“Strikes must have an impact and may hurt in a way."

Dutch Railways (NS) employees collectively laid down their jobs in protest against the current negotiations about a new collective labour agreement. The labour unions threaten to start further and bigger actions in September if the NS does not meet their requirements. These strikes are annoying for travellers but are a fundamental right for NS employees. Ruben Houweling, Professor of Labour Law at Erasmus School of Law, explains this right and its' scope.

The right to strike comes from the European Social Charter and also applies in the Netherlands, explains Houweling: "The Dutch Supreme Court decided in the eponymous NS case in 1986 that this right is also applicable in the Netherlands." Technically, striking is a form of non-fulfilment of the labour contract because strikers refuse to do their jobs. There is, however, a difference between striking and simply refusing to work, says Houweling: "When a strike is legitimate, an employer can not fire an employee for striking. Refusal to work due to a strike, therefore, differs from simply not feeling like working. In the latter, an employee risks (immediate) dismissal."

A strike may hurt

A strike can have a significant impact on the employer or third parties, and that is, according to the Professor of Labour Law, precisely what a strike is meant to do: "A strike – despite the inconvenience for all parties – must have an impact and may in a way hurt. During a strike, an employer can also not hire third parties to do the work. In other words, when the executive personnel of, for example, NS strikes, the NS is not allowed to hire temporary workers to do their jobs. That is what we call the 'backstab prohibition'."

In addition to the regular strike, in which employees just lay down their jobs, there are also alternative ways, like offering free transport and doing punctuality actions. These alternatives also fall under the right to strike, just like standing together with others, emphasises Houweling: "The Supreme Court has ruled that a strike can also include 'standing together with fellow workers'." The case in front of the court concerned a strike at a storage and transhipment company. The employees refused to unload ships. Accordingly, a ship decided to navigate to another storage and transhipment company. The employees of that company – who did not have a conflict with their employer – decided not to unload that boat, because it was related to the strikes of their colleagues at another employer."

Strike prohibition

The right to strike is extensive and thus a strong instrument for employees. However, there are some limitations. Houweling: "during the strike, employees have no right to salary. Luckily, unions sometimes pay the strikers from a strike fund." The Professor also shows some examples in which striking is forbidden: "these are situations in which striking could cause serious damages to the employer or third parties that are no longer in line with the employees' interests. Other examples are the importance of essential services: strikes that concern the water supply or law enforcement agencies (like police deployment at largescale high-risk events)." Finally, when a strike has not been announced in time, this could contribute to a possible prohibition: "that is the reason that strikes – especially the strikes that have a large impact – are announced in advance."



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