Doctors' self-service strike raises questions of legality

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In early 1999, the Portuguese SIM doctors' trade union called off a long-running "self-service" strike, whereby its individual members could choose when they withdrew their labour. The dispute sparked widespread discussion on the legitimacy of this type of strike and on the general issue of public servants' right to strike.

In September of 1998, as part of a pay dispute, the Independent Doctors' Union (Sindicato Independente dos Médicos, SIM) called a strike, slated to last until the end of 1998, for doctors working at public and private healthcare units and privately-run public health are facilities (PT9809196N). Under the terms of this "self-service" strike, any doctor could refrain from rendering professional services at any time during the period of the strike. A second advance strike notice, issued by SIM in December 1998 called for an extension of the strike until January 2000 (PT9812118N).

Despite the disruption that occurred in a number of public healthcare units, the government chose not to resort to a "civil conscription" back-to-work order but, after the strike had gone on for several weeks, to solicit an official opinion from the Advisory Council of the Office of the Attorney General of the Republic (Procuradoria Geral da República) on the legitimacy of this type of industrial action. The opinion states that the Advisory Council (entirely made up of magistrates) deems the "self-service" strike illegal.

The duration of the strike and the methods adopted had a particularly strong impact on public opinion. Coverage of the event by the media was widespread. After the President of the Republic intervened, calling for an agreement so that the negative effects on the public would be brought to an end, SIM called off the strike. Negotiations aimed at dealing with the demands made by the union are in progress in early 1999.

Debate on legality

The strike's strong impact on public opinion arose because of the disorganisation that resulted within the hospitals and as a consequence of comments made in the media. The media focused both on the effects this particular form of strike was having on the general public, and on the uncertainty - on the part of the Ministry of Health (Ministério da Saúde) officials and a number of legal experts - as to whether this particular form of strike was legal or not. Thus, the population in general, as well as suffering the consequences of the self-service strike itself, was also confronted with the legal discussion regarding this form of industrial action.

This national debate had repercussions in trade union circles where a number of organisation spoke out against SIM's chosen form of protest. However, for the unions, the doubts that were raised regarding the legality of the strike were overshadowed by another point: the fear that, as in other European countries when similar circumstances occurred, the negative public reception this form of strike was receiving would give the government the chance to intervene in the legal framework governing the right to strike by introducing new limitations.

From a legal perspective, SIM's self-service strike raised two major issues:

• The legality of this form of strike. In Portugal, surprise strikes are prohibited since, by law, a five-day pre-strike notice must be given, which is extended to 10 days if essential services are due to be affected. Therefore, it is doubtful that the pre-strike notice requirement has been met if a union calls, with due notice, a strike that is scheduled to last for an extremely prolonged period of time and in which each and every striking worker is left to manage his or her own strike action. In this case, although the union is formally complying with the formalities required by law, the truth is arguably that the objectives for giving advance notice are no longer met. Moreover, since this type of strike allows each worker to freely manage the time he or she works, it makes it impossible for the employer to avoid disruption (within the various hospital departments, in this case). It can thus be construed as misuse of a right and one that leads to harm that goes far beyond the typical (and legitimate) damage usually associated with strikes.

• Strike regulations for the public sector. Although the Constitution and the law guarantee public servants the right to strike, the truth is that up until now, the corresponding legal regimen has not been approved. In order to bridge the gap, various solutions have been explored in terms of labour law doctrine and attempts have been made by the courts to establish a legal framework, but the attempts have not been successful. The general tendency is to consider that the rules governing other workers are, with appropriate adaptations, applicable to public servants. However, it is still to be determined what these adaptations should consist of, especially when dealing with essential public services

Commentary

When the strike was called, SIM leaders seemed to be gambling heavily on the novelty factor involved in this type of strike - they expressly stated that since the situation was not covered by any legal rule, it would have to be considered legal. From a legal standpoint, this position is unfounded. In effect, there are legal rules and principles that govern the right to strike and any exercise of that right should be seen in the light of those principles and rules. Given this, the legality of a self-service strike becomes more than dubious.

The initiative also demonstrated the need to define a legal framework for striking public servants. However, at the present time, the political will to find such a framework seems lacking. It is worth pointing out that, in the wake of this strike, Law no. 78/98 of 19 November 1998 was published, authorising the government to legislate on certain matters of union practice for workers in public administration and the rights of union organisations. The law was designed to deal with gaps that still exist in the Portuguese legal system and makes no reference to rules regarding public servants' right to strike. (António Nunes de Carvalho)