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What is the legal framework for striking?

The right to strike is generally recognised, despite not being legally defined in national law. Case law recognises the right to strike. 

According to the Court in the founding judgment of 1981 from the Court of Cassation (the Supreme Court of Belgium), the legislator implicitly recognised the right to strike in the contractual employment relationship between employers and employees.

International sources of the right to strike in Belgium are:

• Article 6.4 of the Revised European Social Charter for Rights of 3 May 1996;
• Article 8, paragraph 1 of the International Covenant of 16 December 1966 on Economic, Social and Cultural Rights;
• Article 11 of the European Convention on Human Rights (debated upon); and 
• Community Charter of the Fundamental Social Rights of Workers (although it has no direct application).

Are there any restrictions on who can strike or in what circumstances strikes maybe called?

In the private sector, collective bargaining agreements can include provisions to (i) avoid social conflicts (e.g. a period of ‘social’ peace) and (ii) ensure conciliation procedures are respected. However, the enforceability of such provisions is rather weak. 

The text of the “gentleman’s agreement” (i.e. a statement of principles concluded in the National Labour Council) states that workers’ organisations should undertake to encourage their members to avoid spontaneous strikes. However, the enforceability of this provision is also weak. 

To assess whether industrial action is lawful, the following general principles may be invoked:

• Proportionality; 
• Respect for the rights of others (right to work, freedom of enterprise, and property rights); and
• Compliance with the provisions of the Penal code

Is there a requirement to maintain a minimum service level during strike action?

In the private sector, joint committees are required to determine and define, for the undertakings under their respective jurisdiction, the measures, benefits or services to be provided in the event of a collective and voluntary cessation of work or in the event of collective redundancy of personnel, with a view to meeting certain vital needs, carrying out certain urgent work on machinery or equipment, or performing certain tasks required by force majeure or unforeseen necessity (Art. 1 of the Law of 19 August 1948 on performance of certain services of general interest).

In the public sector, no specific legislation exists but different techniques are used in order to ensure a certain level of service, including:

1. Strike bans (e.g. for the military); 
2. A conditional right to strike (police);
3. Strike protocols – in order to limit the use of the right to strike by, for example, requiring advance notice of the strike (e.g. public transport); 
4. Requiring staff to work (e.g. police); and
5. Court intervention.

Are there any changes on the horizon?

On 23 March 2022, the Court of Cassation deemed that Article 6.4 of the European Social Charter has no “vertical/direct effect”. This is in contradiction with previous case law in Belgium. 

The consequences of this ruling on the right to strike in Belgium are uncertain.

What is the legal framework for striking?

In France, the right to strike is a constitutional right. A strike is defined by the French Supreme Court as “the collective, concerted and total cessation of work in order to raise to the employer professional demands”. All of these conditions must be fulfilled to benefit from the protection attached to the right to strike. When a work stoppage does not meet these criteria, it is classified as unlawful. 

During the strike, employment contracts are suspended, i.e. striking employees are not paid for the duration of the strike. In some cases, the employer may however be obliged to pay wages for the duration of the strike (when the strike is aimed at ensuring the respect of an essential right, when striking employees provide a minimum service, at the request of the employer or pursuant to a company agreement or when an end-of-conflict agreement provides for the payment ofstrike hours).

The exercise of the right to strike cannot justify the termination of the employment contract, except for gross negligence attributable to the employee.

Are there any restrictions on who can strike or in what circumstances strikes maybe called?

In the private sector, a strike is not valid in any of the following cases:

• A so-called “slow strike”, i.e. work carried out in slow motion or under deliberately defective conditions by the employee;
• Strikes limited to a particular obligation in the employees’ contract of employment (e.g. on-call hours);
• Successive actions leading to the blocking of the enterprise without a collective and concerted stoppage of work; and
• Strikes based solely on political motives.

An employee participating in an unlawful strike is not protected by the right to strike, and can be sanctioned (disciplinary action up to dismissal).

Regarding the initiation of a strike, the exercise of the right to strike is not subject to any notice requirement. However, the employer must be aware of the employees’ professional demands by no later than the day of the work stoppage. A surprise strike is therefore lawful, except for abuse of law.

With regard to the conduct of the strike, the right to strike does not give employees the right to arbitrarily use the company’s premises. Occupation of the premises constitutes a manifestly unlawful disturbance which allows the employer to obtain the eviction of the strikers before the French courts. 

In the public sector, there are certain limits to the right to strike, and notably the principle of continuity of public service (“continuité du service public”), where there is no right to strike. This applies to:

• Police officers;
• Decentralised prison services; 
• Agents of the signals service of the Ministry of the Interior (i.e. civil servants);
• Military officers; and
• Magistrates. 

Finally, for public bodies and private companies managing a public service, the right to strike is admitted but regulated:

• The right to initiate strike action sits with the trade union;
• Rotating strikes are prohibited. This is where striking and non-striking employees take turns to strike so that the workforce is never fully operational; and
• A strike notice, initiated by a trade union, must be sent to the employer at least five days before the strike, and the parties must negotiate during this period. 

Is there a requirement to maintain a minimum service level during strike action?

For public bodies and private companies managing a public service, a minimum service (“service minimum”) can be determined. A minimum service is legally established notably in:

• Public broadcasting; 
• The air navigation sector; 
• Nuclear plants;
• Hospitals; and
• The public transport sector.

Moreover, EDF (the electricity producer) can impose limitations on the right to strike as it provides a public service.

It is not possible to enforce a minimum service level in the private sector, even if the interruption of the activity would be likely to compromise public order. 

However, the Government or the Prefect may insist striking employees perform their duties in both the private and public sector in certain circumstances: 

• The executive power can take steps to require employees to work for “the general needs of the nation”. 
• In case of emergency, when the threat to public order, health, peace and safety so requires, the Prefect may insist striking employees perform their duties until the threat to public order has ended. 

In practice, this power is rarely used.

In the private sector, the French Labour Code excludes the use of temporary employment contracts or fixed-term contracts in the event of a strike. Any company that defies this prohibition exposes itself, and the manager who took the decision to recruit, to a penal sanction. However, employers may use subcontractors. They can also temporarily transfer a nonstriking employee to the post of a striking employee.

Are there any changes on the horizon?

No.

What is the legal framework for striking?

Generally, there is no statutory law on striking. The right to strike is derived from Article 9 paragraph 3 of the German Constitution which guarantees the freedom of labour coalitions for employees and employers, including the right to engage in activities that are typical for a labour coalition such as strikes. Case law has developed this right further.

Are there any restrictions on who can strike or in what circumstances strikes maybe called?

Generally, only a union can call its members to support a strike so that all employees covered by the union’s decision to strike can participate in it. This will most likely be the union members that are affected by the ongoing negotiations. However, it can also include non-members (unaffiliated employees or members of a different trade union) under certain conditions. This applies to executive employees (“leitende Angestellte”) as well, although their participation in a strike will be rather rare in practice. 

Managing directors and members of the supervisory board cannot strike. Furthermore, German civil servants are not allowed to strike.

A strike may only be called based on an effective industrial action decision (“Arbeitskampfbeschluss”) of the trade union, which must be made known to the opposition (i.e. the relevant employers’ association or the individual employer). Furthermore, the strike must be based on a reason whereby only “collectively negotiable objectives” (“tarifvertraglich regelbare Ziele”) may be pursued (e.g. salary increases, reduction in working hours, etc.). 

However, a strike may not be called if the parties to a collective bargaining agreement are subject to a peace obligation (“Friedenspflicht”) which applies during the term of a collective bargaining agreement with regard to the regulations contained therein or if explicitly agreed. In addition, a strike may only be called if the parties have exhausted all legitimate and reasonable possibilities to resolve a dispute peacefully (the ultima-ratio principle)

Is there a requirement to maintain a minimum service level during strike action?

For reasons of public welfare, so-called maintenance work and emergency services must continue to be carried out during the strike. Maintenance work is work that is necessary to prevent equipment from becoming unusable. Emergency work, on the other hand, is work that is required to ensure the provision of essential services and goods (services of general interest) to the population for the duration of the strike. This includes, for example, food, health, transport, energy, water, etc.

The extent of such work must be determined on a case-by-case basis, taking into account the specific circumstances.

However, there is no fixed minimum level of work that must be performed by the employees.

Are there any changes on the horizon?

No.

What is the legal framework for striking?

Under Italian law, striking is the recognised and protected constitutional right of workers to collectively withdraw their labour in order to promote their own interests. 

Being a recognised and protected constitutional right for employees (see Article. 40 of the Italian Constitution), its exercise does not constitute a breach of contract, i.e. employees are not subject to any disciplinary action by the employer.

However, a strike must not breach any constitutionally recognised interests or trigger serious damage to the company’s industrial equipment, so that the continuation of the company’s business after the strike is not endangered.

Only strikes designed to “subvert the constitutional order” are still considered a crime punishable by the Italian criminal code.

Are there any restrictions on who can strike or in what circumstances strikes may be called?

In general, a strike does not need to be called or authorised by a works council or a union as it can simply be called by a group of workers who decide to abstain from work to defend common interests.

Strikes in essential public services (among others, public transport, education, justice, etc.) are subject to special rules.

Police officers belonging to “Polizia di Stato” and members of the armed forces have no right to strike.

Is there a requirement to maintain a minimum service level during strike action?

When a strike is held in essential public services (whether performed by a public body or a private company), a minimum level of service must be ensured. This is in order to reconcile the constitutional workers’ right to strike with other constitutional rights that may be affected by the strike 
(e.g. freedom of movement, right to education, and right to information).

Are there any changes on the horizon?

No.

What is the legal framework for striking?

The rules on strike action are mostly found in case law. However, as the body of case law is fairly limited, the regime remains imprecise.

The main clarifications concerning the right to strike have been made by the Luxembourg Constitution which specifies that “the law organises the right to strike”, and by the Luxembourg Labour Code, which provides a procedural framework for the right to strike by making it subject to a prior conciliation procedure.

In the public sector, the situation is different because detailed legislation exists, namely the law of 16 April 1979.

Are there any restrictions on who can strike or in what circumstances strikes may be called?

In the private sector, a strike can only be called by the following persons and in the following cases:

1. The trade unions in collective disputes about collective agreements;
2. The staff delegation in collective disputes about collective redundancies and negotiation of a socialplan; and
3. Employees in collective disputes about working conditions.

A strike may not be called if the parties to a collective bargaining agreement (“CBA”) are subject to a peace obligation (“Friedenspflicht”) which applies during the term of a CBA.

Any strike must follow a specific procedure in order to be lawful: namely, collective disputes must be brought by the most diligent party before the National Conciliation Office (Office National de Conciliation). 

From the point of referral to the National Conciliation Office until their finding of non-conciliation, the parties must refrain from strike action. If the procedure is followed, the employees’ refusal to work due to a strike, declared under legitimate and lawful conditions, does not constitute a serious reason for dismissal. Otherwise, if the above procedure is not followed, the strike is considered unlawful.

In the public sector, striking is prohibited for certain categories of worker including Government members, magistrates of the judicial order, members of the public forces, professional firemen of the Fire and Rescue Service, and medical and paramedical staff of on-call services. A special procedure 
applies to strike action for other categories of public sector workers.

Is there a requirement to maintain a minimum service level during strike action?

There are no set requirements, in the private sector, for maintaining a minimum service level during strikes. 

Since strike action is prohibited in the public sector for certain professions, no rules on minimum service levels are needed.

Are there any changes on the horizon?

No.

What is the legal framework for striking?

The legal framework is set out in Article 6, paragraph 4 of the European Social Charter (“ESC”) (the right to engage in collective negotiations and to take collective actions, including strikes). 

Whether a strike falls within the scope of Article 6,paragraph 4 ESC mainly depends on whether the strike can reasonably contribute to the effective exercise of the right to collective negotiations.

In general, employees who participate in lawful strikes enjoy protection against disciplinary actions (such as dismissal). However, during a strike, the employer is, as a general rule, not required to continue to pay the salary of an employee who is participating in the strike.

Are there any restrictions on who can strike or in what circumstances strikes may be called?

There are no restrictions on the circumstances in which strikes may be called, unless otherwise agreed in advance with
trade unions.

However, a court may restrict or prohibit a particular strike, based on the exemptions set out in Article G ESC. Courts will assess on a case-by-case basis whether restrictions should be imposed or whether a particular strike action will need to be prohibited.

In principle, no categories of workers in the Netherlands are banned from striking, except for on duty members of the armed forces.

Is there a requirement to maintain a minimum service level during strike action?

There is no requirement to maintain a minimum service level during strike action. However, a court may impose a minimum service level if health and safety would otherwise be at risk. 

This may entail limiting the number of individuals who are allowed to strike simultaneously, limiting the duration of the strike or specifying the activities that must be performed. 

Are there any changes on the horizon?

No.

What is the legal framework for striking?

In Poland, the right to strike is a constitutional right. The Constitution of the Republic of Poland of 2 April 1997 provides that trade unions have the right to organise workers’ strikes and other forms of protest within the limits set by law.

The definition of a strike and the conditions (legal rules) for it are defined in the Act of 23 May 1991 on resolving collective disputes. Legal striking can be pursued as part of a collective dispute subject to compliance with prescribed rules. A strike may only be organised by trade union(s) representing
the employees

Are there any restrictions on who can strike or in what circumstances strikes may be called?

Generally, only employees (or certain civil law contractors) at the employer where a trade union operates can go on strike or be represented by an external trade union as part of the collective disputes resolution procedure. 

In principle, strike action is defined as collective refusal by employees to work in order to resolve disputes concerning the collective interests of employees.

It is impermissible to organise strike action in certain state agencies and service providers. Employees employed in state authorities, government and local government administration, courts, and prosecutor’s offices are not permitted to strike.

A collective dispute may occur both in the private and public sector. The subject of the dispute is regulated by law and is limited to: working conditions, wages, or certain social fund benefits, as well as trade union rights and freedoms of employees or other groups who have the right to join a
trade union.

The procedure for the collective dispute involves the following obligatory phases:

• Submission of demands to the employer by the trade union with an indication of the timeframe in which they are to be met (not less than three days); also, an optional warning of the potential strike action if the demands are not met (any strike may not start earlier than 14 days from the 
  submission of the demands).If the demands are not met by the employer, then a collective dispute starts and the employer must notify the relevant district labour inspector of the dispute
• Negotiation: these should be undertaken by the employer with the trade union(s) immediately with an attempt to resolve the dispute amicably; if there is an agreement reached by the parties the dispute is terminated and if not a protocol of divergences is drafted and signed by all parties.
• Mediation: the protocol of divergences is the start of the next phase of the dispute with the participation of a mediator (either agreed or appointed by the Ministry from a list of mediators if the parties do not reach an agreement within five days, upon the request of one of the parties); the terms of the mediation process are agreed between the parties and the mediator; if there is an agreement reached by the parties the dispute is terminated and if not a protocol of divergences is drafted and signed by all parties; and
• Optional: social arbitrage or strike action.

If no agreement is reached during the mediation phase, a strike may be called. 

In the event of illegal actions by the employer preventing negotiations or mediation or if the employer terminates the employment of a union activist conducting the collective dispute, a strike may be called without the above conditions being met.

There are also additional formal conditions that must be met by the strike organiser before the strike action.

Is there a requirement to maintain a minimum service level during strike action?

There are no statutory rules on minimum service levels.

However, it is forbidden to fully stop work due to strike action where doing so would pose a threat to human life and health or the security of the state. 

During strike action, the manager of the workplace cannot be restricted in the performance and exercise of their dutiesand powers:

• In relation to employees who do not participate in thestrike action,
• Also, to the extent necessary to ensure the protection of the workplace’s property and the uninterrupted operation of facilities, devices and installations, the immobilization of which could cause damage to life or human health or could prejudice the restoration of normal operations of
  the workplace.

The organisers of the strike action are required to cooperate with the manager of the workplace to the extent that it is necessary to ensure the protection of the property of the workplace and the uninterrupted operation of facilities, equipment, and installations.

Are there any changes on the horizon?

Legislative work is underway to amend the rules on collective disputes. This may include changes to the rules on strike action.

What is the legal framework for striking?

Employees’ right to strike, regulated by Article 57 of the Portuguese Constitution and by Article 530 to 543 of the Portuguese Labour Code, is an unrenouncable constitutional right. 

There is no legal definition of the right but it is usually understood as being the refusal to perform work by a group of employees in furtherance of collective employee objectives

Are there any restrictions on who can strike or in what circumstances strikes may be called?

The declaration of a strike is, in general, made by union associations. However, an employees’ assembly may also call a strike provided that: 

• The majority of the employees are not represented by union associations;
• The assembly is convened by 20% of the employees or 200 employees; 
• The majority of employees participate in such assembly; and
• The resolution is approved by secret ballot by the majority of the voters.

If the union association or the employees’ assembly calls a strike, prior notice must be served on the employer and the Department of Employment and Employment Relations (“Direção-Geral do Emprego e das Relações de Trabalho”) five business days in advance, or ten business days in advance if the strike affects an establishment which fulfils essential social needs. Notice must be served either in writing or through the media.

The motives for calling a strike are determined by the employees.

All employees have the right to strike, except military personnel and members of the security forces

Is there a requirement to maintain a minimum service level during strike action?

Only companies, activities and professions that are intended to meet essential social needs or essential services for the safety and maintenance of equipment and facilities are required by law to comply with minimum services during a strike. 

This includes the following sectors: (i) post offices and telecommunications, (ii) medical services, (iii) funeral homes, (iv) energy, water and fuel supply, (v) fire brigades, (vi) transport (of both people and essential goods to the national economy), and (vii) essential public services provided by the Government.

Are there any changes on the horizon?

No.

What is the legal framework for striking?

The right to strike is a fundamental right of workers recognised in Article 28.2 of the Spanish Constitution, and regulated by Royal Decree Law 17/1977 of 4 March 1977 on Labour Relations.

It is also recognised as a basic right of workers by Article 4.1 (e) of the Workers’ Statute, and as a ground for temporary suspension of the employment contract under Article 45 of the Workers’ Statute.

It is defined as the temporary, collective, and concerted cessation of work as a means of pressure in defence of the workers’ interests.

Are there any restrictions on who can strike or in what circumstances strikes may be called?

Self-employed workers, retirees, and the unemployed do not have the right to strike. Neither do armed forces, police officers, judges, magistrates, or prosecutors.

The right to strike is limited by other constitutionally protected rights, particularly:

1. Freedom to work for those who do not want to join the strike.
2. The functioning of essential community services must be ensured.

Following Royal Decree Law 17/1977, the requirements to call a strike are:

1. Express agreement in each work centre of the workers – directly or through their legal representatives – or through the union organisations.
2. Formal communication of the strike to the employer and the labour authority with five days’ notice. If the strike affects public services, the notice must be ten days. Total and unjustified lack of notice will result in the strike being unlawful.
3. Appointment of a strike committee made up of workers from the work centre. The committee is responsible for participating in any action taken to resolve the conflict.
4. Publicity of the strike when affecting public services.
5. Ultima ratio principle, meaning that the strike must be the last option to resolve the dispute.

Strikes are unlawful in the following situations:

• If they are strictly political in character;
• If considered as solidarity or support strikes;
• If they do not comply with the requirements set out in Royal Decree Law 17/1977 (as described earlier);
• If they alter the peace provisions of labour agreements from collective bargaining agreements; and
• If there is occupation of the workplace affecting strategic parts of the company.

Participation in an unlawful strike may be sanctioned with disciplinary dismissal.

Is there a requirement to maintain a minimum service level during strike action?

Article 28.2 of the Spanish Constitution states that the legal provisions governing the exercise of the right to strike shall establish the necessary safeguards to ensure the maintenance of essential community services. The concept of essential services has not been defined by the legislator, but 
by case law. These are services which enable the fulfilment of fundamental rights (e.g. public transportation, production and supply of energy, healthcare sector, radio and TV public services, education, etc.).

Also, Royal Decree Law 17/1977 provides for the following: “When the strike is declared in companies in charge of the provision of public services or of recognized and unpostponable necessity, and circumstances of special severity occur, the government authority may agree on the necessary measures to ensure the functioning of the services.”

The measures that guarantee the operation of essential services are known as minimum services, which must be complied with by the company and workers. 

The minimum level of service will depend on the expected duration of the strike, the extent of the strike, and the affected services. It must be adequate and proportionate.

The employer must designate the specific workers who will perform the minimum service. These should preferably be 
non-striking workers.

If the assigned worker refuses to perform their work tasks, they could be sanctioned with disciplinary dismissal.

The government also has authority to declare a state of emergency when there is a shutdown of essential public services due to strikes.

Are there any changes on the horizon?

No.

What is the legal framework for striking?

The right for employee organisations to take industrial action (including to initiate strikes) flows from the Swedish constitution. The right to initiate industrial action (and the associated exemptions) is further detailed in the SwedishCo-Determination in the Workplace Act. There are also additional provisions in relation to employees working in the public sector in the Swedish Public Employment Act. The right to initiate industrial action can also be regulated in collective bargaining agreements.

Are there any restrictions on who can strike or in what circumstances strikes may be called?

In practice, it is normally trade unions that initiate industrial action (including initiating strikes). While the right to take industrial action is protected under the Swedish constitution, the right is subject to a number of restrictions.

Generally, employees may not take or participate in industrial action against an employer in respect of issues that are regulated under an applicable collective bargaining agreement. The same limitation applies if the purpose of the industrial action is to (i) exert pressure in a dispute regarding the validity or existence of a collective agreement, (ii) bring about an amendment to the agreement or (iii) to implement a provision which is intended to enter into force after the agreement has terminated.

Employees who are not members of the relevant employee organisation are not permitted to participate in industrial action against an employer who is bound by a collective bargaining agreement unless (i) the industrial action is in support of a demand that is not regulated by the collective bargaining agreement, (ii) the industrial action has been initiated by the relevant employee’s employee organisation, (iii) the relevant employee organisation has negotiated the demand with the employer or the employer’s organisation, or (iv) the industrial action is intended to prompt the employer to enter into a collective bargaining agreement with the relevant employee organisation.

Before initiating industrial action, an employee organisation must notify the entity against whom the strike is being carried out and the Swedish National Mediation Office in writing at least seven business days in advance. 

There are no categories of employees who are banned from striking under Swedish law. However, the right to initiate industrial action is subject to additional restrictions in relation to employees in the public sector who exercise public authority. In this regard, industrial action is generally only lawful if initiated in response to the employment relationship and if decided by the employee’s organisation. In addition, certain categories of public employees (such as police officers and armed forces) are further restricted from participating in industrial action by collective bargaining agreements.

Is there a requirement to maintain a minimum service level during strike action?

No.

Are there any changes on the horizon?

A number of restrictions on the right to initiate industrial action were implemented in 2019, e.g. in relation to parties to collective bargaining agreements. There are no indications of additional changes in the near future.

What is the legal framework for striking?

There is no express right to strike under UK law. Workers who take part in strike action will therefore usually be acting in breach of their employment contract and unions who call strikes will be liable for inducing a breach of contract.

However, the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) provides protection from tortious action where the union and workers comply with certain requirements, including that the action is in contemplation or furtherance of a trade dispute and that the union follows detailed balloting and notification processes. This allows unions to organise, and workers to participate in, lawful industrial action immune from claims by employers. 

Are there any restrictions on who can strike or in what circumstances strikes may be called?

Police officers and members of the armed forces have no right to strike. Prison officers are also effectively banned from striking. Whilst not banned from doing so, postal and telecommunications workers and merchant seamen and women (while at sea) may be committing a criminal offence by striking.

To attract protection, strikes must be called “in contemplation or furtherance of a trade dispute”. A trade dispute is a dispute between workers and their employer and the subject matter must relate wholly or mainly to one or more of the matters listed in s.244(1) of TULRCA, including terms and conditions, working conditions, or allocation of work.

Before industrial action starts, a trade union must have the majority support of a properly organised postal ballot (or vote) and ensure it complies with a number of procedural requirements, including serving notice of the ballot and industrial action on the relevant employers. 

Is there a requirement to maintain a minimum service level during strike action?

No (however see next question).

Are there any changes on the horizon?

The Government is looking to amend TULRCA to limit the circumstances in which trade unions will be able to benefit from protection. Proposed new laws would give the Government the power to set minimum service levels for certain sectors including fire, ambulance and rail. “Work notices” would then be provided by an employer before a strike identifying the workers who are required to work and the level of service required. If the union doesn’t take reasonable steps to ensure compliance, the union would lose protection against immunity and the individual would lose protection against unfair dismissal.