Employers appeal to courts to ban strike pickets

The Belgian firearms manufacturer La Fabrique Nationale experienced several troubled weeks in June 2008. During strike action over the management’s refusal to hire a temporary worker on a permanent basis, the human resources manager accidentally hit a worker with his car when trying to pass the picket line. This event triggered further unrest and the management finally requested a court to remove the pickets; the trade unions declared this move a threat to the right to strike.

Reasons for strike

FN Herstal (La Fabrique Nationale de Herstal, FN) is a well-known Belgian manufacturer and distributor of firearms, located in the northern city of Herstal in the region of Liège. The company experienced a period of industrial unrest during the month of June 2008. The trouble began when the management refused to hire a worker on an open-ended employment contract even though he was already working at the company for several months. According to the management, the worker did not have the required qualifications and competencies, and therefore his contract was not renewed. However, the trade unions highlighted the fact that the worker happened to be a delegate from the Belgian Union of White-Collar, Technical and Executive Employees (Syndicat des Employés, Techniciens et Cadres/Bond der Bedienden, Technici en Kaders, SETCa/BBTK). The management position was thus interpreted by the trade unions as a threat to the right to be unionised.

Strike action

SETCa and the Confederation of Christian Trade Unions (Confédération des Syndicats Chrétiens/Algemeen Christelijk Vakverbond, CSC/ACV) then jointly organised a strike. Pickets were set up to prevent any employee or manager from entering the work site. In an unfortunate episode, the human resources (HR) manager tried to pass the picket line and accidentally hit a striking worker with his car. This incident exacerbated the workers’ anger and triggered further industrial unrest. After several weeks of disputes, the management reacted to the strike action by calling for the court to ban the picket and force the workers to remove it.

For the trade union representatives, these events raised the issue of the right to strike and to be unionised, an issue that concerns all workers beyond the specific case of FN.

Breach of right to strike

Indeed, for several years now, an increasing number of employers in Belgium have appealed to courts of justice to prohibit acts directly linked to the right to strike, such as picketing.

The right to strike is recognised in Belgian law through the ratification of the European social charter, and the national legislation does not formally state any limits to this right. Nevertheless, the doctrine and jurisprudence have generally recognised three conditions that the strikers should respect. Firstly, the employer has to be given several days’ notice of the strike action. Secondly, trade unions and employees wishing to go on strike first have to try to reach an agreement with the employer through conciliation. Thirdly, the reason for the strike has to be limited to the objective of the protest action. These three conditions are sometimes formally recognised in sectoral collective agreements.

All courts are not unanimous regarding what the limitations of the right to strike should be. However, they have tended to severely judge workers who go on strike without meeting the conditions, and participating in an irregular strike could be considered as a professional misconduct.

The law recognises strike pickets as an attribute of the right to strike as long as the picket aims to encourage the other workers to join the protest in a peaceful manner. Nonetheless, an increasing number of courts accept the requests of employers and intervene in the resolution of social conflicts by setting penalties to remove the pickets. The courts generally consider the act to prevent any employee or any other person to access the site of a company – with or without violence – as an offence, and some courts even intervene in a preventive way regarding such protests. These court decisions are usually based on the right of property, the right to work and the freedom of movement.

ITUC survey on strike violations

The annual survey of violations of trade union rights by the International Trade Union Confederation (Confédération syndicale internationale, ITUC) in 2007 included several examples of employers calling on a court to penalise and ban certain strike-related actions such as picketing (see, for instance, BE0702059I). These protests generally face penalties if the ban is not respected by the striking workers, and this penalises the trade unions which have to pay the bill for actions considered as legitimate.

According to ITUC, this kind of unilateral action from the employers amounts to a serious breach of the right to strike and contradicts the case law of the International Labour Organization (ILO) Committee on Freedom of Association.

Agreement reached

Regarding the FN case, according to the workers and trade unions, relations with the management have deteriorated over two years and the recent events contributed to increase the anger of the workers towards the management. From the latter’s point of view, these tense relations are caused by the radical behaviour of the head of the local worker representatives, who – in the opinion of management – prevents any constructive dialogue. Nevertheless, in the first week of July, an agreement was finally reached, with the management promising to improve the efficiency of the HR department and to avoid resorting to the judiciary in case of industrial unrest.

Commentary

Although strikes are an important means for workers to apply pressure on their employers, some limits are necessary. However, such limitations must respect the objectives for which the right to strike was granted.

Emmanuelle Perin, Institute for Labour Studies (IST), Université catholique de Louvain (UCL)