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: FairbrotherPD@cf.ac.uk 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: psiru@psiru.org 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

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 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

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 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) Scottish Scottish Power), Southern
Power Power, Manweb (independent)
(independe independent;, (Scottish Scottish
nt) AEP N Scotland, Power), N Power
(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 Market NordPool Authorisation Regulated Regulated
(privatised) (national many others many others Authority
, PVO public +
(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?? ?????? ? f e?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)

89