Avoiding disruption European guide to strikes and other industrial action Avoiding disruption European guide to strikes and other industrial action This European guide to strikes and other industrial action has been created to provide you with a quick and easy reference when responding to threats of industrial action in 15 European countries. 2 Avoiding disruption European guide to strikes and other industrial action Introduction Industrial action taken by workers against pan-European labour law responsibilities employers has always had the potential and aims to provide a quick and easy for severe disruption. However, employers reference when responding to threats of IA need to be aware of new and emerging in 15 European countries. trends in industrial action (“IA”) which have already taken some employers by The guide: surprise, including: – summarises recent national and – disputes involving international, not just international developments in IA law national, issues – provides a comparative overview, – trade unions and workers collaborating by country, of how IA is regulated in across borders, including cross-border different European countries. secondary (solidarity) action – summarises their key similarities and – unwelcome, and sometimes unexpected, differences shifts in the law regulating IA – reflecting the creeping influence of regional – considers how employers can respond, and international treaty obligations on including legal interventions and the right national laws (see “recent developments” to reduce the pay of those involved in IA on page six) In the current economic climate, IA is a key reputational and economic risk for many employers and typically demands a rapid response. This guide is for senior HR professionals and in-house lawyers with 3 Avoiding disruption European guide to strikes and other industrial action This guide is prepared by Eversheds If you have any questions, or need specific Sutherland’s specialist labour law team advice, please do not hesitate to contact who have a strong track record of advising me or the lawyers listed in this guide. Please clients on global labour law. Our continuous note that this guide is a summary only and exposure to national and international should not be regarded as a substitute for industrial relations issues gives us a taking legal advice. knowledge of strategy and tactical options which we deploy for the benefit of our Marc Meryon clients. The close working relationships we Partner have across our global network of offices T: +44 20 7919 0900 ensure a streamlined cross-jurisdictional marcmeryon@eversheds- service which draws on exceptional local sutherland.com legal knowledge. Thomas Player Partner T: +44 292 047 1147 M: +44 786 768 2110 thomasplayer@eversheds- sutherland.com Clare Ward Principal Associate T: +44 115 931 7604 M: +44 782 793 9382 clareward@eversheds- sutherland.com 4 Avoiding disruption European guide to strikes and other industrial action Contents Recent national and international developments in industrial action law 6 Law and practice: key differences continue to exist between countries 8 Country guide to industrial action law and practice: AUSTRIA 10 BELGIUM 12 CZECH REPUBLIC 14 DENMARK 16 FRANCE 18 GERMANY 20 HUNGARY 22 IRELAND 24 ITALY 26 NETHERLANDS 28 POLAND 30 ROMANIA 32 SPAIN 34 SWITZERLAND 36 UNITED KINGDOM 38 5 Avoiding disruption European guide to strikes and other industrial action Recent national and international developments in industrial action law The right of trade unions and workers to Organisation) commitments and national take IA has historically been regulated by the case law and tort doctrines. Dutch national law and practice of each individual country. strike legislation as such is non-existent. It is For example, in the UK a combination of notable that both Charters are relatively new trade union, tort and criminal legislation and arrivals, while ILO Conventions have only case law sets the boundaries for lawful and recently started to exert influence reflecting unlawful IA. their increasing relevance in an era of globalisation. However, over recent years the growing number and influence of regional and Example 2: Developments relating to cross- international IA legal standards, for example, border industrial action and the law deriving from European Union law and the European Convention on Human Rights, The 2007 Viking EU Court of Justice has forced changes to some national laws judgment decided that, while the right to to bring about compliance. In addition, new take IA was a fundamental EU right, if it rights and obligations have been defined by breached another EU fundamental freedom the courts in relation to European cross- (such as freedom of establishment), it border IA. would be unlawful unless justified and proportionate. The ripples caused by this Example 1: The changing face of national decision are still being felt with critics industrial action laws arguing that it places social rights secondary to business and economic rights. In the Netherlands the right to take IA is governed by the European Social Charter, The EU Charter of Fundamental Rights as well as ILO (International Labour 6 Avoiding disruption European guide to strikes and other industrial action The right to strike in each country is impacted by regional and international law Regional treaties National International (including The strike laws treaties EU & European (including ILO* Convention) Conventions) * ILO: International Labour Organisation Conclusion The Dutch and Viking examples illustrate At the same time, the EU begins accession how IA law is developing and becoming to the European Convention of Human more complex, requiring expertise in Rights, with the potential for tensions relation to national and international laws. between a human rights led approach This trend is set to continue as trade unions to IA (the Convention) and one which seek to reverse the impact of Viking as well also champions free trade and economic as harness European Convention and ILO freedoms (the EU). obligations to liberalise national IA laws. 7 Avoiding disruption European guide to strikes and other industrial action Law and practice: key differences continue to exist between countries Unlike some areas of employment law, In all 15 countries, IA is permitted: because membership of the EU has not resulted in a there is an express right to strike, or, in the degree of harmonisation in the regulation absence of an express right, a freedom to of IA. This is because, although the EU strike. Of more interest to employers is recognises the fundamental right to strike, how the right to take IA is restricted, for introducing legislation prescribing how example, whether advance warning must and when the right is exercised is outside be given, whether peace-keeping (no strike) the EU’s legal competence. As a result, obligations apply and how employers can there are considerable differences between respond to the threat of action. These issues European countries and their regulation of are considered, by country, in this guide. A IA, reflecting the mixture of legal systems summary comparison, considering some and social policy heritage. key themes, is set out on the following page. 8 Avoiding disruption European guide to strikes and other industrial action A summary comparison of industrial action (IA) across 15 European countries SIMILARITIES DIFFERENCES Wages are ordinarily reduced for What is lawful IA varies: in some countries only a work workers engaged in IA stoppage is lawful and go-slows, overtime bans and similar actions are not permitted Some form of secondary/solidarity Who can take IA differs: it may be the exclusive right of action is permitted in most unions or a combination of unions/workers/others countries There is a ban on temporary Some countries prescribe narrower grounds for taking agency workers backfilling lawful IA, such as pay, benefits and conditions, while workers engaged in IA in nearly all others permit IA on more general grounds, such as the countries economic and social interests of workers, and allow political strikes Workers engaged in lawful IA are Some countries operate a peace-keeping (no strike) protected from dismissal and obligation over the terms of a collective agreement other retaliation while it remains in force Many, but not all countries, Conditions before taking lawful IA, including advance exclude some workers from the notice and holding elections to test the support of right to take IA on national interest workers, vary with some countries not requiring any grounds, including some workers advance notice and not setting other pre-conditions in public or essential services The role of alternative dispute resolution differs, including whether it is mandatory Each country has a different approach to when/whether a court may stop unlawful IA: many provide for the possibility of a court order to stop unlawful action, however, in some countries litigation is rare The effect of IA on the worker’s contract of employment differs. In many countries IA suspends the contract, in some, it is a breach of contract 9 Avoiding disruption European guide to strikes and other industrial action AUSTRIA The legal status of industrial action – Pre-conditions before industrial a summary action is taken – there is no constitutional or federal right – there are no pre-conditions, such as a to take industrial action (IA) in Austria and requirement for advance warning, before no established case law clearly setting taking IA out general rules for taking IA Employer response – legal interventions and – IA is very rare in Austria. When it happens, stopping workers’ pay it involves typically a cessation of work and can be about a range of issues, – given the absence of legislation including disputes over pay, business regulating IA, an employer facing closures and transfers and changes to threatened or actual IA has limited legal collective agreements options. In theory, remedies could be sought in contract and tort law, including – IA is generally organised by the Austrian an interim injunction and damages. The Trade Union Federation, with its few court cases initiated have all been constituent trade unions focussing settled.