Ombudsman issues results of strike law review
In order to better enforce the constitutional right to strike and to develop strike law practices, Hungary’s Ombudsman launched a comprehensive review of the Strike Act in the autumn of 2008. The reason behind this initiative was the experience of recent strikes and related public and professional debates, which highlighted the obsoleteness and imprecision of relevant rules. The results of the review, which lasted almost a year, were presented at a conference in October 2009.
In the autumn of 2008, Hungary’s Ombudsman, Máté Szabó, launched a comprehensive review of the country’s Strike Act. The review is seeking to enhance the enforcement of the basic right to strike, as provided for under the Constitution, and to develop strike law practices. In more recent years, strikes and related debates have underlined how the relevant rules have become obsolete and vague. The results of this review, which were presented at a conference in October 2009, are summarised here.
Right to strike provisions
Paragraph 70 of the Hungarian Constitution proclaims the right to strike in general terms and specifies only that this right can be exercised in compliance with the relevant legal provisions. The right to strike is not conceived as a subjective right to freedom but as a special, second- generation economic social right, giving the state relatively large scope in determining how this right can be exercised. It is thus surprising that striking is still regulated by the law adopted back in 1989.
Lack of coherence between Strike Act and Labour Code
In the opinion of the Ombudsman, the Strike Act refers to the previous Labour Code, rather than the one currently in force. As a result, the regulation of reconciliation negotiations between employers and workers is unclear and ambiguous. Furthermore, based on the legal provisions in effect, it is impossible to establish who can participate and/or negotiate in reconciliation talks and under which conditions. According to Mr Szabó, the existence and enforcement of guarantees concerning reconciliation negotiations is a basic element in the regulation of the right to strike. Therefore, they have to be included in the Strike Act.
Need for clarity over obligation to inform public
As exercising the right to strike involves a reduced level of services in the case of public utility companies, it may affect the basic rights of the service users. For example, in the case of public transport service providers, a strike affects third parties’ right to transport, which, based on a decision by the Constitutional Court (Alkotmánybíróság, AB), is part of the right of free movement. However, the Strike Act fails to elaborate on the obligation of service providers to inform service users in the event of a strike.
The Ombudsman found that all data relating to a strike – including its announcement, start time, duration, the level and types of service to be provided during the strike – qualify as public interest information that service providers should make known immediately. Otherwise, the public may not be able to find alternatives, which could result in lost working hours and other damage.
Vagueness regarding essential services
According to the Strike Act, employers active in sectors that fundamentally affect the population can exercise the right to strike only if it does not impede on the provision of essential services. The level and conditions of such service provision are subject to negotiations preceding the strike. The failure to reach an agreement, however, does not make the strike unlawful. Moreover, the definition and specific level of essential services is not specified by the Strike Act.
As the Strike Act fails to specify which employers are obliged to provide essential services, it is impossible to identify the service providers that have an obligation to provide essential services in the event of a strike. While current legal provisions require parties to sign an agreement on essential services, this stipulation cannot be enforced and its violation cannot be sanctioned. In his review of the law, the Ombudsman found that employers and workers often have differing views on the level of essential services. For instance, the employer sets essential services at 100% of the regular service, stating that they have no superfluous services. A major shortcoming of the law is the lack of tools to enforce the requirement to reach an agreement on essential services prior to the strike, or regarding the definition of ‘essential service’.
The Ombudsman claimed that the issue of setting the level of essential services was outside of his competence. However, he believed that it contradicts the requirement of legal certainty that the parties supposed to agree on the level of essential services are disinterested in concluding an accord because of the deficiency of legal regulations. Furthermore, Mr Szabó warned that ensuring the availability of public services is ultimately the responsibility of the state or the municipalities. The state may meet this function by creating the legal regulation for public service provision.
The Ombudsman underlined that the controversy related to essential services is rooted in the deficiency of the Strike Act’s text. In addition, Mr Szabó called for greater prudence in introducing sanctions prohibiting employees from striking if an agreement on the level and conditions of essential services is not concluded – in such cases, it would be in the employers’ interest to hinder the conclusion of an agreement. According to the Ombudsman, it may be necessary to involve state or municipal bodies in charge of ensuring public services in the negotiations.
Controversy over right to strike in armed forces
The Strike Act prohibits striking in judicial institutions, the Hungarian army, and law enforcement and civil national security services. According to the AB, the prohibition of strikes in judicial institutions is constitutional, as a strike by their members potentially endangers – and in serious cases hinders – third parties’ exercising of their basic rights. Therefore, the overall prohibition of strikes is justified because these organisations can only efficiently carry out their functions with a full workforce.
At the same time, however, Article 31 of the European Social Charter – ratified by Hungary in 1999 – stipulates that the right to strike by the permanent staff of law enforcement institutions cannot be entirely prohibited, only restricted, in the interest of the public, national security, public health or public morale. Furthermore, Decision 690 of 1979 of the Council of Europe prescribed that police officers should enjoy the same legal status as members of the civil service. Based on these provisions, the Ombudsman found that the Hungarian legal regulation fails to comply with international legal obligations.
The then Minister of Justice and Law Enforcement, Tibor Draskovics, examined the current regulation in the framework of the review project and found it constitutional, as the continuous and uninterrupted functioning of law enforcement services is a public interest. Nevertheless, the Ombudsman is proposing that, instead of full prohibition, grades should be identified as not all employees of law enforcement organisations work 24 hours a day in positions directly linked to the functions of these organisations. He claims that, given the lack of a right to strike, the employees of law enforcement bodies are being completely deprived of the possibility to protect their interests, as alternative interest advocacy is excluded by the strict ‘military’ hierarchy. Ensuring essential service, however, has to be reviewed with special care in the case of law enforcement bodies.
Right to strike in public service possibly unconstitutional
According to the Strike Act, the right to strike in state administration institutions can be exercised in compliance with the special rules specified in an agreement between the government and the trade unions involved. In his recommendation, the Ombudsman suggested that – as the basic right can be restricted only by legal provisions, as stipulated by the relevant provisions of the country’s Constitution – this solution is formally unconstitutional. Furthermore, he concluded that the definition ‘in state administration organs’ is ambiguous and therefore does not meet the requirement of legal certainty.
Deficiencies and remedies
The recommendations of the Ombudsman identified the following specific deficiencies regarding the Strike Act.
- The Act’s provisions are not sufficiently clear about whose subjective right it is to strike, who can call a strike and who can participate in it.
- The Strike Act fails to define the criteria, the conditions and restrictions of a ‘solidarity strike’, with special regard to the prohibition of political strikes.
- It does not include the basic rules of guarantees related to the process of reconciliation negotiations.
- The Act does not prescribe how mandatory essential services can be ensured in the event of a strike at an employer providing basic services for the population – even if the parties cannot agree on the essential service prior to the strike taking place.
- It does not prescribe when and in what way those calling the strike must give notification about the strike.
Based on his findings, the Ombudsman recommended the following changes as a solution to the existing shortcomings just outlined.
- Hungary’s parliament should amend the relevant law to meet international legal obligations and to ensure that employees of law enforcement institutions are granted the right to strike by implementing restrictions needed to protect the basic rights of third parties.
- The Ombudsman recommended that the Minister of Transport, Telecommunication and Energy should examine how the contradictions between ensuring essential services and the legality of strikes can be remedied through legislation or legal amendments.
- Mr Szabó proposed that the Minister of Justice and Law Enforcement should ensure that legal provisions are amended in a way that public service contracts include the obligation of notification in strikes and to adequately sanction public service providers for not meeting their obligation of notification.
- The Ombudsman directly addressed several clients and providers of important services to include the obligation of notification in the event of a strike in their business regulations – they included the Mayor of Budapest, as well as the chief executive officers of the Hungarian Railway Company (Magyar Államvasutak, MÁV) and of the Budapest Transport Company (Budapesti Közlekedési Vállalat, BKV). Mr Szabó specifically consulted the Chief Executive Officer of the railway company MÁV-START, Tamás Kozák, to find a way to remove ambiguities related to damages and compensation.
Reaction of trade unions
Only the Democratic League of Independent Trade Unions (Független Szakszervezetek Demokratikus Ligája, LIGA), which comprises the most strike-prone transport trade unions, reacted to the Ombudsman’s report. On the one hand, LIGA defended the current Strike Act, claiming that Mr Szabó was attacking an established practice that had been functioning well for 20 years, and which gave employees perhaps the only effective tool to fight the more powerful employers. LIGA emphasised that strikes serve not only the employees of a given company, but also other employees and society as a whole. For instance, the industrial action wielded against the closure of railway lines was staged not only to preserve jobs, but also to preserve public transport that is important for the whole of society.
On the other hand, LIGA shared the Ombudsman’s standpoint that the current level of restriction regarding the right to strike in the armed forces and law enforcement agencies is unacceptable in a democratic state. Furthermore, LIGA highlighted that the valid agreement in public administration depriving employees of a constitutional right is particularly questionable in a democracy.
Neither employers nor trade unions that are satisfied with the current civil service regulations responded to the Ombudsman’s report. While the report does not specifically address it, it is common knowledge that the agreement concluded in 1994 limits the right to strike to trade unions participating in the agreement. The lack of reaction is due to the fact that, under the Constitution in force, the votes of two thirds of members of parliament (MPs) are needed to amend the Strike Act. Presumably, approaching the end of its term of office, the former government would not be embarking on a reform of the Strike Act in order to remedy the anomalies found by the Ombudsman – it is likely that this will be the task of the new government, which took office in April 2009.
Katalin Schumacher, Gábor T. Fodor and László Neumann, Institute for Political Science, Hungarian Academy of Sciences