called minimumservice. The extent and intensity of this minimum service must be directly re-lated to the conflict it is regulating, which sets the exercise of the fundamentalright to strike against other fundamental rights protected in the Constitution,so the minimum service must solve this conflict of rights through a proper com-bination of them, or by a balanced limitation of the fundamental rights at stake.

This constitutional doctrine deals with two elements of undoubted impor-tance when imposing a minimum service: the decisive influence of the intendedresult of the activity in determining the essentiality of the service and, simulta-neously, the degree of impact of the strike on fundamental rights and civil lib-erties affected, which requires the analysis of the circumstances surrounding thestrike as defining elements of the above criteria.

The general clause technique to determine the essentiality of the service hasbeen applied in practice, allowing a number of sectors to be defined as essentialto progressively build up in order to limit the right to strike within the sector.

The Constitutional Court’s most recent doctrine has reacted against this ex-pansive trend when noting that «a priori, no productive activity can be regardedin itself as an essential service», and to consider a service essential «from an an-gle other than that of the right to strike» (such as has happened with publicbroadcasting) cannot replace the classification which, according to constitu-tional parameters, defines an activity or service as essential «for the purpose ofstrike action». CCJ 193/2006, of 19 June states that «The classification of the

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service is not enough to justify the restrictive measures and, where appropriate,such measures must adjust to the circumstances which should not only be seri-ous, but extremely serious».

5.4.2 Formal and material guarantees surrounding the act of imposing a minimumservice

As mentioned, once a service has been defined as essential, it is the publicauthority that must impose a minimum service to maintain activity during thestrike. The constitutional case-law has developed a series of requirements to bemet by the government act in order to respect the proper exercise of the rightto strike. Such requirements may be of a material or formal nature.

Indeed, as noted above, the classification of a service as essential does notusually foreshadow what may be the scope of the minimum service, and this de-pends on the specific assessment of the circumstances surrounding the strikecalled. In the words of the Supreme Court (SCJ 3 February 1998), the configu-ration of a service as essential «implies only a rational basis for the possible es-tablishment of minimum services, but this necessary condition is not enough,far from it, since one cannot disregard the specific circumstances of the strike.The inevitable conclusion is that the minimum services should be based on thespecific circumstances of the strike». Accordingly, the following issues must beconsidered: the duration of the strike called; the amount of staff involved in thestrike (personal scope); the geographical area affected; the possibility of substi-tuting the essential service affected with other unaffected services; the incisive-ness of the strike on the fundamental rights concerned, taking into account«when the rights are exercised» (CCJ 183/2006 and 193/2006, both June 19).

Two basic principles may be used as interpretative criteria in the final as-sessment (CCJ 26/1981, of July 17): the principle of proportionality of the sac-rifices and the principle of «least possible restriction» of the right to strike (favorlibertatis); the latter principle complements the first principle in cases where thefundamental rights in conflict are balanced. This basically means that the gov-ernment, in establishing essential services, must choose, whenever possible,measures guaranteeing the rights and assets involved – essential public services– that least restrict individual liberty, i.e., the right to strike.

These are, in short, the material guarantees for the imposition of a minimumservice, to be applied by the governing authority and based on specific groundsfor such act in keeping with the constitutional provisions. The importance ofthe specific circumstances of the strike and rights becoming affected by it is thecore of these criteria.

As to the formal guarantees requisite in the imposition of a minimum service,these are summarized in the following notions: that the act is properly moti-vated and justified, on the one hand, and it is issued by an authority with Gov-ernment responsibility and that it be an impartial public request.

Although it is obvious, the imposition of a minimum service act is a political


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responsibility «which should be applied by political channels and that shouldproduce the necessary political effects» (26/1981, CCJ 17 of July). Therefore thecompetence for its application should belong to State bodies exercising Gov-ernment powers directly or by delegation. This capacity pertains to the nationalGovernment (article 97 CE), and the delegates of the Government in theautonomous communities (CCJ 27/1989, of 3 of February) but also to the Coun-cils of Government of the autonomous communities (CCJ 33/1981, of 5 No-vember), even where there may be conflict in allocating powers in this area,which CCJ 233/1997, of 18 December seems to solve using as a criterion thecompetence – State or autonomic – on the public service concerned. The dele-gation of this competence is possible, but never to be effected by «cascading»through the administrative hierarchy or «sub-delegation». What is radically ex-cluded is that the power to impose minimum services be exercised by «bodies ofmanagement and administration of the service where the strike develops» (CCJ)53/1986, 5 may, CCJ 296/2006 of 11 October), since its decision cannot respondto the preservation of business interests, nor can the company perform that task(CCJ 233/1997, of 18 December, CCJ 193/2006, of June 19).

5.4.3 Jurisdictional control and excess authority in the establishment of minimum servicesThe judicial guarantee to the exercise of the right to strike in essential serv-

ices is applied, by virtue of its own constitutional suggestion, whenever facedwith a particular course of strike action, and always after the issuing of a Gov-ernment act imposing a minimum of activity, which is what the magistrate con-trols. But this mechanism does not wholly prevent the governmental authority,in the event of new strike calls, from taking renewed action imposing minimumservices that may be incorrect, thus violating the fundamental right, while thenew control and subsequent declaration of invalidity will not prevent the par-ticular strike from being quashed. This kind of vicious circle which allows re-peated authoritarian practices that exceed their authority in determiningminimum services has been sought to be addressed from a double angle:through precautionary measures and through compensation.

6. Residual nature of other techniques: compulsory arbitration ending thestrike

Although designed as a general measure, not limited to strike action in pub-lic services, article 10.1 DLRT establishes that the government, on a proposal bythe Ministry of Labour, «in consideration of the duration or consequences ofthe strike, the positions of the parties and the serious damage it could cause tonational economy», may agree on mandatory arbitration. This is a strictly politi-cal measure not only recommended by the central government but also by theautonomous communities that have taken over competence for «implementing

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labour laws». It has been used in disputes of a certain duration and scope af-fecting, mainly, the transport and cleaning sector, and has therefore been usedas an additional resource to complement the «generalised» resource of impos-ing essential services The government’s decision to make it compulsory to sub-ject settlement of disputes arising from strike action by essential services to ar-bitration must be taken on the grounds specified by article 10.1 DLRT, indicatethe specific terms subject to arbitration, and guarantee the impartiality of thearbitrators assigned to the case. These are the conditions under which themeasure is valid. The government’s decision to impose compulsory arbitrationcan be legally challenged if it lacks one or all of these requirements. The arbi-trator’s decision can likewise be challenged on the grounds established by theLabour Proceedings Law for challenging arbitral decisions. Both employers andworkers must accept the decision when it is published, and the labour authori-ties can impose penalties for incompliance. The strike must be called off. If itcontinues, it is considered an illegal strike.

7. The effects of strike action on industrial relations, on employment contracts,on corporate powers, and on social benefits

Exercise of the right to strike can be classified as legal or illegal, i.e. strike ac-tion not statutorily foreseen. The unlawfulness of a strike may only be decided bya judge, not by administrative authorities or of course by the employer’s privateauthority. One must distinguish between those «normal» effects caused by exer-cising the right to strike and the effects of the «unlawful» or «illegal» strike. Inparticular, the restriction of the employer’s powers during the strike is considereda consequence of the strike action and has entailed some amount of litigation.

The effects of a lawful strike on individual employment relationships aresummarized in three points: the strike may not lead to any kind of penalty bythe employer as a reprisal, whereby any such punitive actions, including dis-missal, are deemed null and void due to the violation of a fundamental right;exercising the right to strike suspends the employment contract and thereforethe reciprocal obligations (work and salary); the strike puts the worker in a spe-cial situation regarding the social security system, whereby workers are unableto receive social benefits, especially unemployment benefits, while the strikelasts.

Besides these classical effects of the strike on individual employment rela-tions, it is important to address the effects of the exercise of that right on thefaculties and powers of the employer. Typically these limits refer to restrictionson the hiring of workers and, more broadly, to limitations on the employer’spowers of direction and control, and result from the interplay between a transi-tional situation of irregular production and respect for the effectiveness of thestrike action as a means of pressure not to be inhibited by corporate action.


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The first restriction common to many legal systems is the prohibition to re-place striking workers by hiring other workers. The second issue stems from ajurisprudential doctrine later systematized by CCJ 123/1992 of 28 September,stating that during the strike situation the employer’s management powers areparalyzed – or «anesthetized» as stated by the Court in a figurative sense – be-cause it is an exceptional situation in the production process, so «the pre-eminence of the right to strike» has the effect of reducing the employer’s rights,such as management powers, «which in normal situations may and should dis-play their full potential». This means that the employer cannot resort to thefunctional mobility of workers to replace striking workers by the company’s ownnon-striking staff, or even to the geographic mobility for the same reason, or, inshort, any disposition of staff that results in a restriction or impediment to theeffectiveness of the right to strike.

Regarding the effects of illegal strikes on individual employment relation-ships, it should be noted that regardless of this classification, workers partici-pating in the same will be in the same situation as that analyzed in respect ofwage deductions and suspension of the obligation to contribute. What distin-guishes unlawful strikes at an individual level is that the employee is no longerprotected against the employer, thus finding him or herself in a situation ofpossible breach of contract, which may result in disciplinary measures appliedby the employer, including dismissal of an employee who has participated in anillegal strike. The DLRT includes its own grounds for dismissal in article 33 ofthe same text, to which the still current article 16 of the same refers. This spe-cific definition should be considered repealed from as far back as 1980. How-ever, this does not prevent the actions of the irregular striker being placedwithin the generic formula of article 54.1 WS, requiring the verification of a se-rious and culpable breach on behalf of the worker. That means that not allstrikers can be punished with dismissal, yet only those who, through their par-ticipation, have committed a serious and culpable violation of contractual goodfaith, something still known as «active participation» (according to a statutoryformula that goes back to Franco) in an illegal strike.

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Sweden has adopted the required EU labour and employment legislation onthe whole consistent with Sweden’s interpretation of these requirements. Forexample, Sweden adopted an Act on European Works Council in 1996 eventhough this institution is not used in the domestic Swedish labour law model.1

As Swedish collective agreements do not have erga omnes effect, implementationof EU requirements has been mostly through legislation.

As regards international public law generally, Sweden has adopted the dual-istic, rather than monistic, principle, entailing that international conventionsmust be enacted as Swedish law in order to be given effect as national law.When Sweden has ratified an international convention involving labour lawnorms without enacting the convention as national law, the ratification is con-sidered to create a presumption that current national law is in conformancewith the convention’s norms. However, individuals cannot assert the rights, onlystates, under any international instrument not yet enacted as Swedish law.

Sweden has signed the United Nations Universal Declaration of HumanRights (1948) and the International Covenant on Economic, Social and CulturalRights and the International Covenant on Civil and Political Rights (1966). Onthe Council of Europe level, Sweden signed the European Convention (1950),adopted it as law in 1995 effective 1998. Sweden has also signed the Council ofEurope Social Charter (1961) and the revised Social Charter (1996).

As regards the 185 conventions adopted by the ILO, Sweden is presentlybound through ratification to apply seventy-six, including the eight conventionsconcerning fundamental principles at work, the most relevant here with respectto strike being 1948 Convention concerning Freedom of Association and Pro-tection of the Right to Organise (No. 87) (signed 1948) and 1949 Convention

1 SFS 1996: 359.

SwedenLaura Carlson

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concerning the Application of the Principles of the Right to Organise and toBargain Collectively (No. 98) (signed 1949).

In the majority of cases, when the Swedish legislator investigated the ratifica-tion of an international instrument, the legislator found that Swedish law was al-ready in compliance with the international instrument and thus Swedish law didnot need to be amended. Certain of the protections in the ILO convention, forexample, equal pay between men and women (signed 1951) and unlawful em-ployment discrimination on the basis of ethnicity (signed 1958), have eventuallyhowever been transformed (both in 1991) to Swedish law as required by dualism.


The rules as to bargaining with respect to collective agreements are treatedas a matter internal for the labour market parties. In other words, each organi-zation determines those individuals who will be conducting negotiations. Thereare no external statutory rules as to bargaining. The social partners enter intocollective agreements on three levels, local, central and national.


Freedom of association and the right to take industrial action are constitu-tionally protected in Sweden for the social partners. There are no statutory re-quirements with respect to creating a labour organization or as to representingemployees.

The internal affairs of labour market organisations in general are not regu-lated by law. Section 11 of Chapter Two of the 2008 Discrimination Act expresslyprohibits unlawful discrimination on the basis of sex, transgender identity or ex-pression, ethnicity, religion or other belief, disability, sexual orientation or agewithin employee and employer organisations with respect to membership, bene-fits as well as participation in activities. Otherwise, each labour market organisa-tion regulates matters internally through its own organisational by laws.


There are few statutory requirements with respect to collective agreements withthe social partners having fairly extensive freedom with respect to the content inthe collective agreements. The statutory provisions concerning collective agree-ments and their legal effects are found mainly in Sections 23-31 and 41-44 of theCo-determination Act. In accordance with Section 23 of the Codetermination Act,a collective agreement is to be a written agreement that concerns employmentterms and conditions or the relationship in general between employees and theemployer. The primary issues taken up in collective agreements are wages andemployment terms and conditions. In addition to the collective agreements, indi-

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vidual employment contracts can be entered into between employers and indi-vidual employees. The main requirement as to an individual employment con-tract is that it may not be in conflict with the prevalent collective agreement. Col-lective agreements are legally binding on both parties to the agreement, as well ason the members of the organisations that have reached such agreements. There ishowever no erga omnes effect given to collective agreements.

Employers are also given the option to instead simply sign an already exist-ing collective agreement, a tie-in or accessory agreement (hängavtal), usuallycontaining a minimum of terms and conditions mirroring those found in thecollective agreement for the sector.


One area in which a gap between the Swedish and EU interpretations of therequirements under EU law arose was with respect to the posting of workers inthe Laval case. Since the judgment by the Court of Justice (2007), and subse-quently that of the Swedish Labour Court (2009), the Codetermination Act hasbeen amended with the objective of limiting the rights of unions to industrial ac-tion against foreign service providers with respect to only core issues, for exampleissues concerning wages, working time, discrimination and the work environ-ment. The Act on the Posting of Workers (1999: 678) was consequently amendedas a product of the Laval case. Two paragraphs were added, the first, Section 5a,stating that an industrial action against an employer for the objective of enteringinto a collective agreement concerning the employment terms and conditions forposted workers can be taken only if the terms and conditions demanded:

– Are comparable to those contained in a central collective agreement appliedthrough Sweden to comparable workers in that sector;

– Only concern minimum wages or other minimum conditions as set out inSection 5 of the same act; and

– Are more favourable to the employee that that set out in Section 5.

Any terms and conditions that are to be demanded by a labour union in sucha situation are to be submitted to the Swedish Work Environment Authority(www. av. se) under Section 9a, which is the authority charged with providinginformation to foreign service providers.


In the event one of the parties to a collective agreement is in breach, theparty wronged is to take the dispute to the Swedish Labour Court, pleading fordamages as taken up in Section 7 below. No equitable remedies can be awardedby the Swedish Labour Court.

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Referendums are not necessary with respect to signing a collective agreementor with respect to declaring a strike. They can be used a guidance for those re-sponsible for taking the decisions, or as a way of creating consensus as to thedecision, but generally are not binding.



The right to take industrial action is protected in the constitutional act, The In-strument of Government (1974: 152), article 2: 17, which states that a «trade unionor an employer or employers’ association shall be entitled to take industrial actionunless otherwise provided in an act of law or under an agreement». Consequently,the right to take industrial action is limited to the social partners (not the individ-ual employee) and can also be limited by legislation or collective agreement.

2.2 Sources

No legal distinction is made with respect to a strike and other types of in-dustrial actions. The protections afforded strikes are the same as those for in-dustrial action, with the statutory regulations concerning industrial actions (Sw.stridsåtgärder) as a group. The right to take industrial action is protected in theInstrument of Government as stated above, and the regulations concerningcertain issues as to the taking of industrial actions are those found in the Co-determination Act, attached as an appendix.


The right to take industrial action in Sweden is protected under the Consti-tution for the social partners. Consequently, this right is enjoyed by associationsof employees, individual employers and associations of employers unless other-wise prescribed by law or by an agreement. Individual employees cannot takelawful industrial action unless it can be deemed for a collective purpose, for ex-ample, establishing a trade union.


A party planning industrial action must give notice of such action at leastseven working days in advance to both the opposing party and the NationalMediation Office.

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The basic limitation as to the right to take industrial action is that such can-not be taken to change the terms of a prevailing collective agreement.


For the parties in the public sector, the Public Employment Act containscertain rules restricting industrial action in connection with the exercise ofauthority by public officials. In the case of work relating to the exercise of suchauthority, industrial action is only allowed in the form of lockouts, strikes,blockades on overtime and blockades on recruitment. Nor may sympathy ac-tions be taken by public workers in support of parties in the private labour mar-ket. Thus the law distinguishes between the exercise of public authority andother labour market activities. In the case of public activities other than the ex-ercise of authority, the Co-Determination Act rules on industrial action apply.



The rules concerning industrial action and peace clauses are mainly to befound in the Co-Determination Act. Peace clauses, as set out in the Co-Determination Act, restrict the right to take industrial action. Under theserules, it is prohibited in certain cases to initiate or take part in work stoppages(strikes or lockouts), blockades, boycotts or other action of a comparable nature.The ban applies to both employers and employees bound by collective agree-ments. Strikes, lockouts or other forms of industrial action may not be taken inorder to bring about changes in the collective agreement. The obligation tomaintain industrial peace covers not only that which is explicitly regulated inthe collective agreement, but also the collective agreement’s implicit supple-mentary rules concerning the employer’s right to manage the business. Further,the Co-Determination Act prohibits industrial action aimed at concluding acollective agreement with companies that have no employees or where the en-trepreneur or members of his family are employees and the sole proprietors.The law also bans certain types of industrial action. An employer may not aspart of an industrial action withhold pay or other remuneration that is due.

Collection blockades, i.e. blockades aimed at forcing the payment of due oroverdue pay or other remuneration for work completed, are allowed even if theparties are bound by a collective agreement. This however is contingent uponthe decision to institute a blockade having been taken in due order by the unionorganisation.

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The Co-Determination Act does not include any clause requiring the indus-trial action to be aimed at the opposing party. Industrial action against thirdparties is permitted even when the third party has nothing whatsoever to do withthe dispute or has in no way expressed loyalty for the opposing party. In addi-tion, the Co-Determination Act has no rules pertaining to industrial action af-fecting key functions in society. The issue of conflicts that put the community atrisk has been solved through collective agreements, which prescribe certain pro-cedures for dealing with such conflicts. There is also no general restriction inSwedish law, for example, such as the equivalent proportionality requirement inGerman law («Verhältnismässigkeit»), concerning the extent and form of conflictmeasures. Neither are such general restrictions inferred from the case law. Thelabour market parties, however, can be subject to certain restrictions as regardsthe right to industrial action by means of certain provisions in collective.

3.1.1 Political strikeThere are certain restrictions with respect to public employees taking indus-

trial action to influence domestic political decisions. As to private sector parties,the Co-determination Act does not explicitly prohibit genuine political actions.Actions of these kinds, however, may be carried out in ways that prevent an em-ployer from exercising its right to manage the business – a right derived fromthe collective agreement – for shorter or longer periods of time.

3.1.2 Solidarity strikeUnless otherwise agreed, a party to a collective agreement is entitled, how-

ever, to take secondary actions without any restriction whatsoever in order to as-sist another party in an on-going lawful labour conflict. This liberal right to takesecondary action means that both employer and employee organisations cantransform local disputes into national trials of strength. It should be particularlyemphasised that the right to take secondary action is rather extensive and is acentral tenet of Swedish labour market regulation. Even organisations bound bycollective agreements have the right to take secondary action in support of an-other party engaged in lawful industrial action, in which case the obligation tomaintain industrial peace, which normally follows from collective agreements,does not apply. The fact that such a possibility exists naturally supports thecentralisation of collective bargaining and collective agreement regulation.


Strike is not defined by statute, but instead included in the umbrella term ofindustrial action. Industrial action is also not defined by statute as the intent wasto not create a system of rules which the parties may try to circumvent by fol-lowing the letter of the law but not the spirit. The lawfulness of the industrialaction is based on its having the three prongs discussed above, objective con-

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cerning the employment relationship on an organizational level, an act or omis-sion affecting the other party, as well as a collective aspect to the act.

Actions that are defined by the penal code to be crimes, such a destruction ofproperty, are still criminally punishable. However, that the action is a criminalact does not automatically render the act an unlawful industrial action. Theparty committing the criminal act, however, may also be subject to paying pureeconomic losses in addition to any other damages (compensatory or nominal) asstated in the Tort Damages Act.

3.2.1 Anomalous forms of strikingAs stated, neither strike nor industrial action is defined by statute. Included

under the legislation as examples of industrial action are work stoppages(lockout or strike), blockade, boycott, or other therewith comparable industrialaction.

3.2.2 Forms of collective action different from the strikeAs industrial action is not defined by statute, any act failing within the pa-

rameters as seen above can be interpreted as an industrial action. In one case,the Labour Court found that an advertisement by two employees stating thatthey were seeking work was an industrial action, see AD 1976 No. 130.

3.2.3 Virtual strikeVirtual strikes are not part of the national legal scheme.


As stated, unlawful strikes under the statute are basically those strikes entail-ing industrial action in order to change the terms of a prevailing collectiveagreement. Unlawful strikes can also be these taken by individuals without theauthorization of the organization have competence in the issue.


The sanction for unlawful industrial actions by trade unions with respect tothe employer is civil damages. As stated, criminal acts are prosecuted by thestate, but not necessarily unlawful industrial actions.

A failure to give notice or industrial action in violation of a decision by theNational Mediation Office can result in an administrative fine from SEK 30,000to 100,000 as set out in section 62a of the Co-determination Act. In addition, ifthe National Mediation Office has requested that a noticed industrial action bepostponed, any party taking an industrial action in violation of the request canbe ordered under that same section to pay a higher penalty fine of at least SEK300 000 and at most SEK 1 million to the State.

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The majority of union bylaws state that the board of directors for that unionorganization is the only body competent to make a decision as to whether to goon strike. Individuals, whether members or non-members, do not vote on thedecision in the majority of cases. Once the decision has been made by the or-ganization to take industrial action, the opposing party as well as the NationalMediation Office have to be given notice of the intent to take industrial action.

An unorganized worker in the private sector can participate in a lawful in-dustrial action that has been approved by the appropriate employee organiza-tion. Notice has to be given of participation of unorganized workers in the pub-lic section as to a lawful industrial action according to Section 25 of the Act onPublic Employment.


In the event of a lawful strike, the current individual employment agreementbetween the employer and the employee is deemed to be suspended during theindustrial dispute. Consequently an employee has not violated the employmentagreement for failing to give notice of termination of the employment agree-ment prior to the taking of an industrial action. In the event an employee takesan unlawful industrial action not sanctioned by the union, the employee can besubjected to damage liability and/or termination of employment.

Certain industrial actions as taken by employers are prohibited during an in-dustrial dispute by Swedish law. These include evicting employees from em-ployer provided housing and the withholding of wages due.

In the event the employer provides housing to the employee, the Act (1936:320) on Protection from Eviction during Industrial Disputes protects the em-ployee from eviction as industrial action by the employer in its Section 1. If theemployer has presented a petition for eviction to a court, the Swedish Enforce-ment Agency or arbitration panel, for the eviction of an employee from anapartment that has been provided due to the employee’s employment, and givesthe information that the employee is participating in a strike at the employer’scompany or that he is the subject of a lock-out by the employer, the petitioncannot be granted, even if the employee is obligated to leave the premises, dur-ing the development of the conflict, until three months have passed from whenthe employee, based on the conflict, terminated employment.


In the event of an unlawful industrial action as called by the social partners,the side in error is to pay the other side damages. Individual employees can be

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held liable for unlawful industrial actions only up to a limited amount, todayapp. Euro 200. An employer can also in certain circumstances terminate theemployment of an individual employee involved in an unlawful strike. Ac-cording to the legislative preparatory works, such can be the case when an in-dividual has agitated or played an important role in a particularly grave, un-lawful strike.


Spontaneous strikes are by definition deemed unlawful in the Swedish systemas they are not sanctioned by the social partners.



Both social partners are free to take industrial action as protected by the con-stitutional act, the Instrument of Government. The Swedish Constitution pro-vides protection for the freedom of association from state action in article 1(5)of the Second Chapter of the Instrument of Government.2 In addition, article11 of the European Convention, enacted as law in Sweden through the SwedishHuman Rights Act in 1994, provides for the right to freedom of peaceful as-sembly and to freedom of association with others, including the right to formand to join trade unions for the protection of an individual’s interests.3

Sections 7 of the Co-Determination Act defines the «right of association» as«the right of employers and employees to belong to an employer organisationor employee organisation, to exercise the rights of membership and act for suchan organisation or for that such is established». Under Section 8, the «right ofassociation shall be left inviolate».4 An infringement of the right of association isto be deemed to occur where any party on the side of the employer or employeetakes such action that is detrimental to a party on the other side as a conse-quence of that party’s exercise of the right of association, or where any party onone side takes an action directed at the other party for the purpose of inducingthat party to not exercise the right of association. Such infringement is also tobe deemed to have occurred notwithstanding that the action was taken for thepurpose of fulling an obligation towards a third party. An employer organisa-

2 SFS 1974 (152).3 English translations of the Swedish constitutional acts are available at the website of the Swed-

ish Parliament at www.riksdagen.se.4 The statutory language of the act here is the same as in the December Compromise of 1906

originally protecting the right of association in the private sector.

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tion or employee organisation needs not tolerate any infringement of the rightof association that constitutes an infringement of its activities. Where there isboth a local and a central organisation, these provisions shall apply to the cen-tral organisation. Where infringement of the right of association occurs throughthe termination of an agreement or some other legal act, or by reason of a pro-vision contained in a collective agreement or other contract, such legal act orprovision is to be void.

Section 9 places the duty on the social partiers to stem unlawful actions:«Employer organisations and employee organisations shall be obliged to seek toprevent their members from taking any action that would infringe the right ofassociation. Where a member has taken such action, the organisation shall beobliged to attempt to persuade him to cease such action».

Consequently employers cannot limit the rights of employees with respect tofreedom of association and vice versa. However, an employer can use freedom ofexpression in order to express certain opinions that may be seen to be in con-flict with freedom of association, an issue presented in AD 1982 No. 33, wherethe Court found the employer’s statements that were derogative of the head ofthe local union to be within freedom of speech.

5.2 Lock-out

Lock-outs are not typically used by employers in Sweden, despite the absenceof any statutory prohibition, due to events in 1931 in the town of Ådalen inwhich five persons were killed by military forces. In the industrial sector, theemployer often shuts down operations entirely while a conflict is in progress.

In the event the employer provides housing to the employee, the Act (1936:320) on Protection from Eviction during Industrial Disputes protects the em-ployee from eviction as industrial action by the employer in its Section 1.


Wages that are due for payment are to be paid by employers and the em-ployer may not withhold due wages as an industrial action according to Section41b of the Co-determination Act.



The right to take industrial action is viewed as a cornerstone of the Swedishlegal system so that there are few if any parameters making the exercise of theright more difficult.

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The historical background as to the development of the Swedish labour lawmodel must be seen as strengthening the ability of the social partners to exercisethe option of industrial action. Two of the main umbrella organizations are over100 years old. One example of the financial strength this historical developmentand high degrees of organization have created can be seen with LO. Accordingto its operational report, LO had 1.2 billion Swedish crowns (approximately €120 million) as equity in 2009. It should be kept in mind that LO is the umbrellaorganization, with the national unions as members, not employees.


The Laval case very clearly demonstrated the international and Europeanties that the Swedish labour unions have. Other cases as referenced above alsodemonstrate this network.


The Swedish labour law model has been based on consensus as reached bythe social partners through collective agreements. The issue arises, however, asto what happens in the event agreement cannot be reach. There are three pro-cedural avenues open to the parties by statute depending on the conflict, arbi-tration, mediation or litigation. Even though it is possible to refer the majorityof labour disputes to arbitration, the use of arbitration procedures is relativelyrare on the Swedish labour market between the social partners. However, arbi-tration is used fairly extensively with respect to the organizations and theirmembers.

The Swedish National Mediation Office is empowered under the Co-determination Act to resolve industrial disputes through mediation, and in thefailure to reach a resolution, or with respect to other types of issues, the juris-diction of the labour court can be invoked.

The other avenue available to the social partners for the resolution of certaintypes of disputes is litigation before the Swedish courts. The delineation be-tween cases that are to be brought to the Labour Court and those to the districtcourts can be found in Chapter 2 of the 1974 Act. Generally, when the socialpartners are parties to the dispute concerning a collective agreement, the La-bour Court has jurisdiction as first and final instance. Other kinds of labourdisputes, for example, demands from non-organised employees or from organ-ised members who commence proceedings without the support of their union,are to be first adjudicated by the local district court. A party can appeal the de-cision of the district court concerning a labour or employment law issue to the

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Labour Court for final judgment. The Swedish Supreme Court can hear peti-tions for a judgment de novo from a labour court judgment, but to date has notyet granted any such motions.

The panel of judges hearing a case in the Labour Court normally consists ofthree legally-trained judges and four representatives from the labour marketorganisations, two each from the employers’ and employee’s sides. The labourmarket representatives are appointed on the recommendation of the most rep-resentative organisations. An organisation is entitled to bring a case to the La-bour Court on behalf of a member without that member’s explicit authorisation.In certain cases, such a discrimination cases, the ombudsmen are also empow-ered to bring cases on behalf of individuals, but only with their consent and af-ter the union has declined to litigate the case.

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Mr Hendy is right, however, to draw attention to the United Kingdom’s internationalobligations to recognise the right to strike contained in a number of instruments, in-cluding the Freedom of Association and Protection of the Right to Organise Conven-tion (No. 87) of the International Labour Organisation, which the UK was one of thefirst member states to ratify, in 1949. Sooner or later, the extent to which the currentstatutory regime is in compliance with those international obligations and with rele-vant international jurisprudence will fall to be carefully reconsidered.1

1. Introduction

According to Lord Justice Maurice Kay in a recent decision of the Court ofAppeal, the right to strike in the United Kingdom is not much more than a slo-gan.2 This extraordinary statement was made in a case in which Unite the Un-ion was restrained by an injunction from taking industrial action during a cam-paign to establish collective bargaining machinery for London bus drivers.

Although supported in a ballot of the workers in question, the action wasstopped in the courts for a number of reasons, including an alleged failure onthe union’s part to give proper notice to the employer of its intention to ballotfor industrial action. The union had provided information about the numberand categories of workers to be balloted, but had failed to explain, in the case ofsome workers, how the numbers had been calculated.3 The union also falteredon the ground that it had failed to notify the employer as soon as reasonablypracticable after the ballot result had been declared.

The ballot result in favour of industrial action had been declared at noon on1 September 2008, but not communicated to the union office until the followingday (the 2nd), and not to the general secretary until the day after that (the 3rd) –at which point the employer was told. Not good enough, said the Court of Ap-

1 [2009] EWHC 3541 (QB), para 27. See R. Dukes (2010) 39 ILJ 82.2 Metrobus Ltd v Unite the Union [2009] EWCA Civ 829.3 Trade Union and Labour Relations (Consolidation) Act 1992, ss 226A, 234A.

United KingdomKeith Ewing

on behalf ofInternational Centre for Trade Union Rights

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peal. The Act says that the information must be communicated not as soon asreasonable, but as soon as reasonably practicable after the ballot result is de-clared.4 The union was tripped up by this «hard temporal burden».5

Welcome to the world of pedantry, the thread that binds the tight legal re-strictions on the freedom of trade unions to exercise what is recognised by in-ternational human rights instruments as a fundamental human right, and whichin many countries is protected by constitutional law. Metrobus is perhaps the firstin a rash of recent decisions caused by a virus now affecting employment rela-tions, in which employers are rushing off to the courts at the advice of corporatelawyers, apparently oblivious to their professional duty to prmote human rights.

The Metrobus decision was all the more remarkable for the fact that the em-ployer had the opportunity to find out about the irregularities before the strikehad started, and indeed had allowed one period of industrial action to proceedbefore pouncing in the courts for an injunction to stop a second period of ac-tion, on the basis of alleged irregularities (some of which were said to havetaken place even before the ballot was held).

The fact that the employer either knew, or had the means to know, aboutthese irregularities at that stage – and thus had the means to do somethingabout them and avoid the union running up large costs – was irrelevant. Somuch for the idea that he who comes to equity must do so with clean hands.

2. No Right to Strike in the United Kingdom

It is well known that there is no right to strike in the United Kingdom. It didnot need the Court of Appeal in the Metrobus case to remind us that the right tostrike is simply a legal metaphor.6 In a more recent decision of the same court,it was explained that a strike by workers (for whatever reason) will typically con-stitute a breach of contract by the workers involved and give rise to liability onthe part of the union for inducing the workers to break their contracts of em-ployment.7

The consequence of this liability is that, at common law, industrial action maybe restrained by an injunction in proceedings brought by the employer, whomay also be able to recover damages for losses covered. These common law li-abilities have evolved in relation to trade union action since the late 19th cen-tury, as the courts invented new heads of civil liability to restrain industrial ac-tion after criminal liabilities and sanctions had been lifted by Parliament.

4 Ibid., s 231A.5 Para 120.6 Para 118 (Kay LJ).7 RMT v Serco Ltd; ASLEF v London and Birmingham Railway Ltd [2011] EWCA Civ 226, para 2.

See Ruth Dukes (2011) 40 ILJ 302.

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Indeed one of these cases – the Taff Vale Railway case – is often credited asbeing responsible for the formation of the Labour Party,8 as the trade unionssought means to overrule a decision that established liability in damages forlosses suffered by an employer as a result of industrial action. The reversal ofthat decision was secured by the Trade Disputes Act 1906. Described by KeirHardie at the time as organised labour’s Magna Carta, the 1906 Act falls someway short of that mark, but it did establish a legal form for the protection of thefreedom to strike that continues to this day.

Thus, rather than give trade unions and their members a right to strike, the1906 Act provided an immunity to trade unions and their officials for certainacts that would otherwise be unlawful (such as inducing breach of a contract ofemployment), provided the action was done «in contemplation or furtheranceof a trade dispute», as defined in the Act.9 The Act also gave trade union fundsan almost complete protection, in the sense that a trade union could not besued by an employer seeking to recover losses sustained in the course of a dis-pute.10 This would be important where the action of the union fell outside thescope of the immunity (i.e. as not being in contemplation or furtherance of atrade dispute, as defined by the Act).

This method of protecting the freedom to strike (in the form of an immunityrather than a right) continues to this day. The current law was introduced in itspresent form by a Labour government in 1974 (which also eschewed the princi-ple of rights) and was heavily amended and qualified by the Thatcher govern-ment before being consolidated in the Trade Union and Labour Relations(Consolidation) Act 1992.11 The latter was subsequently amended by the Majorgovernment in 1993, and to a limited (and largely unhelpful) extent by theBlair government in 1999 and 2004.

With all its modifications, the 1992 Act thus retains a limited immunity fromliability for acts done in contemplation or furtherance of a trade dispute,though the latter term has also been amended and narrowed so that the immu-nity applies only to disputes involving workers and their own employer.12 So ina recent case involving the NUJ there is no protection where the trade uniontook action against the corporate holding company which made the decisionssubsequently implemented by the subsidiary companies which formally em-ployed the journalists.13

Over the years, the immunity has been (i) withdrawn from certain forms of

8 Taff Vale Railway Co Ltd v ASRS [1901] AC 426.9 Trade Disputes Act 1906, s 5 for the definition.10 Ibid., s 4.11 See especially 1992 Act, s 219.12 The definition is now to be found in 1992 Act, s 244.13 The injunction was uncontested. See http://blogs.journalism. co.uk/editors/2010/05/18/nuj-

johnston-press-blocks-staff-strike-with-legal-action/.

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action which was once protected, such as secondary or solidarity action,14 and(ii) made conditional on certain procedural obligations being met before theaction is taken.15 The latter include the duty to conduct a secret postal ballot ofthe workers to take part in the industrial action, and the duty to give varioussorts of notice to the employer and to the members of the union. It is these no-tice provisions which have given rise to such difficulty for trade unions in recentcases, the unions now being required to (i) inform the employer that it intendsto conduct an industrial action ballot at least seven days before the ballotopens;16 (ii) provide the employer with a copy of the ballot paper at least threedays before the ballot takes place;17 (iii) inform the employer of the ballot result(as soon as reasonably practicable) after the ballot takes place;18 (iv) inform themembers of the union of the ballot result (again as soon as reasonably practica-ble after the ballot takes place);19 and (v) inform the employer of the intentionto strike (at least seven days in advance), and indicate whether the action is tobe continuous or discontinuous.20

3. Right to Strike and Convention Rights

Article 11 of the ECHR protects the right to freedom of association, statingthat «Everyone has the right to freedom of peaceful assembly and association,including the right to form and join trade unions for the protection of his inter-ests». Article 11(2) then qualifies this right in the usual way, by allowing a num-ber of restrictions where these are prescribed by law and necessary in a demo-cratic society for the protection of a wide range of interests, including the rightsand freedoms of others. The rights and freedoms of others would include theinterests of employers – interests which we might expect to be lapped up by theEnglish courts. Indeed the Court of Appeal has not only done so, but it has alsodiscovered a Convention-protected right for this purpose in the shape of theright to private property in the first protocol to the Convention.21

14 1992 Act, s 224.15 1992 Act, s 226.16 1992 Act, 226A.17 1992 Act, s 226A (1)(b).18 1992 Act, s 231A.19 1992 Act, s 231.20 1992 Act, s 234A. Action discontinuous if it intends it to take place only on some days on

which there is an opportunity to take the action, and continuous if it intends it to be not so re-stricted (s 234A(6)).

21 Metrobus, above, para 45: «this is not legislation in which only the interests of unions and theirmembers are relevant. It would be surprising if it were otherwise, given that a balance is in anyevent necessary between the rights afforded to workers by article 11, on the one hand, and therights of the employer under article 1 of the First Protocol to the Convention on the other».

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3.1 New Approach in the European Court of Human Rights

For many years, article 11 was interpreted narrowly by the European Courtof Human Rights, beginning with a line of cases in the 1970s, in which it washeld that the right to freedom of association did not imply that trade unionshad a right to be consulted, to bargain collectively, or to organise collective ac-tion.22 This narrow approach was justified as being driven by the original intentof the authors of the treaty. While taking a narrow view of the positive right toassociate freely, the same court subsequently held that the right to freedom ofassociation also implies a limited right not to associate23 – the scope of thatnegative right being extended in subsequent cases.24 This latter developmenthad serious consequences for closed shop practices operating in a number ofmember states of the Council of Europe, and was taken despite the clear inten-tion of the authors of the treaty that the positive right to associate should notinclude the negative right not to associate.25 In these latter cases, the Court’sreasoning was thus rooted in a different approach to interpretation, the Courtadopting «a living instrument» approach, rather than the «original intent» ap-proach that had influenced the earlier decisions on the right to bargain and theright to strike.

This willingness of the Court to use the Convention to undermine, ratherthan protect, trade unions fuelled the suspicion of labour lawyers about humanrights, which were seen by many as another instrument of labour control ratherthan labour protection. These suspicions were reinforced by developments inthe national courts of a number of countries – notably Canada, Ireland and theUnited States – which had the doubtful benefit of constitutionally entrenchedrights (the content and scope of which relying exclusively on the courts).26 On12 November 2008, however, the European Court of Human Rights redeemeditself big time in a decision on article 11, following a complaint from Turkeywhere the courts had invalidated a collective agreement between a local gov-ernment employer and a public service trade union. According to the Turkishcourts, under Turkish law, trade unions have the right to exist, but have nopower to conclude collective agreements. As a result, the union in that case hadno remedy under Turkish law when the employer unilaterally repudiated an

22 See National Union of Belgian Police v Belgium (1975) 1 EHRR 578.23 Young, James and Webster v United Kingdom (1982) 4 EHRR 483.24 Sigurjonsson v. Iceland (1993) 16 EHRR 462.25 As pointed out but ignored by the Court in Young, James and Webster, above.26 See T. J. Christian and K D Ewing, «Labouring under the Canadian Constitution» (1988) 17

ILJ 73. The position in Canada appears to be changing following a recent decision of the SupremeCourt of Canada: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia[2007] SCC 27, though see now Fraser v Ontario (AG) 2011 SCC 20. The position in Ireland re-mains grim. See Ryanair v Labour Court and Impact [2007] IESC 6.

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agreement it had freely entered into. Not only that, but the court ruled that theagreement was void, and that any benefits paid to union members under theagreement had to be returned to the local authority. There is also a suggestionthat, in separate proceedings, the officials of the employer who sanctioned theagreement would be personally liable for any losses which might not be recov-ered.

3.2 Implications of the New Approach

The complaint filed with the Strasbourg court in 1996 eventually led to a de-cision in favour of the union in 2006, whereupon the Turkish governmentasked for the matter to be examined by a Grand Chamber of 17 judges. Thiswas a big mistake: the Grand Chamber was not only unanimous in upholdingthe decision of the third section of the Court, but did so in a way that cast asidethe old jurisprudence, announcing that article 11 is now to be read very widelyto include the right to bargain collectively.27 In taking this bold step, the Courtexplained its new approach as being necessary to keep pace with changing de-velopments – referring in particular to the international labour standards thatprotect the right to bargain collectively, the provisions of the Council ofEurope’s Social Charter and the EU’s Charter of Fundamental Rights, as well asthe law and practice of other member states of the Council of Europe. But notonly did the court hold that the right to bargain collectively must now be readinto article 11 – in doing so it suggested that the substance of the right mustmeet the minimum standards set by ILO Convention 98,28 and that any restric-tions or qualifications on that right will be permissible only if they are also per-missible under ILO Convention 98.

Having thus held that the right to bargain collectively was now protected byarticle 11, it was a short step to hold that the right to engage in collective actionwas protected as well. In a subsequent case, the court found that there had beena violation of article 11 in circumstances where the Prime Minister’s departmentin Turkey had prohibited a one-day strike by civil servants. Informed by the de-cision in Demir and Baykara (as well as by international labour convention andthe Council of Europe’s Social Charter), this case was significant for recognisingthat the right to strike is a right of the union, and that the union can make acomplaint where a strike has been banned. In subsequent cases, the Court has

27 Demir and Baykara v Turkey, 12 November 2008.28 Ibid, para 157: «The absence of the legislation necessary to give effect to the provisions of the

international labour conventions already ratified by Turkey, and the Court of Cassation judgmentof 6 December 1995 based on that absence, with the resulting de facto annulment ex tunc of the col-lective agreement in question, constituted interference with the applicants’ trade-union freedom asprotected by article 11 of the Convention».

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underlined the view that the right to strike is now covered by article 11, but indoing so has upheld claims from trade union members who claimed to havebeen the victim of hostile action by the State or by their own employer. Theright to strike is thus the right of the union and of individual workers, and theConvention is violated by bans on the exercise of the right to strike and by pen-alties on workers, which include criminal sanctions, discrimination in the allo-cation of work or selection for redundancy, and disciplinary action. What is lessclear from this evolving body of case law, however, is the precise scope of theright to strike. To what forms of industrial action does it apply, and what per-missible limits may be imposed by the State?29

4. Right to Strike and International Standards

So what are the international standards to which the Strasbourg court re-ferred? There are now several international treaties respecting trade unionrights (to organise, to bargain and to strike), including the International Cove-nant on Economic, Social and Cultural Rights of 1966. The latter, however, wasnot relied on by the Court, which has been concerned more with the conven-tions of the International Labour Organisation – a UN agency based in Geneva,established as part of the Treaty of Versailles in 1919. ILO Conventions aretreaties under international law, and are binding on those states that ratifythem. So far as trade union rights are concerned, these are drawn not only fromthe ILO Constitution but can also be found in ILO Conventions 87 and 98,which deal with freedom of association (a term which has been said by the bod-ies responsible for supervising the operation of the Conventions to include theright to strike).30 The Strasbourg Court has been concerned also with the SocialCharter of the Council of Europe. Issued originally in 1961, and revised in1996, the Charter deals with a wide range of social rights, but at its core aretrade union rights: the right to organise, bargain and strike (articles 5 and 6).Indeed in the preamble to the Revised Social Charter reference is made to «theindivisible nature of all human rights, be they civil, political, economic, social orcultural».

29 Although these questions have not been answered, none of the cases on the right to strike postDemir and Baykara have been unsuccessful on this or on any other ground. The reasoning of theCourt in Demir and Baykara in relation to collective bargaining strongly suggests that the scope ofthe right to strike must at least meet the standards set by the ILO, and that any restrictions will bepermissible only if consistent with ILO standards: ibid, paras 162-7.

30 B. Gernigon, A. Odero, and H. Guido, «ILO Principles Concerning the Right to Strike» (1998)137 Int Lab Rev 441.

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4.1 The ILO

So far as the ILO is concerned, the United Kingdom has been found inbreach of treaty obligations in every cycle of supervision by the Committee ofExperts since 1989. The Committee of Experts is a body of international juristswhose members include British High Court judge, Mrs Justice Cox (and whosemembers in the past have included Earl Warren before he became Chief Justiceof the US Supreme Court, and Archibald Cox before he became RichardNixon’s nemesis). In 1989, the Committee’s seminal report on the UnitedKingdom said that, generally

The Committee has always considered that the right to strike is one of the essentialmeans available to workers and their organisations for the promotion and protectionof their economic and social interests as guaranteed by articles 3, 8 and 10 of theConvention (General Survey, paragraph 200). It has also taken the view that restric-tions relating to the objectives of a strike and to the methods used should be suffi-ciently reasonable as not to result in practice in an excessive limitation of the exerciseof the right to strike (General Survey, paragraph 226. See also paragraphs 218-220).31

Apart from emphasizing the need for protection against common law liabilityand criticizing the restrictions on solidarity and sympathy action, the Commit-tee also said that

the fact that the definition now refers only to disputes between workers and «their»employer could make it impossible for unions to take effective action in situationswhere the «real» employer with whom they were in dispute was able to take refuge be-hind one or more subsidiary companies who were technically the «employer» of theworkers concerned, but who lacked the capacity to take decisions which are capable ofsatisfactorily resolving the dispute.32

As regular as clockwork, the Committee has repeated its criticisms of the UKin relation to the right to strike (as well as on other grounds) almost every twoyears.33 In its most recent reports, however, the Committee has had to address afresh concern: namely, the implications in UK law of the European Court ofJustice decision in the infamous Viking case. The ECJ in Viking held that indus-trial action interfering with the freedom of business to move freely betweenmember states was unlawful under the EC Treaty, giving rise to the possibilityof unlimited damages against a trade union.34 This led in 2009 to threats being

31 CEACR, Individual Observation Concerning Convention No 87, Freedom of Association andProtection of the Right to Organise, 1948 United Kingdom (ratification: 1949) (1989).

32 Ibid.33 These reports are easily accessible on the ILO website.34 Case C-438/05, The International Transport Workers’ Federation & The Finnish Seamen’s Union v Vi-

king Line ABP & Oü Viking Line Eesti, 11 December 2007.

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issued by BA in a dispute involving the airline pilots’ union BALPA that if aproposed strike went ahead the company would seek to recover damages forlosses alleged to be in the region of £100 million a day, even though the strikewas lawful under English law.35 Following a complaint to the ILO, the Commit-tee of Experts was appalled by these developments and took the view that thedoctrine that was being «articulated in these ECJ judgments is likely to have asignificant restrictive effect on the exercise of the right to strike in practice in amanner contrary to the Convention [87]».36 The Committee concluded that

In light of the observations that it has been making for many years concerning theneed to ensure fuller protection of the right of workers to exercise legitimate in-dustrial action in practice, and bearing in mind the new challenges to this protec-tion as analysed above, the Committee requests the Government to review the [do-mestic law] and consider appropriate measures for the protection of workers andtheir organizations to engage in industrial action and to indicate the steps taken inthis regard.37

4.2 Council of Europe’s Social Charter

It is not only the ILO. Similar problems have arisen under the Social Char-ter, as revealed by the most recent report of the Social Rights Committee, thebody of jurists responsible for the supervision of the Charter. On 16 December2010, the Committee reported its conclusions on the United Kingdom’s com-pliance with the so-called labour provisions of the Charter. Here we find that,out of the 13 provisions examined by the Committee, the United Kingdom wasin breach of no fewer than ten, and conforming with only three of the obliga-tions examined.38 The measures in questions related to the right to just condi-tions of work, the right to fair remuneration, the right to organise, the right tobargain collectively, and the right to strike. So far as the right to strike is con-cerned, it was found that the violations existed not for one but for multiple rea-sons. Like the ILO, the Committee also repeated a number of conclusions thatit has been making for many years now. These included criticisms of restrictionson the parties against whom industrial action may be taken, as well as on thesubject-matter of disputes:

35 The union took the unusual step of seeking a declaration in the High Court that its actionwas lawful. But the legal action was discontinued after a few days, whereupon the strike was calledoff. See K D Ewing and J Hendy QC, «The Dramatic Implications of Demir and Baykara» (2010)39 ILJ 2.

36 CEACR, Individual Observation Concerning Freedom of Association and Protection of theRight to Organise Convention, 1948 (No. 87) United Kingdom (ratification: 1949) (2010).

37 Ibid.38 European Committee of Social Rights, Conclusions XIX-3 (2010) (United Kingdom).

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In its previous conclusions (Conclusions XVII-1, Conclusions XVII-1) the Committeefound that lawful collective action was limited to disputes between workers and theiremployer, thus preventing a union from taking action against the de facto employer ifthis was not the immediate employer. It furthermore noted that British courts ex-cluded collective action concerning a future employer and future terms and condi-tions of employment in the context of a transfer of part of a business (University Col-lege London NHS Trust v UNISON). The Committee therefore considered that thescope for workers to defend their interests through lawful collective action was exces-sively circumscribed in the United Kingdom. Given that there have been no changesto the situation, the Committee reiterates its finding that the situation is not in con-formity with article 6§4 of the Charter in this respect.39

Otherwise, the Committee addressed two other concerns about the positionof the United Kingdom, the first of which was germane to the granting of in-junctions to employers in recent trade disputes. Thus,

The Committee considered in its previous conclusions (Conclusions XVII-1, XVIII-1)that the requirement to give notice to an employer of a ballot on industrial action, inaddition to the strike notice that must be issued before taking action, is excessive(even the simplified requirements introduced by the Employment Relations Act (ERA)2004). As there have been no changes to the situation, the Committee reiterates itsfinding that the situation is not in conformity with article 6§4 of the Charter in thisrespect.40

The other issue addressed by the Committee related to consequences of in-dustrial action – the Committee again concerned about the inadequate protec-tion for workers who take part in lawful strike action. Although it is no longerthe case that workers dismissed for taking part in a lawful strike are without aremedy for dismissal, the Committee was nevertheless unimpressed by the factthat the protection against dismissal is not guaranteed after the first 12 weeks ofthe dispute.41 The Committee found «the period of twelve weeks beyond whichthose concerned lost their employment protection to be arbitrary»,42 and de-spite fresh arguments from the government, reiterated its conclusion of theUK’s non-conformity, given that the legal position had not changed since itslast report. In a comprehensive report, the Committee thus concluded that thesituation in the United Kingdom is not in conformity with article 6 § 4 of theCharter on the following grounds:

x the scope for workers to defend their interests through lawful collective ac-tion is excessively circumscribed;

39 Ibid.40 Ibid.41 See Trade Union and Labour Relations (Consolidation) Act 1992, s 238A.42 European Committee of Social Rights, Conclusions XIX-3, above.

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x the requirement to give notice to an employer of a ballot on industrial action,in addition to the strike notice that must be issued before taking action, is ex-cessive;

x the protection of workers against dismissal when taking industrial action isinsufficient.43

5. Back to the Right to Strike in the United Kingdom

It is in this context of rising international standards on the right to strikethat we return to the United Kingdom. The starting point is the law set downin the early Victorian era. As we have seen, trade unions rely on an immunityprovided by Parliament for the freedom to engage in industrial action (theyhave no right to do so); but the immunity applies only – in the words of thestatute – to «acts done in contemplation or furtherance of a trade dispute».44 Aswe have also seen, since 1984 this limited immunity has been subject to thecondition that the union conducts a secret postal ballot of its members and,since 1993 that the union complies with a number of onerous notice require-ments before embarking upon industrial action. As already pointed out, it isthese latter provisions that have been responsible for the rash of recent injunc-tions to stop industrial action, despite the fact that the industrial action con-cerned was in furtherance of a trade dispute and fully-supported by a ballot(sometimes with overwhelming votes in favour, on turnouts that would makepoliticians green with envy).

5.1 De-Railing the RMT

The notice requirements are extremely detailed and seem designed disin-genuously to ban the right to strike by erecting procedural barriers which areimpossible to climb. Thus, under the first of the three main notice require-ments, the union must notify the employer of its intention to hold a ballot forindustrial action. The notice must contain information about the categories ofworkers who are to be included in the ballot, as well as information about theworkplaces of the workers to be balloted. In EDF Energy Ltd v RMT45 the uniongave notice of its intention to ballot 52 «engineers/technicians» in the course of

43 Ibid.44 A trade dispute is defined in turn to mean a dispute between workers and their employer

which relates wholly or mainly to one of seven permitted items listed in the statute – including, forexample, terms and conditions of employment.

45 [2009] EWHC 2852 (QB).

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a dispute about pay, this categorisation of the workers being in accordancewith the information held in the union’s records. According to the High Court,this was insufficient information; the union should have complied with theemployer’s request to be supplied with information which would identify the«fitters, jointers, test room inspectors, day testers, shift testers or OLBI fitters».This is despite the fact that the legislation simply requires the employer tosupply such information as the union has in its possession – the union beingtold in this case that it should have asked its shop stewards to provide the ad-ditional information required by the employer. According to Mr Justice Blake(in decision upheld by the Court of Appeal),46 the information given by theunion was insufficient; it should have contacted shop stewards to «obtain theparticular functions in which each employee was engaged». This is despite thefact that the law only requires the union to provide information that it has inits possession, and despite the fact that the law requires the union to informthe employer of the categories, rather than the functions, performed by theworkers concerned.

The EDF Energy case was followed by Network Rail Infrastructure Ltd v RMT,47

in which the union gave notice of its intention to ballot members in a disputeabout health and safety on the railways. In its notice of intention to ballot, theunion provided inaccurate information about the places of employment ofsome of its members, rather than incomplete information about their «cate-gory». In this case, some of the workplaces listed did not exist, while othershad no union members. In addition, the union was unaware of the workplacesof some of the workers to be balloted – in which case it said «workplace un-known». The nature of the industry is such that it is difficult for the union tomaintain up-to-date records, but in this case there was clear evidence that theunion had nevertheless gone to considerable lengths to comply with the legis-lation. These efforts were overlooked, the union being chastised by the courtfor failing to make use of information provided by the employer in 2008, re-lying instead on information which it had sought from the employer for thepurposes of the ballot in 2009. The fact that it had relied on the more recentinformation provided by the employer did not «excuse the failure to take obvi-ous and simple steps which were available to it to check the information ithad»,48 even though the more recent information might be thought to havedisplaced the earlier data.49

46 [2010] EWCA Civ 173.47 [2010] EWHC 1084 (QB).48 Ibid, para 50.49 The union was also told that it should have made direct inquiry to those members about whom

it had incomplete data (again despite the fact that the legislation says clearly that the union is re-quired only to provide such information as it has in its possession).

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5.2 Grounding Cabin Crew

RMT has not been the only victim of this litigation, with Unite also fallingunder the sword wielded by the courts – in cases involving Metrobus, BritishAirways and Milford Haven Port Authority. The courts were pulled into the BAdispute on two occasions. On the first, the union had balloted its members forindustrial action in relation to a dispute about crew levels on certain flights.The ballot led to an overwhelming 92.49% voting in favour of industrial actionon a turnout of 80%. Nevertheless, the High Court granted an injunction onthe ground that the union had given incorrect information about the numberof people who were to be balloted and inaccurate information about the num-ber of people who would be taking industrial action.50 (In addition to the listsof the categories and workplaces of those involved, the union must provideinformation on the numbers in each category and at each workplace, as well asthe total numbers of those likely to be involved.)51 Here the information pro-vided by the union included details of an unknown number of people the em-ployer claimed (but did not establish) were likely to take voluntary redundancyand so were unlikely to take part in the proposed industrial action. This is de-spite the fact that there were only 1,003 such people out of a voting constitu-ency of 10,286 employees, of whom 9,514 voted in the ballot. Even if all 1,003had voted against the action, their participation would not have affected theoutcome of the ballot.

The granting of the injunction on 17 December 2009 led to the holding of asecond ballot – said in the Court of Appeal to have been «impeccably con-ducted» – in which 9,282 people voted (representing 79.39% of those eligible tovote).52 Again, the majority in favour of industrial action was massive, with 7,482in favour and 1,789 against. Here, however, the union was tripped up not be-cause of the ballot or the industrial action notice it had given to the employers,but because of the notice of the ballot result it gave to its members. In this case,an injunction was granted by the High Court in a legal argument relating inpart to the way in which the union informed its members (on the website and bytext), and to the question of whether all members had been notified of the 11spoiled ballot papers. Again, neither the method of communication nor the in-formation provided, affected in any way the fact that this was a ballot that hadproduced an overwhelming majority in favour of industrial action. Nor wasthere any evidence that any members of the union had not been made aware ofthe ballot result or that they were concerned about the manner of its communi-cation. Nevertheless, it was only the intervention of the Court of Appeal (albeitin a tense 2:1 thriller) reversing the High Court that prevented the legal system

50 British Airways plc v Unite the Union [2009] EWHC 3541 (QB).51 1992 Act, s 226A, 234A.52 British Airways plc v Unite the Union (No 2) [2010] EWCA Civ 669.

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from plumbing the depths of insanity – the Lord Chief Justice questioningwhether as a matter of principle it can be appropriate that even a complete fail-ure to inform the Union members – not the employers – of the fact that an in-finitesimal proportion of spoilt ballots were returned which could have had nopossible bearing on the outcome of the ballot could leave the Union liable intort for calling a strike which had the support of the vast preponderance of itsmembers. At the risk of repetition, it does indeed seem curious to me that theemployers can rely on a provision designed to protect the interests of membersof the Union in order to circumvent their wishes.53

6. The Human Rights Act

Since the Metrobus decision on 31 July 2009, there have been at least eightcases where unions have been restrained by the High Court from taking indus-trial action.54 In five of these cases it has been necessary for the unions to appealto the Court of Appeal,55 and in four of these cases,56 the union has succeeded,as the Court of Appeal has gradually wearied of the technical nonsense wherebyinjunctions are granted by trigger-happy High Court judges to restrain the ex-ercise of a fundamental human right – High Court judges such as Mr JusticeBlake, Mrs Justice Cox, Mr Justice McCombe, Mr Justice Sweeney, Mr JusticeRamsey, Mr Justice Tugendhat, and Mrs Justice Sharp. But although the Courtof Appeal has, in these ways, stopped some of the more fanciful arguments byemployers’ legal teams, it has not stopped them all. Nor does it mean that tradeunions do not suffer adverse consequences, even in those cases where they win.In the Milford Haven case, for example, the union re-balloted rather than waitfor the forensic lottery to run its course.57 More to the point, however, why is allthis even happening? After all, this is the era of the Human Rights Act, in whichthe European Court of Human Rights has said that Convention rights includethe right to strike, and in which the domestic courts are directed by Parliamentto have regard to the decisions of the Strasbourg court (with its glorious refer-ence to ILO Conventions and the Social Charter) in the determination of Con-vention rights?

53 Ibid., para 62.54 EDF Energy, Network Rail Infrastructure, British Airways plc, British Airways plc (No 2), Milford Ha-

ven Port Authority, Johnson Press, Serco Ltd and London and Birmingham Railway. Not all employer ap-plications were successful. Sometimes the slot machine jams: London Underground Ltd v ASLEF[2011] EWHC 7 (QB).

55 EDF Energy, British Airways (No. 2), Milford Haven Port Authority, Serco Ltd and London and Bir-mingham Railway.

56 British Airways (No. 2), Milford Haven Port Authority, Serco Ltd and London and BirminghamRailway.

57 Milford Haven Port Authority v Unite [2010] EWCA Civ 400.

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6.1 Crashing the Metrobus

The answer lies in the blow delivered to trade union rights by the Court ofAppeal in Metrobus and maintained by the Court of Appeal in all but the mostrecent of its subsequent decisions. In the Metrobus case it had been argued thatthe restrictive trade union law must now be read consistently with Conventionrights, the court’s attention being drawn not only to Demir and Baykara v Turkey,but also Enerji Yapi – Yol Sen,58 where it was held that the right to freedom of as-sociation includes the right to take collective action as well as to engage in col-lective bargaining. It is true that Lord Justice Lloyd accepted that the latter was«a decision to the effect that action to prevent participation in a strike, or toimpose sanctions for such participation is an interference with the right to free-dom of association under article 11, for which justification has to be shown inaccordance with article 11 paragraph 2».59 But pouring cold water on the ideathat the right to strike might thereby be protected in English law, he continuedby saying that

The contrast between the full and explicit judgment of the Grand Chamber in Demirand Baykara on the one hand, and the more summary discussion of the point in EnerjiYapi-Yol Sen on the other hand is quite noticeable. It does not seem to me that itwould be prudent to proceed on the basis that the less fully articulated judgment inthe later case has developed the Court’s case-law by the discrete further stage of rec-ognising a right to take industrial action as an essential element in the rights affordedby article 11.60

The attention of the Court of Appeal was also directed to ILO Conventions inwhich the right to strike is recognized (notably Convention 87), as well as theCouncil of Europe’s Social Charter of 1961. It is true that these instrumentshave not been incorporated into English law and that, as international treaties,they cannot be enforced in the domestic courts. The point here, however, is thatthis material (including the jurisprudence of the supervisory bodies of the ILOand the Council of Europe) was relied upon by the European Court of HumanRights not only to justify reading the right to freedom of association widely toinclude the right to bargain and the right to strike, but also to inform the sub-stance and content of these rights. But according to Lord Justice Lloyd:

interesting as this material is, it does not, for the purposes of this appeal, affect thesubstance of the points arising under the ECHR itself. To the extent that materialfrom these and similar sources informed the decision of the Court in Demir andBaykara, it provides part of the context for that decision. I do not regard it as relevant

58 Enerji Yapi-Yol Sen v. Turkey (Application No. 68959/01), 21 April 2009.59 Metrobus Ltd v Unite the Union [2009] EWCA Civ 829, para 35.60 Ibid.

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in any more direct way to the present appeal. The ILO general survey confirms whatone might expect, namely that member States have a widely differing variety of legis-lative provision on these points. The binding effect of article 11 of the ECHR doesnot restrict the scope for a wide variety of different legislative approaches, other thanin a rather general way, at the extremes. Such variety is to be expected and is per-mitted by the margin of appreciation permitted to member States as regards confor-mity with the Convention.61

6.2 Stalling in the Court of Appeal

The effect of this blinkered reasoning was that developments under the Hu-man Rights Act stalled while employers were racing to the High Court for theirinjunctions to stop strike action, sometimes for the most feeble and trivial rea-sons. The impact of Metrobus was soon to be seen in the EDF Energy case, whereConvention rights were considered at first instance but dismissed by Mr JusticeBlake.62 The latter was bound by Metrobus, dismissing arguments based on Con-vention rights simply on the ground that:

In Metrobus as the court concluded that the requirements as to pre-strike notificationand ballots were not onerous or oppressive and did not unduly restrict the exercise ofthe right to strike.63 I would accept for present purposes Mr Hendy’s submission thatlocating the interpretation of the legislation within the context of an important rightcould be a pointer to construction in a debateable case and could be a guide to avoidunreasonable requirements being imposed upon the union that might otherwise besaid to interfere with the right. It may also in appropriate cases be relevant to discre-tion whether any failure by the Defendant is merely a technical one and has no mate-rial impact upon the employer’s ability to make use of the information. But for rea-sons that follow, in my judgment, neither consideration requires further explorationon the facts of this case.64

Convention rights were raised before Mrs Justice Cox in the first British Air-ways case, but she too was bound by Metrobus to conclude that «the statutory re-quirements relating to ballots and strike notification Part V of the 1992 Act donot unduly restrict the exercise of the right to strike; that the legislation hasbeen carefully adapted over many years, in order to balance the interests ofemployers, unions and members of the public; and that its provisions are pro-portionate».65 Similar noises were made in Network Rail Infrastructure, where MrsJustice Sharp thought it important to note that «Metrobus establishes these re-

61 Ibid., para 50.62 [2009] EWHC 2852 (QB), para 4.63 As a result, the contested restrictions in the Act were «not disproportionate restrictions on

rights under article 11» (para 113).64 [2009] EWHC 2852 (QB), para 465 [2009] EWHC 3541 (QB), para 27.

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quirements are proportionate and compliant with the European Convention onHuman Rights».66

While Convention rights were thus being ignored by the High Court (as theywere bound to do in the light of Court of Appeal authority), the EDF Energycase provided an opportunity to revisit this question and for a differently con-stituted Court of Appeal to do better second time around. But again the courtfluffed its lines. John Hendy QC, representing the union, invited the court tore-open the matter, on the ground that «the Metrobus decision, very recent deci-sion as it is, has not had the opportunity of fully taking into account a smallnumber of further Strasbourg decisions».67 But in rejecting this opportunity torevisit the matter, Lord Justice Rix said that «none of those decisions in any wayshows that Metrobus is clearly to be set aside on the basis of Strasbourg jurispru-dence», while he was also to have regard to House of Lords jurisprudence that«precedent must be given effect even in the context of ECHR disputes». So whatabout the possibility of punting this into the Supreme Court to test Mr Hendy’s«bald submission» that «Metrobus was wrongly decided»?68 No chance of that ei-ther, in view of the fact that the dispute «has now happily been settled» so thatthe matter was now «academic».69 So the matter lay until March 2011, not beingrevisited in either the Milford Haven Port Authority or the British Airways (No. 2)cases, since the injunctions were lifted in both these cases without the need torely on Convention rights.

The injunction in Milford Haven was in fact the low point in what has been a long de-cline into absurdity. In giving notice of its intention to take industrial action, the un-ion is required to say whether its industrial action will be continuous or discontinu-ous.70 In Milford Haven the union gave notice that it planned to take both continuousand discontinuous action. Fine, said Mr Justice Sweeney. But the notice should havebeen on two separate sheets of paper.71

7. Fresh Approach to Convention Rights

If the High Court in the Milford Haven Port Authority case plumbed newdepths in the historic conflict between workers, trade unions and the courts, thedecision of the Court of Appeal in RMT v Serco Ltd and ASLEF v London andBirmingham Railway Ltd scaled new heights.72 The latter is a historic decision inwhich the Court of Appeal finally recognises not only the defects of English

66 [2010] EWHC 1084 (QB), para 16.67 [2010] EWCA Civ 173, para 13.68 Ibid.69 Ibid, para 17.70 1992 Act, s 234A.71 See Milford Haven Port Authority v Unite, above.72 [2011] EWCA Civ 226.

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common law which «confers no right to strike in this country»,73 but also theimportance of «various international instruments», in which these rights areopenly acknowledged.74 Not only that, but the court has at long last further ac-knowledged that the European Court of Human Rights in Strasbourg «has in anumber of cases confirmed that the right to strike is conferred as an element ofthe right to freedom of association conferred by article 11(1) of the EuropeanConvention on Human Rights».75 This «recognition of a right to strike» meansthat the anti-union laws are not to be strictly applied against trade unions, thecourts no longer to start from the presunption that Parliament intended thatthe interests of employers always to hold sway.76

An injunction was granted against ASLEF in this case, first because the unionhad inadvertently included in the ballot two members who were not entitled tovote. This was a genuine mistake, openly acknowledged by the union; but it didnot affect the result of the ballot. As reported by the Court of Appeal, ballot pa-pers had been sent to 605 drivers. Of the 472 who voted (a turnout of 78%), 410(87%) voted in favour of industrial action. The accidental inclusion of the twomembers not entitled to vote was said by the appeal court to be trivial andtherefore excusable. A second ground for the injunction was that the union hadprovided inaccurate information in the notice of their intention to hold a strikeballot. Unbelievable though it may seem, the notice was said to be inaccuratefor including the two disputed members. At the prompting of John Hendy QCfor both unions, however, the Court of Appeal took a robustly realistic view ofthe situation, reminding employers everywhere that the duty on the unions un-der the legislation is simply to provide a notice that is accurate in relation to theinformation actually held by the union. In other words, the union is not under aduty to go looking for information to satisfy the convenience or whim of theemployer, the Court of Appeal’s decision in this respect calling into questionthe validity of the injunctions granted against RMT in earlier cases involvingNetwork Rail and EDF Energy.77

A third ground for the injunction was that the union had failed properly toexplain to the employer how it had arrived at the information contained in theballot notice. The union had said that the information was based on unionmembership records, which had been updated and audited to ensure accuracy.Not good enough, said Mr Charles Bear QC for London Midland. In his view,the union should have disclosed precisely who did what and when, as well aswhen the records were last updated. And not only that. According to Bear, thenotice was fatally flawed for being a «conclusion» rather than an «explana-

73 Ibid., para 2 (Elias LJ).74 Ibid., para 8.75 Ibid.76 Ibid., para 9.77 See above, paras 20, 21.

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tion»,78 a distinction he had previously persuaded the High Court to accept inthe Network Rail Infrastructure case, and a good example of the kind of nonsensethat the RMT in particular has had to put up with in recent cases. But the Courtof Appeal was having none of it, taking the view that «nothing is to be achievedby stating which particular officer obtained the information, or on which par-ticular day, or whether contacts with local officers were by email or phone».79

Nor was the court having any of the employer’s argument that the union hadgiven an inaccurate explanation by claiming that it had audited its records be-fore giving the information to the employer. In a withering rebuttal of the ar-guments presented by the employers’ legal team, Lord Justice Elias said that:

In assessing the accuracy of the explanation, it must be born in mind that the unionofficials providing it are not drafting a statute, and nor are they required to use undueprecision or accuracy in their use of language. In my view the courts should not takethe draconian step of invalidating the ballot, thereby rendering the strike unlawful,simply because the term used to describe a particular process is infelicitous. In myjudgment the description of the process undertaken would have to be positively andmaterially misleading before the explanation could be said to fall short of the statu-tory requirement.80

Having discharged the injunction against ASLEF, the appeal court also dis-charged the injunction against RMT, and did so for similar reasons. In thiscomprehensive victory for ASLEF and the RMT, the Court of Appeal stressedthat the freedom to take industrial action was not to be constrained by ridicu-lous arguments invented by lawyers. Nor was it the role of the court to «set trapsand hurdles for the union which have no legitimate purpose or function».81

True, many of the other traps and hurdles of the anti-union legislation remain.Nevertheless, the confidence of employer legal teams will have taken a realbattering from this decision, with big companies no longer in a position to letlawyers take control of their employment relations. The pendulum is swingingin other ways too: these cases establish the duty of the courts to take into ac-count the unions’ right to strike in international law, when applying or inter-preting the statutory ballot notice provisions, and the nature and scope of theobligations they impose. The next step will be to have the ballot notice provi-sions removed altogether. The obligation to require a ballot notice at all is inbreach of the right to strike guarantees in the European Social Charter, and theattempt to have them removed completely is the subject of an important RMTchallenge in the European Court of Human Rights, which is also looking at thetotal ban on all forms of solidarity action in English law.

78 [2011] EWCA Civ 226, paras 41, 96.79 Ibid., para 94.80 Ibid., para 103.81 Ibid., para 94.

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8. Conclusion

RMT v Serco Ltd and ASLEF v London and Birmingham Railway Ltd represent aseismic shift in English law, and mean that trade union action will not be quiteso easily restrained in the future. Returning to Mr Justice Maurice Kaye, nolonger can it said that in English law the right to strike is no more than a meta-phor or a slogan. On the contrary, «the ECHR has in a number of cases con-firmed that the right to strike is conferred as the right to freedom of associationconferred by article 11(1) of the European Convention on Human Rights whichin turn is given effect by the Human Rights Act». As Lord Justice Elias pointedout, however, «the right is not unlimited and may be justifiably restricted underarticle 11(2)».82 In Metrobus, the current statutory restrictions in their full glorywere found not to constitute a breach of article 11, having regard to article11(2). Although the point was made in the two most recent Court of Appealcases by John Hendy QC for the unions that 174the detailed complexity of theballoting provisions, and their unnecessary intrusion into the union’s processes,involves a disproportionate interference with the article 11(1) right175,83 it wasnot pressed on the ground that so far as the Court of Appeal was concerned, thequestions had been answered by Metrobus.

So although the most recent decision of the Court of Appeal has (i) acknowl-edged a right to strike from Convention rights via the Human Rights Act, (ii)instructed the High Court that it must not start from the presumption in in-junction proceedings that the law has to be construed against trade unions, and(iii) probably removed some of the «traps and hurdles» set by the courts beyondthose erected by Parliament, it has yet (iv) to succeed in removing any of themajor obstacles to the right to strike built up in legislation in the years since1980, whereby British labour law became the most restrictive in Europe. That isa battle that will now have to be fought in the Supreme Court or in the Euro-pean Court of Human Rights. So despite RMT v Serco Ltd and ASLEF v Londonand Birmingham Railway Ltd, Metrobus still governs in substance. Although it mayno longer be true to say as a matter of principle that the right to strike is nomore than a slogan, it remains an altogether different matter in practice. Sercorepresents the attempt by a well-informed court (two of its members are pastpresidents of the Employment Appeal Tribunal) to regain some ground fromthe much less well-informed court that sat in Metrobus (none of its members hadthe same specialist knowledge or experience), which seemed determined to en-sure that the right to strike should be lost even as a slogan.

Without diminishing the significance of the most recent decisions of theCourt of Appeal, Metrobus and the body of cases that followed in its wake reveala number of uncomfortable truths about trade union freedom and human

82 Ibid., para 8.83 Ibid.

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rights in British law. It is because of the common law (law made by judges whohave choices) that industrial action is unlawful, yet it is to the same judges thatwe must now appeal to interpret the statutory immunity from common law li-ability purposively. The right to freedom of association in the ECHR, which issupposedly enforceable in English law, includes a right to strike in accordancewith international human rights standards. Yet our courts stubbornly refuse tocomply with the obligations imposed upon them by Parliament. The HumanRights Act has thus made no impact on the substance of the law that has beencondemned by international human rights agencies since 1989, though it hashelped at least one Court of Appeal to stop the imposition of additional judicialburdens on trade unions. While this is not to be diminished, it remains the casethat the introduction of a right to strike in the United Kingdom will not comeas a result of the Human Rights Act but as a result of pressure on the govern-ment from the Strasbourg court.

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Many persons, with different tasks, participated in the works that brought tothe realization of the volume The Right to Strike in the EU. The complexity of thenorms and safeguarding efficacy. It is impossible to refer the contribution of eachparty to the common work because in a team work the final result goes beyondthe merit of the single participants. By the way as the coordinator of the re-search I have the duty to thank among all the persons those who with a moredegree of continuity and loyal spirit of collaboration contributed to the publica-tion of this volume.

First of all I thank the colleagues that wrote the national report, for theirprecious contributions and very rich informations and observations and fortheir disponibility, the spirit and the careful participation with which they fol-lowed the research.

I warmly thank Giuseppe Ferraro who followed from the beginning the de-velopping of the research and who wrote the italian report. His excellent sug-gestions and his experience were a leading guide in the selection of the funda-mental matters and in the investigation technique.

I have to thank warmly also Julia Triolo who with attentive examination andrare patience realized the translation of the reports and assays.

Finally I am sincerily grateful to CGIL, in particular to Nicola Nicolosi andFabrizio Solari who gave me the opportunity to experience a unique form ofstudy and close examination of one the most important matter of the unionright.

Carmen La Macchia

Acknowledgements

Finito di stamparenel mese di dicembre 2011

dalla Tipografia O.GRA.RO.Vicolo dei Tabacchi, 1 - Roma

The Right to Strike in the EU

Documents

Transcript of The Right to Strike in the EU