Europe
Like in Israel, the law in many European countries adopts in general a liberal approach to employees’ strikes but imposes certain restrictions on a stoppage of services that are regarded as ‘essential’ — including in the medical field. Thus, for example, Belgium, the Czech Republic, Estonia, Greece, Hungary, Ireland, Italy, Malta, Romania and Slovenia impose statutory restrictions on the right of physicians to strike.1
First and foremost, these are procedural restrictions that are also reminiscent of the statutory requirements in Israel. For example, in France the physicians are required to give a fifteen day warning before a strike and in Belgium they must give two weeks’ notice.2 In Lithuania, the warning period required is twice as long as in other industries.3
Insofar as substantive restrictions are concerned, in England the employers’ organizations and the trade unions in the public sector have the habit of holding collective negotiations. England does not have a written constitution, and therefore the right to strike is granted by virtue of statutes and regulations. Thus, for example, the European Charter of Human Rights is incorporated in the laws of the State by virtue of the Human Rights Act of 1998.4 Section 11(1) of the law states:
‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.’5
Many regard this section as a statutory source for the right to strike, even though it does not mention it expressly.6
The Trade Union and Labour Relations Law of 1992 imposes restrictions on organizational measures in order for them to be regarded as legal. Sections 226-235 of the Law requires trade unions to hold a secret ballot among its members in order to obtain their consent to take industrial action, and to give notice of this to the employer. 7 Currently the English statute does not specifically address industrial action in the healthcare services or in essential services.
In Belgium, the constitution enshrines the right to collective bargaining and, as a part thereof, also the right to strike.8 However, the Essential Services Law requires the medical industry to continue to provide services even in the event of a strike in accordance with decisions made by joint committees of employees and employers.9
In Cyprus, there has been a right to stop essential services since 2004, when the Government, the trade unions and the employers signed an agreement that brought an end, inter alia, to the prohibition against strikes by essential employees, which had been in force until that time.10
In Holland, the law permits essential workers to strike, provided that third parties do not suffer as a result of the strike.11 In practice, prolonged strikes in the army, the legal system and the prisons are unacceptable, but there is no absolute and formal prohibition that prevents employees in these sectors from striking.12 With regard to physicians, the Supreme Court of Holland has held that even when there is a strike in healthcare services, care should be taken to provide services on a minimum level.13
In Norway, there is no specific reference in the law to strikes in the healthcare services. In practice, strikes held by physicians and nurses — the most recent of which was in 2010 — ended with the parties being referred to arbitration.14
The United States
The National Labor Relations Act, which was enacted in 1935, guarantees employees the right to form unions and to conduct collective bargaining.15 In view of the fact that the American health system is mostly private, it has very few strikes in this industry, and there is no legislation that specifically relates to it.
Canada
Industrial action in the Canadian health system is not rare. The law that relates to it varies between the provinces. In some of them the law restricts the right to form unions, to hold collective bargaining and to strike, especially in the public sector. Thus, for example, nurses and paramedics in British Columbia lost the right to strike, when in 2001 a law that was enacted prohibited it, and a collective ‘agreement’ was forced upon them by legislation.16 Another example of restrictions upon strikes can be found in Ontario, where legislation relating to employment relations does not allow physicians, like lawyers, dentists, farmers and additional professionals, the right to strike.17 In provinces where physicians are permitted to strike, the legislature’s approach to the supply of emergency healthcare services during a strike varies: in some the law gives details of how these services should be provided, and in others it does not address this. In any case, trade unions and employers conduct negotiations with regard to the manner of providing these in all the provinces.18
Australia and New Zealand
Strikes in Australia are controlled both on the Federal level and on the State or territory level. The Australian Industrial Relations Commission (AIRC) has the power to determine a limited time for conducting negotiations, and even to suspend the right to strike insofar as essential services are concerned. The legislatures of New South Wales and Victoria have also enacted laws that restrict the right to strike in these services. As a rule, the supply of emergency healthcare services in Australia is guarantees even during physicians’ strikes.19
In New Zealand, the Employment Relations Act of 2000 imposes certain limitations on industrial action in emergency services. According to the law, if a planned strike is likely to affect the public interest (including public security and health), then a written warning of the intention to strike should be given to the employer and to the chief executive of the Department of Labour.20 In the specialist physicians’ strike of 2008, for example, each senior physician was given the work load of two specialists, in order to ensure that the supply of healthcare services during the strike would not be affected.21
Only recently the court in Papua New Guinea declared that the physicians’ strike that broke out in the country in March this year was illegal, and it ordered that it should be stopped, after it held that the strikers did not carry out all of the proceedings required in order to take industrial action. Despite the court’s decision, the physicians’ union continued the strike. As a result, its leaders were arrested by the police and charged with contempt of court, and the strike came to an end.22
1European Foundation for the Improvement of Living and Working Conditions, Employment and industrial relations in the health care sector, http://www.eurofound.europa.eu/docs/eiro/tn1008022s/tn1008022s.pdf, last accessed 29 May 2011.
2 European Foundation for the Improvement of Living and Working conditions, Employment and industrial relations in the health care sector, http://www.eurofound.europa.eu/docs/eiro/tn1008022s/tn1008022s.pdf, last accessed 29 May 2011.
3 Dr. Tomas Davulis, National Labour Law Profile: Lithuania, International Labour Organisation, July 2004.
4 Human Rights Act 1998, http://www.legislation.gov.uk/ukpga/1998/42/contents, last accessed 13th June 2011.
5 The European Convention on Human Rights, article 11(1), 3/9/1953.
6 Sonia McKay, ECHR upholds right to collective bargaining and to strike, European Industrial Relations Observatory on-line, January 15, 2010.
7 Trade Union and Labour Relations (Consolidation) Act 1992, http://www.legislation.gov.uk/ukpga/1992/52/part/I/chapter/V, last accessed June 13, 2011.
8 The Belgian Constitution, Article 23(1), JANUARY 2009, BELGIAN HOUSE OF REPRESENTATIVES, D / 2009 / 4686 / 08.
9 The Essential Services Law, 1948.
10 Eva Soumeli, Agreement regulates settlement of labour disputes in essential services, European Industrial Relations Observatory on-line, 21 April 2004, CY0404103F.
11 Sarah Rook, George Rodenhuis, Wouter Kortooms and Annika Blanke, The Right to Strike: A Comparative Perspective. A study of national law in six EU states, pages 80-95, The Institute of Employment Rights, www.ier.org.uk.
12 F. Dorssemont, T. Jaspers and A. van Hoek, Cross-Border Collective Actions in Europe: A Legal Challenge, Intersentia, 2007.
13 Ibid.
14 Norway Mandatory Arbitration Health, European Industrial Relations Observatory On-Line, http://www.eurofound.europa.eu/eiro/studies/tn1008022s/no1008029q.htm last accessed May 31, 2011.
15 National Labor Relations Act 1935, Title 29, Chapter 7, Subchapter II, United States Code.
16 Annual Survey of Violations of Trade Union Rights, International Trade Union Confederation, 2007.
17 Ibid.
18 Larry Haiven and Judy Haiven, The right to strike and the provision of emergency services in Canadian Health Care, Canadian Centre for Policy and Alternatives, December 2002.
19 Colin Fenwick, Senior Lecturer, Centre for Employment and Labour Relations Law School, University of Melbourne, Victoria, Australia and Jane Hodges, National Labour Law Profile: Australia, 2002, International Labour Organisation.
20 Employment Relations Act 2000 No. 24 (as of April 1, 2011), http://www.legislation.govt.nz/act/public/2000/0024/latest/DLM59985.html?search=ts_act_employment+relations+act_resel&p=1, last accessed June 14, 2011.
21 Robinson G., McCann K., Freeman P., Beasley R., The New Zealand national junior doctors’ strike: implications for the provision of acute hospital healthcare services, 2008 Jun;8(3):272-5.
22 PNG Doctors’ Strike Ends, Union Leaders Arrested, Radio Australia, March 31, 2011, http://pidp.eastwestcenter.org/pireport/2011/April/04-04-02.htm.