Legal framework for industrial action under debate

* 1st half of 2005.

Source: Lithuanian Statistics.

Some 90% of all the strikes in 2000-1 were held in primary and upper-secondary education. The remainder took place in manufacturing as well as in transport, storage and communication economic activities. It follows that nearly all the strikes recorded in 2000-1 were in the public sector. Employees in the public sector (employees at the Trakai regional Culture House) were also responsible for the only strike in the first half of 2005. In other economic activities, and in the private sector in particular, no strikes and warning strikes were recorded over 2002-5. It should, however, be noted that various other warning actions organised by trade unions take place frequently.

Regulation by legislation

All issues related to organisation of strikes are currently regulated by the Labour Code. According to these rules, the right to decide to declare a strike (including a warning strike) is vested in trade unions according to the procedure laid down in their regulations. If an enterprise does not have a functioning trade union, and if an assembly of employees has not delegated the functions of employees representation and advocacy to a trade union in a relevant branch of economic activity, a decision to declare a strike in the enterprise or a structural unit thereof can be taken by the works council.

A strike may be declared if the relevant decision is approved by secret ballot by:

• two-thirds of the enterprise's employees voting in favour of a strike affecting the whole enterprise; or

• two-thirds of the employees of a structural subdivision of the enterprise and at least a half of the employees of the whole enterprise voting in favour of a strike in that structural subdivision of the enterprise.

According to the Labour Code, the employer must be given an at least seven days' written notice of the beginning of the intended strike. When a strike is declared, only the demands that were not met during the preceding conciliation procedure may be put forward. A warning strike lasting not longer than two hours may be held before the strike is declared. The employer must be given at least seven days' written notice of the warning strike.

The employer must be given at least 14 days' written notice of the strike where a decision is taken to hold a strike (including a warning strike) in: railways and public transport; civil aviation; communications and energy enterprises; healthcare and pharmaceutical institutions; food, water, sewage and waste disposal enterprises; centralised supply of electricity, heating and gas; oil refineries; enterprises with a continuous production cycle; and other enterprises where cessation of work would result in grave and hazardous consequences for the community or human life and health. During a strike in these areas, minimum conditions (ie services) necessary for meeting the immediate vital needs of society must be ensured. According to the Labour Code, such minimum conditions and services shall be determined by the government in accordance with its competence, having regard to the opinion of the Tripartite Council of the Republic of Lithuania (Lietuvos Respublikos Trišalė taryba, LRTT) (LT0501103F) or by the executive institution of a municipality on consultation with the parties to the collective dispute. Fulfilment of the above conditions must be ensured by the body leading the strike, the employer and the employees appointed by them. In case of failure to fulfil the conditions, the government or the executive institution of a municipality may enlist the aid of other services.

Moreover strikes are prohibited in the internal affairs, national defence and state security systems (except for people employed in these areas under employment contracts) and in frontline medical aid services. The demands put forward by employees of these systems and enterprises shall be dealt with by the government, taking into account the opinion of the LRTT. Strikes are prohibited in natural disaster areas as well as in areas where a state of martial law or state of emergency has been declared in accordance with the procedure established by law, until the resolution of the consequences of natural disaster or the lifting of the state of martial law or state of emergency. It is prohibited to declare a strike during the term of validity of a collective agreement if the agreement is complied with.

Views of the social partners

Trade unions

According to trade unions, and in particular the largest union organisation, the Lithuanian Trade Union Confederation (Lietuvos profesinių sąjungų konfederacija, LPSK) (LT0412102F), a number of provisions governing strikes contradict international provisions and practice.

LPSK has recently issued recommendations on the amendment of some provisions of the Labour Code, including those related to strikes. The unions are not satisfied with requirements relating to employees’ approval of a decision to declare a strike: two-thirds of the enterprise's employees must in favour of a strike affecting the whole enterprise; and two-thirds of the employees of a structural subdivision of the enterprise and at least a half of the employees of the whole enterprise must vote in favour of a strike in that structural subdivision of the enterprise. They believe that his does not comply with International Labour Organisation (ILO) Conventions and is out of step with the actual situation in the country. For example, following the current Labour Code provisions, for employees of a small shop belonging to a retail chain with over 100 shops all over Lithuania to hold a strike, this would require a secret ballot in most of the chain's shops and approval by half of the chain's total workforce. Such exercises are scarcely possible in practice, it is argued.

In a current petition filed with the LRTT, LPSK proposes an end to the general requirement to obtain employees’ approval in order to declare a strike. On the other hand, representatives of LPSK state that it could probably be possible to agree that approval to declare a strike by a certain proportion of employees is necessary, but that the current thresholds are too high and should be reduced.

A second problem often mentioned by representatives of trade unions and in academic circles is related to the 'minimum conditions (services) necessary to meet the immediate (vital) needs of the society' that must be ensured during a strike in specified areas (see above). As a number of these areas are in the public sector and the Labour Code provides that the 'minimum conditions (services) are determined by the government', in practice it often happens that the established list of such minimum conditions (services) is very wide. According to representatives of the Lithuanian Trade Union of Healthcare Workers (Lietuvos sveikatos apsaugos darbuotojų profesinės sąjungos, LSADPS), during a recent attempt by healthcare workers' unions to initiate a strike ([LT0505101N](javascript:ShowRecord()), the list of the minimum conditions (services) drawn up by the Ministry of Health (Lietuvos Respublikos Sveikatos apsaugos ministerija, SAM) included about 90% of normal services. Such a situation, it is argued, minimises the effect of the strike itself and also limits the actions and opportunities of the trade unions to settle disputes. In order to improve the prevailing situation, union representatives see it as necessary to define the procedure for establishing the minimum conditions (services) in more detail in statutory regulations, while the drafting of the list of conditions (services) should be shared by the representatives of the parties concerned.

Another problem that arose in spring 2005 in the preparation of the healthcare workers's strike was the absence in Lithuanian legislation of a mechanism for dispute settlement and the initiation of strikes at sectoral/national level. Therefore, it was complicated for the LSADPS union, which sought to organise the strike, to grasp what regulations should and should not be applied, and the organisers of the strike were criticised for non-compliance with the legislation by government representatives. In May 2005, when the LRTT was discussing the approval of the list of the minimum services during the planned strike of medical professionals, Aldona Baublytė, the chair of LSADPS, called on all parties represented on the LRTT to resolve this issue in future. According to representatives of the trade unions, it is still unclear whether or not amendments of the Labour Code will be initiated in order to provide the conditions for organising strikes at a higher level than that of the enterprise.

A final problem is not directly related not to the organisation of strikes, but rather to collective bargaining and the regulation of collective disputes in general - this is the absence of sectoral employers' representation in the public sector. According to public sector affiliates of LPSK, the issue of a body to represent the state as an employer in sectoral negotiations is still unresolved.

Employers

The Lithuanian Confederation of Industrialist (Lietuvos pramoninkų konfederacija, LPK) (LT0410102F) has drawn up proposals on the regulation of lock-outs, which were submitted to the LRTT on June 2005. In its submissions, LPK states that Lithuanian legislation should allow an opportunity for lock-outs as well as strikes, in order to provide equal rights for the social partners.

LPK believes that the omission of lock-outs from the Labour Code means the preclusion of an employers’ right to collective remedies in conflicts of interests between employers and employees. According to LPK, 'a lock-out as a countermeasure by an employer is ultima ratio, ie an ultimate measure meaning that employers would declare a lock-out exclusively in cases when employees do not follow a decision of a third-party court, labour arbitration or conciliation commission'. In its submissions, LPK defines a lock-out as 'temporary cessation of work for employees by employers of one or several enterprises in cases when a collective dispute is unsettled or when a decision of the conciliation commission, labour arbitration or third-party court is not complied with.'

LPK thinks it necessary to insert an article into the Labour Code that would contain a definition of a lock-out. According to LPK, the procedures for declaring a lock-out, the restrictions and the rules on the legality of lock-outs should be analogous to those applying to strikes. Lock-outs should be called by the manager or administration of an enterprise, agency or organisation.

Proposals and discussions

Some of the problems identified by representatives of employers and employees (concerning the approval of a decision to declare a strike and regulation of lock-outs in the Labour Code) have been formulated into specific proposals and submitted to the LRTT, while others (relating to the minimum services during strikes, the absence of a mechanism for settlement of conflicts and organisation of strikes at sectoral/national level, and the lack of employer representation at sector level in the public sector) remain open for discussion - for the time being, the social partners have neither initiated any particular discussions on these issues nor applied to the LRTT or the government to address them.

The secretariat of the LRTT has recently initiated discussions among social partners within the LRTT's standing commission for employment relations on the issue of the approval of a decision to declare a strike. No specific LRTT discussions have yet been held on the other proposals, and these are likely to be discussed in the general procedure together with other recommended amendments to the Labour Code.

Commentary

With quite a low level of labour force organisation in Lithuania in general (both trade union membership and the coverage of collective agreements are low), the bottlenecks in the regulation of industrial conflicts outlined above add to the weakness of the social dialogue and weaken the negotiating position of the social partners (trade unions, works councils and employers). In order to resolve the current problems, a more active role should be vested not only in the social partners themselves, but also the representatives of the government, because social partner organisations do not always dispose of the capacities necessary for substantial analysis of the problem, for analysis of foreign experience in various areas of legal regulation of industrial relations and for submission of high-quality proposals concerning the amendment of statutory acts. (Inga Blažienė, Institute of Labour and Social Research)