Published on 06 November 2023
High inflation and the threat of a recession are currently throwing a wrench in collective wage bargaining. The social partnership organisations have retreated to entrenched positions. All signs point to strikes. Besides the fact that all parties should always pursue the common goal of avoiding industrial action, which ultimately only harms enterprises and their output, there are rules that must be followed even in case of a strike. This holds true for both sides, employers as well as workers.
In the following, we will examine in detail what employers must keep in mind in case of a strike in their enterprise.
The prevailing doctrine derives the right of workers to strike from the case law of the ECHR. However, there are also certain legal limits that apply to strikes and disruptive action:
- In the run-up to a strike, a works meeting is usually called, which is admissible. However, works meetings must cause as little operational disruption as possible, and must not be misunderstood as, much less be escalated to become protest rallies. Moreover, the obligation to keep the peace under labour relations law bars the works council and its members from organising, leading or supporting a strike in their capacity as worker representation bodies. If they did, it would be an unlawful strike against which legal action could be taken.
- A strike is also unlawful if it targets working conditions regulated in a collective bargaining agreement – for instance, general wage increases – during the agreement’s term. This constitutes a breach of the no-strike clause in the collective bargaining agreement, which protects all parties to the agreement, and thus also employers faced with a strike.
- Moreover, a strike must always be proportionate to the objectives pursued. Therefore, a strike is also unlawful if its declared objective could just as well be asserted as a claim in court proceedings.
While the right to strike is an important achievement of social partnership, a strike that purposely and deliberately causes lasting detriment to an enterprise – and thus ultimately also to its workers – can do more harm than good. Therefore, it is important to strictly follow the applicable rules. Accordingly, the following applies:
In case of an unlawful strike, a claim for a prohibitory injunction and for damages can be brought against the strike’s organisers. If there is a risk of irreparable damage, a preliminary injunction is also an option.
Regardless of the lawfulness of a strike, it should furthermore be noted that striking workers have no claim to wages by law, given their lack of willingness to perform work.
Actions that may be taken in the course of a strike, such as a systematic blockade of the enterprise, sit-ins affecting vehicles or production equipment, or damage to property caused by striking workers, not only serve neither party’s interests, but are also generally inadmissible under civil law.
We are available to advise and support you in case of a strike.
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