SECTION 1. STRIKES

Article 1 of the Essential Services Act describes a ‘strike’ as a ‘collective and temporary decision of workers to stop working’. This implies that:

Case law and doctrine often refer to the definition given in the Dictionary of Social Legislation: ‘A voluntary and un-coerced decision taken by all or a group of workers to deliberately stop working temporarily as a means of achieving a specific objective.’ As this text never became legally binding, its definition is indicative only.

Strikes can be subdivided according to their:

In the past, the type of strike used affected the courts’ view of collective action. However, the Court of Cassation ended this situation with its principle ruling of 21 December 1981.

LEGAL POSITION

Before the Act of 24 May 1921, it was considered a criminal offence to organise and participate in a strike. Although the sanction under public law was repealed by the 1921 Act, striking remained an offence under civil law.

Initially, participating in a strike was considered to be a breach of contract, but not serious enough to warrant a unilateral termination of the contract of employment. Strikers were often dismissed for just cause. The answer to the question of whether or not all forms of professional collaboration had become impossible depended on the nature of the work stoppage. Regular strikes (i.e. recognised by the representative unions and respecting the obligation of social peace and the conciliation procedure) were considered legal. Taking part in such actions did not justify dismissal for just cause. Spontaneous strikes (i.e. recognised by the representative unions, but not respecting the social peace obligation and conciliation procedure) were often regarded as unlawful.