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Strike – What can employers do?

On April 17, 2023, a major strike was launched following a break in negotiations between the Norwegian Confederation of Trade Unions, YS and NHO. This is the first occurrence in modern times that interim settlement in the private sector has ended in conflict. The strike could have a major impact on the operations of many businesses. The following is a summary of the most important rules employers should be familiar with in the face of a strike.

Conducting labor struggles

Industrial action is a legal instrument that both parties can use when a conflict of interest is not resolved in negotiations or mediation. Industrial action is generally carried out in the form of strikes (the employee side) or lockout (the employer side), as these instruments are defined in section 1 f) and g).  A blockade is considered a legal link in the labor struggle. Normally, picket arrangements will be organised at all workplaces covered by the strike. The unions often operate with written guidelines for the activities of the picket lines. Picketers have the right, by peaceful means, to seek to prevent the strike from being undermined by strikebreakers and to check that exemptions and advance agreements for work during conflict are not abused. Picketers are not allowed to physically prevent potential strikebreakers from entering the workplace. The picket lines have to be content with pleas and the art of persuasion. The use of coercion, threats, defamation or physical force is illegal.

Conflict management guidelines

It is in the nature of the case that a labor struggle will interfere with the company’s operations. While the unions, for their part, will normally be concerned with making the strike as effective as possible, the employer side will be keen to mitigate the striking effects as much as possible. During a strike, a number of practical issues arise that the organizations on both sides have to deal with. It is common for the major players on each side of the private sector to issue written rules on the conduct of a labor dispute. It provides recommendations on how the parties should deal with the most important issues that will arise during a conflict. In particular, questions about whether strike-affected work can exceptionally be carried out during the conflict, the extent to which the enterprise can make re-allocations without coming into conflict with the scab norms, about the right to block work by using pickets, financial contributions to the parties to the conflict and the right to lay off those workers who are not in conflict. There are also questions about how the company should relate to employees who are not on strike.

Advance agreements and exemptions

The main agreements often contain rules that recommend that the parties enter into advance agreements on work during a conflict. An example of this is the main agreement LO-NHO § 3-3, which requires that prior agreements are concluded locally that regulate the termination and resumption of operations, and that work that is necessary to avert danger to life and health or significant material damage can be carried out during the conflict.

When workers who have been taken out on strike are granted an exemption to work during the strike, it can be considered a form of suspension of the suspension of the suspension. For these, the collective agreement has repercussions; Section 8 (3) of the Industrial Disputes Act. Exemption is based on agreement between the parties. Thus, it is up to the parties in each individual case to agree on the scope of exemptions. It is common for exemptions to be negotiated both before and during the conflict. In the private sector, dispensation negotiations are often conducted at a central level. Although exemptions are usually sought through a member enterprise, there are also examples of third parties applying directly to the employee tariff party for exemption.

Financial contributions to enterprises

Many of the employers’ associations have internal rules on compensation in connection with legal and illegal labour disputes. Provided that a claim for compensation is made within three months of the end of the conflict, member companies of the Confederation of Norwegian Enterprise (NHO), which are directly party to labour disputes, may, for example, receive compensation.

The status of the collective agreement during strike

During a strike, the collective agreement continues to apply to the relationship between the company and the employees who have not been taken out on strike or lockout, or who are covered by an exemption from the strike. This follows directly from the repercussion rule in Section 8(3) of the Industrial Disputes Act, inasmuch as the conditions for strike under Section 8(2) are not fulfilled in the case of these workers.

The impact of the strike on strikers

Workers who are taken out on strike have a duty to stop working. Formally, their position has been terminated with 14 days’ notice (the termination of seat) and they have resigned from their position with 4 days’ notice (the resignation) in accordance with section 3-1 no. 2 of the main agreement. The strike will eventually be stepped up gradually with 4 days’ notice. As the strikers are formally no longer employed by the business, the employer is not obliged to pay wages, travel allowances or board and lodging allowances to the strikers.

Restrictions on the employer's right to hire other labour

The scab norms prevent workers on strike from violating the organization’s work stoppage order and taking other work with the employer who is in conflict. Workers thus have the right to refuse to act as strikebreakers, without this being considered a breach of the employment contract.  If new workers are hired or hired who go into the place of strikers , we are dealing with the classic form of strikebreaking. If workers who have not been taken out on strike take over the strikers’ duties, it can also be counted as strikebreaking. If an outside company intervenes in the conflict by taking over strike-affected work, that company’s workers may refuse to perform the work to avoid becoming strikebreakers. Under the non-statutory norms of strikebreaking, the employer, the owner and his immediate family can do all the work for which they have capacity to limit the effects of the strike. It is generally believed that managers at higher or highest levels and supervisors have a duty to perform work beyond the ordinary during the conflict in order “to save values in a broader sense”. [1] Whether there are grounds for a further extension of their duty to work during a strike is disputed.

Strikebreaking is not prohibited by Norwegian law, but there is nevertheless broad agreement in Norwegian working life that strikebreaking is not acceptable.

[1] Recommendation on the Scab Problem from the Labour Law Council of 30 November 1965, page 8.

Layoffs as a result of strikes

If the strike means that further operations at the workplace cannot be carried out in a rational manner, the employer has the opportunity to lay off all or part of the remaining workforce. Companies that are not directly affected by the strike, but which nevertheless cannot operate as normal, can also lay off employees. Note that this broad layoff power only applies to the private sector.

However, a layoff during a strike must follow a number of procedural rules. Companies are obliged to have prior discussions with employee representatives before a decision to lay off employees is taken. Thereafter, the lay-off must be notified two weeks before it is implemented, if there is a conflict in their own company and no conditional lay-off notice has been given prior to the strike. In the event of lay-offs as a result of a conflict in another company or in the event of a conflict in violation of tariffs, no lay-off period applies. The selection of who will be laid off where only part of the operation will be suspended must be factual. The main rule is that employees with the shortest seniority must be laid off first, unless there is a justifiable reason to deviate from this.

In the event of layoffs as a result of strikes, the employer is not obliged to pay lay-off wages to the employees. Nor is unemployment benefits paid to workers who are affected by a strike and are laid off for that reason. This also applies to laid-off workers who do not participate in the strike if their pay and working conditions are closely linked to the strikers’ wages and working conditions.

Do you have more questions about the labor law aspects of a strike? Our employment law lawyers have good experience in assisting employers in dealing with the consequences of a strike.