A Judgment by the Court of Appeal of Mons dated 20 May 2015 rekindles the debate on the boundaries of what is meant by the « normal exercise » of the right to strike.
It might be useful to recall at the outset that the establishment of strike pickets, in the context of a collective action, is not subject to any special regulation under Belgian law. The commented judgment, which states that a non announced picket does not exceed the limits of a normal exercise of the right to strike, is far from being generally accepted.
The facts giving rise to the court case are as follows.
After the brutal dismissal of a protected employee, a collective dispute arises immediately within the company. Without notice, the workers on strike block the access to the premises through the installation of strike pickets.
In order to brake this « assault », the employer files a request for an ex parte application. The following Court Order orders the removal of the picket and prohibits, under threat of a penalty payment, any action that could result in blocking the access to the premises.
Two workers decide to institute third party proceedings against this Order. The Court declares their action admissible but unfounded and gives right to the employer.
The Order is appealed. In appeal, the Court gives right to the striking workers and reverses the initial Court Order. In its judgment, the Court of Appeal takes position in the debate related to the legal qualification of « assault » and to the limits that case law, in recent year, tried to define for the right to strike.
1.
The Court recalls first that the right to strike is not absolute. Workers cannot infringe an individual right, belonging either to the company or to an individual, through a collective action. Therefore, the competence of the President of the Court of first instance (-who rendered the Court Order-) to grant the ex parte application is fully justified in order to protect the exercise of rights by a corporation or an individual. In this context, the intervention of the President of the Court does not constitute an infringement to the normal exercise of the right to strike as such.
Although the President of the Court is not necessarily the « obvious » judge to hear disputes between employers and workers, he is entitled to intervene and issue injunctions against infringements of individual rights (property right, freedom of movement, freedom of trade and industry, the right to work for non-striking staff).
2.
With respect to the locus standi, the Court of Appeal states that is of no importance that the collective dispute is no longer present or that the preceding Order in first instance covers all workers without distinction, given that the parties in this matter were able to justify their interest when the facts occurred.
3.
The Court of Appeal recognises also that the striking workers had no other choice but to opt for collective action and strike pickets in response to an employer who neglected the application of the specific dismissal procedure for a protected worker.
According to the Court of Appeal, this specific circumstance justifies the temporary infringement of certain fundamental rights including the right to work, the property right and the freedom of trade or industry.
When the balance, which should prevail in the relation between employers and workers, is broken, strike pickets should not, according to the Court, equated with « assault ».
What can be learned from this Court Decision?
The Court of Appeal of Mons agrees with case law that defends the idea that « assault » must be assessed according to the employer’s conduct. The use by workers of certain methods (such as blocking the access to the premises) could be justified if those workers are victims of an abuse of right.
However, the Court’s point of view that strike pickets do not exceed the normal exercise of the right to strike, is far from unanimous in jurisprudence. Indeed, other Courts considered that the mere blocking of access to the premises should be considered « assault » and not a regular exercise of the right to strike.
As always, the factual situation should be carefully analysed on a case-by-case basis.
