What about the right to work in case of a strike?
- Marcel Houben
- Employment Law
- right to work , strike , trade-union , striking team , intervention of bailiff , court order
The advices, which were spread by the public authorities through the media at the occasion of
the trade-union action of 8 December in Flemish-Brabant, Walloon-Brabant and Brussels, were
striking: "maybe better take a day off because there might be blockades on the highways an/or
the industrial sites!".
Although the right to strike is not laid down explicitly in the Belgian national legislation, the Supreme Court has accepted such right since a long time.
The European Social Charter explicitly recognizes in its article 6.4 the right of workers (and employers) to collective actions in cases of conflicts of interest, including the right to strike. As a result of the direct effect of the Charter, this rules also applies as a legal rule in Belgium.
Also the Charter of Fundamental Rights of the European Union enshrines the right of the workers to engage in collective actions in case of conflicts of interest, including strikes, in accordance with European law and national legislation and practices.
That right to strike is not at all an absolute right. With respect to cross-border actions, this implies that the European principles of freedom (such as free movement of goods and free movement of services) cannot be unlawfully curtailed.
Also at national level, the way the right to strike is exercised should not harm the fundamental rights and freedoms of others.
The freedom of enterprise is laid down in the Code of Economic Law and the right to work is a Constitutional right.
Likewise, public safety and public order may not be harmed as a result of strike actions.
These principles, in theory, imply that, for example, a striking team may not hinder colleagues,
willing to work, to go to the work place.
Also customers, wanting to visit a grocery store (a fundamental element of the right of enterprise of the owner of the grocery store), should in principle not be denied access to the store by a striking team.
And a blockade of a highway or a blockade of a public road, giving access to an industrial site, is, beyond any doubt, a disturbance of the public order.
Unfortunately, theory and practice are quite often far apart from each other in these matters.
Enforcement of public order in the case of blockades of public roads does not require the intervention of the judicial power. Nevertheless, the authorities seem to be rather reluctant to interfere in most cases.
The individual entrepreneur, who wants to prevent unlawful infringements of his freedom of enterprise, and the individual worker, who wants his right to work to be safeguarded, will have to call on the courts.
The Judicial Code offers the possibility to file a unilateral request in case of urgency and absolute necessity in order to obtain an order against such infringements. Penalties in case of violation of the court order serve in most cases as the efficient big stick.
The condition of urgency is met if the measures, which are asked for, have to be implemented immediately and without delay in order to have an efficient effect.
The condition of absolute necessity of a unilateral request is met if the efficient effect of the measures, which are asked for, would be adversely affected by requiring a contradictory procedure. In addition, a contradictory procedure is impossible in most cases because the identity of the persons concerned is unknown.
But also in these matters, theory and practice are often far apart from each other.
First of all, the opinion of the judge, who is balancing in a discretionary way the situation and the measures, which are asked for, is predominant.
Particularly in cases of one-day actions, shortage of time is often an insurmountable obstacle. Although the judge is rendering his decision immediately in such cases, in practice several hours will have passed by at the time the measures can be enforced.
As a first step the establishment by bailiff of the factual circumstances of the action is an extremely useful tool to convince the judge that the submitted circumstances are real.
The right to strike is not an absolute right
The second step is to meet with the judge, who, obviously, will need sufficient time to validly
establish his court order.
By the time the bailiff has arrived at the place of action to impose compliance with the court order, possible with the support of the public enforcement authorities, the major part of the day may have passed by.
Obtaining a prior court order is mostly a difficult matter because a judge – understandably ? – does not like to anticipate on purely theoretical situations.
In any case, the right to strike is not an absolute right.
Even if in most cases it is rather difficult to efficiently act against an unlawful way of exercising the right to strike, in our opinion, public authorities, who are publicly advising people, wanting to work, to take a day off, are acting beyond the limits.
Our law firm is stand-by to assist companies in the actions they want to undertake against the trade-union actions which hinder them in performing their activities or working.