What Tools Do Employers Have At Their Disposal To Manage A Strike?

Author:Ms Emilie Ducorps-Prouvost
Profession:Soulier Avocats
 
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While the press has reported in recent months various blockages of industrial sites - such as the Amazon site in connection with the social movement of yellow jackets - and although these blockages are not necessarily linked to professional claims or even caused by the employees of the relevant site, we thought it would be interesting to elaborate this month on the right to strike in France and the means available to company managers to handle a strike situation.

The right to strike is the pet peeve of French employers... and for good reasons. France is the champion of strike actions: between 2005 and 2014, it lost between six and eight times more working days than the United Kingdom or Germany; in 2016 it experienced no less than 801 strikes.

The right to strike is a fundamental right but it is also a subject of controversy and conflict, particularly on the thorny issue of so-called "abusive" strikes. Paragraph 7 of the 1946 Preamble states that "the right to strike shall be exercised within the framework of the laws governing it". However, there is no framework law regulating it, but rather scattered laws governing specific sectors such as the public sector, air transport, and the case law of the Cour de Cassation (French Supreme Court). This may explain why companies established in France often express their feeling of legal uncertainty on the strike issue. How to define and where to draw the borderline of abuse? Is a political strike without professional claims lawful in France? What means of action does the employer have at its disposal in the event of a blockage of its company? What means of action not only with regard to striking employees but also to safeguard the interests of its company?

These are the questions that will be addressed in this article. After recalling the contours of the exercise of the employees' right to strike (1), we will focus on the means of action available to the employer vis-à-vis employees who abuse this right (2), and finally on the possible levers to safeguard the interests of the company (3).

  1. What are the contours of the right to strike?

    1. How to distinguish between a lawful strike and an unlawful demonstration?

      Exercising the right to strike broadly takes the form of "a collective and concerted work stoppage to support professional claims"1.

      As such, the lawful exercise of the right to strike requires the combination of three elements:

      1. A complete work stoppage: the so-called "go-slow strike" during which employees do not stop working but deliberately perform their work in a defective manner is not...

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