THE RIGHT TO STRIKE IN THE ELECTRICITY SECTOR IN EU COUNTRIES
Peter Fairbrother, David Hall, Steve Davies, Nikolaus Hammer, and Emanuele Lobina
THE RIGHT TO STRIKE IN THE ELECTRICITY SECTOR IN EU COUNTRIES
Peter Fairbrother***, David Hall*, Steve Davies**, Nikolaus Hammer***, and Emanuele Lobina*
A study commissioned by the Enérgeia Foundation
May 2002
*** Critical Research on Economic and Social Transformation, Cardiff School of Social Sciences, Cardiff University * Public Services International Research Unit, University of Greenwich ** Public Services International Research Unit, Cardiff University *** Critical Research on Economic and Social Transformation, Cardiff School of Social Sciences, Cardiff University * Public Services International Research Unit, University of Greenwich Professor Peter Fairbrother, Cardiff University School of Social Sciences, Glamorgan Building, King Edward VII Avenue, CARDIFF CF10 3WT, UK Email: [email protected] Website: www.cf.ac.uk/socsi Tel: + 44 (0) 29 20 875155
David Hall, Director, Public Services International Research Unit (PSIRU), School of Computing and Mathematics, University of Greenwich, Park Row, London SE10 9LS, UK Email: [email protected] Website: www.psiru.org Tel: +44 (0)208 331 9933
ISBN: 1-872330-71-1 Table of Contents
1 INTRODUCTION...... 5
2 INTERNATIONAL AND EU LAW...... 6
2.1 ILO Convention on Freedom of Association...... 6
2.2 United Nations Organisation ...... 6
2.3 Council of Europe: European Social Charter...... 6
2.4 EU Provisions on the Right to Strike ...... 7 2.4.1 EU Treaty...... 7 2.4.2 Charter of Fundamental EU Rights...... 7 2.4.2.1 No Explicit Right to Strike ...... 7 2.4.2.2 Recognition of Public Services ...... 7
3 RIGHT TO STRIKE IN ELECTRICITY IN EU COUNTRIES...... 8
3.1 Constitutional Protections (Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Portugal, Spain, Sweden)...... 8
3.2 Legal Recognition of the Right to Strike (Belgium, Denmark, Finland, Germany, Greece, Luxembourg, Netherlands, Portugal, Spain, Sweden) ...... 8
3.3 Collective Agreements (Austria, Denmark, Finland, Germany, Greece, Luxembourg, Netherlands, Portugal, Spain, Sweden) ...... 9
3.4 Social Peace Obligations (Austria, Denmark, Finland, Germany, Greece, Luxembourg, Portugal, Sweden) ...... 9
3.5 Legal Immunities (UK, Ireland)...... 9
4 REGULATION OF STRIKES IN PUBLIC SERVICES...... 11
4.1 The Right to Strike ...... 11 4.1.1 Prohibitions on Right to Strike (Austria, Denmark, Finland, Germany, Greece) ...... 11 4.1.2 General Procedural Restrictions on Right to Strike (Belgium, Finland, France, Luxembourg, Ireland, Netherlands, Portugal, Spain, United Kingdom) ...... 11 4.1.3 Essential Services (Austria, Belgium, Finland, France, Germany, Greece, Netherlands, Portugal, Spain, Sweden) ...... 12 4.1.4 Voluntary Application (Belgium, Denmark, Finland, Germany, United Kingdom)...... 12 4.1.5 Intervention (All Countries)...... 13
4.2 Right to Strike in Electricity...... 13 4.2.1 Right to Strike...... 13 4.2.2 Restrictions on the Right to Strike ...... 14 4.2.3 Limitations on the Right to Strike ...... 14 4.2.4 Contention ...... 14 4.2.5 The Place of Government ...... 15
1 4.2.6 Recent Events...... 15
4.3 Principles...... 15
5 THE EU ELECTRICITY DIRECTIVE AND ELECTRICITY SYSTEMS...... 17
5.1 EU Electricity Directive ...... 17 5.1.1 Public Service Obligations: Must Be Explicit ...... 17
5.2 Managing Electricity Networks ...... 17
6 ITALY...... 19
6.1 The Electricity Sector in Italy ...... 19 6.1.1 Structure and Changes...... 19 6.1.2 Companies and Ownership...... 19 6.1.3 Operation of the Market and System...... 20
6.2 The Legal Basis of the Right to Strike in Electricity in Italy ...... 20 6.2.1 Implementation ...... 21 6.2.2 Obligations If a Strike Is Declared...... 22
6.3 The 2001 Collective Agreement ...... 22 6.3.1 Intervention by the Commission...... 23
6.4 Selective Strike Action in the Electricity Sector...... 23
7 DISCUSSION...... 25
7.1 Key Issues...... 25
7.2 Recommendations ...... 25 7.2.1 Procedure ...... 26 7.2.2 Guidelines for Social Partners ...... 26 7.2.3 Principles...... 27
8 ANNEXES ...... 29 Annexe I. International Regulations on the Right to Strike ...... 29 I.i ILO Convention 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) ...... 29 I.ii United Nations Organisation...... 30 I.iii European Social Charter (Turin, 18 October 1961)...... 31 I.iv EU Provisions on the Right to Strike ...... 32 I.v EU Provisions on Essential Services and Electricity...... 34 Annexe II. Ownership and Structure of the EU Electricity Sector ...... 36 Annexe III. The Right to Strike in Essential Services in EU Countries (excl. Italy) ...... 41 III.i AUSTRIA...... 41 III.ii BELGIUM...... 45 III.iii DENMARK ...... 50 III.iv FINLAND...... 55 III.v FRANCE...... 58 III.vi GERMANY...... 62 III.vii GREECE ...... 65
2 III.viii IRELAND...... 68 III.ix LUXEMBOURG ...... 71 III.x NETHERLANDS ...... 74 III.xi PORTUGAL ...... 77 III.xii SPAIN ...... 80 III.xiii SWEDEN...... 84 III.xiv UNITED KINGDOM...... 86
Abbreviations
ECJ European Court of Justice EDF Electricite de France ES Essential Services EU European Union GRTN Gestore Rete Trasmissione Nazionale ILO International Labour Organisation OPEC Organisation of Petroleum Exporting Countries RTPA Regulated Third Party Access RtS Right to Strike SB Single Buyer TSO Transmission System Operator UK United Kingdom UN United Nations
3 Executive Summary
The report was commissioned to examine the regulation of the right to strike in essential services in EU countries, for the purposes of informing policy making on this subject in Italy. The research presents an extensive review of the international, EU, and national law, regulations, provisions and practice relating to the right to strike in essential services, and electricity in particular, in all EU countries. It includes:
§ a survey of international regulations on the right to strike, by the ILO, the UN and other bodies, § relevant provisions at EU level, including the importance of the EU electricity directive, § the law, regulations and practices governing the right to strike in general, and restrictions in essential services, in each EU countries, § an account and discussion of current arrangements in Italy; and § a discussion of these themes and recommendations.
The analysis of these aspects is supported by an Annexe, which contains the detail of the international and EU regulations, as well as extensive detail on practice in every EU country.
The report reaches the following main conclusions concerning regulation and practice in the EU:
§ Either explicitly or implicitly all EU countries acknowledge the right to strike. § The need for some restrictions on the right to strike in essential services is widely accepted. § There is no single set of principles for defining ‘essential services’. § In all EU countries the procedures relating to industrial action in ‘essential services’ are in general left to the social partners to apply through collective agreements and/or self- regulating codes of trade union practice. § Governments often intervene in industrial action in essential services. § Outside Italy, no EU country gives a special role to a Commission or a plc to determine the impact of industrial action in ‘essential services’. § Legislation restricting the right to strike on an occupational basis seems to have generally fallen into disuse.
On this basis the study makes a series of recommendations addressed to policy makers and social partners in Italy, under three broad categories:
(a) Procedural recommendations for specific measures (b) Guidelines for the social partners (c) Principles: that should inform policy formulation in future.
4 1 Introduction The PSIRU/Cardiff research team was appointed on 1 October 2001 to conduct the following research concerning the right to strike in essential services, and specifically the electricity industry, in EU countries :
§ examination of international law and regulation e.g. ILO rulings § examination of EU law affecting the right to strike, and provisions of the electricity directive § survey of the provisions and practices concerning strikes in essential services in all other EU countries § analyse issues arising in respect of regulation of strikes in essential services in Italy
In this work the research team was assisted by Jan-Willem Goudriaan, Deputy General Secretary, European Public Services Union and , Véronique Champeil-Desplats, Researcher, University Paris 10.
5 2 International and EU Law The Right to Strike (RTS) has been the subject of legal regulation and direction under international law as well as by the EU. Three sets of rules are relevant: the ILO, the UN, and the EU itself.
2.1 ILO Convention on Freedom of Association ILO Convention 87, Article 3, lays down the right to association. This states that:
1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
2. The public authorities shall refrain from any interference, which would restrict this right or impede the lawful exercise thereof.
These provisions have been the subject of considerable attention within the ILO. The accepted view is that a right to strike is a corollary of the freedom to association, although this right may be restricted in essential services under particular circumstances. It has also been accepted that the provision of electricity is an essential service, but it is also noted in commentary on this restriction that there should be compensation for the restriction on the right to strike, which may involve conciliation, mediation and binding arbitration.
2.2 United Nations Organisation There are a number of UN declarations and conventions that are also relevant to the right to strike.
The Universal Declaration of Human Rights, 1948 states that ’Everyone has the right to form and to join trade unions for the protection of his interests’ (Article 23). Like the ILO convention, this includes the implication that trade unions have the right to strike. In a similar way, other declarations and conventions indicate that there may be restrictions in relation to essential services.
2.3 Council of Europe: European Social Charter The Council of Europe has agreed the European Social Charter (1961), committing member states to a series of fundamental rights, including trade union rights. Compliance with the Charter is monitored but not legally enforceable.
Article 6 of the Charter recognises the right to strike, subject only to obligations that might arise out of collective agreements previously entered into’. This suggests that any restrictions should be voluntary and agreed. However, the Appendix to the Charter carries the proviso that the right to strike can be restricted if this can be justified as necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.
6 2.4 EU Provisions on the Right to Strike 2.4.1 EU Treaty The one section of the treaty that provides a positive declaration concerning public services is Article 16. This Article uses the terminology of ‘services of general economic interest’, and declares that the EU and the members states ‘shall take care that such services operate on the basis of principles and conditions which enable them to fulfil their missions’.
Under the Nice Treaty (2001) (Nice treaty (2001/C 80/01) EN 10.3.2001 Official Journal of the European Communities C 80/1, http://europa.eu.int/eur-lex/en/treaties/dat/nice_treaty_en.pdf) a new article (Article 137) was introduced outlining social and working objectives. These provisions specifically exclude the right to strike from its coverage: ’5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs’. A guide simply explains: ’However, as in the past, remuneration, the right of association, and the right to strike or lock out are not addressed at Community level.’ (The Amsterdam Treaty: a Comprehensive Guide - The Union and the citizen. http://europa.eu.int/scadplus/leg/en/lvb/a14000.htm#a14003). There are no directives concerning the right to strike. Reflecting the lack of EU law on the issue, there appear to be no major ECJ decisions concerning the right to strike. In 1992 a case from Germany concerning the restrictions on Beamte civil servants was dismissed as being a purely German issue (Judgement of the Court (Second Chamber) of 28 January 1992. Volker Steen v Deutsche Bundespost. Reference for a preliminary ruling: Arbeitsgericht Elmshorn - Germany. Situation purely internal to a Member State. Case C-332/90. European Court Reports 1992 page I- 0341).
2.4.2 Charter of Fundamental EU Rights 2.4.2.1 No Explicit Right to Strike The newly agreed charter of EU rights does not explicitly include the right to strike. It does include a provision against forced labour (Article 5), and a right to collective bargaining and association (Article 28). There is however no ‘right to strike’ as such. A commission communication on the charter explains that:
Conversely, certain rights envisaged at the beginning have not been included: either because they were seen as simply setting policy objectives, … or because, without being excluded from the list, they were already implicit in other provisions in the preliminary draft; this is the case, for example, of the right to strike, which is covered by Article 26 concerning the right of collective bargaining and action…. (CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01; http://europa.eu.int/comm/justice_home/unit/charte/pdf/texte_en.pdf)
2.4.2.2 Recognition of Public Services It also has a weak position on public services. There is also no general right to enjoy public services, such as electricity supply: the code simply ‘recognises and respects access to services of general economic interest as provided for in national laws and practices’ (Article 36). It also has a general commitment to ‘consumer protection’ (Article 38).
7 3 Right to Strike in Electricity in EU Countries Workers effectively enjoy the right to strike in all EU countries, but the legal and institutional mechanisms used to secure this vary. These varied arrangements are rooted in the diverse legal and political traditions of each country. They provide a context for assessing the distinctive arrangements that apply in any one country (adapted from Aaltonen, 1999).
The framework of laws and practices in each EU country is summarised in Annexes III and IV. The differing arrangements can be grouped into five main categories, with overlap between them:
3.1 Constitutional Protections (Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Portugal, Spain, Sweden) The constitutions in these countries provide a range of protections relating to the right to strike. These range from an explicit recognition of the right to strike (France, Germany, Portugal, Spain, and Sweden) to a de facto right to strike (Belgium, Finland). The explicit recognition of the right to strike implies that there is a framework of laws that specify the details.
There is an important difference amongst countries where there is a right to strike provision in the constitution between an individual right and an explicit or implicit trade union right. An important theme in the constitutional provisions of some countries is that trade unions are recognised as the means of realising this provision. In the case of Germany and Greece a strike can only be called by trade unions. In Portugal, a strike is only legal if organised by a union or by the employees of the workplace after holding a ballot.
Where an implied or de facto recognition of the right to strike applies, then the conditions for strikes have been elaborated via rulings of the superior courts (Belgium) or via collective agreements (Finland).
In four countries there is recognition of the right to freedom of association rather than the right to strike (Austria, Denmark, Ireland, Luxembourg). In this respect it can be argued that the state grants trade unions a freedom to take industrial action, although there may be circumstances where this is qualified and disputed.
3.2 Legal Recognition of the Right to Strike (Belgium, Denmark, Finland, Germany, Greece, Luxembourg, Netherlands, Portugal, Spain, Sweden) Many countries recognize the right to strike for all workers or sections of the workforce.
In most countries, there is a comprehensive legal coverage of the right to strike as part of the pursuit of collective agreements, involving most workers (Belgium, Denmark, Finland, Germany, Greece, Portugal, Spain, and Sweden). These provisions are put into effect in a variety of ways, involving conciliation, collective agreements and related activity. A further feature of such arrangements is that there are ‘peace obligations’ which must be met by the parties to agreements (see below).
The basis for industrial action within the law is varied. In Germany the right to take industrial action is based on legislation and established by case law. In Belgium the right to strike is based on
8 agreements between the labour market parties and in the Netherlands the relevant source is the European Social Charter. One feature of these provisions is that in these countries, collective agreements carry a duty to maintain industrial peace, although in Belgium this duty does not have a legally binding effect. Luxembourg has a constitutional right to freedom of association, from which the Supreme Court has derived the right to strike. The situation in the Netherlands is more opaque, with industrial action (including strikes) regulated by case law.
One implication of legal provisions for the right to strike is that they are not fixed and subject to dispute. In the case of Belgium where the superior court in 1981 ruled that individuals have the right to strike, employers have successfully sought legal backing to restrict these rights. The result is that since 1987 fines have been imposed or threatened on those attending strike meetings, involvement in strikes, and related actions.
3.3 Collective Agreements (Austria, Denmark, Finland, Germany, Greece, Luxembourg, Netherlands, Portugal, Spain, Sweden) The legal regulations that cover the right to strike are usually put into effect via collective agreements. It is the case that the provisions regarding strikes can be laid down in these agreements, although they vary from one country to another.
These provisions range from those that are binding and comprehensive (particularly Denmark and Sweden) to fairly limited and ad hoc provisions (Portugal and Spain). Specifically, in Denmark and Sweden there is a system whereby the labour market parties regulate industrial action. Here the right to strike is specifically based on agreements between the central organisations. A high premium is placed on the industrial peace obligation and in general it applies during the life of a collective agreement.
3.4 Social Peace Obligations (Austria, Denmark, Finland, Germany, Greece, Luxembourg, Portugal, Sweden) Social peace obligations constitute an important dimension of many collective agreements that include right to strike provisions. The core of such obligations involves a requirement that no work stoppages take place during the term of a collective agreement. Additional clauses may involve the right to organise (Denmark). In one case, there can be strikes during the period of an agreement, over an employer’s interpretation of the agreement, but not that of the union (Portugal).
Some of these obligations date back to the nineteenth century when settlements about industrial conflict were reached between the central organisations of labour and capital: Denmark – 1899 and Sweden – 1938.
It would appear to be the case that where the legal regulation relating to industrial relations is comprehensive then it is more likely that a peace obligation is included.
3.5 Legal Immunities (UK, Ireland) The exception to many of these more formal arrangements is the United Kingdom, and to a lesser extent Ireland. In these countries there is no constitutional right to strike (or to take any other form of industrial action). Rather the system in these countries rests on legal immunities; certain actions that would ordinarily be illegal are protected in certain circumstances. These circumstances are
9 strictly regulated and relate to various complicated procedural rules about ballots and notice etc. In the absence of ballots, strikes are illegal. Collective agreements are not legally binding and so there is no meaningful concept of a peace obligation.
10 4 Regulation of Strikes in Public Services There is no single pattern of laws and practices concerning strikes in public services, but a variety of practices. Some of the key features are:
4.1 The Right to Strike Most countries permit strikes by public service workers, although there are a variety of qualifications to these arrangements. One feature of these provisions is that it is often the case the very specific personnel are excluded from the regulations relating to the right to strike. These usually involve military and police personnel or some combination of them (Ireland, Portugal, United Kingdom), although in other cases it involves senior civil servants and equivalent staff (Luxembourg). Apart from these exclusions, public service workers have a right to strike, often in designated circumstances, such as the provision of ‘minimum services’.
4.1.1 Prohibitions on Right to Strike (Austria, Denmark, Finland, Germany, Greece) In a number of countries, sections of the public services (beyond the military and police) are excluded from provisions on the right to strike. In various ways these provisions incorporate significant sections of the public services. These restrictions range from a blanket exclusion for the right to strike in the public services in Austria to various exclusions, that include local and central government, senior academics and judges, and all members of the police forces and military officers (Denmark). Other countries have exclusions that include lesser numbers of staff proportionately.
Some countries have (older) laws restricting the right to strike for special ‘civil servants’, but these are often now ignored, for example in Austria, Germany, and Finland. However, while there are such exclusions they do not mean that strikes do not take place involving these workers. In Austria for example strikes involving civil servants have taken place, as is also the case in Germany.
4.1.2 General Procedural Restrictions on Right to Strike (Belgium, Finland, France, Luxembourg, Ireland, Netherlands, Portugal, Spain, United Kingdom) The restrictions that apply to the right to strike range from procedural ones, relating to the course and conduct of a strike (Luxembourg, Ireland, United Kingdom) to a set of restrictions that arise from the requirement to provide ‘minimum services’ (Belgium, Finland, France, Netherlands, Portugal, Spain). In some countries the right to strike is recognised very broadly, subject to specific arrangements to regulate the strike so that well-being is secured (Finland). In these cases, the right to strike is maintained.
Some countries have various provisions, which restrict the circumstances in which strikes are legal. In Germany, for example, only trade unions can legally call strikes; in Denmark strikes during a contract are illegal; and in UK strikes without ballots are illegal as are sympathetic strikes. These restrictions may be used against strikes in public services, but are not specific to public services. A recent example of this was the use by Electrabel of legal action against the Belgian electricity workers in 2001 – this was taken on the grounds that it interfered with the right to work of sub- contractors, and had no relation to public service obligations.
11 4.1.3 Essential Services (Austria, Belgium, Finland, France, Germany, Greece, Netherlands, Portugal, Spain, Sweden) In many countries there are specific regulations that relate to essential services or the provision of ‘minimum services’. These regulations vary and are often contested.
One set of debates occur around the definition of essential services or minimum services. In one case, Belgium, an attempt has been made to reconcile the well-being of the community with the right to strike. Here a set of procedures has been established for the definition of ‘essential services’. This procedure is underwritten by law. It centres on a joint committee, composed of employers and trade union representatives as well as an involvement by the Ministry for Employment and Labour. One feature of the Belgian arrangements is that strike decisions are often contested in the courts and there is some evidence of judicial restrictiveness on the right to strike in public services.
Likewise in Portugal the definition of ‘minimum services’ is contested. Public service workers have the same right to strike as other workers, with the exception of military and para-military employees who have no right to strike. However, there are restrictions on those working within essential services, with a general requirement to ensure that certain ‘minimum services’ are provided during a strike. There has been considerable debate over the responsibilities for defining ‘minimum’ levels of service.
Elsewhere, strikes are permitted but subject to social partner regulation. In Finland, civil servants have the right to go on strike but not participate in any other forms of industrial action. During a strike civil servants may be required to do ‘protective work’, that is work which is indispensable to safeguard the life or health of citizens or to protect property endangered by the strike. To a certain extent, these arrangements are regulated by a Civil Servants Disputes Committee.
Faced with these types of restrictions, unions have been imaginative in their response. In the Netherlands, for example, a new form of strike has been developed. Here the law relating to the restriction of strikes in the public services was abolished in 1980. These strikes are regulated by the rules applying to the private sector, although an Advisory and Arbitration Committee was established in 1984 to deal with strikes between the government and central public service unions. Restrictions apply to strikes that endanger essential public services, such as the supply of electricity or drinking water. One result has been the initiation of ‘relay’ strikes comprising short strikes moving from department to department and city to city.
In some cases, unions take the initiative to establish the procedures and de facto restrictions on strikes that take place in areas of the public services. In Sweden, for example, the unions themselves agreed to ban strikes ‘for certain professional groups which are necessary for the functioning of state services’. Similarly, at a lesser level, the major union in the German electricity sector committed itself to a joint dispute resolution procedure where negotiations fail to reach a collective agreement, with a peace obligation that a strike can only start when arbitration fails.
4.1.4 Voluntary Application (Belgium, Denmark, Finland, Germany, United Kingdom) In some cases, whether there is a legal restriction or not, the operation of the procedures that apply is devolved to either joint employer/union bodies or collective agreements, or to union voluntary codes. One of the most comprehensive arrangements occurs in Belgium, where the right to strike in the public services is heavily circumscribed. Here the definition of essential services is delegated to joint committees whose decisions are legally binding if supported by 75% of both the employer and trade union sides. In addition, the joint committees have a role in the in dispute resolution where they fail to reach agreement.
12 Equally comprehensive, although deriving from the general requirements relating to the right to strike for the economy as a whole, is Denmark. Here the general procedure is based on 1899 collective agreements between the central employers and trade union confederations. These arrangements include peace obligations, rules on the procedures for industrial action, including stoppages, and procedures where a new collective agreement cannot be obtained.
Of a different order, trade unions are the only body that can call a strike in Germany and there is a detailed procedure of joint dispute resolution between employers and trade unions. These procedures have been adapted to the public services, although in 2000 the trade unions rejected the results of the joint dispute resolution procedure.
In the case of the United Kingdom, the public sector trade unions established a code of conduct for the conduct of disputes in what are deemed to be ‘essential services’. This generally involves the provision of minimum levels of cover in the case of hospitals and the like. At a more comprehensive level, unions in Sweden voluntarily agreed to ban strikes for specified professional groups in the public services.
4.1.5 Intervention (All Countries) At a general level, the government is always present in strikes involving the public services, as an employer and as the source of legal regulation and enforcement in the country. This can range from the relatively benign situation in Austria where the Ministry of Labour works with the joint committees to ensure that procedures relating to ‘essential service’ requirements are met. Obviously, in practice this can give rise to disputes about the nature of such intervention.
If the agreement or code on procedure breaks down the most common practice is for the government or parliament to step in to resolve the dispute. This step was taken in Denmark in 1999 where a settlement was imposed and a nurses’ strike ended. In the UK the governments have used the army to maintain minimum services during strikes by firefighters. Elsewhere governments have explicit powers to intervene in the course of public sector disputes (Greece).
It is important to note that such intervention is contestable. In 2001, in Spain, the Ministry of Science and Technology ensured minimum services in one company despite the fact that the strikers had guaranteed minimum services, such as emergency and social services calls.
4.2 Right to Strike in Electricity The regulations for strikes in the electricity sector derive from the general requirements that apply elsewhere in the economy. In general, the difference from one country to another occurs when electricity is defined either as part of the public sector and/or an essential service, for which a ‘minimum service’ should be guaranteed.
4.2.1 Right to Strike At a general level workers in the electricity industry in all European countries have a right to strike, subject to the particularities that apply for employees in general and the specific arrangements that have developed over time in each case. In Finland, for example, while there is no specific reference to the electricity industry, there is a debate about the right to strike in particular sectors or industries. In general employers have been demanding the introduction of compulsory arbitration in disputes that cause severe inconvenience to the public. To date, the government has not agreed to these requests, while the central union body remains opposed to any restrictions on the right to strike.
13 4.2.2 Restrictions on the Right to Strike There are some countries where a restriction on the right to strike in the electricity industry has been imposed. In France, from 1988 onwards governments have imposed restrictions on the right to strike in the electricity industry, to permit normal service to all users. A further complication has been introduced whereby industrial action in the form of a restriction of production is deemed not to be a strike and thus subject to wage penalties. Over time these restrictions have been increased, with 1000 jobs classed as strictly necessary for security reasons. Faced with increasing legal restriction the unions have adapted to the new situation, introducing new forms of industrial action, such as switching customers to night rates and thus impacting on company revenues.
4.2.3 Limitations on the Right to Strike More common, especially in countries where there is a peace obligation established in law or in collective agreements, limitations have been established over the conduct and scope of the right to strike in the electricity industry. In Germany, the limitations on industrial action, including strikes, in the electricity sector derive from the proportionality principle, that provision must be made in the event of industrial action in the essential services (electricity and water supplies, and hospitals) for the population’s need, otherwise ‘gross disproportion’ exists. In this context one of the major unions has committed itself to joint dispute resolution where negotiations fail to reach a collective agreement. In this case a peace obligation requires that a strike can only be started when arbitration fails.
4.2.4 Contention There have been disputes in a number of countries about the definition of ‘minimum service’ and more importantly who should decide the provisions, At one extreme, Greece has passed this right to employers. Here electricity is one of the public enterprises whose operation is deemed to be of vital importance in serving the basic needs of the community as a whole. As a result notice of strikes is required and staff should be nominated to maintain essential services. In 1990 the law was amended so that employers can stipulate the number and type of staff needed and nominate those who must provide cover during industrial action.
At the other end of the spectrum, there are no specific restrictions on the right to strike in the electricity sector. In the United Kingdom, there are no specific restrictions on strike action by workers in essential services and there are no specific provisions relating to strikes in electricity. However, the government has access to emergency powers and these could be used to maintain electricity supply. There is provision, dating from 1976, following the OPEC oil crisis of 1974, for military intervention to ensure supply of fuel across the country.
In between, and in part reflecting the outcome of trade union campaigns in the past and the accommodations that have been reached between employers and trade unions, the decision about the definition of minimum service and who should be involved is the responsibility of a joint committee comprising employers and trade unions. In Luxembourg, the electricity industry is subject to rules relating to company joint committees, composed of the social partners. These committees which have been established for all private sector companies, with more than 150 employees, can take part in the joint decision making on matters relating to employment, health and safety and promotion. Another case, which reflects the same principle, is Spain. Here the industry is subject to the same rules and regulations that apply to essential public services, where there is provision for ‘minimum services’ to be defined by collective agreement, internal union rules or by public authorities.
14 4.2.5 The Place of Government In all cases it is well to note that governments reserve the rights to intervene in strikes in the electricity sector. In Portugal, for example, the electricity industry is subject to the broad provisions that apply to all workers, although as an essential service it is subject to the requirements for the provision of ‘minimum services’. There have been problems in the industry where there have been major strikes about the procedures and the decision-makers’ (employers’) right to direct work and payment. If a strike happens and it is deemed unlawful because the union refuses to co-operate in the provision of essential services then the government has the power to conscript the strikers. Similarly in Denmark, there is a general provision relating to work that is deemed vital to the normal functioning of society, which would include the effects of a strike in the electricity industry. In these instances the government following recent disputes involving nurses has reserved the right to safeguard the public’s health in the event of unions and employers being unable to come to an agreement in the course of a dispute.
4.2.6 Recent Events The trends relating to the right to strike in the electricity sector include the following:
§ There is a continual tension and debate between the right to strike and public well-being. As a result, unions sometimes take the initiative to establish procedures (Sweden and the United Kingdom) to secure the right to strike while elsewhere this has involved debate and disputation between the social partners (France, Portugal). The balance between public well-being and the right to strike means that strikes by public servants do take place, for example a one month strike in public bus transport companies in Wallonia (Belgium). One complication that arose during this dispute was that the social partners had not defined the minimum level of service that should be maintained in the event of a strike.
§ Increased legal action by employers who press for further restrictions to the right to strike. In Belgium employers have gone to civil courts in order to obtain injunctions against strikes (since 1987). In France, EDF restricted the right of workers to take action by disciplinary means utilising administrative law.
§ Many trade unions have attempted to secure an involvement in the arrangements governing industrial action, including strike action, in the electricity sector in particular and the economy in general, including the public sector (Belgium, Denmark, Sweden, Portugal, Spain). These arrangements are subject to contestation as the economy is restructured and reorganised.
§ Trade unions faced with restrictions to the right to strike have begun to explore the development of new strategies to secure their right to strike where legal regulation is restrictive, such as the ‘relay strikes’ approach developed by the Dutch unions.
4.3 Principles The variations in regulation and procedure are rooted in the diverse political and economic backgrounds of the EU countries. The following points can be noted:
§ Trade unions have campaigned to establish themselves for many decades and the right to strike is one of the fundamental labour rights.
§ These histories have had different outcomes ranging from the historic accommodations made by the Scandinavian unions, and in particular Sweden and Denmark, to the non-
15 interventionist arrangements in Ireland the United Kingdom. Of more recent origin are the arrangements made in Portugal and Spain.
§ Despite these different histories, there is an on-going tension between the right to strike, as a fundamental right, and the ethical obligation to minimise hardship to innocent parties, such as citizens, especially those dependent on social welfare, such as patients in hospitals.
§ Where the social partners approach these questions in a positive way the tensions between these conflicting rights can be addressed.
In practice, unions face choices between self-regulation and/or arguing for participation in joint regulatory committees composed of the social partners.
16 5 The EU Electricity Directive and Electricity Systems
5.1 EU Electricity Directive The role of the electricity industry and electricity companies in general is crucially affected by the EU Electricity Directive (Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity http://europa.eu.int/eur-lex/en/lif/dat/1996/en_396L0092.html), which requires liberalisation of the sector throughout the EU. The general form of this liberalisation is a gradual opening of the market to competition. Existing integrated companies must be unbundled into separately managed generation, transmission and distribution companies.
The Directive has no provision mentioning strikes or essential services, but it treats electricity as a freely tradeable commodity.
5.1.1 Public Service Obligations: Must Be Explicit The Directive itself does not impose any public service obligations. It accepts that the general duty of liberalisation may be limited by member states using public service obligations but this must be done explicitly. Article 3, section 2 states:
Having full regard to the relevant provisions of the Treaty, in particular Article 90, Member States may impose on undertakings operating in the electricity sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies and to environmental protection. Such obligations must be clearly defined, transparent, non-discriminatory and verifiable; they, and any revision thereof, shall be published and notified to the Commission by Member States without delay. As a means of carrying out the above mentioned public service obligations, Member States which so wish may introduce the implementation of long-term planning.
This implies that electricity companies throughout the EU are free to operate as purely commercial entities, with no public service obligations except those explicitly applied in national law and notified to the European Commission. The provision is important for the directive, as otherwise governments could reserve large sections of the market for state-owned operators without having to give an ex ante justification – which could severely limit the opportunities for private companies to exploit the market.
This also implies, however, that there can be no ‘public service obligations’ on electricity operators unless the government of a member state has clearly defined these obligations and published them and notified them to the commission. Where there are no such restrictions on the companies’ commercial behaviour, their operations cannot be considered as bound by ‘public service obligations’. Therefore there is no justification for placing restrictions on the right to strike.
5.2 Managing Electricity Networks The effect of a strike at a generator must be crucially affected by how the transmission grid responds to the loss - how power is managed and distributed. The output of a generator cannot be physically linked to any end-user, but the concept of electricity as an essential service must be
17 defined by reference to the uses of it. So regulating the right to strike in generation depends on how the grid operator can and will respond to a loss of power from the plant(s).
One extreme would be for the grid operator to say that the strike undermines essential services if the output cannot be totally replaced from other sources. This is equivalent to saying that the whole output of the electricity system is an essential public service. This seems untenable given the provisions of the EU directive.
If the grid operator is unable to meet full demand, then it must operate some kind of priority rationing system, maintaining a full supply to sectors considered essential (e.g. emergency services such as hospitals, vital services such as water, air traffic control; even perhaps domestic users) and applying rotating cuts to other users. Under such rationing, strike action would not affect essential services unless it reduced power to the point where the priority sectors had to experience cuts.
18 6 Italy
6.1 The Electricity Sector in Italy 6.1.1 Structure and Changes Until 1998 the Italian electricity industry comprised a single integrated state-owned monopoly, ENEL, which was responsible for providing electricity to the country. It operated the grid and the distribution system, except for a few cities where municipal enterprises ran the distribution network. In March 2001, Acea bought the remaining 50% of Rome’s electricity distribution network from ENEL and became the only concessionaire in the city; in January 2002, AEM Torino bought the remaining part of Turin’s electricity distribution network from ENEL and became the only concessionaire in the city; and in March 2002, AEM Cremona bought the remaining part of Cremona’s electricity distribution network from ENEL and became the only concessionaire in the city. Divestiture of ENEL’s electricity distribution networks is provided for by a decree passed in 1999 that aimed to optimise electricity distribution operations by identifying municipally-owned companies as the sole distributor. ENEL also generated nearly all the electricity for the country. It was the second largest generator in Europe, after EDF.
Following the privatisation of the industry in the UK under the Thatcher government, and the introduction of a single electricity market in the Nordic countries, the EU introduced a directive (96/92) which effectively required all countries to unbundle the management of the vertical utilities and to create a market in which companies could compete to sell electricity to customers. Under pressure of this directive, and government policies to reducing government debts and borrowing, the industry has been changed. This has created a new set of companies, and new operating conditions.
6.1.2 Companies and Ownership At the end of 2000, there were five main generation companies operating in Italy, owning between them 80% of generating capacity (the remaining 20% of generating capacity is mainly owned and provided by industrial co-generators): § ENEL (50%), § Edison (7%), § Eurogen (11%), § Elettrogen (8%) § Interpower (4%).
ENEL is in the process of being privatised, with the first tranche of shares sold in November 1999. The Italian government still owns 68% of ENEL shares and there are no firm dates yet for disposal of the remaining shares. Edison was a privately owned Italian company, but effective control of the company was taken over by a joint venture of EDF and Fiat in the autumn of 2001 (Fiat is the majority shareholder of Italenergia and the restriction on EDF’s voting power within Edison’s board of directors remains in place). The other three companies are in the process of demerger from ENEL, to reduce ENEL’s share of capacity. § Elettrogen has been bought by a consortium of Endesa (Spanish-owned), BSCH and ASM Brescia; ASM Brescia is a municipally-owned multi-utility, that is expected to list 25% to 30% of shares on Milan Stock Exchange by 2002.
19 § Eurogen has been bought by a consortium of Edison, AEM Milano, AEM Torino, Atel (Swiss-owned), Unicredit, Interbanca and Royal Bank of Scotland (AEM Milano is the partly-privatised energy company of Milan; AEM Turin is the partly-privatised energy utility of Turin). § It is expected that Interpower will be sold in 2002. An independent, publicly-owned Transmission System Operator (TSO), GRTN, has been created, although ENEL still owns the infrastructure. The pattern of ownership in Italy thus remains closer to the state-owned industries in France, Ireland and Greece than the total privatisation of ownership in the UK and the mainly privatised Germany.
6.1.3 Operation of the Market and System In December 2001, it was reported that the Italian Power Exchange, the competitive market, under which it is expected that the generation companies would compete, would not be operational before Spring 2002. Under the 1996 European Electricity Directive, Italy has to choose how to give generators access to the transmission network and it also had to begin opening up the retail electricity market. It opted for a relatively slow opening of the retail market, and currently about 35% of the market (a few thousand very large consumers) is open to competition (the competitive market). The rest of the market, medium-size and small consumers remain captive to the local retail supplier (the captive market). For the transmission system, Italy chose a mixture of Regulated Third Party Access (RTPA) and the Single Buyer (SB) option. Under RTPA, generators have a right to access to the transmission system paying non-discriminatory tariffs, whereas under the Single Buyer, the TSO chooses which plants should operate, but using non-discriminatory processes. It seems likely that RTPA is applied to generators whose output goes to supply consumers in the competitive market and the SB is applied to the captive market. In the absence of a formal wholesale market, it seems likely that the generation plant in the captive market is dispatched by GRTN on the basis of marginal cost. It seems reasonable to assume that the generating plant that supplies the competitive market should not be deemed to be carrying out a public service, but, until a wholesale generation market is introduced, the generating plant in the captive market is carrying out a public service.
6.2 The Legal Basis of the Right to Strike in Electricity in Italy The right to strike in Italy is a constitutional right which is modified by specific laws covering a range of services including electricity. Two parliamentary Acts regulate the right to strike in ‘‘essential public services’’, such as health care, sanitation, waste management, the electricity sector, justice, transport, welfare, education, media and communications, emergency services, customs, environmental protection and surveillance of cultural assets. The first one is the Legge n.146 of 1990 and the second one, which amends the former, is the Legge n.83 of 2000. In turn, both Acts refer to collective agreements or self-regulating codes to define the details of industrial action in the sector. The procedures governing the right to strike are defined through collective agreements between employers and unions, as well as related agreements between public authorities (providing essential services) and their employees and service regulators. The Italian electricity sector is covered under regulations that derive from these two Acts. The November 1991 agreement between ENEL and the Italian trade unions is an example. The agreement does not impose a general obligation not to strike, but rather an obligation to guarantee a certain level of service during strike actions – e.g. ensuring a ’vital reserve’ of capacity. Thus the agreement does not exclude strike action but makes it conditional to the provision of minimum service levels.
20 6.2.1 Implementation The implementation of the law on the right to strike in essential public services is regulated by the Commission of Guarantee (‘Commissione di Garanzia dell’attuazione della legge sullo sciopero nei servizi pubblici essenziali’). The electricity network is operated by the state-owned company, GRTN (Gestore Rete Trasmissione Nazionale), which advises on the technical impact of industrial action.
The independent Commission is made up of nine members, designated by the presidents of the Upper and Lower Houses of Parliament and appointed by the President of the Republic. Its powers and resources, even in terms of staff, have been augmented with the 2000 Act. According to Art. 10 of the 2000 Act, the Commission can evaluate the soundness of agreements reached by employers and unions, which define the minimum service levels in case of, strike, as well as the procedures of amicable solution and conciliation. If the Commission deems that - ’on the basis of a specific motivation’ - such agreements do not adequately safeguard the constitutionally recognised users’ rights, it may submit a proposal on a new agreement to the social parties. If the social parties fail to agree, the Commission can provisionally define minimum service levels, the procedures of amicable solution and conciliation and other measures, and the social parties are bound to abide by these provisions until they reach an agreement which the Commission deems adequate.
The Commission has to limit provisional minimum service levels to no more than 50% on average of services normally provided. Also, the provision of minimum service levels should require the involvement of ’strictly necessary’ number of workers, ’on average’ not exceeding one third of the personnel usually employed for the full service provision - these percentages are valid for all essential services ’except particular cases’.
The Commission does not have the power to directly prevent industrial action. In the event that a strike is called the transmission grid company (GRTN) advises the government on the likely impacts on safety of the system and continuity of service. In cases of gravity or urgency, the government may take action (e.g. imposing conciliation), without receiving the advice of the Commission. In the past, ENEL was responsible for the evaluation of safety and continuity of service. However, following the EU Electricity Directive this responsibility was shifted to the Commission.
The new grid operator, GRTN, is a public limited company under government control. It is wholly- owned by the Treasury, and its operating strategy is set by the Ministry of Industry. This company has a duty to evaluate the compatibility of any industrial action in the electricity sector with service provision at national and local level in order to ensure the continuous and safe operation of the grid. Under a directive issued by the Ministry of Industry on the 21 January 2000, when a strike is threatened in the electricity sector GRTN evaluates the likely impacts on the safety of the system and continuity of the service, whether the threatened strike action is incompatible with these requirements, and advises the Minister for Industry and then the owners of the power plants. The GRTN has to consider the following criteria:
§ Estimated national demand for electricity; § The power plants available, nationally; § The operational reserve at national level necessary to correct any errors in estimated demand, or unforeseen problems etc; § The safety requirements of the network (‘Liberalizzazione del mercato elettrico regolamentazione dello sciopero’ by Marianna Scaglione, Newsletter CGS, pp.45-52).
There is a degree of opaqueness about the requirement to submit these evaluations to the Commission, since the January 2000 directive does not explicitly provide for this requirement. Moreover, it is not clear, particularly to the unions, that this is what takes place in practice.
21 According to CGIL, the electricity grid operator GRTN ’allows’ a power plant stoppage only if there is enough electricity in the grid to satisfy the whole demand in any part of the national territory. This means that a power plant stoppage is ’subject to the availability of residual electricity after satisfying the interests and the other requirements of all power utilities (private and public)’.
According to the Commission, some services – such as gas, water, electricity and telephone – ’in practice’ should not be interrupted in the case of industrial action.). If the parties fail to reach an agreement, the Commission may provisionally define the minimum service levels to be guaranteed during industrial action. This provisional regulation of minimum service levels remains valid until the parties reach an agreement, which the Commission deems as satisfactory. If the Commission concludes that a strike called by a union is going to put at risk the provision of the minimum service level it may invite the unions not to go on strike or to defer industrial action. If the unions decide to go ahead anyway, the Commission can then signal the risks of planned strikes so that the government and its representatives can intervene (e.g. through conciliation or ordinance). In exceptionally urgent cases, the government may act to safeguard the constitutionally recognised users’ rights – that is, to prevent or defer industrial action - and inform the Commission afterwards.
Where essential services are prejudiced by industrial action the government may encourage the parties to stop causing the existing dangerous situation and attempt to find a solution through conciliation. If conciliation fails, it can issue an ordinance. This may postpone industrial action, provide for the reduction of its duration or enforce measures guaranteeing minimum service levels as necessary to safeguard the constitutionally guaranteed rights of individuals. Those involved in ensuring minimum service levels include trade unions, individual strikers or electricity operators. In issuing the ordinance, the government should take into consideration the recommendations of the Commission on the measures to be adopted to safeguard the above mentioned rights.
6.2.2 Obligations If a Strike Is Declared When a strike is called, those issuing this declaration are obliged to announce to the interested parties (operators) and competent authorities the duration, reasons for the strike and form of industrial action to be taken. This information should be communicated at least 10 days before industrial action takes place (but collective agreements – as well as the agreements between public authorities and their employees, services regulations - and self-regulating codes may fix longer periods). Such provisions do not apply if industrial action is aimed at protecting the Constitutional order or to protest against events seriously damaging workers’ safety and security.
Sanctions may apply to those who call and then revoke a strike but fail to provide adequate information (the so-called ‘effetto annuncio’). This regulation is intended to deter workers from achieving the intended disruptions/results as if industrial action effectively took place, without actually going on strike.
Collective agreements and other regulations must provide for the minimum periods of time between one strike and the call for a subsequent strike. The aim is to avoid discontinuity of essential public services as a result of industrial action that is subsequently called by different trade unions and which would affect the same end users or the same area). Collective agreements and other regulations must provide for binding procedures of amicable solution and conciliation, before a strike is declared. However, it should be noted that the 1991 agreement with ENEL does not seem to provide for binding procedures of conciliation/amicable solution prior to the strike.
6.3 The 2001 Collective Agreement The collective agreement for the whole electricity sector signed by the social parties (including the 3 major trade unions) in July 2001 does not provide for regulation of strike action, which remain to
22 be defined through a separate agreement. This postponement is due to the difficulties in closing the agreement, which was signed after 31 months of negotiations and only after the unions threatened to strike for 3 days, which would have led to a blackout (of electrical services) throughout the country. The right to strike is a particularly contentious issue and all the parties in the negotiations, including the unions, agreed to define its regulation separately as this had become an impediment to reaching a more general agreement.
6.3.1 Intervention by the Commission In July 2001, a new collective agreement in electricity was signed after 31 months of negotiations, and only after the unions threatened to strike for 3 days. The Commission was ready to intervene in order to prevent the strike and provisionally defined minimum service levels, procedures for conciliation etc. It was this intervention which actually solved the stalemate. Without settlement the Commission would have been obliged to allow the interruption of 50% of services, although the 1991 agreement guaranteed the right of every user to receive the same levels of service. Such a situation would have shifted the balance of forces in favour of the workers and their unions. As a result, the employers decided to sign the collective agreement.
The collective agreement itself however did not regulate the right to strike but provided for the social parties to meet by September 2001 to define in a separate agreement the regulation of the right to strike. At the time of the settlement, this outcome generated euphoria within the Commission. However, it was followed by inaction on the part of the employers, and the Commission. To date, there has been no meeting to negotiate the separate agreement on the right to strike. The employers have an interest in retaining the old agreement on the right to strike. They have failed to respond to the unions’ invitations to proceed with talks. In addition, the Commission has failed to intervene to encourage the adoption of a new agreement on the right to strike.
6.4 Selective Strike Action in the Electricity Sector One complication to the settlement is over the question of selective strikes. These strikes have yet to be addressed in a separate agreement between the social parties to the July 2001 agreement. Moreover, the employers (Assoelettrica-Confindustria) have questioned the veracity of dealing with this item.
It is worth noting that the unions planned to take this form of industrial action if they had gone on strike for three days at the end of July 2001 to protest against failure to reach a collective agreement. The Commission asked for technical advice from the grid operator on the feasibility of such a ‘selective strike’, which it preliminarily defined as ‘extremely complicated, but possible’.
The trade unions planned to guarantee workers’ availability to reconnect only essential public services, such as hospitals, to the electricity supply. This means that they were planning a selective strike aiming to interrupt the production and distribution of electricity to industrial customers and households but not to essential public services. The unions acknowledge that this is technically difficult, especially for many users which could not be disconnected without disconnecting essential public services at the same time (due to the lack of a differentiated supply).
The employers have no interest in concluding a new agreement on the right to strike as the old agreement (signed in November 1991) reduces to a minimum the negative effects borne by employers in case of strike. The 1991 agreement implies the right of individual users to receive the same levels of service even during a strike. As a result not a single user has been disconnected because of strike action. Thus, the burden is borne by workers on strike while the employers have limited economic costs and there is no public visibility for industrial action. To sum up, the ongoing applicability of the 1991 agreement allows employers to maintain the advantages which were
23 justified by the context of de facto monopoly public service provision, even when the electricity market is being liberalised.
24 7 Discussion
7.1 Key Issues A number of key issues can be identified:
§ Either explicitly or implicitly all EU countries acknowledge the right to strike. International bodies recognise the right of workers to organise collectively and to take collective action, including strikes. The right to strike is not explicitly recognised by the EU although the right to negotiate and conclude collective agreements is recognised.
§ The need for some restrictions on the right to strike in essential services seems to be very widely accepted and observed, in international conventions and in individual countries. The actual regulation of the right to strike in EU countries is based on respective national traditions of industrial relations and political economy.
§ The question of essential services, and whether the electricity sector is an essential service is dealt with in a variety of ways. There is no single set of principles for defining ‘essential services’. Equally opaque is the question of the implications for industrial action in the context of an essential service.
§ In all EU countries the procedures relating to industrial action in ‘essential services’ centre on the arrangements for ‘minimum services’ in the event of strikes. In general these procedures are left to the social partners. The mechanism for applying restrictions is normally to rely on collective agreements and/or self-regulating codes of trade union practice.
§ In practice, governments often intervene in industrial action in essential services. The implication of this is that it is important that there is clarity of procedure so that all parties are aware of their respective responsibilities, including governments.
§ Outside Italy, no EU country has a special Commission or still less a commercial company that can impose or shape the rules on industrial action in ‘essential services’. Where outside intervention takes place in other EU countries it is by a government or local authority or some other public authority.
§ Legislation that restricted the right to strike of certain ‘civil service’ occupations seems to have generally fallen into disuse. The recent initiative by EDF management on re- classification seems untypical.
7.2 Recommendations The recommendations have been developed on the basis of the review of the right to strike arrangements for the fifteen EU countries and other relevant documentation. There are three categories of recommendations. First, we have developed a set of procedural recommendations that address the specific arrangements that apply in Italy. Second, we present a set of recommendations that focus on the guidelines that could apply to relations between the social partners in Italy. Third, we propose a set of recommendations that address questions raised by the study as a whole, identifying principles for policy formulation on the right to strike and drawing lessons from the experiences and practices in other EU countries.
25 7.2.1 Procedure There are three recommendations that deal with different aspects of procedure that could be followed in Italy, developing the current arrangements that apply: a. Re-negotiation of a new agreement should be based on the realities of a liberalised market under the Electricity Directive. These suggest using the following principles:
§ That both parties should accept equal obligations to maintain essential service levels - trade unions and workers should not be expected to maintain services during industrial action which companies are not obliged to maintain in the course of their normal business. However, the parties jointly may agree to maintain a much higher level of minimum service if they so wish.
§ That there should be no automatic presumption that all strike action anywhere in the electricity system is bound to affect essential services. Strike action in the transmission grid or distribution networks may be expected to affect essential services to households, hospitals etc; but strike action at a specific power station or in a specific generating company may or may not affect the supply to essential services such as hospitals, depending on the current customers of that company. b. That the evaluations by the grid operator on the impact of a possible strike to the Ministry should be formally reported to the social partners as a matter of procedure. The current procedure, that of a non-negotiable final resort intervention, does not allow the principal social partners, the employers and the unions, to play a constructive part in the assessment of the possible impacts of strikes. A practice where the evaluation is also presented to the principal social partners, would ensure a transparency that is critical for informed engagement in negotiation and discussion. c. That the Commission, as the agency of last resort, should establish guidelines for the timetable of intervention in the event of non-agreement between employers and unions. The Commission has responsibilities for convening and encouraging meetings between employers and unions to negotiate new agreements. In the recent dispute the continued inactivity of the Commission risked exacerbating the tensions between employers and unions and so instead of contributing to social peace, actually created an incentive for strike action. In this instance, the lack of intervention by the Commission reinforced employer intransigence. d. That the Commission should declare that the 1991 agreement is no longer operable, since the liberalisation required by the EU Electricity Directive has made untenable the presumption in that agreement that all electricity supply is an essential service. This would give all parties a greater incentive to renegotiate a new agreement.
7.2.2 Guidelines for Social Partners The two principal partners are the employers and the trade unions. a. That negotiation should begin immediately on a new agreement on the regulation of the right to strike in the electricity sector. In most EU countries, the specific regulations relating to the right to strike are embodied in the collective agreement and this provides both parties with the ability to express their interests in the event of dispute. In Italy, at present this is not taking place. The parties should note that the mainstream practice throughout the EU is for the maintenance of essential services during strikes to be based on voluntary agreement between employers and trade unions. Attempts to impose unilateral definitions of essential services are likely to
26 increase the level of disputes, and create incentives for trade unions to devise forms of industrial action which disrupt business but avoid sanctions. b. That the employers, as a principal social partner, should be encouraged to assume their mutual responsibilities for social peace. The other side of the social peace obligation, a common feature of arrangements in many EU countries, is that both parties acknowledge this requirement and negotiate in good faith. This principle suggests that employers should participate in negotiations as a willing and interested partner, thereby helping to create the situation that unions will not be forced to resort to strike action to secure settlement. c. That the trade unions should take steps to codify and extend the range of possible industrial action in the electricity sector. It is common in a number of EU countries for trade unions in the ‘essential services’ to prepare and comply with a voluntary code relating to the procedure of industrial action, the scope of action and the provision of minimum services. In addition unions in some EU countries have begun to look beyond strike action involving the whole sector, and explore variations on strike action, as well as ways of carrying out effective strike action, that does not involve the whole sector at the same time.
7.2.3 Principles There are a set principles that should inform the approach to the question of the right to strike. a. That there should be a separation between the legislation on official strikes and legislation on essential services, to ensure transparency and clarity of procedures for both employers and workers. The reason for such clarification is that without such a distinction two sets of rights are blurred. On the one hand, there is a right to undertake industrial action, recognised in various ways and with qualification in all other EU countries. In some countries this right is regulated by procedures that extend to industrial action in all sectors and industries. On the other hand, it is frequently the case that where essential services are involved then specific regulations apply (i) to enable workers to give voice to their concerns and (ii) to ensure that unintended adverse consequences of strike action (particularly in relation to the safety and well-being of citizens, such as hospital patients) is minimised. Such arrangements apply elsewhere and range from social partner regulation (Finland), to union self-regulation (Sweden) and to legal regulation (Belgium). b. That there should be official affirmation that the role of deciding whether essential services are affected by strikes should be devolved to collective bargaining joint decision-making between the trade unions and employers at sector level. This would be in line with majority practice in EU countries, and also reflect what seems to have been the practice before liberalisation. While the combined acts of 1990 and 2000 provide for the minimum service levels (as well as the amicable solution and conciliation procedures) to be defined by the social parties by collective or other agreements, there is no specific onus on the principal social partners to settle as such. Thus the intervention of the Commission becomes the only way for a solution, and a partial one at that in the most recent case. c. That there should be no automatic presumption in a liberalised system that strike action anywhere in the electricity system is bound to affect essential services. Strike action in the transmission grid or distribution networks may be expected to affect essential services to households, hospitals etc; but strike action at a specific power station or in a specific company may or may not affect the supply to essential services such as hospitals. The current wording of the EU Electricity Directive means that no company can claim to have any social obligations unless specified under Italian law.
27 d. That entities and organisations with potential or actual commercial interests in the industry should not have statutory or quasi-judicial roles in the determination of the regulations on the right to strike. The danger is that it is possible that such an involvement will result in relatively self-serving outcomes. In all other EU countries such matters are the primary responsibility of the social partners, or in the last resort, various public authorities.
28 8 Annexes
Annexe I. International Regulations on the Right to Strike
I.i ILO Convention 87 (Freedom of Association and Protection of the Right to Organise Convention, 1948) Article 3: 1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.
2. The public authorities shall refrain from any interference, which would restrict this right or impede the lawful exercise thereof.. (http://ilolex.ilo.ch:1567/scripts/convde.pl/C87)
According to British labour lawyer, Keith Ewing, the ILO has effectively carved a right to strike from Convention 87 which deals with freedom of association and the right to organise (Ewing, 2001).
Although it is not expressly protected by the Convention, Ewing points to the fact that the ILO supervisory bodies (the Committee of Experts and the Committee on Freedom of Association) have deemed it to be implied from the wording of article 3. Nonetheless, even ILO committees accept that the RTS can be restricted in essential services under certain circumstances.
In 1998, the ILO magazine, International Labour Review, carried an article which examined human rights law and freedom of association. In part it dealt with the right to strike. The author, Lee Swepston, Chief of the Equality and Human Rights Coordination Branch, International Labour Standards and Human Rights Department, ILO, wrote that the ILO’s supervisory bodies had had to deal with the question of the right to strike more than any other (Swepston, 1998). He explained that the general principle is that ‘the right to strike is an intrinsic corollary of the right of association protected by Convention No 87’, the relevant articles being 3, 8 and 10.
But the ILO supervisory bodies have accepted it is permissible to restrict the right to strike of workers in essential services (the ILO Committee of Experts also accept that public servants exercising authority in the name of the state should not have the right to strike).
The Committee of Experts define ‘essential services’ as ‘those the interruption of which would endanger the life, personal safety or health of the whole or part of the population’. They did not believe it to be desirable or possible to draw up a complete and fixed list of services to be considered ‘essential’.
However, the Committee on Freedom of Association has accepted as essential services, the hospital sector, the furnishing of water and electricity, and the telephone service and air traffic control. As recompense for the loss of the right to strike compensatory guarantees should be offered to the workers concerned – conciliation, mediation and binding arbitration. These principles on prohibition of strikes in essential services apply to both public and private sector undertakings.
Ewing, Keith. (2001) Reviewing the Employment Relations Act 1999: Trade Disputes and the Law, Appendix One, annex to TUC submission). Swepston, L. (1998) ‘Human Rights law and Freedom of Association: Development through ILO supervision’, International Labour Review, 137 (2): 169 – 194).
29 I.ii United Nations Organisation Universal Declaration of Human Rights, 1948, Article 23, p.4 states:
Everyone has the right to form and to join trade unions for the protection of his interests. Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocol No. 11 (Rome, 4.XI.1950)
Article 11 – Freedom of assembly and association, states:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. http://conventions.coe.int/treaty/en/Treaties/Html/005.htm
The Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 recognises that there may be legitimate restrictions concerned with public safety and other considerations, in terms that include essential services.
International Covenant on Economic, Social and Cultural Rights (Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into force 3 January 1976, in accordance with article 27)
Article 8 states that:
1. The State Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
30 3. Nothing in this article shall authorize State parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention. (http://www.unhchr.ch/html/menu3/b/a_cescr.htm)
The International Covenant on Economic, Social and Cultural Rights (1966) reiterates the right to organisation but also the legitimacy of restricting that right ‘in the interests of national security or public order or for the protection of the rights and freedoms of others’, the same phrase as the 1950 convention. The Covenant also explicitly binds the state to ensuring ‘The right to strike, provided that it is exercised in conformity with the laws of the particular country’, but reiterates the right of states to exclude armed forces, police and administrators from these rights.
I.iii European Social Charter (Turin, 18 October 1961) Article 6:
With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:
1. to promote joint consultation between workers and employers;
2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise:
4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.
The Appendix to the Social Charter (Part II, Article 6, paragraph 4) carries the following proviso:
It is understood that each Contracting Party may, insofar as it is concerned, regulate the exercise of the right to strike by law, provided that any further restriction that this might place on the right can be justified under the terms of Article 31. (http://conventions.coe.int/Treaty/en/Treaties/Html/035.htm)
Status of Convention
During the Council of Europe’s second summit, held in Strasbourg in October 1997, the heads of state and government of the member states made the commitment to ‘promote social standards as embodied in the Social Charter and in other Council of Europe instruments’ and called for ‘the widest possible adherence to these instruments’.
Social Cohesion
The European Social Charter and its Additional Protocol of 1988 guarantee a series of fundamental rights which can be divided into two categories: those which concern conditions of employment and those pertaining to social cohesion.
31 Rights related to employment include non-discrimination in employment; prohibition of forced labour; trade union rights; the right to bargain collectively; the right of women and men to equal pay for work of equal value, etc.
Supervisory Mechanism
An international system of supervision monitors the implementation of the Charter by the 23 states which have ratified it. Governments must regularly submit reports on the application of the provisions of the Charter that they have accepted. These are examined by the Committee of Independent Experts. The Committee gives a legal assessment of the conformity of the situation with the Charter.
In the light of these conclusions, the Committee of Ministers issues recommendations to governments asking them to change their national legislation or practice to ensure conformity with the Charter. Its decisions are prepared by the Governmental Committee on which the Contracting Parties are represented and, as observers, the social partners.
An Additional Protocol to the European Social Charter providing for a system of collective complaints was adopted in 1995, and allows certain workers’ and employers’ organisations and non-governmental organisations to lodge complaints with the Committee of Independent Experts if there is an alleged violation.
The European Social Charter has been revised in order to bring it up to date and to extend its scope to new categories of rights. These rights include in particular protection against poverty and social exclusion, the right to decent housing, the right to protection in cases of termination of employment, etc http://www.coe.int/T/E/Communication%5Fand%5FResearch/Public%5FRelations/About%5FCou ncil%5Fof%5FEurope/An%5Foverview/European%5Fsocial%5Fcharter/
I.iv EU Provisions on the Right to Strike Charter of EU rights The newly agreed charter of EU rights (CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01) http://europa.eu.int/comm/justice_home/unit/charte/pdf/texte_en.pdf) does not explicitly include the right to strike. It does include a provision against forced labour, and a right to collective bargaining and association:
Article 5: Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. Trafficking in human beings is prohibited.
Article 28: Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.
There is however no ‘right to strike’ as such. A commission communication (COMMISSION COMMUNICATION on the Charter of Fundamental Rights of the European Union Brussels, 13.9.2000 COM(2000) 559 final. Para 21.) on the charter explains:
32 ‘Conversely, certain rights envisaged at the beginning have not been included: either because they were seen as simply setting policy objectives, which the Cologne conclusions prevent from being included in the Charter; this is the case as regards the right to work or right to an equitable wage; or because, without being excluded from the list, they were already implicit in other provisions in the preliminary draft; this is the case, for example, of the right to strike, which is covered by Article 26 concerning the right of collective bargaining and action, or the right to a minimum income, which is covered by Article 32 dealing with social assistance.’
There is also no general right to enjoy public services, such as electricity supply, simply a recognition of subsidiary national provisions, and a commitment to ‘consumer protection’:
Article 36: Access to services of general economic interest The Union recognises and respects access to services of general economic interest as provided for in national laws and practices, in accordance with the Treaty establishing the European Community, in order to promote the social and territorial cohesion of the Union.
Article 38: Consumer Protection Union policies shall ensure a high level of consumer protection.
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01) http://europa.eu.int/comm/justice_home/unit/charte/pdf/texte_en.pdf
Nice Treaty: Article 137 and social objectives Article 137:
‘1. With a view to achieving the objectives of Article 136, the Community shall support and complement the activities of the Member States in the following fields:
(a) improvement in particular of the working environment to protect workers' health and safety; (b) working conditions; (c) social security and social protection of workers; (d) protection of workers where their employment contract is terminated; (e) the information and consultation of workers; (f) representation and collective defence of the interests of workers and employers, including co-determination, subject to paragraph 5; (g) conditions of employment for third-country nationals legally residing in Community territory; (h) the integration of persons excluded from the labour market, without prejudice to Article 150; (i) equality between men and women with regard to labour market opportunities and treatment at work; (j) the combating of social exclusion; (k) the modernisation of social protection systems without prejudice to point (c).
……5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.’
An official guide states: ‘However, as in the past, remuneration, the right of association, and the right to strike or lock out are not addressed at Community level.’ (The Amsterdam Treaty: a
33 Comprehensive Guide - The Union and the citizen. http://europa.eu.int/scadplus/leg/en/lvb/a14000.htm#a14003)
I.v EU Provisions on Essential Services and Electricity Treaty: Make public services effective, conditionally: Article 16 The one section of the treaty that provides a positive declaration concerning public services is Article 16. This uses the terminology of ‘services of general economic interest’, and declares that the EU and the members states ‘shall take care that such services operate on the basis of principles and conditions which enable them to fulfill their missions’. This does not appear to commit states or the EU to any particular services or any particular scale or level of provision, but simply to making them work effectively. It is made on the basis that these services form part of shared values and contribute to ‘social and territorial’ cohesion (not, as in the objectives in Article 2, ‘social and economic’ cohesion (Consolidated Treaty Art 16).
Even this commitment to helping services work effectively is ‘Without prejudice to Articles 73, 86 and 87’ of the treaty. Articles 86 and 87 concern public undertakings and state aid (Art 73 concerns transport), and these have very specific declarations.
Competition Rules Take Precedence
Article 86 states that for public undertakings concerned with services of general interest, member states ‘shall neither enact nor maintain in force any measure contrary to’ the Treaty, especially the competition rules’. It adds the more open statement that undertakings operating such services are subject to the competition rules ‘insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them’ (Consolidated Treaty Art 86).
Article 87 imposes a blanket limitation on state aid to undertakings ‘in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, insofar as it affects trade between Member States, be incompatible with the common market’. It then proceeds to give exceptions - three categories of aid which ‘shall be’ compatible with the market: ‘aid having a social character, granted to individual consumers’, aid for natural disasters and for former east Germany; and five categories which ‘may be compatible’ – economic development, projects of European interest, economic activity, cultural support, and other (Consolidated Treaty Art 87). Article 73 in effect adds another for transport – aid which is necessary ‘for the discharge of certain obligations inherent in the concept of a public service’.
Treaty establishing the European Community, Official Journal C 340, 10.11.1997, pp. 173-308 http://europa.eu.int/eur-lex/en/treaties/dat/ec_cons_treaty_en.pdf
Electricity Directive
The Electricity Directive states: Directive 96/92/E, Article 3, section 2:
Having full regard to the relevant provisions of the Treaty, in particular Article 90, Member States may impose on undertakings operating in the electricity sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies and to environmental protection. Such obligations must be clearly defined, transparent, non-discriminatory and verifiable; they, and any revision thereof, shall be published and notified to the Commission by Member States without delay. As a means of carrying out the
34 abovementioned public service obligations, Member States which so wish may introduce the implementation of long-term planning.
Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity http://europa.eu.int/eur- lex/en/lif/dat/1996/en_396L0092.html
35 Annexe II. Ownership and Structure of the EU Electricity Sector The electricity industry in the EU has been transformed in the past two decades, with a number of countries privatising their industries, and others planning to do so. What was once a publicly owned European industry has been subjected to competitive regulation, changes in ownership and new forms of regulation.
36 Transmission % of retail Retail Wholesale New Transmission Distribution Country Generator Distributors Regulator company market open suppliers market Generation Access Access UK Innogy, England &100 London Innogy Great Britain, Gas England &Authorisation Regulated Regulated Powergen Wales, (EDF), (independent), & Electricity Wales, NETA, (Eon), National Grid Eastern Powergen Market Authority) Scotland British Co, (EDF), S(EOn), EDF (none), Energy independent;, Scotland (French), Northern (independe S Scotland, (Scottish Scottish & Ireland (none) nt) ScottishScottish Power), Southern Power Power, Manweb (independent) (independe independent;, (Scottish Scottish nt) AEP N Scotland, Power), NPower (US), Scottish & Scotland (independent), Mission Southern, (Scottish &TXU (US), Edison independent;, Southern), AEP (US), (US), TXU N Ireland, Southern NIE (Viridian) (US) NIE, Viridian (Scottish & Scottish & Southern), Southern SWEB (Independe (Mirant), nt), SWALEC Magnox (Mirant), Electric Seeboard (BNFL, (AEP), UK), EDF Midlands (France), (Utilicorp), AES (US), E Midlands British Gas (Powergen), (Centrica) Yorkshire (Mid American Energy), Northern (Mid
37 Transmission % of retail Retail Wholesale New Transmission Distribution Country Generator Distributors Regulator company market open suppliers market Generation Access Access American Energy), Norweb (United Utilities), NIE (Viridian) France EDF GRT (EDF) 30 EDF EDF CRE Planned Authorisation Regulated Regulated (national public) Sweden Vattenfall Kraftnat 100 Vattenfall, Vattenfall, NUTEK NordPool Authorisation Regulated Regulated (national (national Sydkraft, Birka, public), public) Birka +Sydkraft + Sydkraft many others many others (Eon), Birka (Fortum) Finland Fortum Fingrid 100 Fortum +Fortum +Electricity MarketNordPool Authorisation Regulated Regulated (privatised) (national many others many others Authority , PVOpublic + (Finnish private) industry) Denmark Energi E2 Elkraft (E 100 Many (localNESA, Danish Energy NordPool Authorisation Regulated Regulated (local Denmark), public) Kobnhavn Regulatory public), Eltra (W Energi, SEAS Authority Elsam Denmark) (local public) Ireland ESB ESB 30 ESB ESB Commission for Planned Authorisation Regulated Regulated (national Electricity public) Regulation Nether- Reliant Tennet 33 Essent, Essent, Nuon, DTE Power Authorisation Regulated Regulated
38 Transmission % of retail Retail Wholesale New Transmission Distribution Country Generator Distributors Regulator company market open suppliers market Generation Access Access lands (US), Nuon (localEneco Exchange Essent public), (local Eneco public), Electrabel NL (France), Eon Benelux (Germany) Belgium Electrabel GTA 35 Electrabel Electrabel CREG Planned Authorisation Regulated Regulated (Suez) Luxem- 0 bourg Germany RWE RWE, Eon, 100 Many RWE + many Kartelamt Power Authorisation Negotiated Negotiated (private/pu EnBW (EDF others exchanges blic) Eon control), (private), VEAG VEAG (Vattenfall), (Vattenfall) BEWAG (Vattenfall), HEW (Vattenfall) Italy ENEL GRTN 35 ENEL +ENEL Autorita per Planned Authorisation Regulated Regulated (privatised) (national municipals l’Energia Elettrica and Single , Edison public) e il Gas Buyer (EDF control), Elettrogen (Endesa), Eurogen , Interpower
39 Transmission % of retail Retail Wholesale New Transmission Distribution Country Generator Distributors Regulator company market open suppliers market Generation Access Access Spain Endesa REE 54 Endesa, Endesa, CNE OMEL Authorisation Regulated Regulated (privatised) Iberdrola, Iberdrola, (voluntary , Iberdrola Union Union Fenosa Pool) (independe Fenosa, nt), Union Hidro Fenosa Canatabrico Portugal EDP REN (EDP) 30 EDP EDP ERSE Planned Authorisation Regulated Regulated (privatised) subsidiaries subsidiaries and tendering and Single Buyer Austria The 8 regional32 Many Wienstrom, Power Authorisation Regulated Regulated Verbund, companies EVN, exchange Wienstrom, Verbund TIWAG, EVN, Greece PPC PPC 30 PPC PPC Regulatory Planned Authorisation Regulated Regulated (national Authority for public) Energy
40 Annexe III. The Right to Strike in Essential Services in EU Countries (excl. Italy)
III.i AUSTRIA
Regulation of the Right to Strike
There are no legal regulations on strikes in Austria and no right to strike exists as such. However, the freedom of assembly and association is guaranteed in the constitution without any qualifications (see also Art. 12, Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger (Constitutional Act on Citizens’ General Rights) 1867). The state is ‘neutral’ vis-à-vis labour market organisations and grants them the freedom, rather than the right to take industrial action. The freedom of assembly and association as well as the freedom of industrial action is bound to individuals.
There are neither legal provisions nor case law in Austria. However, relative to the totality of law the right to strike exists for public employees, civil servants, even the police and the armed forces. An interpretation of para. 2 of the Coalition Act (Koalitionsgesetz) 1870 does outlaw political strikes but considers sympathy and boycott action as legitimate goals (Schwarz and Löschnigg 1995, 844). Apart from this Act neither strikes nor lockouts or boycotts are defined in the law and, thus, have to be assessed primarily against provisions in penal and civil law.
Industrial action is not defined in Austrian legislation. However, legal literature defines it as
‘a cessation of work carried out according to a plan with the participation of quite a large amount of workers of a certain trade, business or enterprise and aiming at a certain goal with the idea of continuing work after achieving that goal and/or the cessation of industrial action. (Aaltonen 1999, 173)
Equally Austrian law does not explicitly recognise the right to strike to anybody, thereby implying that unions do not have a monopoly on the right to strike. Thus, wildcat strikes are not illegal per se.
In contrast to German regulations Austrian law does not consider wildcat strikes illegal as the freedom of industrial action is granted to individuals. Furthermore, Austrian law does not reduce the legitimate goals of industrial action to issues of a collective agreement and does not recognise the ultima ratio principle with regard to industrial action. It only refers to the more general principle of ‘good practice’ (instead of fairness, proportionality etc.) as well as penal and civil law in order to assess the legality of industrial action. (Schwarz and Löschnigg 1995).
Collective Agreements
Provisions regarding strikes can in principle be laid down in collective agreements. In line with the informal structure of Austrian social partnership there is no legal regulation for the conclusion of collective agreements or arbitration. In practice, decisions are reached in the informal preliminary meeting of the Parity Comission by the recognised collective organisations of employees and employers. In theory the government could legislate in case the social partners fail to reach an agreement although this has never happened since 1945. However, rules exist for the extension of collective agreements.
Collective agreements can contain an explicit peace obligation and define its precise scope and applicability. Generally, this obligation is implicit as strikes on issues that are regulated in a collective agreement are forbidden for the duration of the agreement. Furthermore, industrial action
41 is unlawful if the issue in question is a matter of enforceable co-determination (and subsequently of compulsory arbitration) as regulated in the Works Constitution Act 1974 (Arbeitsverfassungsgesetz 1974), that is interest disputes. This also applies to rules disputes for which an arbitration board is responsible. Strikes are not allowed to substitute for those areas of enforceable co-determination, compulsory arbitration and joint dispute resolution that are legally mandatory. All other negotiation and arbitration activities of the conciliation authority are voluntary, that is both parties to the dispute have to give their consent.
Sanctions
Apart from cases where obligations defined in collective agreements are violated sanctions can be incurred when industrial action is contrary to principles of good practice. Strikes do have consequences in penal law if they pose a general threat to the life or health of a large number of people (see para. 176, Strafgesetzbuch (Penal Code) 1974). In this case a duty to work exists which clearly applies to hospitals and public utilities.
Strikes and lockouts do not automatically constitute an end of the employment relationship, although they can lead to its termination if combined with one of the generally permissible routes. A strike breaches individual labour law, employees therefore loose the right to pay. Employers can end employment relationships during a strike by summary dismissal although this is not possible in the case of short-term warning or demonstration strikes. Any disputes about this are dealt with by the labour courts for private employees and contractual public servants, by a disciplinary commission for tenured civil servants.
In practice criminal liability of individual employees ends if the union announces that the industrial action is legal. The prerequisite for indemnity liability regarding a violation of legal provisions is that action has been particularly aggravated; regarding violations of good practice the organizers must have deliberately acted against principles of good practice. If they acted on behalf of the union the latter is liable for damages (see Aaltonen 1999, 180-1).
Procedures
There are no legal procedures for industrial action. Equally, there are no notice requirements although industrial action leading to damages might more likely be considered lawful if advance notice is given.
The Austrian Union Confederation (ÖGB) established a strike procedure that requires the consent of its governing bodies but no membership ballot. Formal approval, however, is only relevant regarding the eligibility of strikers for strike pay and has no consequences for the lawfulness of industrial action as such.
According to ÖGB’s constitution, all planned strikes and lock-outs have to be reported to the [presidential board] (Präsidium) in time, so that it is able to call a meeting of the federal executive board (Bundesvorstand), which is responsible for the necessary preparations and for initiating appropriate measures, with the consent of the affiliated union. Furthermore, the executive board passes resolutions regarding proposed strikes, if they concern the general union movement or the public interest. The board comprises not only the members of the presidium (the president, vice-presidents and other top officials), but also a number of representatives of the individual unions, with representation depending on the size of their membership. In addition, the local secretaries (Bezirkssekretariate ) of affiliated unions are obliged to report wage developments, strikes, lock-outs and other important events to ÖGB.’ (Stückler 2000)
42 Although unions do not have a monopoly on the right to take industrial action they have a dominant position vis-à-vis non-union industrial action as they are constructed as singular representative social partners and have a highly centralised and concentrated structure.
Public Services
A 1914 strike decree (Streikpatent BGBL 155/1914):
…not only forbids tenured civil servants (Beamte, …) but also any employee of independently managed federal state establishments and all railway workers (!) to have any part in a strike. The same applies to employees of establishments which are classified by the Minister of Internal Affairs as ‘government protected concerns’ because they are ‘especially important to the state or public welfare’. (Strasser 1992, 194)
However, the validity of this decree is highly controversial, civil servants have been on strike on numerous occasions and no other limitation of the applicability of this regulation or the right to strike has been instituted since.
The only factual limitations of the right to strike in the public service, thus, result from general principles such as the duty to work in order not to endanger life or health or general considerations of good practice.
Employees in the public service fall under two categories, contractual public servants on the one hand, employees covered by a private employment contract on the other. Contractual public servants (Vertragsbedienstete) are employed by the federal government, the provincial government or the municipalities. They fall under labour law but are governed by the employment regulations of the federal, the respective provincial governments or that of the municipalities. Equally, their terms and conditions of employment differ somewhat from those of civil servants on the one hand, from private employees on the other. Contractual public servants and employees do not receive any salary during a strike (as opposed to civil servants who only have to justify their absence from work from the fourth day onwards). A strike violates the duties of service and can be prosecuted in the labour courts for contractual public servants and employees, under disciplinary law for civil servants.
Electricity
The provisions for strikes within electricity derive from the general regulations specified above. Legal implications can be slightly different depending on the employees’ status as tenured civil servants, contractual public servants or employees with an employment contract. In some companies (e.g. Vienna) employees have civil servant status, although this is phased out as the industry is restructured. Newly hired employees, thus, are hired as contractual public servants in the case of the municipality owned electricity companies, the rest fall under normal private sector law.
There are no provisions regarding strikes in collective agreements of the electricity industry, neither with regard to industrial action nor to key workers or essential services. Equally, the laws that regulate the organisation of the industry in the context of a liberalised market (ELWOG (Elektrizitätswirtschafts- und –organisationsgesetz) 1998 and 2000) do not contain anything specific beyond a general duty of service provision by the company. (For an important bargaining round in this respect see eironline 1998). The remit of the regulatory authority E-Control is confined to the execution of the above law, that is technical specifications and market regulation.
In practice industrial action has been restricted to general assemblies at the workplace (which are regulated in the Works Constitution Act), or to warning strikes in customer service related areas,
43 rather than industrial action in production (see also the day of action and warning strikes against the newly formed rightwing government in June 2000 (Stückler 2000)).
In fact, strikes within a company do not seem sensible given the structure of the industry (25,000 workers in 400 companies). As it is the freedom of assembly and association that is constitutionally guaranteed, strikes and other forms of industrial action are generally regulated within the political arena.
Sources
Aaltonen, Juri. (1999) International Secondary Action in the EU Member States. Helsinki: Metalli (Finnish Metalworker Union). eironline. (1998) ‘Sparks Fly in the Electricity Generation Industry’: http://www.eiro.eurofound.ie/1998/12/InBrief/AT9812118N.html. eironline. (2001) ‘Austria’: http://www.eurofound.ie/emire/austria.html. Schwarz, Walter, and Günther Löschnigg. (1995) Arbeitsrecht. Gesetze und Kommentare. Wien: Verlag des ÖGB. Strasser, Rudolf. (1992) Labour Law and Industrial Relations in Austria. Deventer; Wien: Kluwer; Manz. Stückler, Angelika. (2000) ‘Conflicts Highlight Regulation of Industrial Disputes’: http://www.eiro.eurofound.ie/2000/07/Feature/AT0007225F.html. Traxler, Franz. (1998) ‘Austria: Still the Country of Corporatism’ in Changing Industrial Relations in Europe, edited by Anthony Ferner and Richard Hyman. Oxford: Blackwell, pp. 239-261
44 III.ii BELGIUM
Regulation of the Right to Strike
The freedom of association is guaranteed in Article 20 of the Belgian Constitution. All other rights such as the right to join a union, the right to collective bargaining, concertation or collective action derives from international treaties that have been integrated into Belgian law (Rigaux 1997, 59-61).
A strike constitutes a collective temporary and complete interruption of work and, if legal, does not terminate but only suspend the employment contract. Strikes are the only form of industrial action allowed in Belgium, as opposed to slow-downs or political strikes (see Aaltonen 1999, 118-126).
The Belgian industrial relations system is characterised by a complex web of negotiation, consultation and concertation. This structure is equally important for the determination of the substantive as well as the procedural elements and limitations of the right to strike. Whereas bipartite negotiation and consultation institutions exist at national-intersectoral, sectoral and company level, concertation is a tripartite matter and is confined to the national and regional level (Vilrokx and van Leemput 1998, 325).
Collective Rights
The Belgian constitution does not contain any reference to ‘social constitutional rights’ such as the right to strike etc. In 1921 Article 310 of the Belgian Penal Code was repealed thereby decriminalising collective industrial action. In 1981 the Belgian Supreme Court ruled that individuals do have a right to strike. Belgium only recently ratified the European Social Charter (Law of July 11, 1990); there have been difficulties with regard to the implementation of Art. 6 (4) relating to the right to strike, which would also apply to civil servants.
Further details of the right to strike are specified via case law, collective agreements or in decisions by sectoral or subsectoral joint committees (Commissions Paritaires) that assume legal status. Apart from mandatory legal provisions large parts of law are established by the social partners themselves in the following hierarchical order: collective agreements decreed generally applicable (concluded within the National Labour Council, a Joint Committee (or a Joint Subcommittee), collective agreements not decreed generally applicable etc (eironline 2001a).
Collective Agreements and Sanctions
It is important to note that collective agreements are not necessarily binding in court; in general they have a normative function and bind the signatory parties only. This also goes for procedural issues such as notice periods etc. The main reason for this practical insignificance of mandatory obligations (peace obligation) is that unions do not have legal personality in Belgium. Equally, agreements do not bind individual members.
‘Although no sanctions can be imposed on unions due to, even illegal, strikes, they can be imposed on an individual striker. Participation in a strike only exceptionally makes termination of employment possible. Union members can be made liable for damages due to an illegal strike.’ (Aaltonen 1999, 125)
This liability of strikers and union members in illegal strikes has recently been shifted to a concept of liability of individuals in legal strikes through employer injunctions in court. This development constitutes a de facto restriction of the right to strike.
45 Conciliation
The structure for the conciliation procedure is based upon these rights. Joint Committees are in most cases chaired by an official conciliator who is appointed by the Office of Collective Labour Relations (Service des Relations Collectives de Travail) and acts under the authority of the Minister for Employment and Labour. The instances above conciliation are one of the 26 regional Labour Tribunals (Tribunal du Travail) and ultimately one of five Labour Courts (Cour du Travail). The Labour Tribunals and Courts have full legal powers.
Undermining the Right to Strike
The right to strike has been considerably undermined in recent years as employers sought interventions from civil courts against collective action (ICFTU 2000; ICFTU 2001; Vandewattyne 2001). A ruling of the Court of Appeal (Cour de Cassation) in 1997 stated that civil courts had jurisdiction to hear cases of ‘assault’ linked to strike action, determine the ‘normal’ exercise of strike action and in this sense rule against relevant actions. Since 1987, when the first judicial interventions took place, fines were either imposed or threatened on a person/offence or person/day basis for attending a meeting of strikers, strike action, harassment, stoppages, occupations or obstacles preventing the freedom of movement. Fines varied between 250 and 1250 Euro depending on the decision. The restrictions set by the courts always followed a unilateral application by the employers, meaning that the workers’ point was not heard by the court.
Commenting on a judicial intervention in 2001 the FGTB/ABVV stated that this
‘‘not only deprives the staff concerned of their right to strike, but obliges them to return to work immediately’. The union also denounced ‘a direct attack on the right to strike and the freedom to work, both of which are fundamental rights guaranteed by the European Social Charter’.’ (Vandewattyne 2001)
In an attempt to redress this situation and move back to the formal mechanisms of negotiation and consultation Prime Minister Guy Verhofstadt stated in October 2001 that the government intended to ‘prioritise social concertation during industrial disputes, and if that failed, to have the Labour Tribunal resolve ’industrial disputes in which one of the parties have recourse to the law’.’ (eironline 2001c)
Whereas the unions campaigned ‘around a petition calling for industrial disputes to be governed by regulations negotiated within ad hoc joint bodies’, the employers claim that ‘it should be possible to demand minimum services of public services at all times and in all circumstances’ and do not want to restrict this to the public sector. (eironline 2001c) The core of the problem, thus, is if the right to strike should prevail ‘over other rights, including the right to work and private property rights.’ (Vandewattyne 2001)
Public Services
The right to strike in the public services is circumscribed by the ‘Essential Public Services in Peacetime Act’ of August 19, 1948 that was amended by the Act of June 10, 1963. The aim is to prescribe a procedure that reconciles the well-being of the community as a whole on the one hand, the right to strike on the other.
The substantial definition of ‘essential services’ is delegated to joint committees and the decisions can be made legally binding if supported by 75% of both, the employer as well as the union side. The remit of the joint committee is relatively large,
46 ‘identifying and defining the arrangements, supplies and services that must be maintained in the event of collective and voluntary stoppage of work or collective layoff of employees. This remit is to meet certain vital needs, to carry out urgent work on machinery or plant and to perform tasks demanded by an instance of force majeure or unforeseen necessity. The joint committees shall also be responsible for identifying those vital needs’ (eironline 2001b; a list of joint committees and respective collective conventions can be found on http://www.meta.fgov.be/pa/fra_index.htm; see also eironline 2001).
Joint Committees
The law of December 19, 1974 obliged the public authorities to negotiate on a range of major issues (employment statute, wages, pensions, working time, work organisation) with the public service unions (Rigaux 1997, 63-65). These negotiations are conducted in specific joint committees that reflect the functional and regional structure of the Belgian industrial relations system. Where the joint committee fails to reach a decision it can be requested by the Minister for Employment and Labour to do so within six months. If this still does not result in a decision
‘the vital necessities are specified by Royal Decree and, following consultation with the National Labour Council, the arrangements, supplies and services that must be maintained are specified by Ministerial Decree.’ (eironline 2001b)
The joint committee can appoint an equal number of its members of the employer and the union side to a subcommittee (assisted by a representative of the Minister for Employment and Labour) that will monitor the implementation of the decision or decree on essential services within an industry or certain enterprises. The subcommittee can intervene and requisition employees to perform the above defined essential work (in case there is no subcommittee or in case it disagrees the Minister for Employment and Labour or the Minister for Economic Affairs can intervene). During this period the employees’ employment rights cannot be changed, in fact, existing contracts of employment cannot be terminated and periods of notice are suspended (eironline 2001a).
Some aspects of this regulation have played an important role in a one month strike in public bus transport companies in the Wallonia region. As the negotiations between employers, the regional government and the unions did not result in any compromise an official conciliator was called in before the conflict was finally resolved with the conclusion of an anticipated collective agreement. However, as the strike persisted throughout the negotiations the question emerged whether the right to strike was abused ‘by refusing to provide a public service for more than a month. This issue was made starker by the fact that the sector’s social partners had not defined the concept of a minimum level of service to be preserved in the event of a strike.’ (Delbar 2000)
Judicial Intervention
Judicial interventions have also undermined the right to strike in the public service. In 1999/2000 the Belgian National Railways (SNCB/NMBS) appealed in all the 26 Belgian jurisdictions in order to prevent a strike during the Royal wedding. Almost all the rulings were in favour of the management (ICFTU 2001). In another case at a Belgian airline the Court of First Instance threatened a penalty of 2,500 Euro per person per day; however, the supervisory flight crew was allowed to strike after the Court overruled its earlier decision (Vandewattyne 2001).
Electricity
Although electricity falls within the private sector and employees are governed by private employment contracts the ‘Essential Services in Peacetime Act’ applies to the sector. Collective agreements and disputes as well as the substance of essential services are regulated by the Joint
47 Committee 326 (Commission Paritaire de l’Industrie du Gaz et de l’Eléctricité). The liberalisation requirements of the European electricity market and the corresponding reorganisation of the structure of Electrabel will place those employed, for example, in call centres within the remit of Joint Committee 218 (Commission Paritaire Nationale Auxilière pour Employés). This obviously will result in a fragmentation of the employees and union power as well as in the deterioration of terms and conditions for new entrants.
Despite the restrictive developments discussed above protracted and forceful collective action has taken place in the electricity sector in recent years. Following a six month rotating strike GAZELCO and CNE/LBC obtained the introduction of the 35 hour week and additional employment creation. Electrabel started to sanction union representatives about three months into the strike by not paying their wages and thereby distorting industrial action. However, as Electrabel represents the entire national electricity sector this agreement (as well as the preceding industrial action) is significant as the first sectoral agreement on the 35 hour week (eironline 1998).
Court Injunctions Against Strikers at Electrabel and Distrigaz
The resort to civil courts has been practised in the electricity sector too (for the following case, see L’Echo, various issues between February and July 2001; interview with CNE representative). Together with the specific structure of the Belgian industrial relations system this practice has far- reaching effects on unions’ options for industrial action.
In February 2001 Electrabel presented a restructuring plan, Transform 2003, that foresaw a reduction of the workforce by 1,700 employees. The unions entered negotiations in the joint committee arguing that employment security is part of their employment statute resulting from a 1961 collective agreement. Between February and March the joint committee met eight times.
Electrabel withdrew Transform 2003 from the joint committee, aiming to negotiate its propositions at the local level. According to the company itself it could not respect the conditions for a continuation of the negotiations that were imposed by the president of the joint committee.
The unions stepped up their action and issued a strike notice. A strike was announced for May 10- 11 by all the unions represented in Electrabel and Distrigaz, promising that users will not be affected. In fact, production and distribution facilities have been managed by non-strikers and professional employees who had been trained for this.
The president of the joint committee, now turned into conciliator, put forward his third proposal to mediation when Electrabel succeeded to impose an injunction via the civil court. The reasoning for the injunction is based entirely on the right to work (that of sub-contractors in this case!) and contains no reference to public service obligations. This recent case is also specific insofar as the court did not just threaten penalties but immediately sent bailiffs to the strikers’ homes. In one case bailiffs and the police mistakenly opened the home of an employee who was on holiday. Furthermore, pickets were banned not just from the company’s gates but also from the street.
Depending on regional regulations employees can only appeal the injunction at a civil court or labour tribunal after 1-3 months; the time until a court decision is reached again can take up to one year or more. In the past unions have always won their cases. This structure of conflict is underwritten by the fact that neither trade unions nor employer associations have a status of legal person. Cut-offs could therefore be considered as sabotage and are obviously very risky for individual workers.
At the end of June 2001 the conciliator’s third mediation proposal was signed by two minority unions (FEG/CSC and CGSLB), thus creating a situation where a collective agreement becomes applicable without binding the non-signatory majority unions to any form of social peace. This also
48 means that the collective agreement cannot be ratified and given legal status. Thus, the last collective agreement with legal force dates from 1999.
This example makes clear that the right to strike is profoundly hollowed out through the resort to court injunctions (1), and that conciliation in this context in fact takes on a function of pressure that is biased against the unions (2). Thus, given that the Belgian industrial relations system does not foresee any compulsory arbitration, it renders the widespread practices of conciliation and mediation completely absurd.
Sources
Aaltonen, Juri. (1999) International Secondary Action in the EU Member States. Helsinki: Metalli (Finnish Metalworker Union). Delbar, Catherine. (2000) ‘Major Public Transport Strike Hits Wallonia’: http://www.eiro.eurofound.ie/2000/12/Feature/BE0012334F.html. eironline. (1998) ‘Pioneering sectoral agreement at Electrabel: 35-hour week and job creation’: http://www.eiro.eurofound.ie/1998/01/inbrief/be9801130n.html. eironline. (2001a) ‘Belgium’: http://www.eurofound.ie/emire/belgium.html. eironline. (2001b) ‘Belgium: Essential Public Services in Peacetime’: http://www.eurofound.ie/emire/BELGIUM/ESSENTIALPUBLICSERVICESINPEACETIME- BE.html. eironline. (2001c) ‘Controversy over Right to Strike’: http://www.eiro.eurofound.ie/2001/10/InBrief/BE0110310N.html. ICFTU. (2000) ‘Belgium: Annual Survey of Violations of Trade Union Rights (2000)’: http://www.icftu.org/displaydocument.asp?Index=991210677&Language=EN. ICFTU. (2001) ‘Belgium: Annual Survey of Violations of Trade Union Rights (2001)’: http://www.icftu.org/displaydocument.asp?Index=991213839&Language=EN. Rigaux, Marc. (1997) ‘Les droits collectifs des travailleurs du secteur public - Belgium Report’ in Employees' Collective Rights in the Public Sector, edited by Tiziano Treu. The Hague: Kluwer, pp. 53-71 Vandewattyne, Jean. (2001) ‘Government to Legislate on Intervention of Courts in Industrial Disputes’: http://www.eiro.eurofound.ie/2001/10/feature/BE0110306F.html. Vilrokx, Jacques, and Jim van Leemput. (1998) ‘Belgium: The Great Transformation’ in Changing Industrial Relations in Europe, edited by Anthony Ferner and Richard Hyman. Oxford: Blackwell, pp. 315-347
49 III.iii DENMARK
Regulation of the Right to Strike
The Danish constitution does not have much to say on the right to strike. Article 78 refers to every citizen’s right of association and Article 79 entitles citizens to take part in peaceful demonstrations.
Except for those holding the status of tjenestemand (crown servant), Danish law recognizes the freedom to take action collectively in support of negotiations with the purpose of arriving at a collective agreement.
The labour market parties effectively regulate the situation independently. Danish collective labour law is heavily based on agreements between the labour market parties. Rules of interpretation of the agreements are taken from case law.
By far the most important of the collective agreements is the Main Contract between LO (Landsorganisationen, trade union federation) and DA (Danish Employers' Confederation).
Although it is generally assumed that the right to strike is a collective one held by the labour market party, that is the union, there have been some recent changes. The growth of individual contracts has led to a few instances of very small numbers of workers – in one case a single worker – taking strike action. There has been speculation that new pay systems can effectively give an individual the right to strike. How important this is in practice remains to be seen.
Collective Agreements
As collective agreements are legally binding, rights and obligations of the parties are enforceable mainly through the courts.
Collective labour law is present only in the Mediation in Labour Disputes Act (LMA) and the Labour Court Act (ARL). The basis of Danish collective agreements is the 1899 compromise between LO and DA.
Formal rules relating to strikes, lockouts and the peace obligation are part of the main contracts between the central social partners. These agreements are binding on the suborganisations of the central organisations and effectively have the force of legislation.
The relevant basic agreements lay down the general principles that are to apply between employers and employees covered by them and also serve to establish a certain limit to what may be the subject of negotiation.
This usually means that a settlement can be arrived at (possibly with intervention from the legislative authorities). Consequently, although it is customary for formal notice of industrial action to be given when collective agreements fall due for renewal, disputes seldom actually take place. Over the past 30 years major disputes have occurred on only three occasions: in 1961, 1973 and 1985.
The Peace Obligation
The 1899 agreement established, among other things, the right to organise and a requirement to the effect that no work stoppages take place during the term of a collective agreement (the so-called ‘peace obligation’ clause).
50 If the parties are covered by a collective agreement, the peace obligation normally applies. This means that, once the agreement has been entered into, under the Standard Rules (which in accordance with s.22 of the Labour Court Act apply in all cases where no other adequate rules have been explicitly agreed) an attempt must be made, in the first instance, to settle any disputes by way of negotiation.
This applies equally in cases of disagreement as to the interpretation or development of the relevant collective agreement, breach of agreement and disputes of interest (i.e. as opposed to disputes of rights) that may arise under the agreement currently in force (e.g. over pay for newly introduced tasks not covered in the agreement) and in regard to other disputes of an employment-related nature.
Industrial action is only permissible where a collective agreement does not exist or where an existing agreement has been terminated or has expired.
Unlike the Finnish system in which action is permitted unless expressly prohibited, in Denmark the peace obligation means that the industrial peace must be preserved for the duration of the contract unless exceptionally agreed upon.
Even if there is no peace obligation in operation (because of the expiry of the collective agreement for example), legal industrial action must still have a legal purpose and the goals and means of action must be in reasonable proportion to one another.
Procedures
It is also usual for agreements to contain specific rules on the notice to be given of stoppages and provisions on the procedure for taking the decision to initiate such action within the organisation concerned.
For example, s.2 of the Basic Agreement between the DA and LO states that the decision to initiate the stoppage of work must be approved by a body authorized to do so under an organisation's statutes by at least 75% of the votes at the meeting. Notice must also be given to the opposite party to the agreement. This is not a ballot of the members, but a vote at a meeting of the national executive for example. A copy of the notice must be sent to the official conciliator, who then has the discretion to intervene.
Where a collective agreement contains no rules on such notice, the relevant individual periods of notice of termination of the employment contract must be observed before initiating a stoppage of work (since industrial action normally terminates the contract).
However, it is usual for collective agreements to lay down rules on notice of industrial action which must normally be observed in the case of disputes connected with the expiry of the agreement and in the case of the initiation of secondary/sympathy action while the agreement is in force.
Under s.2(3) of the Basic Agreement between the DA and LO, notice of industrial action must be given twice to the opposite party. The first notice must state that the organisation concerned intends to submit a proposal to take industrial action to its authorized body/assembly and must be sent to the other organisation's executive committee by registered letter 14 days before the proposed date for initiating the action.
The second notice must inform the opposite party that the decision to take action has been approved and must be received at least 7 days before the date of the action. It should include exact information on the extent of the action.
51 The rules on notice of industrial action are intended partly to allow time for the negotiation of a settlement and partly to create psychological pressure towards the same end. They are supplemented in this respect by the procedures, which the official conciliator usually sets in motion in negotiating situations where large sectors of industry are involved.
The rules on notice of industrial action must also be observed when an organisation, which is bound by the peace obligation, exercises its right to give notice of secondary action to be taken in support of a sister organisation.
If agreement on a new collective agreement cannot be reached, further negotiations take place between the Conciliator and the social partners:
§ if the negotiations continue, conducted by the Conciliator, they must be concluded within a certain time limit; § if the parties cannot reach agreement, a first notice concerning industrial action may be issued (strike or lockout); § industrial action takes place unless the Conciliator decides to postpone it; s/he may do so in the form of two postponements, each of 14 days' duration; § if, after that time, no agreement is reached through renewed contact between the parties, industrial action takes place.
Interpreting the Agreement
If there is disagreement concerning the interpretation of the agreement (including the scope of its application) the dispute must be settled by an industrial arbitration tribunal.
If the case concerns a breach of agreement, it must be referred to the Labour Court (unless the collective agreement in question stipulates some other form of settlement). Any proceedings before the Labour Court are in principle preceded by lengthy negotiation procedures prescribed in the Standard Rules.
Conciliation and Arbitration
The public conciliation service consists of three conciliators and a number of assistant conciliators who are appointed by the Minister of Labour on the recommendation of the central labour market organisations. Conciliators are not representatives of the Government.
If no consensus is reached, industrial action may be taken until the parties find a basis for new negotiations which will lead to the conclusion of an agreement. The government may intervene by adopting legislation that reviews the collective agreements concerned, usually for a period of two years.
The Industrial Court is empowered to decide cases involving breaches of existing collective agreements.
Under the Arbitration Act, the parties are permitted to agree between themselves to refer disputes to private arbitration rather than have them decided by the ordinary courts.
The courts, however, have the right to disallow any such arbitration agreement (voldgiftsaftale ) if it provides for an arbitration body of unsatisfactory composition and/or for a form of procedure that does not fulfil the criteria for the proper administration of justice.
52 Sanctions
In illegal industrial action (which could mean an illegal lockout or an illegal strike) punitive fines can be levied against unions, employers’ organisations, individual employees or individual employers.
Legal action terminates employment. However, strikes and lockouts are seen as means of achieving a collective agreement and so the new agreement ending the action usually prescribes that employers re-employ the workers. The workers are not obliged to return but the employer is obliged to employ those who want to return.
Public Services
Some civil servants do not have the right to strike. Those holding the status of tjenestemand in the public sector are debarred from initiating a stoppage of work with the aim of reaching an agreement.
It is a particular category of public employees whose employment is based on a special letter of appointment as regulated by the Crown Servants Act - as distinguished from the vast majority of public employees (called offentlige ansatte or overenskomstansatte).
The ‘crown servant’ category traditionally includes those employed in local as well as central government. Other examples include some senior academics, senior judges, all members of the police force and all military officers.
Electricity
No specific information was available about electricity.
However, when notice is being given of the intention to take lawful industrial action, it is usually agreed between the employers and unions that work which is vital to the normal functioning of society (referred to as livsvigtigt arbejde, i.e. essential services) should not be affected by the dispute. This is also a way of ensuring that the legislators (the Folketing, i.e. Danish Parliament) will not feel bound to intervene immediately.
The Parliament has intervened from time to time. In 1995 and 1999, nurses’ disputes were ended after parliamentary intervention. Following the last occasion in 1999, the right wing Christian People’s Party argued for the abolition of nurses’ right to strike claiming that it had effectively been abolished anyway. This was rejected by the government on the grounds that the right to strike was inseparable from the right to collective bargaining. However the government also made the point that they reserved the right to safeguard the public’s health in the event of the labour market parties being unable to come to an agreement.
Sources
AC, the Danish Confederation of Professional Associations, The AC in Brief Altonen, Juri (1999) International Secondary Industrial Action in the EU Member States, Metalli (Finnish Metalworkers Union) Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Country Reports on Human Rights Practices 1999 DENMARK, Released February 25, 2000 EIRO. New public sector pay systems lead to ‘individualised’ strikes. April 2000. http://www.eiro.eurofound.ie/2000/04/inbrief/dk0004173n.html EIRO. Little support for abolition of nurses' right to strike. October 1999. http://www.eiro.eurofound.ie/1999/10/inbrief/dk9910153n.html
53 EIRO. ‘September compromise’ marks 100th anniversary. August 1999 http://www.eiro.eurofound.ie/1999/08/features/dk9908140f.html EMIRE. The EMIRE database is the online version of the European Employment and Industrial Relations Glossaries http://www.eurofound.ie/emire/emire.html International Reform Monitor (2001) Social Policy, Labour Market policy and Industrial Relations, Finland, October 2001 LO. Collective Agreements and Labour Law (www.lo.dk) LO. The Danish labour market (www.lo.dk) Olsen, Torunn (ed) (1996) Industrial relations systems in the public sector in Europe, EPSC (European Public Services Committee)
54 III.iv FINLAND
Regulation of the Right to Strike
There is some debate about whether the Finnish constitution protects the right to strike as such. However, there is general agreement that pressure by industrial action is lawful unless prohibited by a specific legal norm.
Collective Agreements
According to the TEhtoL (Collective Agreements Act 1946), action which is not specifically prohibited is legal. Therefore, secondary action or political action remain legal even within the period of an agreement.
Agreements are negotiated at national, sectoral and local levels. A collective agreement lays down the minimum terms for all future contracts and prohibits labour disputes for the period of their validity. Collective agreements must be submitted to the Ministry of Labour. Collective agreements are generally related to specific sectors at national level; each sector has a collective agreement covering the whole of Finland.
Like other Scandinavian countries, the concept of industrial peace plays an important role in Finnish industrial relations.
The industrial peace obligation is regulated by the Collective Agreements Act (the TEhtoL). Section 8 obliges the parties to avoid ‘all measures of industrial action directed against an entire collective agreement or any of its individual regulations’.
One of the requirements set out by the TEhtoL for an agreement to be considered a collective agreement under Finnish law is that one of the contracting parties is a registered association of employees (a union).
Procedures
Under s.7 of the TRiitaL (Mediation in Labour Disputes Act 1962), it is not permitted to start or widen a work stoppage due to a labour dispute unless written notice stating the reasons, precise starting time, and extent of the stoppage has been given to the National Conciliators’ Office and the opposing party at least two weeks prior to the planned act.
This only applies to stoppages due to a labour dispute (not secondary action or political industrial action).
It also only applies to work stoppages, that is strikes and lockouts. It does not apply to other forms of industrial action.
The TRiitaL does not oblige the participants to provide advance notice of secondary industrial action although the central labour market organizations have reached an agreement on this. In 1997 the Industrial and Employers Central Federation and SAK the trade union centre revised their agreed procedure on political or secondary action:
§ Before taking action notice of it shall be given to the national conciliator and the proper employer’ or employees’ union; § When possible, the period of advance notice is at least 4 days;
55 § Written notice shall state the reasons, the starting time and the extent of the industrial action planned.
The National Conciliators’ Office is always brought in prior to strike action during the period of notice. It can suggest compromises and attempt to broker an agreement between the parties but although the parties are obliged to take part in conciliation, they are not obliged to accept the suggestions of the Conciliator.
Disputes over interpretation of a collective agreement can ultimately be referred to the Labour Court. If the dispute arrives here, the Court’s decision is final.
According to s.9 (1) of the TEhtoL, it is the association or employer party to an agreement – not the individual employee – that can be ordered to pay a compensatory penalty for violating obligations to industrial peace incurred under the agreement.
Public Services
Civil servants have a distinct legal status in Finland and, while they may go on strike, they cannot take part in other forms of industrial action.
A certain number of civil servants are identified by the state (appointed by decree) as representatives of the employer. The civil servants’ collective agreement does not apply to this group and they cannot take part in any industrial action at all.
During a strike civil servants can be asked to perform ‘protective work’, that is work which is indispensable in order to safeguard the life or health of citizens or protect property endangered by the strike. Civil servants on strike are not legally obliged to perform this work.
If civil servants’ industrial action causes ‘serious disturbances’ in society and the negotiations do not appear to be leading to a conclusion, the matter may be referred to a Civil Service Disputes Committee. In that case the start of the planned industrial action is postponed by two weeks from the announced date.
The Committee may recommend ending or limiting the strike, but its recommendations are not always followed (health and social sector unions and firefighters did not comply with the recommendations in the spring of 1995).
The Ministry of Labour may itself postpone a strike for three weeks in total if ‘serious disturbances’ are feared.
Legal strikes can only be prohibited by special legislation, with the exception of major disasters, times of war etc., for which separate legislation exists.
Electricity
No specific information is available on electricity. However, Finland has had some debate about the right to strike in particular sectors or industries.
In 1999 Air Traffic Controllers took strike action and the Finnish employers’ organisation responded by demanding that the government prohibit strikes that cause severe inconvenience to the public.
Eventually the dispute was concluded in the ‘normal’ way and hailed by the Finnish trade union centre (SAK) as proof that the system works. The employers, on the other hand, renewed their
56 demands for compulsory conciliation in such disputes. The employers’ proposal has not been introduced by the government.
In 2000, the employers’ organisation again argued for restrictions on the right to strike – this time in relation to sympathy action. The government response was for the social partners to work it out among themselves. SAK flatly refused to contemplate any restriction on the right to strike.
In 2001 a 20 week doctors’ strike took place. The doctors continued to treat emergency patients as required by law. The strike alternated between doctors in hospitals in different municipalities and in different specialist fields. At the same time, the doctors were able to work in the private sector, which is partly subsidised.
Sources
Altonen, Juri (1999) International Secondary Industrial Action in the EU Member States, Metalli (Finnish Metalworkers Union) Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Country Reports on Human Rights Practices 1999 FINLAND, Released February 25, 2000 EIRO. (1999) Air traffic controllers' action raises question of limitation of key groups' right to strike. February 1999.http://www.eiro.eurofound.ie/1999/02/features/fi9902194f.html EIRO. (1999) Agreement ends air traffic controllers' strike. March 1999. http://www.eiro.eurofound.ie/1999/03/inbrief/fi9903102n.html EIRO. (2000) IAU fined following airport strike. December 2000 http://www.eiro.eurofound.ie/2000/12/inbrief/fi0012169n.html EIRO. (2001) Doctors' strike ends. August 2001. http://www.eiro.eurofound.ie/2001/08/inbrief/FI0108197N.html EIRO. (2001) Doctors' strike may have impact on industrial relations system http://www.eiro.eurofound.ie/2001/08/Feature/FI0108198F.html EIRO. (2000) Employers demand amendment of strike legislation. June 2000 http://www.eiro.eurofound.ie/2000/06/inbrief/fi0006150n.html EIRO. (1998) Second incomes policy agreement for employment is signed. http://www.eiro.eurofound.ie/1998/01/feature/FI9801145F.html International Reform Monitor: Social Policy, Labour Market policy and Industrial Relations, Finland, October 2001 Olsen, Torunn (ed) (1996) Industrial relations systems in the public sector in Europe, EPSC (European Public Services Committee)
57 III.v FRANCE
Regulation of the Right to Strike
The right to strike is recognised in the Preamble of the Constitution of 1947 to which the present Constitution of 1958 is explicitly attached. The right to strike is recognised ‘within the framework of the laws that regulate it’, which in practice leaves further provisions to case law. However, the Constitution only guarantees the right to strike, not any other form of industrial action.
‘… a strike has been considered to be a common complete cessation of work by some or all employees of an enterprise in promotion of demands concerning employment conditions. … A strike means to exercise the right to strike irrespective of whether it is carried out as a circulating strike, a selective strike or a spot strike. Still e.g. slow-downs, blacking of products, boycotts and Italian (sic) strikes remain outside the scope of the strike definition. As these acts are not considered strikes, they remain outside the forms of behaviour protected by the right to strike. Whether action is primary or secondary is of no importance when action is assessed.’ (Aaltonen 1999, 206)
The right to strike is recognised to the individual employee, its exercise only implies a suspension of the employment contract. Dismissals of employees taking part in a lawful strike are therefore not valid. Civil servants also have a right to strike.
The only general restriction of the right to strike has been made in a decision of July 22, 1980 by the Constitutional Court
‘… which held that the protection of persons and property can take precedence over the right to strike. Thus any action posing significant danger to people or property may be unlawful. This principle has been elaborated by case law and was consolidated into statutory law in 1991 … Further, if a strike involves a threat to the safety of nonparticipating employees, an employer is entitled to require the strikers to maintain basic protection services under company internal rules.’ (Aaltonen 1999, 207)
Collective Agreements
French collective agreements do not imply a peace obligation as sanctions cannot be maintained vis- à-vis the constitutionally guaranteed right to strike. This is equally valid for the timing, length and extent of strikes. However, procedural issues regarding industrial action can be specified in collective agreements.
Examples for such procedural issues are conciliation (French law also contains provisions for a voluntary conciliation procedure), advance notice of strikes or calming-down periods. Rules settled in collective agreements bind the signatory parties only, a point that is crucial for questions of liability. (Aaltonen 1999)
Sanctions
A strike, to be legal, has to be connected to occupation or employment issues. Normally, the employment contract is only suspended during a strike, thus carrying an obligation to reinstatement. Employment contracts can be terminated by the employer only if a strike constitutes a fundamental breach of contract, for example an illegal strike.
58 Unions that signed collective agreements containing procedural rules can be made liable for the violation of these rules, as can be individual employees. The latter, however, have to have been aware of the content of the agreement and committed a serious offence in order to be held liable.
‘Strikers, strike leaders and unions that have approved the strike are moreover liable for damages caused by an illegal strike. Indemnity liability is remarkably extensive as compensation can be claimed both for direct damages and for lost profits. Due to the extensive indemnity liability, claims for damages are generally renounced in agreements concluding strikes. Renunciation of claims for damages by an employer, however, does not completely cancel the liability of participants in illegal action. Employees who have not been able to work during a strike have a possibility to claim their wages lost due to an illegal strike from the above mentioned parties liable for damages. Such claims are in France common.’ (Aaltonen 1999, 214-215)
Public Services
In the public service strikes can only be initiated by the representative unions after advance notice (5 days) of the intention to strike has been given. The notice further has to specify the place, date, time and duration (un/limited) of the strike; during the notice period the parties have a duty to bargain. Rotating strikes are forebidden in the public service (see the law of 31 July 1963) (see Ortscheidt 1997). A minimum service, as explicitly specified by the law, must be maintained, a requirement that also applies to some private sector services such as telecommunications and air traffic control.
A range of attempts have been made in the postwar era to limit the scope of the right to strike in the public services, usually following important industrial action (Chorin 1998, 140). However, a Supreme Court decision stated in 1996 that only legal provisions, as opposed to collective agreements, can further define the framework of the exercise of the right to strike in the public services. Formal restrictions of the right to strike, however, have little meaning in practice as industrial action is crucially situated on the political level.
The French legal system only requires the maintenance of a minimum service in order to guarantee individuals’ fundamental rights in an implicit sense (Champeil-Desplats n.d.). Users’ rights enter via the basic principle of the continuity of the public service which, again, is justified by general considerations of the public interest. As indicated above, and in contrast to the Spanish system, it is the government that issues general norms and creates a framework for the right to strike in the public service (Champeil-Desplats 1996). Discussing recent developments within the European Union Champeil-Desplats argues that the provision of a minimum service underwriting individuals’ fundamental rights has recently entered French juridical arguments. The significance of this reasoning, however, would lie less in a new restriction of the right to strike in the public service but the emergence of broader EU support of public services (Champeil-Desplats n.d., 10).
Electricity
In the electricity sector, from 1988 onwards, various unilateral measures were imposed on the employees of EDF in order to permit a normal service to all the users. Furthermore, the rules of wage retention in reaction to a strike were modified (see Chorin 1998 for the following). Up until 1988 strikers voluntarily stayed at their workplace and took industrial action in the form of a reduction of production; this also in the context of a minimum service imposed by ministerial directive. This form of industrial action, in fact, did not correspond to the legal definition of a strike, requiring the complete suspension of the employment contract. The retention of wages, therefore was proportional to the reduction of production.
59 Following conflicts that did not result in any cut-offs two internal memos prohibited reductions in production that would lead the company to cut off some users. These memos also redefined the way industrial action is circumscribed: 1000 jobs were classed as strictly necessary for security reasons, non-performance resulting in disciplinary sanctions. Wages for those taking industrial action were restricted to 20% of the daily rate as they only performed security functions. Finally, provisions were made for a partial resumption of work in case the security of a power station or the electricity system was in danger and threatening the cut-off of consumers. Non-compliance with a call to resume production would constitute a grave professional offence. Henceforth, the only reductions of production that are ‘authorised’ to constitute a strike are those that do not result in any cut-offs. Furthermore, the presence of union representatives in the dispatchings has been forbidden, thus rendering the actual functioning of the network very opaque.
In this situation there are two conflicting legal views as to the legitimate authority to regulate industrial action. One is based on the interpretation of the jurisprudence of the Constitutional Court and the Supreme Court. This position holds that the regulation of the right to strike ‘within the framework of the laws that regulate it’ should be read in the sense that laws exclusively can specify the provisions for strikes. The other interpretation, deriving from the Dehaene judgement 1950, leaves the competence to regulate the right to strike within the public service to the government and further on to the management of the public service establishments (Chorin 1998, 142).
The latter interpretation is the one prevailing at present, even though it leaves open a range of very crucial questions, such as who exactly within the managerial hierarchy is competent to issue memos that assume legal status. In addition, this interpretation is highly contradictory vis-à-vis the general legal body concerning the content of the right to strike as well as the bases for the retention of wages.
In fact, EDF’s reasoning is based on two contradictory arguments: one denies the constitutionally guaranteed right to strike in the name of traditional public service principles while the other, with respect to questions of corporate governance and expansion, refers to European Union principles of market liberalisation. Furthermore, it is important to see that a legal dualism emerged in this context: the question if public or private law are competent or incompetent to decide on issues relating to the public service generally depends on the individual case (Chorin 1998, 147).
Unions’ right to strike clearly has been restricted through these developments, making strikes very difficult as they could potentially lead to cut-offs (which in any case has never happened before). However, unions seem to have adapted and found new forms of industrial action, for example, by switching customers to the night rates.
An issue linked to industrial action in essential services concerns the technical and accounting issues. The French electricity unions, for example, pointed out at the hearing on the draft law for EDF that there exist obvious problems to define the scope of ‘essential services’. On the one hand, EDF’s accounts do not distinguish between eligible and non-eligible customers, on the other, the compulsory emergency power supply to eligible customers, considered a public service obligation, requires maintaining expensive over-capacity. In the light of the above account of industrial conflict at EDF a curious discrepancy emerges between managers’ authority to regulate industrial conflict in the name of public service obligations while at the same time EDF’s accounts do not provide any information as to the actual extent of these obligations. (Financial Times 1999)
Furthermore, there are important issues with respect to corporate governance. Frison-Roche, for example, argued that
‘allowing EDF to diversify would undermine its legal status as a specialised government enterprise providing an essential service, which would lead towards its eventual
60 corporatisation (turning into a joint-stock company). In the case of France Telecom, such a course has led to at least partial privatisation.’ (Frison-Roche 1999)
Note: eligible customers are those that are in the liberalised part of the electricity market and thus are able to choose the company they buy from.
Sources
Aaltonen, Juri. 1999. International Secondary Action in the EU Member States. Helsinki: Metalli (Finnish Metalworker Union). Champeil-Desplats, Véronique. 1996. ‘La procéduralisation dans les décisions juridictionnelles: Service public et droit de grève dans la jurisprudence du Tribunal Constitutionnel espagnol.’. Présenté lors du séminaire 'Services publics et action publique: nouvelles justofocations, nouvelles régulations, 11-18 juin 1996, Semaine de Cerisy-la-Salle. —. n.d. ‘Notion de service minimum et garantie d'exercice des droits fondamentaux de la personne.’. mimeo. Chorin, J. (1998). ‘Le droit de grève dans les centrales d'EDF.’ Droit Social(2): 140-148. Despax, Michel, and Jacques Rojot. 1987. Labour Law and Industrial Relations in France. Deventer: Kluwer. eironline. 2001. ‘France.’: http://www.eurofound.ie/emire/france.html. Financial Times (1999). EDF States Its Case. FT Energy Newsletters - Power in Europe. Frison-Roche, M.-A. (1999). En permettant à EDF de se diversifier, le gouvernment facilite une éventuelle ouverture du capital. Le Monde. Paris : 17. Mossé, Phillippe, and Robert Tchobanian. 1999. ‘France: The Restructuring of Employment Relations in the Public Services.’ Pp. 130-163 in Public Service Employment Relations in Europe: Transformation, Modernization or Inertia?, edited by Stephen Bach, Lorenzo Bordogna, Giuseppe Della Rocca, and David Winchester. London: Routledge. Ortscheidt, Pierre. 1997. ‘Droits collectifs des travailleurs dans le secteur public - France Report.’ Pp. 127- 149 in Employees' Collective Rights in the Public Sector, edited by Tiziano Treu. The Hague: Kluwer.
61 III.vi GERMANY
Regulation of the Right to Strike
Article 9 of the Basic Law guarantees collective bargaining autonomy which includes the right to strike with a view to the successful conclusion of a collective agreement. Beyond the implications of this regulation within the Basic Law, industrial action is ruled by case law and collective agreements. High civil servants are excluded from the right to strike.
German Law contains a range of principles that circumscribe the forms and extent of industrial action. Strikes have to be led with respect to ‘Sozialadäquanz’ (social adequacy), that is they have to observe a range of principles in order to be ‘generally acceptable’. A strike can only be called by a trade union and has to pay attention to the ultima ratio principle, meaning that a strike should only be a measure of last resort after all other possibilities to reach an agreement have been exhausted. Equally, legitimate aims of industrial action can only be issues that fall within the remit of collective agreements. Central are also the proportionality principle and the fairness principle holding that industrial action must not lead to the destruction of the means of existence, on an individual as well as a societal level. Furthermore, the peace obligation deriving from an existing collective agreement must not be violated.
‘A strike can be implemented in three ways: a) by work stoppage by the employees, b) by entirely failing to fulfil the obligation to work or fulfilling it in an unsatisfactory way and c) by meticulous observance of rules of order and safety.’ (Aaltonen 1999, 217)
Strikes can only be called by trade unions, a logical corollary from the requirement that industrial action has to aim at the conclusion of collective agreements in order to be legal. The participation in a legal strike only suspends the employment contract for the duration of the strike. Wildcat strikes are always illegal.
The above mentioned general principles are not valid for warning strikes conducted during bargaining rounds. The Federal Labour Court (BAG) ruled in 1976 that the principles of ultima ratio and the requirement to hold strike ballots do not apply to warning strikes. This is basically because warning strikes are seen to further a quicker compromise between the bargaining parties. Another decision by the Federal Labour Court in 1984 even classed rotating brief strikes (a practice developed by IG Metall and the Printing Union) as warning strikes and therefore as legal. (Aaltonen 1999)
In February 1998 some of the more restrictive provisions for the right to strike were criticised by the European Council on the grounds that German legislation does not conform with the European Social Charter. The latter does not allow any ‘preconditions or restrictions on the right to strike, with the exception of those restrictions which might arise out of a collective agreement – as is the case, for example, with the German peace obligation’ (eironline 1998a). However, the European Council recommended to amend the requirements for strikes to be exclusively called by trade unions and aimed at concluding a collective agreement in the sense of the European Social Charter.
Collective Agreements
On a procedural level, trade unions have to follow a strike procedure as it is laid out in their constitution. This is not prescribed by law but has been developed as part of the constitution by the unions themselves. These procedures include the decision to call a strike, to conduct a ballot amongst union members, the authorization of the strike, the strike call and the actual withdrawal of labour.
62 There is no obligatory state arbitration, in most cases trade unions and employers voluntarily agreed on provisions for arbitration procedures, termed joint dispute resolution (Schlichtung). This only deals with issues of collective agreements; disputes over rights are referred to the courts. The joint dispute resolution procedure may issue binding decisions.
Sanctions
As only trade unions are allowed to call strikes, the distinction between official and unofficial strikes is important. Any illegal industrial action results in a duty to pay damages to the persons or enterprises affected. In case of an illegal strike, the employee may also risk to be dismissed without notice. During a strike a strike committee (Streikleitung) is formed within the union in order to organise and conduct the strike. Under the law on associations, all union members are obliged to follow the instructions of the strike committee.
Unions can be (and have been) held liable for damages caused by illegal action even during legal strikes. In this respect, IG Metall concluded an agreement with the employers that sets the maximum liability for damages to 1 Million DEM. (Aaltonen 1999, 227)
Public Services
Although not deriving from the Basic Law civil servants are denied the right to strike (they are, however, allowed to form a collective organisation) and even denied the right to refuse to perform their duties within the context of industrial action (such as work-to-rule). Notwithstanding these prohibitions, established public servants did strike (e.g. the teachers in 1989). Strikers could face sanctions under disciplinary law but rarely do (Keller 1999, 82; see also Zagelmeyer 1997). In fact, the collective agreements signed in 1998 for the German public services were concluded through an arbitration award after both parties agreed to enter a joint dispute resolution procedure (eironline 1998b). In 2000 the results of the joint dispute resolution procedure were rejected by the trade unions’ collective bargaining commissions after their delegates in the joint dispute resolution commission had accepted it. It was only after the unions had organised a strike ballot and called a strike that the employer side came forward with a new offer. This, finally, was accepted by the unions’ collective bargaining commissions as well as the members that were balloted again (Schulten 2000).
The most central obligation in case of a strike within the public services is that of maintaining essential supplies and services. As an employment contract is not suspended during a lawful strike this obligation derives from the duty of loyalty of the employee; it also derives from the strike guidelines of the DGB for union members. In the absence of legal provisions on the authority to arrange the maintenance of essential services, in practice an agreement between the employer and the strike leadership of the establishment in question determines the actual nature and extent of ‘essential work’; in principle it is a matter of the collective bargaining parties as the works council has an obligation of impartiality towards the company. The strike committee is responsible to organise the maintenance of essential supplies and services.
The maintenance of essential supplies and services
‘covers, first and foremost, essential work (‘Notstandsarbeiten’), i.e. work necessary to ensure that during the dispute the general population continues to be supplied with essential goods and services (food, electricity, gas, water and medical care), and maintenance work in the strict sense. It includes work to maintain production facilities in the condition they were in at the start of the dispute, ongoing work to maintain production (possibly at a reduced level) that is necessary for technical reasons in order to prevent damage to industrial plant (blast furnaces, chemical plants), and processing work to prevent damage to products and production plants during the stoppage. It does not include work activities aimed at
63 safeguarding the market share or customer base of the company affected by strike action, nor the further processing or transportation of products generated by essential work.’ (eironline 2001)
Electricity
One of the representative trade unions, IG BCE (Industriegewerkschaft Bergbau, Chemie, Energie), committed itself to a joint dispute resolution procedure in case negotiations fail to reach a collective agreement (IG BCE n.d.). Underwriting the collective bargaining autonomy the dispute resolution committee is a bipartite ad-hoc institution with a neutral chair. A decision can be reached unanimously or by simple majority and is binding for both parties. A peace obligation has to be observed during the arbitration process, which means that ballots, strikes, or lockouts can only be initiated when the arbitration procedure failed. The strike can only be started when arbitration failed, that is if the vote within the arbitration committee did not result in a majority.
For the electricity sector limitations of industrial action derive mainly from the proportionality principle that has to be observed and the corresponding obligation to maintain essential supplies and services.
‘Gross disproportion exists, for example, in cases of industrial action in establishments which provide essential services (electricity and water supplies, hospitals), unless provision is made for the population’s needs through the maintenance of essential supplies and services. On the other hand, damage to the individual (even of a serious kind) normally has to be accepted; otherwise industrial action, a necessary element of collective bargaining autonomy, would be made virtually impossible in practice.’ (eironline 2001)
Sources
Aaltonen, Juri. (1999) International Secondary Action in the EU Member States. Helsinki: Metalli (Finnish Metalworker Union). eironline. (1998a) ‘German Strike Legislation Does not Fulfil Standards of the European Social Charter’: http://www.eiro.eurofound.ie/1998/02/InBrief/DE9802253N.html eironline. (1998b) ‘New Collective Agreements Signed in Public Services’: http://www.eiro.eurofound.ie/1998/04/feature/DE9804258F.html eironline. (2001) ‘Germany’: http://www.eurofound.ie/emire/germany.html IG BCE. (n.d.) ‘Streik und Aussperrung – Info’: http://www.igbce.de/Upload/IV_114_1260.pdf Keller, B. (1999). ‘Germany: Negotiated Change, Modernization and the Challenge of Unification’ in Public Service Employment Relations in Europe: Transformation, Modernization or Inertia? In S. Bach, L. Bordogna, G. Della Rocca and D. Winchester. London, Routledge, pp. 56-93. Schulten, Thorsten. (2000) ‘Last Minute Compromise over New Agreements Averts Strike in Public Sector’: http://www.eiro.eurofound.ie/2000/06/Feature/DE0006268F.html Weiss, Manfred. (1995) Labour Law and Industrial Relations in Germany. Deventer; Baden-Baden: Kluwer; Nomos. Zagelmeyer, S. (1997). Civil Service Law Reform Comes Into Force on 1 July 1997. Zagelmeyer, Stefan. (1997) ‘Civil Service Law Reform Comes Into Force on 1 July 1997’: http://www.eiro.eurofound.ie/print/1997/07/feature/DE9707123F.html
64 III.vii GREECE
Regulation of the Right to Strike
The right to strike is guaranteed by the Greek Constitution (Article 23), but is subject to a number of statutory limitations.
A lawful strike may be exercised only by trade unions or employee associations.
According to Law 1264/1982, a primary union may call a strike only by a decision of its general assembly. However, for brief stoppages of a few hours, which may not be repeated more often than once a week, a decision of the union's executive council is sufficient unless its standing rules stipulate otherwise.
In the case of second-level and third-level trade union organisations, a strike is called by a decision of their executive council unless their standing rules stipulate otherwise (Article 20(1) of Law 1264/1982). A second-level union organisation is a federation or labour centre. Third level refers to confederations of federations and labour centres.
There is an obligation to give the affected employer(s) at least 24 hours' notice of the intention to strike and there must be an immediate opportunity for the employer(s) to negotiate. The union must also provide the employer with the starting time of the action and its projected duration.
Under Greek law (Article 21(2), Law 1264/1982), the trade union calling the strike is obliged to provide the minimum staff necessary to ensure:
§ the safety of installations, § the prevention of damage or accidents, § the protection of long term stability, § the basic functioning of public corporations and key public services.
Following a Supreme Court decision in 1987, every January unions must notify the employers and the Labour Ministry, of the names of the employees who will remain on duty in the event of a strike.
If a strike does take place, these staff are under the sole direction of the employer. However, if the union fulfils its obligation under this law, the employer is not permitted to hire replacement labour during the dispute.
For private sector strikes, responsibility for nominating emergency cover rests with the union concerned (Article 21(2), Law 1264/1982). In the public sector, the right to nominate staff required to maintain essential public services (Article 4(2), Law 1915/1990) belongs to the employer (see below).
Failure to ensure the availability of the specified emergency staff renders a strike unlawful. Law 1915/1990 provides for additional severe sanctions, for which the union's executive council and strikers are liable. These sanctions include dismissal.
Political strikes, in the sense of strikes aimed at changing the government, for example, are illegal in Greece. By contrast, a strike of a political nature, that is, one with a mixed industrial and political nature, such as employment-related demands which can be met only through measures on the part of the government, is lawful.
65 Collective Agreements and the Peace Obligation
Collective agreements are binding on the parties. Arbitration was compulsory until 1992.
Trade unions and employers' organisations and also individual employers have both a right and a duty to negotiate for the purposes of concluding a collective agreement. Law 1876/1990 stipulates that the side exercising the right to bargain must notify the other side, in writing, of the place where the negotiations are to take place and the topics to be negotiated. The document in question must also be sent to the competent Labour Inspectorate.
The other side must appoint its representatives and attend the negotiations within 10 working days of receiving the request. The negotiations must be conducted in good faith and aim to resolve any collective differences. The two sides must justify their proposals and counter-proposals.
These provisions are supposed to lay a legislative base to fostering contact between the social partners and organising serious dialogue. Failure to comply may create liability for compensation in accordance with Articles 197-198 of the Civil Code.
The duty to bargain does not amount to a duty to conclude a collective agreement. This legislative adoption of a duty to bargain means that the social right to bargain collectively (Article 22 of the Constitution) is given practical effect.
There are conflicting views as to whether a peace obligation exists in Greek law. Before Law 1876/1990 on free collective bargaining, Greek law contained no provisions relating to this obligation.
According to EMIRE, the position adopted by the courts, supported by some legal scholars (under German influence), is that a peace obligation is an implicit obligation, inherent in and tacitly included in the concept of a collective agreement. The new Law 1876 introduces a radical innovation in stating (Article 2(9)) that a collective agreement ‘may contain’ a clause imposing the maintenance of industrial peace in relation to the matters regulated in that agreement. An explicit no-strike clause is therefore optional in Greek law.
Mediation
Under Law 1876/1990 (Article 15), there is a procedure for the settlement of disputes in cases where collective bargaining reaches deadlock.
The mediator does not attempt to bring the sides closer together, as in the conciliation process, but presents ‘his own proposal’. Recourse to mediation may be invoked by either one or both of the parties, by submitting a request to the Mediation and Arbitration Service.
The parties must attend forty-eight hours after submitting the request in order to select the mediator from a special list. If the parties still fail to reach an agreement within twenty days, the mediator presents his/her own proposal, which must be accepted within five days or is otherwise deemed to have been rejected.
The mediator may enlist the additional assistance of experts and has the right to publish her/his proposal in the daily or legal press. If the proposal is accepted, it is signed by both sides and has the same standing as a normal collective agreement.
Public/Essential Services (incl. Electricity)
There is no right to strike for the judiciary or the security services.
66 The right to strike is restricted for civil servants, staff of public corporations, and employees of certain key services.
The government has powers to conscript civilians to counter public service strikes.
Public services and utilities are also referred to as public enterprises. The name for them in Greek emphasizing their public nature is d?µ?s?e? ep??e???se?? ?????? ?fe?e?a?, for which the acronym DEKO is used. They are enterprises whose operation is of vital importance in serving the basic needs of the community as a whole.
In Greece, this category includes education services, medical establishments, water treatment and distribution, electricity generation and distribution, oil production and refining, transport, telecommunications, postal services, radio, television, sewage treatment and loading/unloading in ports.
In such services, unions must provide 4 days notice of the intention to strike to management, the relevant state agencies and the Ministry of Labour.
Under Article 21 of Law 1264 every January unions are obliged to nominate staff who will maintain essential services in the event of industrial action in the course of the year.
If there is no agreement, it goes to arbitration.
Under Law 1915 of 28 December 1990 (Article 4), Article 21 of Law 1264 was amended so that the employer was given the right to stipulate the number and type of staff needed and to nominate those who must cover during industrial action. The unions can appeal against the employer’s list, but the employer’s requirements must be met until the appeal is decided.
Sources
Altonen, Juri. (1999) International Secondary Industrial Action in the EU Member States, Metalli (Finnish Metalworkers Union) Bercusson, Brian. (1997) Trade Union Rights in the EU member states. European Parliament Directorate General for Research Working Paper W-12. Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Country Reports on Human Rights Practices (1999) Ireland, [Released February 25, 2000] EMIRE. The EMIRE database is the online version of the European Employment and Industrial Relations Glossaries http://www.eurofound.ie/emire/emire.html Olsen, Torunn (ed) (1996) Industrial relations systems in the public sector in Europe, EPSC (European Public Services Committee) Swabey, John and Groushko, Mike. (1996) Strikes and secondary industrial action in the EU member states. European Parliament Directorate General for Research Working Paper W-8.
67 III.viii IRELAND
Regulation of the Right to Strike
The Irish Constitution guarantees the right of citizens to form associations and unions, but it also allows the State to enact legislation for the regulation and control of this right in the public interest.
As in the UK, regulation of industrial action is based on principles of statutory immunity. Legislation gives immunity from civil legal proceedings to acts legally done in contemplation of furtherance of a trade dispute. This immunity is confined to trade unions holding negotiation licences from the Minister for Enterprise, Trade and Employment.
The Minister grants a licence once certain legal conditions are met, the most important of which are the maintenance of a substantial deposit of money in the High Court and a minimum level of membership.
Under the Industrial Relations Act 1990 the immunities extended to industrial action only cover officials and members of authorised trade unions with negotiation licences.
Irish trade disputes law is based on a system of statutory immunities which are triggered by action ‘in contemplation or furtherance of a trade dispute’ (the ‘golden formula ’).
However, some of the ‘gateways to immunity’ have been narrowed: for example, the definition of ‘trade dispute’ no longer includes ‘worker v. worker’ disputes, disputes about an individual's employment must first go through statutory or collectively agreed resolution procedures, private residences can no longer be picketed, secondary action is restricted, and trade unions must have rules providing for secret ballots before industrial action is taken. On the other hand, the ability of employers to get labour injunctions is restricted where there has been a secret ballot and strike notice has been given.
Conciliation and Arbitration
The principal dispute-settlement institutions in Ireland are the Labour Relations Commission and the Labour Court .
Conciliation is offered by the Industrial Relations Officers of the Labour Relations Commission. The majority of cases coming to the Commission are from the private sector.
Given the tradition of voluntarism in Irish industrial relations and thus the general lack of legal intervention in collective bargaining, the outcome of arbitration is binding in honour only; in other words, an arbitrator's award cannot be legally enforced by either party, but it would be quite rare for either party to fail to abide by the arbitrator's decision. The arbitrator's decision would normally be expected to fall somewhere between the positions of the two parties in dispute; an exception to this is pendulum arbitration.
Some disputes procedures may have a reference to binding arbitration. The parties here state that in the event of a failure to agree, they will have recourse to arbitration as a means of settling the dispute, and that each party will consider the arbitrator's decision as binding on them. There is no legal sanction attached to this; it is purely a moral sanction.
In some cases, the parties agree to pendulum arbitration. This form of arbitration is also known as ‘flip flop’ or ‘final offer’ arbitration (FOA). Here, the discretion of the arbitrator is restricted to
68 choosing between the employer's final offer and the union's final demand: there is no question of ‘splitting the difference’ or choosing any other position. Underpinning this form of arbitration is the idea that, being an ‘all or nothing’ situation, the parties would try to influence the arbitrator by adopting what might be seen as more realistic positions. This form of arbitration is most commonly associated with so-called ‘new-style collective agreements’, which tend to involve single union agreements, no-strike agreements and aspects of flexibility. These agreements are not very common in Ireland, but where they are found they tend to be concentrated in new technology firms.
The Labour Court is not a court of law but is instead a forum in which third-party intervention is provided. The Labour Court does not use the word ‘arbitration’ to describe its investigations, but in practice they may sometimes amount to arbitration. Although in general the parties do not have to agree in advance to abide by the Court's decision, in practice the parties tend to accept the Court's determination as final. It is argued that since neither party would agree to go to the Court if they believed that the other did not intend to abide by the decision, in practice the Court's function has become that of arbitrator.
Public Services
Members of the defence forces and the police are not permitted to take part in industrial action
Electricity
The Labour Relations Commission has issued a Code of Practice on disputes procedures, the aim of which is to ensure that parties can resolve issues in a peaceful manner and avoid the need for resort to actions which would ‘lead to a disruption of supplies and services, and a loss of income to employees and of revenue to employers’ (Code, p. 2). The Code is principally concerned with disputes in essential services.
Essential services are normally defined as those ‘whose cessation or interruption could endanger life, or cause major damage to the national economy, or widespread hardship to the Community and particularly: health services, energy supplies, including gas and electricity, water and sewage services, fire, ambulance and rescue services and certain elements of public transport’ (Code, p. 9).
The Code of Practice referred to above is particularly concerned with disputes in essential services, and recommends that disputes procedures in industries which provide essential services should contain a final stage which the parties would accept as providing a settlement.
Three alternative stages are suggested, one of which is third-party intervention (representing compulsory binding arbitration).
The Conspiracy and Protection of Property Act 1875 contains provisions which effectively make strikes in water, gas or electricity a criminal offence. These provisions are still in force.
Sources
Altonen, Juri. (1999) International Secondary Industrial Action in the EU Member States, Metalli (Finnish Metalworkers Union) Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Country Reports on Human Rights Practices (1999) Ireland, [Released February 25, 2000] EMIRE. The EMIRE database is the online version of the European Employment and Industrial Relations Glossaries http://www.eurofound.ie/emire/emire.html Labour Relations Commission Code of Practice - Dispute Procedures, Including Procedures in Essential Services www.lrc.ie
69 Olsen, Torunn (ed) (1996) Industrial relations systems in the public sector in Europe, EPSC (European Public Services Committee) Yeates, Padraig. (1999) ‘Objections to curtail right to strike’. Irish Times, October 8
70 III.ix LUXEMBOURG
Regulation of the Right to Strike
A right to strike does not exist explicitly in the Constitution or in legislation. However, article 11 of the Constitution guarantees trade union freedoms, that is the freedom of association, from which a Supreme Court ruling in 1952 derived the right to strike.
‘The Cour de Cassation pronounced in its 1952 decision that the right ‘to take part in a professional, legitimate and licit strike is guaranteed to an employee as an implied condition in Article 11 s. 5 of the Constitution’. (…) The Cour de Cassation defined in 1959 a strike as ‘a discontinuance of work in support of social claims’. (…) In connection with the revision of the Constitution in 1956 it was declared that the Constitution protects the right to strike for the safeguard of social and legitimate claims of those who work.’ (Aaltonen 1999, 192-193)
The law does not distinguish between different forms of industrial action implying thereby that all are equally legal, providing that they do not violate civil or criminal law. Participation in industrial action suspends the employment contract.
Collective Agreements
Trade unions only are considered competent to conclude collective agreements. Statutory law contains a peace obligation for the duration of a collective agreement as well as an obligation to enter a conciliation procedure resulting in non-binding statements. However, as unions are not legal persons they cannot be taken to court for an eventual violation of the peace obligation.
‘Trade unions often have, as part of their statutes, a duty to ballot their members before calling a strike, although this is not required by the legislation of the country. The prescribed precondition for starting a strike may be to receive a affirmative vote of, say, 75 per cent of the members affected by the dispute.’ (Aaltonen 1999, 195)
Before any strike action is started a set of procedures have to be followed. Initially, any industrial dispute has to be referred to the National Conciliation Service (Office National de Conciliation). When all options of conciliation have been exhausted the conciliation committee will issue the points that are still in dispute in a memorandum. The parties may refer the dispute to a tripartite arbitration panel that has to deliver a decision within eight days. However, the decision is not binding, thus, arbitration taking on a function of mediation. If the decision is accepted it is equivalent to the conclusion of a collective agreement. If not, lawful strike action (or lockouts) can be taken without the right to dismissal. Advance notice is not mandatory and plays no practical role as the parties have to participate in the conciliation procedure.
‘Strike action can take place within the law only if it is supported by a nationally representative trade union.’ (Feyereisen 1997) Representativity is defined at the national level; the sectoral and enterprise-level as well as employee representatives at the workplace are excluded. At present OGB-L, LCGB and FEP-FITC are recognized as nationally representative. In any case, legal disputes remain and therefore some degree of uncertainty.
‘The law of 12 June 1965 on collective agreements expressly states that the parties in dispute are always able to take the alternative route of arbitration through the civil courts after an attempt at conciliation by the service has failed (or even before this). If so, the names and official capacities of the arbitrators, the subject of arbitration and the procedure to be followed must be set out in writing.’ (eironline 2001)
71 Sanctions
As unions do not have legal status in Luxembourg individuals can be held liable for the violation of the peace obligation. Participation in a strike after the conciliation procedure has been exhausted does not constitute grounds for dismissal. Participation in illegal strikes, however, may lead to a liability for damages. Given the incidence of industrial conflict in Luxembourg, these considerations are more of a theoretical nature.
Public Services
The right to strike was extended to the public sector under the Law of 16 April 1979, but excludes certain groups such as diplomats, the judiciary, senior civil servants and managers, the armed forces and the police, and medical and security personnel. The remit of the National Conciliation Service does not cover the public sector; however, there are similar institutions and procedures.
There are two employment categories for workers in the public sector, one governed by public law (established civil servants and public servants), the other by employment contracts under private law (public employees). Public employees’ terms and conditions of employment are determined by the Law of 24 May 1989 on the employment contract; they fall under the jurisdiction of labour tribunals. Public employees (under employment contract) are regulated by one single national collective agreement.
Industrial action in the public sector has probably increased in the last years rendering the procedures of conciliation and arbitration inefficient. In 1998 a 48-hour warning strike was held at Luxembourg railways after the union membership has been balloted. The same year saw a general strike in the public service over a law on civil service pensions (Feyereisen 1998). In both cases, the conciliation procedure has been exhausted.
Electricity
Apart from the general regulations on the right to strike, the institutional structure of social partnership in the private sector is an important context for any industrial action. As one element of social partnership, company joint committees (comités mixtes d’entreprise) were introduced in 1974 for all private sector companies with more than 150 employees. The joint committee has the general right to deliver an opinion on economic and financial decisions that could have a serious effect on the structure of the company and levels of employment. It further has the right to take part in joint decision making (codécision) on matters relating to employment, health and safety and promotion. Employees are also represented on the board of limited companies. Finally, the Economic and Social Council (Conseil Economique et Social) as well as the Tripartite Coordination Committee (Comité de Coordination Tripartite ) constitute important institutions of concertation; the latter e.g. is required to give an opinion on any measure relating to economic growth and employment and can also draw up its own proposals (Feyereisen 1997).
Sources
Aaltonen, Juri. (1999) International Secondary Action in the EU Member States. Helsinki: Metalli (Finnish Metalworker Union). eironline. (2001) ‘Luxembourg’: http://www.eurofound.ie/emire/luxembourg.html Feyereisen, Marc, Labour Law in the Grand Duchy of Luxembourg (for a list of all collective agreements) Feyereisen, Marc. (1997) ‘Is the Luxembourg Model of Industrial Relations in Danger?’: http://www.eiro.eurofound.ie/1997/11/Feature/LU9711127F.html Feyereisen, Marc. (1998) ‘General Strike as Civil Service Pensions Law is Adopted’: http://www.eiro.eurofound.ie/1998/08/feature/LU9808173F.html
72 Tunsch, Gary. (1998) ‘Luxembourg: A Small Success Story’ in Changing Industrial Relations in Europe, edited by Anthony Ferner and Richard Hyman. Oxford: Blackwell, pp. 348 – 356.
73 III.x NETHERLANDS
Regulation of the Right to Strike
Dutch law does not contain any positive statutory regulation of the right to strike. Since 1872, however, when a respective prohibition was abolished, workers do possess the right to strike. Industrial action has been regulated by case law as well as an important decision by the Supreme Court in 1986 that recognized the right to engage in and take collective action with reference to Article 6 (4) of the Council of Europe Social Charter. This decision is important in that it recognised other forms of industrial action except pure political strikes and in that it states that the Charter prevails if inconsistent with national legislation.
‘Different forms of industrial action are not prohibited in Holland. Thus so-called Italian strikes, slow-downs, boycotts and the blacking of products, in addition to strikes, can be legal forms of industrial action. No juridical distinction is drawn between the lawfulness of different forms of action. The lawfulness of different forms of action is deliberated in court by applying similar grounds and restrictions.’ (Aaltonen 1999, 110)
‘… industrial action refers to collective action by employees, aiming at promoting claims concerning employment conditions and the relations between employees and employers.’ (Aaltonen 1999, 109) The right to take industrial action is not restricted to trade unions only. The lawfulness of industrial action is decided case by case by the courts; in practice though union support increases the chance for the court to consider it legal.
Strikes should only be taken as a measure in the last resort (ultima ratio) and be proportional to the demands. Another important principle is the legality presumption that states that any industrial action is considered legal unless decided otherwise in court. This means that brief strikes, even illegal ones, can be carried out under the legality presumption without fear of sanctions (Aaltonen 1999, 112; de Vos 1997).
Collective Agreements
The conclusion of collective agreements carries a peace obligation that can be either relative (relating to issues treated in the agreement) or absolute (prohibiting any industrial action for the duration of the agreement). A collective agreement binds the signatory parties.
In the absence of statutory regulation, provisions regarding industrial action can be found in collective agreements.
Most collective agreements contain a peace clause, and strikes are therefore illegal during their currency. While the right to strike is not otherwise regulated by law, the courts have tended to accept their legality if used as a means of last resort when contracts have expired and efforts to negotiate a new one have demonstrably failed (Rood 1991; cited in Visser 1998, 306).
An advance notice or membership ballots are not required by law although an advance notice of 2-5 days is usually given, thereby underwriting the ultima ratio character of industrial action. If ballots are organised, the required majority can even be 75 per cent.
Arbitration and Mediation
The Netherlands do not have any statutory system of arbitration and mediation in the private sector. Individual disputes are dealt with in the civil courts, employers may refer industrial action to the
74 President of a District Court who will establish its lawfulness. The Labour Foundation, a bipartite private-law foundation central for Dutch social partnership, provides a service in the form of a list of impartial negotiators who would take on functions of arbitration or mediation. This form of arbitration and mediation is only rare and not institutionalised.
Sanctions
Strikes do not automatically terminate an employment contract but only suspend it. Sanctions can only be applied once a court declared a particular strike action illegal or imposed a time limit. From the point of such a court decision workers may be dismissed on important grounds and unions can be forced to pay day-fines. In case a peace obligation is violated unions might be held liable for damages arising from industrial action.
‘Employers can normally not claim damages from individual strikers or the union responsible for the action. In cases of illegal action employers can apply for a strike ban decision in court and then be entitled to damages. Violation of the industrial peace obligation under a collective agreement results in the normal contractual responsibility of the party concerned, still the question is seldom taken to court.’ (Aaltonen 1999, 115)
Public Services
A 1903 law declaring strikes by public servants a punishable offence was abolished in 1980. As there are no positive statutory provisions public servants’ right to strike is regulated by case law, within the limitations deriving from the European Social Charter. In fact, a strike in the public service is assessed against the same criteria as a strike in the private sector (aiming at employment conditions, ultima ratio , proportional forms of action). (de Vos 1997, 189-90) An Advisory and Arbitration Committee has been set up in 1984 to advise and issue binding awards for disputes between the government and the central public service unions (i.e. the civil service). Arbitration has to be requested by both parties; in fact is has never been used due to refusal of the government.
‘No distinction regarding the right to strike is made in the Netherlands, …, between essential and non-essential services. In practice, however, in accordance with Article 31 of the Council of Europe Social Charter the right to strike may be subject to restrictions ‘… such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health or morals’.’ (eironline 2001a)
An important distinction has to be made between the public servants of the public sector, which in fact are civil servants employed in government authorities, and employees in the semi-public sector who are employed under an employment contract. Equally, the semi-public sector employer is a legal person under private law.
‘Several forms of collective action are clearly forbidden according to the case law, such as partial strikes. … A strike may also not endanger essential public services like the supply of electricity or drinking water. … It is clear from case law that […] injunctions will be granted when the strike has taken quite some time, because after this time the strike starts to cause unproportional damage to third parties. The courts also take account of whether any other strikes were recently held which affected the same employer. So the unions have developed a relay strategy. Short strikes are organised, and these strikes are moved from department to department and from city to city.’ (de Vos 1997, 190)
This strategy seems to be used relatively often, see for example a series of ‘relay strikes’ within the healthcare sector ‘resulting in the cancellation of hundreds of operations because operating theatres were closed’. (eironline 2001b)
75 Electricity
The right to strike within the electricity sector is subject to the general regulations referred to above although the nature of the service provided will imply a stricter interpretation of the proportionality of action requirement. However, unions have adapted by resorting to relay strikes. Given that collective agreements are an important source of labour law it might be useful to note that AbvaKabo/FNV, proposed to replace the single collective agreement for energy and utilities companies by a three tiered structure composed of agreements for the entire group of sectors, individual sectors and company level agreements (eironline 2000).
In January 1993, 70 employees held a strike at the power plant in Hunze (EPON, EGD), the first one at a power station in the Netherlands. The strike began when employees on the Sunday night shift refused to start up the plant following its routine weekend shut down. However, consumers were not affected by the strike as the central electricity generating board (SEP) reorganised the energy supply (Financial Times 1993).
Sources
Aaltonen, Juri. (1999) International Secondary Action in the EU Member States. Helsinki: Metalli (Finnish Metalworker Union). de Vos, P. L. (1997) ‘Employees' Collective Rights in the Public Sector - The Netherlands Report’, in Employees' Collective Rights in the Public Sector, edited by Tiziano Treu. The Hague: Kluwer, pp. 179 - 194. eironline. (2000) ‘Flexible Pay Disputes and Decentralisation are Key Trends in Bargaining’: http://www.eiro.eurofound.ie/2000/03/Feature/NL0003184F.html eironline. (2001a) ‘Netherlands’: http://www.eurofound.ie/emire/netherlands.html eironline. (2001b) ‘Strikes in Healthcare and Docks while Rail Agreement is Rejected’: http://www.eiro.eurofound.ie/2001/06/inbrief/NL0106134N.html Financial Times (1993). ‘Power Station Strike’. FT Energy Newsletters - Power Europe. Rood, M. (1991) Staken in Nederland. Schoonhoven: Acadamic Service. Visser, J. (1998) ‘The Netherlands: The Return of Responsive Corporatism’, in Changing Industrial Relations in Europe, edited by A. Ferner and R. Hyman. Oxford, Blackwell, pp. 283-314.
76 III.xi PORTUGAL
Regulation of the Right to Strike
The right to strike is protected under the constitution (Article 57). Not only does it protect the right to strike, but it specifically prohibits lockouts by employers. The central role of the constitution rests on the fact that the constitutionally protected right to strike cannot be restricted by acts or regulations of a lower level.
Legislation in 1977 (Law 65/77), amended in 1992 (Law 30/92) provides more detailed regulation of the right to strike.
Under Portuguese law, there is no distinction between primary and secondary action and the constitution prohibits legislation that might restrict the range of issues forming the subject of strike action. Article 57(2) of the constitution states: ‘Competence to define the scope of the interests to be defended by means of strike action shall lie with the workers, and this scope may not be restricted by the law.’
Obviously strikes must conform to the legal norms but the only other restriction on this is that purely political strikes are illegal. However if the objectives of a ‘political’ strike co-exist with employees’ economic and social interests, it will probably be legal.
Although collective agreements may include a peace obligation provision for the period of the agreement, this does not prevent industrial action. It is permitted over a legal conflict (i.e. over an employer’s interpretation of an agreement), but not where a union is attempting a new interpretation of a clear clause of the agreement. This area of law is controversial due to the possible restrictions of the constitutionally protected right to strike.
Procedures
The right to strike does not have to be exercised only through a trade union. In workplaces where unionisation is less than 50%, the workers have an autonomous right to decide on taking action.
There are very few procedural rules relating to industrial action. Ballots are not necessary for unions to call strikes. Notice is required to be given to the employer either in writing or in public through the media five days before the action (ten days in the public sector). Once notified the employer is not permitted to hire replacement labour.
In a workplace in which only a minority of the workforce are unionised, employees may still take action. But they must hold a ballot. At least 51% of the workers affected must be present at the ballot meeting and a majority must vote in favour. Notice must then be given.
There are no sanctions for legal strikes although illegal strikes make the union and the strikers vulnerable to action for damages.
Employees’ Duties During Strikes
During a strike unions are obliged to ensure that there is sufficient cover to keep enterprises and necessary services intact. This is a legal corollary of the prohibition of employers hiring replacement labour during a strike. There are particular requirements on public service workers (see below).
77 Public Services
Military and para-military employees cannot go on strike (Article 13 of Law 65/77). Public service workers generally have the same right to strike as other workers. However this is subject to some restrictions in relation to essential services (see below).
Electricity
In principle, the right to strike of workers is the same wherever they work. However, the Strike Act established some limits to those working in essential services on the grounds that the right to strike would sometimes be in conflict with other rights.
The 1992 change in the law was brought in to ensure that certain ‘minimum services’ were maintained during a strike.
Article 8 of the Act, makes the unions and the employees responsible for maintaining the minimum level of services essential to meet the indispensable needs of society.
No definition of ‘indispensable needs of society’ was provided. However, the legislators provided a list of sectors as examples of those areas regarded as engaging in activities intended to meet the indispensable needs of society:
§ postal services and telecommunications; § medical, hospital and pharmacy services; § public health, including funeral services; § energy and mining services, including fuel supplies; § water supply; § firefighting services; and § passenger transport and the transport of livestock and perishable foodstuffs and goods essential to the national economy.
In practice, the major strikes involving problems of maintaining minimum services have been in the public transport sector and in the production and distribution of energy (gas and electricity) and water.
There have been a number of problems with this legislation:
§ who is authorized to define the services which must continue to be provided during a strike? § who should select the particular employees needed to perform these services? and § what legal rules govern the performance of work in providing minimum services?
Current legal opinion sees the employer as possessing the authority to direct the work and as being under an obligation to pay the employees who perform the minimum services.
In deciding which services must be performed and selecting the employees to perform them, the legislators took the Italian legislation as their point of reference. Minimum services may, in the first instance, be defined by collective agreement or by agreement with the employee representatives.
If no such agreement exists before advance notice of a strike is issued, the Ministry of Employment and Social Security convenes the employees' and employers' representatives to negotiate an agreement on the measures necessary to ensure these services. If this is not achieved by the fifth day following advance notice of a proposed strike, the definition of the services and the measures to ensure them are decided by the relevant Ministers. Employee representatives must also select the
78 particular employees at least 48 hours before the start of the strike. If they do not, the employer makes this selection.
If, as frequently happens, the unions refuse to co-operate in the provision of these essential services, then the strike is unlawful. Or at the least, the participation in the strike of those workers assigned to perform the services in question is regarded as unlawful and they become subject to the legal rules governing unlawful strikes.
In this scenario, involving the failure to provide a service viewed as vital for the community, the legislators have the option of applying special measures to ensure that these services are carried out. Once it is established that there has been a failure to fulfil the obligations deriving from Article 8, the government may decree the civil conscription of strikers.
Sources
Altonen, Juri. (1999) International Secondary Industrial Action in the EU Member States, Metalli (Finnish Metalworkers Union) Bercusson, Brian (1997) Trade Union Rights in the EU member states. European Parliament Directorate General for Research Working Paper W-12. Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Country Reports on Human Rights Practices (1999) Ireland, [Released February 25, 2000] EMIRE. The EMIRE database is the online version of the European Employment and Industrial Relations Glossaries http://www.eurofound.ie/emire/emire.html Olsen, Torunn (ed) (1996) Industrial relations systems in the public sector in Europe, EPSC (European Public Services Committee) Swabey, John and Groushko, Mike (1996) Strikes and secondary industrial action in the EU member states. European Parliament Directorate General for Research Working Paper W-8.
79 III.xii SPAIN
Regulation of the Right to Strike
After the fascist era, the freedom of association as well as the more specific trade union freedom was restored by the 1978 Constitution. Subsequently, the Trade Union Freedom Act specified this collective and individual right to private sector employees as well as to public servants. It includes the right to trade union activity, in particular the right to collective bargaining, the right to strike, to propose industrial action, to field candidates for union elections and the right to form union workplace branches. Employer associations fall under the more general freedom of association.
The right to strike has been established as a ‘fundamental right’ in the 1978 Constitution. Detailed provisions of strike action are set out in the Labour Relations Decree of 1977 that grants the right to strike to workers with an employment contract as well as to public servants but excludes judges, magistrates, public prosecutors as well as police and military personnel.
The strike is the only form of industrial action permitted in Spain. The right to strike is granted to trade unions, workforce and trade union representatives as well as groups of workers. Wildcat strikes therefore only distinguish themselves from official strikes in the non-eligibility of the strikers for strike pay.
‘In order to constitute a strike in the sense referred to by law action shall meet the following criteria: it shall be manifested in a complete interruption by the employees concerned of work referred to in a collective agreement, the interruption of work is to be collective and it shall be based on a joint decision by the employees concerned or their representatives.’ (Aaltonen 1999, 128)
Collective Agreements
Collective agreements are divided into generally applicable collective agreements (that are extended in accordance with the requirements of the Workers’ Statute), agreements governed by contract law (convenios impropios) and extra-statutory agreements (pactos). Issues regarding for example the joint collective agreement committee, the settlement of interest disputes and the application of the agreement as well as no-strike clauses can form part of a collective agreement. The peace obligation implicit in a collective agreement is not valid for conflicts over the interpretation of issues dealt with in the agreement.
A joint collective agreement committee must be set up if a collective agreement is concluded. It will deal with any questions regarding the application and interpretation of the agreement and often has to be appealed to before conflicts can be taken to court. Some collective agreements provide for arbitration procedures, usually after an unsuccessful intervention of the joint collective agreement committee.
Procedures
Conciliation and/or mediation is mandatory before entering the Special Legal Procedure for Industrial Disputes (Proceso Especial de Conflictos Colectivos).
‘These special legal proceedings may be initiated by trade unions and workforce representatives and by employers or employers’ representatives. They are particularly important for settling disputes over the application or interpretation of collective agreements
80 and have given rise to a considerable body of precedents on collective labour law in Spain.’ (eironline 2001c)
An alternative to this legal procedure has been constituted by the 1996 Agreement on Extrajudicial Dispute Settlement (Acuerdo de Solucion Extrajudicial de Conflictos Laborales, ASEC) that was signed between CC.OO and UGT on the trade union side and CEOE and CEPYME on the employer side. This is a multi-industry agreement providing unilateral access to mediation as well as bilateral access to arbitration. The procedures apply both, for interest conflicts as well as rights conflicts where the workers involved extend beyond the territory of one Autonomous Community. Industrial action during an arbitration procedure is not allowed.
A strike notice has to be given at least five days in advance to the employer side as well as to the Ministry of Labour. Unions are not obliged to hold membership ballots before strike action.
Strikes have to be coordinated by a strike committee that is to coordinate the industrial action and take all necessary steps to resolve the dispute. In the event of a strike, work necessary for the running of safety and maintenance services must be kept up. The special provisions in this respect are in the first instance agreed upon by the strike committee and the employer, in case of disagreements they are settled by the labour courts. Compulsory arbitration under Spanish law can
… be used in the case of strikes which, because of their duration or consequences or because of the attitudes of the parties, may seriously damage the national economy (Labour Relations Decree-Law of 1977). However, it has been used infrequently and until now only in the public sector.’ (eironline 2001c)
Sanctions
A legal strike suspends the contract of employment, maintains strikers’ social security eligibility and prevents the imposition of employer sanctions. Workers can only be replaced if they fail to provide the necessary safety and maintenance services. An illegal strike or improper conduct of the strike action can provoque disciplinary sanctions, although participation in an illegal strike is not enough to justify a dismissal. The illegality of strike action is not checked a priori through administrative procedures but only when appeals are made to the labour courts. An illegal strike may lead to indemnity liability of unions and workers, although this has been rare in Spain (Aaltonen 1999, 134).
There is a distinction between public servants who are covered by a public service statute under administrative law and personnel covered by special statutes who are covered by special statutes under public law. Although the Trade Union Freedom Act applies to both, there are certain restrictions.
Public Services
Generally, it should be noted that public service trade unionism is a relatively new phenomenon in Spain as it was governed by unilateral regulation. In 1984 unilateral regulation was abandoned in favour of collective bargaining within the public services, with two important restrictions, however: ‘the matters to be negotiated must be defined in advance and, in the event of negotiations being broken off, the government has the right to decide unilaterally on pay and conditions.’ (Jódar, Jordana and Alós 1999, 190) The promulgation of the 1987 Representation of Public Servants Act (LORF) allowed the first public service union elections to be held in 1987, establishing a relative dominance of CSIF-CSI, CC.OO and UGT.
The right to strike is restricted in areas defined as essential public services. The legislation requires that minimum services must be maintained in the case of strikes or other forms of labour disputes.
81 ‘Although there is no prior definition, case law has regarded as essential services those which affect or fulfil constitutionally protected rights and interests. Up to now, the services declared to be essential have been, basically, transport (motorways, air transport, railways, underground rail networks, ports, trunk routes), communications (post and telecommunications, television, telephones), energy (fuel, petrol stations), health (hospital and social security bodies), education (state education establishments, excluding universities), and culture (the Prado).’ (eironline 2001c)
In relation to the development of public service industrial relations over the 1980s two important issues should be mentioned (Champeil-Desplats 1996; Champeil-Desplats n.d.). On the one hand, a series of decisions by the Constitutional Tribunal established a devolution of decision making regarding strikes in the public services. Normative authority has been devolved to independent public or private institutions that have to respect certain formal and substantive constraints. On the other hand, the definition of essential services has been tied to a guarantee or exercise of individuals’ fundamental rights (Champeil-Desplats 1996, 4). Resulting from these developments authorities have to assess each public service strike in its specificity and have to give a detailed explanation as to the relation between the right to strike and individuals’ fundamental rights. The Spanish system in fact inverts the logic of the French system discussed before: within constraints it is up to the decentralised authorities to fill the nominal notion of essential services (the Constitutional Tribunal declared that no productive activity can a priori be considered essential) and give a detailed reasoning of the principles involved in the decision (Champeil-Desplats 1996, 7- 8).
Collective agreements in the public service have a range of specific features. Public service agreements are regulated by the 1987 Representation of Public Servants Act. Issues relating to state bodies are dealt with in ‘acuerdos’ and must be approved by these bodies before entering into force; ‘pactos’ cover all other issues and have binding force immediately.
The precise notion of minimum services is either defined via collective bargaining or internal trade union rules on the one hand or by the authorities via minimum service decrees that guarantee minimum service levels. The latter option has been much more widespread than self-regulation.
‘Because of their considerable impact on the effectiveness of strike action, these decrees frequently give rise to appeals before the courts, generally based on the fact that the levels imposed tend to involve a large number of workers and that little consideration is given to the offers and proposals on the matter made by the trade unions.’ (eironline 2001c)
Appeals against regulations of minimum services in the event of a strike are settled through proceedings under administrative law. The legal as well as the extra-legal dispute resolution procedures referred to above, thus, do not apply in the case of essential services. In the event of a strike in the essential services notice has to be given to the employer as well as the labour authorities 10 days in advance (as opposed to five days in the private sector).
In practice, thus, the scope for bargaining in the public services as well as the availability of a range of options to conduct industrial action are quite limited. This restrictive framework is apparent in a series of recent conflicts in the public services.
In June 2001, for example, unions organized demonstrations, partial stoppages as well as a 24 hour strike across the telemarketing sector as negotiations over the generally precarious employment situation came to a standstill. Despite the strikers’ guarantee of minimum services such as emergency and social services the Ministry of Science and Technology ensured minimum services for a telephone information service at Atento Telecomunicaciones, a subsidiary of the totally privatised Telefónica. As ‘this ministerial order […] was not applicable to any other company, [it] was criticised by the trade unions on the grounds that it infringed the right to strike.’ (eironline
82 2001b) Indeed, there is a clear regulatory asymmetry as workers’ right to strike is restricted by recourse to arguments protecting essential services while at the same time the sector has never been regulated and ‘… the government plays no mediating role to guarantee quality of service, universality and reasonable cost.’ (Llorens 1999) (see also the government’s refusal to assume its legal responsibility for a bankrupt Telefónica subsidiary (eironline 2001a))
In reaction to strikes initially held for a productivity bonus at the RENFE rail network the company and the Ministry of Development set a level of minimum services (and took disciplinary action against unionists) that was highly contested by the unions (eironline 1999; Miguélez 2000b). During the Spanish part of the Europe wide fuel protests of summer 2000 the police prevented the closure of petrol stations and enforced minimum services (Miguélez 2000a). These examples show that there is a contested procedure around the establishment and enforcement of minimum services but a basic consensus on which areas are to be considered as essential services.
Electricity
As energy (fuel, petrol stations) fall under the definition of essential public services, there is no reason for electricity production and distribution to be excluded from this definition. In fact, a 1992 decision by the Constitutional Tribunal judged insufficient a government decree that declared electricity distribution an essential public interest function and listed the areas that should be maintained. The problem was not the definition of electricity distribution as essential service and the listing of minimum service areas but the absence of any further detailed and specific reasoning as to the dominance and/or violation of the right to strike and individuals’ fundamental rights (Decision 8/1992 of January 16, 1992; see (Champeil-Desplats 1996, 12).
Sources
Aaltonen, Juri. 1999. International Secondary Action in the EU Member States. Helsinki: Metalli (Finnish Metalworker Union). Champeil-Desplats, Véronique. 1996. ‘La procéduralisation dans les décisions juridictionnelles: Service public et droit de grève dans la jurisprudence du Tribunal Constitutionnel espagnol.’. Présenté lors du séminaire 'Services publics et action publique: nouvelles justofocations, nouvelles régulations, 11-18 juin 1996, Semaine de Cerisy-la-Salle. —. n.d. ‘Notion de service minimum et garantie d'exercice des droits fondamentaux de la personne.’. mimeo. eironline 1999. ‘Conflict at RENFE. ’.: http://www.eiro.eurofound.ie/1999/12/inbrief/ES9912167N.html eironline. 2001a. ‘Sintel dispute continues.’.: http://www.eiro.eurofound.ie/2001/07/inbrief/ES0107148N.html eironline. 2001b. ‘Strikes in the telemarketing sector.’.: http://www.eiro.eurofound.ie/2001/07/inbrief/ES0107251N.html eironline. 2001c. ‘Spain.’ : http://www.eurofound.ie/emire/spain.html Jódar, Pere, Jacint Jordana, and Ramón Alós. 1999. ‘Spain: Public Service Employment Relations Since the Transition to Democracy.’ Pp. 164-197 in Public Service Employment Relations in Europe: Transformation, Modernization or Inertia?, edited by Stephen Bach, Lorenzo Bordogna, Giuseppe Della Rocca, and David Winchester. London: Routledge. Llorens, Clara. 1999. ‘Trade unions criticise liberalisation of telecommunications sector.’.: http://www.eiro.eurofound.ie/1999/01/feature/ES9901294F.html Martinez Lucio, Miguel. 1998. ‘Spain: Regulating Employment and Social Fragmentation.’ Pp. 426-458 in Changing Industrial Relations in Europe, edited by A. Ferner and R. Hyman. Oxford: Blackwell. Miguélez, Fausto. 2000a. ‘Fuel dispute settled without trade union intervention.’.: http://www.eiro.eurofound.ie/2000/10/feature/ES0010217F.html Miguélez, Fausto . 2000b. ‘Lengthy conflict continues at RENFE.’.: http://www.eiro.eurofound.ie/2000/01/feature/ES0001273F.html Valverde, Antonio Martin (Ed.). 1991. European Employment and Industrial Relations Glossary: Spain. London: Sweet and Maxwell.
83 III.xiii SWEDEN
Regulation of the Right to Strike
Article 2:17 of the Swedish Constitution states that: ‘associations of employees and also employers and employers' associations have the right to take industrial action to the extent that it is not prohibited by law or by contract.’ This means that the right to take industrial action on the employees' side belongs exclusively to the union. Individual employees have no right on their own to take industrial action.
Collective Agreements
The basic agreement that has served as a model for the rest of the labour market is that between SAF (the Swedish Employers’ Confederation) and LO (the Swedish Trade Union Confederation). It is called the Saltsjöbaden Agreement since it was signed after a bargaining round at the Grand Hotel in Saltsjöbaden in 1938. The main parts of it still apply.
The most important law regulating the labour market is the Co-determination at Work Act (MBL). This Act regulates collective bargaining and the industrial peace obligation.
Section 41 of the MBL stipulates that as long as they are bound by a collective agreement in force, industrial action aimed at changing the agreement or its interpretation is prohibited.
The Act also forbids industrial action which is aimed at assisting another party which is not itself permitted to take industrial action due to law or contract. Otherwise - that is, when the primary action is legal - sympathy strikes and blockades are permitted as long as they are decided in line with trade union procedures.
Case law is also important in Sweden. The decisions of the Labour Court (AD) are used as precedents.
Procedures
As the right to take industrial action belongs to the union, in practice only action taken by nation- wide labour market organisations is legal.
Organisations taking action must give seven days advance notice of the action to both the opposing party and the National Conciliators’ Office. Failure to do so does not in itself make the action illegal but can result in general damages ordered by the Labour Court (AD).
Mediation, Conciliation and Arbitration
In conflicts between employee and employer organisations the Swedish National Conciliation Office is empowered to appoint an intermediary negotiator (förlikningsman) if this can enhance conflict resolution. This is the case when at least one of the two conflicting collective parties perceives no direct settlement. In larger conflicts, the government may also appoint an intermediary negotiator.
If no settlement is reached the intermediary negotiator can suggest an arbitrator (skiljeman). As a last resort, formal official arbitration procedures may be invoked.
There is no statutory arbitration. Ultimately, the parliament is empowered to pass legislation to resolve a labour conflict that may have serious consequences from a societal point of view.
84 This procedure is extremely rare and has only been applied in a few cases.
Sanctions
There are no sanctions for legal industrial action. Illegal action may make the organisation responsible liable for damages. A combination of full economic damages and non-economic damages may result in considerably higher costs than the losses incurred.
Individual employees cannot become liable for taking part in legal unionised action although they may be liable in illegal action.
Public Services
Limitations on civil servants’ right to strike were abolished by the MBL in 1976.
Under the basic agreements in the public sector, the unions have themselves agreed to a ban in strikes ‘for certain professional groups which are necessary for the functioning of state services’ (EPSC).
Electricity
No specific information available about the electricity industry.
The Swedish constitution allows for the government to pass laws to suspend a labour dispute if it is damaging to the general public. This has only occurred once – in 1971.
Sources
Altonen, Juri. (1999) International Secondary Industrial Action in the EU Member States, Metalli (Finnish Metalworkers Union) EIRO. (1998) Swedish sympathy action for Danish workers challenged in the Labour Court, http://217.141.24.196/1998/05/Feature/SE9805186F.html International Reform Monitor (2001) Social Policy, Labour Market policy and Industrial Relations, Sweden. LO (Swedish trade union centre) Facts and figures: Workers´ right - Labour Law http://www.lo.se/english/facts/collective.htm Olsen, Torunn (ed). (1996) Industrial relations systems in the public sector in Europe, EPSC (European Public Services Committee)
85 III.xiv UNITED KINGDOM
Regulation of the Right to Strike
In the UK there is no right to strike in law.
The legal freedom to strike and take other industrial action is based on statutory immunities from common law liabilities.
In order to be covered by the immunity, industrial action must be undertaken in 'contemplation or furtherance of a trade dispute'. A 'trade dispute' is defined to mean 'a dispute between workers and their employer which relates wholly or mainly to one or more' of a number of items listed in the legislation (TULRCA 1992).
These include, for example, 'terms and conditions of employment' and the 'termination or suspension of employment'. So a dispute between workers and their employer about working conditions would normally be protected.
But there are problems with this definition. Workers taking action against their employer because of a decision by the parent of the group may find themselves outside the law, as their direct employer may not be a party to the decision.
Equally public sector workers taking action against the privatisation of their unit may also find themselves in breach of the law, as they are not in a ‘trade dispute’ with anyone. It would be defined as a political strike.
In addition, although industrial action may fall within the definition of a trade dispute, it will be protected by the immunity only if the union complies with the detailed balloting and notice provisions which became progressively more complicated from their introduction in 1984. There have been some improvements in industrial relations law since 1997 and the election of a Labour government, but the provisions for balloting and notice are still extremely complicated.
All forms of solidarity action continue to be unlawful, in clear breach of international law in the view of the TUC.
Collective agreements in the UK are not legally binding.
Conciliation and Arbitration
The government’s Code of Practice set out a requirement for agreed procedures, whether formal or otherwise, which might lead to the resolution of a dispute without the need for industrial action to be completed and for consideration to be given to other means of dispute resolution, such as seeking assistance from ACAS (Advisory, Conciliation and Arbitration Service ).
Under Section 16 and schedule 5 to the Employment Relations Act, one of the factors to be taken into account in deciding whether the dismissal of a striking worker is unfair after the initial 8 week protection is whether the employer or the Union has complied with any collective or other agreement and/or unreasonably refused a request for conciliation.
ACAS is the main body involved in conciliation and arbitration. It is an autonomous public body and has sometimes taken a clearly different view on industrial relations than the government. Its task is to improve the industrial relations in the UK. The largest part of ACAS's work is individual
86 conciliation. Arbitration is only a relatively small part of its work, mainly because it has no powers to arbitrate without the consent of both sides.
The CAC (Central Arbitration Committee) originally had a wide range of powers. Most of its functions, however were abolished in the 1980s. Now its role is limited to voluntary arbitration that is not binding but usually accepted.
Preparing for Industrial Action Ballot
A union is obliged to provide ‘such information in a union's possession as would help the employer to make plans and bring information to the attention of the employees to be balloted’ This expressly does not require the union to provide the names of individuals, but does require information on the number, category or workplace of the employees concerned when this information is in the union's possession. However, paragraph 14 of the new Code sets out examples of the type of information required:
...for example, [information] as appropriate, to enable him [the employer] to warn his customers of the possibility of disruption so that they can make alternative arrangements or to take steps to ensure the health and safety of his employees or the public or to safe guard equipment which might otherwise suffer damage or be shut down or left without supervision…
The examples given above could well serve as a checklist for employers and if insufficient information is given to enable them fully to address each of these issues, employers may well seek to challenge the validity of the ballot.
The notification of intention to ballot must be received by the employer no later than the seventh day before the opening day of the ballot, as previously. Again, sample voting papers must be received by the employer not later than the third day before the opening day of the ballot.
The form of wording which must appear on every voting paper is:
If you take part in a strike or other industrial action, you may be in breach of your Contract of Employment. However, if you are dismissed for taking part in a strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part in the action, and depending upon the circumstances may be unfair if it takes place later.
Sanctions
There are no legal compulsion powers for strikers to return to work, but there is a legal basis to threats of dismissal in certain circumstances.
Strikers involved in legal strikes may be dismissed after eight weeks on strike. This arises because of poor drafting of the Employment Relations Act aimed to stop summary dismissal of strikers involved in a legal strike. The wording is such that employers may not sack workers legally striking for the first eight weeks of a strike. This has been interpreted by the courts as meaning that it is permissible to sack them after eight weeks.
In illegal strikes, strikers and/or their union can lose their immunities from prosecution and the union is liable to sequestration of its funds.
The scope of trade union liability under statute means that unions may be liable for strikes which would be viewed as ‘unofficial’ under their rules. Employees who are dismissed while taking part in
87 unofficial industrial action have no protection against unfair dismissal unless they were selected because of specified activities relating to health and safety or on the grounds of pregnancy or childbirth.
Public Services
Police and armed service personnel are banned from taking strike action.
Under the 1919 Police Act, the police are not permitted to belong to trades unions and must not take part in politics. Under the provisions of the Act, the police are forbidden to strike, and must at all times obey the lawful orders of senior officers.
Merchant seafarers face restrictions on the right to strike while at sea.
Health and other similar workers generally adopt a policy of providing emergency cover during a strike. This is not a legal requirement although if they refused to provide such cover (and even sometimes when they do offer to provide cover), the state steps in with the use of troops. This has occurred in firefighters’ disputes.
Electricity
There are no specific legal restrictions on strike action by workers in essential services (other than those listed earlier), and no specific legal provisions relating to strikes in electricity. The government does have access to the use of emergency powers and although there are no legal guarantees to users, the government could take powers under the Emergency Powers Act to send troops in to attempt to run power stations. Nonetheless, it is extremely unlikely that electricity workers would cut supplies to hospitals and other emergency users.
A state of emergency can be proclaimed when events have occurred, or are about to, which would interfere with the essentials of life, that is provision of food, water, fuel, light or transport. This power is contained in the Emergency Powers Act 1920 (as amended by the Emergency Powers Act 1964).
The proclamation of a state of emergency cannot be in force for more than one month, but a further proclamation can be issued before or at the end of the month. Parliament must be notified of the proclamation and will be recalled for that purpose if not sitting.
During a state of emergency, regulations can be made under 'Order in Council' procedures. These may not impose compulsory military service or industrial conscription, nor limit the right to strike. Such regulations must be approved by a resolution of both Houses of Parliament within seven days of being laid before Parliament. Parliament may also add to, or alter or revoke regulations.
Under Section Three of the Energy Act 1976, the government can be granted exceptional powers to control the supply of fuel across the country. Should ministers choose to use these powers, they can direct oil companies to designate petrol stations to supply emergency and essential services only. Services deemed ‘essential’ include: hospitals, schools, public transport, food delivery lorries. The act allows for military intervention and the legislation dates from 1976, following the 1974 OPEC oil crisis. At the same time, the miners' union refused to do overtime in a dispute over pay. This eventually led to the downfall of the then Conservative administration. The act superseded legislation passed in 1973, making crisis management powers permanently available. Previously, these had required annual approval.
88 Ministers can also use the Army to help move fuel or ensure access to designated fuel depots, either through the Armed Forces Military Aid to Civil Authorities Act or the Emergency Powers Act 1920.
The amendments to the Emergency Powers Act in 1964 allowed soldiers to be used in 1977 and 1979 to maintain fire and ambulance services by using their own equipment, without the need for a state of emergency. However, once it is clear that the Army will have to requisition property, a state of emergency must be called.
Sources
Altonen, Juri (1999) International Secondary Industrial Action in the EU Member States, Metalli (Finnish Metalworkers Union) Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Country Reports on Human Rights Practices (1999) UNITED KINGDOM , [Released February 25, 2000] EMIRE. The EMIRE database is the online version of the European Employment and Industrial Relations Glossaries http://www.eurofound.ie/emire/emire.html Ewing, Keith. (2001) Reviewing the Employment Relations Act 1999: Trade Disputes and the Law, Appendix One, annex to TUC submission). International Reform Monitor (2001) Social Policy, Labour Market policy and Industrial Relations, UK Olsen, Torunn (ed) (1996) Industrial relations systems in the public sector in Europe, EPSC (European Public Services Committee) Thompsons Solicitors : Labour and European Law Review, Issue 50, Preparing for action Thompsons Solicitors : Guide : Trade Unions and the Law TUC. (2001) Submission to the Government Review of the Employment Relations Act 1999 (1 Oct 2001)
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