l9 conflict resolution start expanding

legality of strikes

the legality of a strike is decided by a judge in the labour/social courts after a legal challenge is brought

• a strike is not automatically declared illegal before hand

• the strike must have already taken place before a court decises whether it was lawful

a strike can be classified by:

1. legal= fully protected

2. illegal= does not satisfy legal requirements (procedural)

3. abusive= related to strike rights but carried out in an unfair or disportionate way

reasons why a strike may be illegal

illegal purpose= the objective of the strike is unlawful or not connected to workers interest

• the strike is polticial rather than professional/work related

  • workers strike to overthrow the government or establish a republic

illegal modality ie way carried out= some forms of strike action are considered abusive

• they excessively damage the employer or public service

  • rotating strikes, blockade, work to rule

contradiction with agreements= if workers strike about issues already regulated in the ca the strike may be illegal (conflict of interest not juridic issue)

• sometimes a ca contains a peace clause where the union agrees not to strike during the period covered by agreement

illegal actions during strike= certain behaviour during a legal strike can still be illegal

• workers may face sanctions

  • violence, threats, blocking entrances, danagine property

procedural defects=incorrect legal procedure followd

• notice requirement ignored= workers/unions must give advance nptice before striking

• required mediation/concilliation omitted= some sectors mediation must happen before strike action

• no strike committee created= required to represet workers in strike

• minimum services not respected= in essential/public services min levels may be required to continue working

  • if workers refuse to provide them= illegal

types of illegal strikes

illegal polticial strikes= poltical rights are illegal when unrelate to workers professional interests

• these relate to poltica goals not employement related goals

  • demanding abolition of a monarchy

  • established a republic

• however a strike protesting labour reform affecting workers rights could be legal because it concerns professional interests

solidarity strikes= workers strike in support of other workers not for their own professional interests

• usually illegal

  • exceptionally legaly if there is a connection to the workers own professional interests

    • factory workers strike to support workers in another branch of the same company whose working conditions also affect them

renewal strikes= attempts to change the terms of an existing ca before it expires

• illegal because cas are supposed to guarantee stability

  • exception=circumstances have fundamentally changed

    • if unexpected major changes occur renogitation may justify strike action ie economic crisis, inflation

abusive modalities of strikes

these forms are not always automatically illegal but usually presumed abusive

• rotating strikes= different groups of workers stop work successively

  • this continously disrupts the business while reducing wage loss for works

    • ie monday driver strike, tuesday nechanics strike, wednesday ticket inspector strikes

• strategic or blockade strikes= only key workers strike in order to paralyse the entire business

  • small group shut down the whole operation

    • only train drivers strike stopping the entire railway system

• work to rule strikes= workers continue workig but follow every rule and rocedure strickly to slow productivity

  • workers are technically wrking but intentionally obstructing production

    • employees check every tiny safety procedure and paperwork requirement in excessive detail

legal strikes

a strike is lawful when it

1. pursues legitimate professional interests

2. correct procedures are followed

3. the method used is not abusive

intermittent strikes= alternate between periods of work and periods of strike action (same group)

• presumed lawful compared to rotating strikes

• ie workers strike for 2 hours each day

effects of a legal strike on worksers

striking workers= the employement contract is suspended

• workers dont work= employees temporarily stop providing services

• workers dont recieve a awage= no salary during strike ie no work no pay

• social security effects=workers remain connected to the socil security system under a special status

  • special registration continues= workers are still registered

  • contributions are suspended= neither employer not employee pays contributions during strike

  • no unemployement benefits=workers cannot claim benefits because the contract is only temporarily suspended not terminated

  • no temporary incapacity benefits= normally workers cant recieve sick benefits during strike period

non striking workers= dont participate continue normally

• must continue working

• keep recieiving wages = contract fully active

effects of a legal strike on employer

during a strike employer powers become limited

• no disciplinary sanctions= an employer cannot punish or dismiss workers simply for participating in a strike

  • exception= workers may still be sanctioned for seperate misconduct ie vioence, threats

• anti strike bonuses prohibited= employers cant reward workers simply for refusing to participate in the strike

  • undermines the constituional right to strike

• strike breaking is prohibited= employers cannot try to neutralise the strike improperly

  • external= employer cannot hire replacement workers, use temp agencies, subcontract replacement

  • internal= move existing staff into the roles of strikers

    • exception= allowed for minimum services and safety/security needs

  • technological= intorduce unsual technology to defeat the strike violates the right to strike

    • automated systems introduced to replace striking workers

effects of an illega strike

if the strike is illegal workers lose legal protection

• effects on striking workers= employement contract is not suspended

  • workers are simply absent without justification which may be counted as misconduct

• effects on employer power= the employer power is no longer limited

  • impose disciplnary sanctions

  • dismiss workers= especially for serious unlawful participation

  • replace workers= legally hire replacement during an illegal strike

employer liability for violaing strik rights

employers must respect workers consitutional right to strike; if they interfere with this right they will face liability

• adminstrative liability=employer investigated and fined by labour authorities/insoectorates

  • fines ranging 7500 to 225000 depending on seriousness

  • situations

    • replacing striking workers unlawfully/strikebreaking

    • discirimantory treatment against strikers ie dismissal or denying promotion

• labour liability= workers may sue the employer before labour coirts and obtain compensation

  • comepnsation for moral damages= emotional harm, humiliation, stress, reputational damage

  • compensation for violation of fundamental rights= worker can claim damages for vioation of right to strike

• criminal liability= serious cases conduct arises as a criminal offence

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