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The Right to Strike: a Comparative Perspective. a Study Of The Right to Strike: A Comparative Perspective. A study of national law in six EU states edited by Arabella Stewart & Mark Bell The Institute of Employment Rights The People’s Centre 50 –54 Mount Pleasant Liverpool L3 5SD 0151 702 6925 www.ier.org.uk Institute Briefing This publication, like all publications of the Institute, represents not the collective views of the Institute, but only the views of the authors. The responsibility of the Institute is limited to approving its publication as worthy of consideration within the labour movement. 2 Table of Contents Introduction 1. A comparative perspective on the right to strike: conference proceedings Arabella Stewart 2. Belgium Karl Abelshausen, Simon Claessens, Stefanie Francken and Yoko Mondelaers 3. France Loredana Carta, Marion Deschamps, Audrey Jannin and Anne-Laure Le Luduec 4. Germany Franziska Klaß, Hilmar Rölz, Sebastian Rabe and Stefan Reitemeyer 5. Italy Niccolò Delli Colli, Emma Di Toro, Ambra Fabrizi and Luca Forte 6. The Netherlands Sarah Rook, George Rodenhuis, Wouter Kortooms and Annika Blanke 7. The United Kingdom David Barrett, Kate Earl and Kevin Lynch 3 Introduction The impact of the European Union on national law concerning the right to strike was clearly illustrated by the decisions of the European Court of Justice in the cases of Viking 1 and Laval .2 In both cases, the Court held that collective action, where it has a transnational dimension, 3 could be contrary to the economic freedoms guaranteed by the EC Treaty. In seeking to understand the full impact of these judgments, it is important to gain greater insight into the current state of national legislation with regard to key topics, for example, the scope for solidarity action and the impact of strike action on the individual contract of employment. This report presents a comparative study of the national law in six EU Member States: Belgium, France, Germany, Italy, the Netherlands and the UK. The report is based on papers prepared for a conference held at the University of Leicester, 15-18 April 2008. Each year, the European Working Group on Labour Law brings together students from a variety of European universities to examine, with a comparative perspective, a contemporary issue in labour law. Accordingly, the theme of the 2008 conference was ‘a comparative perspective on the right to strike’. In advance of the conference, the student participants prepared papers analysing the state of their national law on the right to strike following a common template of questions. These papers can be found in the subsequent chapters of this report. In addition, the final day of the conference devoted special attention to analysis of the Viking /Laval judgments. A summary of the conference proceedings is included in this report, whilst several of the conference papers have been published in Federation News. 4 The organisation of the conference, and the subsequent preparation of this report, could not have been achieved without the support of several organisations which provided generous sponsorship: the Modern Law Review, Thompsons Solicitors, and the University Association for Contemporary European Studies. Particular thanks are also due to Pascale Lorber (University of Leicester), who co-organised the conference, and Carolyn Jones (Institute for Employment Rights), who facilitated the production of this report. 1 Case C-438/05 International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP, OÜ Viking Line Eesti , judgment 11 December 2007. 2 Case C-341/05, Laval un Partneri v Svenska Byggnadsarbetareförbundet , judgment 18 December 2007. 3 For example, to oppose a business relocating elsewhere in the European Union. 4 Vol 8, No 1 (summer 2008). 4 1. A comparative perspective on the right to strike: conference proceedings Arabella Stewart Introduction On 18 April 2008, the annual conference of the European Working Group on Labour Law took place at the University of Leicester. The theme of the conference was ‘A Comparative Perspective on the Right to Strike’. The conference was divided into three sessions consisting of a presentation or presentations, followed by an opportunity for general discussion. The first session examined the right to strike in different European Union (EU) member states. A presentation comparing aspects of the right to strike in the 27 member states by Wiebke Warneck of the European Trade Union Institute was followed by a number of presentations based around particular themes by teams of students from universities in six member states – Belgium, France, Germany, Italy, the Netherlands and the UK. In the second session, Colm O’Cinneide provided the conference with an insight into the workings of the European Committee of Social Rights and its interpretation of the right to strike enshrined in the European Social Charter. The third session focused on two aspects of EU law and the right to strike. Tonia Novitz and Claudia Bennett analysed the judgments of the European Court of Justice in the Viking and Laval cases and Diamond Ashiagbor considered the future of labour law in the European Union. Session 1 – Comparing the right to strike in different member states of the EU Following an introduction setting out the aims of the conference by Pascale Lorber of the University of Leicester, a presentation comparing the right to strike in the 27 member states of the EU was given by Wiebke Warneck. She explained that the accessions of 2004 and 2007 had left a gap in the literature and it was thought that it would be a useful exercise to compile a report comparing various aspects of the legal framework on the right to strike around the EU. The first aspect examined was the legal basis for the right to strike. Four different types of legal basis were identified; national constitutions, legislation, case law and collective agreements. The most common basis is the constitution, however, in a number of states the right is derived from legislation or case law. In three member states the right to strike is found in collective agreements. The second area considered in the report is which types of industrial action are lawful. A comparison was difficult due to the absence of a single concept of what constitutes a strike. However, examples given included political strikes, which are illegal in all but five states; solidarity strikes, which are legal in some 20 states and picketing which is legal (subject to conditions) in all member states (on which information was gathered). Other restrictions to the right to strike included in the report included peace obligations, the need for strike action to be a last resort and, linked to this, the obligation to undergo conciliation prior to taking strike action. Such restrictions were found to be quite common. 5 Finally, other possible consequences of strike actions were compared. The most significant of these was whether or not participation in a strike constituted a breach of the employment contract which could lead to dismissal. It was found that this was only the case in four states, Austria, Denmark, Ireland and the UK. Elsewhere the doctrine of suspension of contract applied. A discussion about the differences between the legal framework on strikes followed. It was clear that there were many differences of opinion on what form particular types of industrial action, such as boycotts and blockades, might take. The speaker was asked whether any geographical or political groupings with similar legal frameworks had been discovered. She commented that although this approach had not been taken it might be useful in future to draw comparisons between old and new member states. In response to a final question, it was noted that the report had not included the position of non-strikers within its ambit. Session 1 concluded with the presentation of the national student reports on aspects of the right to strike in their particular states. The reports were interspersed amongst the sessions but, for convenience, will be outlined here. The national reports were organised around a number of themes which included the constitutional and legal basis and framework for the right to strike and exceptions to the exercise of the right. These latter included the need to maintain essential public services, whether particular categories of worker were excluded from the right to strike and the designation of particular forms of action as unlawful. The national student reports also considered whether the right to strike was a fundamental right at national level and the extent of compliance of national law with Article 6(4) of the European Social Charter. The presentations revealed that there were many common strands between the laws of the six states in question, but also some significant differences in approach. Session 2 – The right to strike and the European Social Charter Colm O’Cinneide of University College London and member of the European Committee of Social Rights (ECSR) gave a presentation examining the interpretation and application of Article 6(4), which recognises the right of workers and employers to take collective action in cases of conflicts of interests, by the ECSR. He began by outlining the mechanism under the European Social Charter (ESC) which is built around monitoring. States submit periodic reports to the ECSR which then makes legal determinations in the form of comments on whether states are in compliance with the ESC. Since 1995 there has been an additional process, which some states have signed up to, known as the collective complaints procedure. The ECSR has issued several decisions on the right to strike under this new mechanism. Turning to the interpretation and application of Article 6(4) ESC, a number of observations were made. It was noted that the scope of the provision excludes industrial action demanding changes to existing legal rights. Accordingly, whilst the ECSR has never defined what constitutes a strike, it has interpreted Article 6(4) as excluding political strikes, although a broad view of ‘conflicts of interest’ has been taken.
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