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Introduction to legal norms for Strikes and Industrial actions

Han Shih-sian
Secretary-General
Taiwan Federation of Financial Unions

       Over the past few years there has been a lack of a clear definition of the term “Industrial action” in our Labor Law. In general it means that one side or the other of the labor-management, who tries to pursue its claims, collectively agrees to take on a confrontational movement or an obstacle to the normal operations against the counterpart. Traditionally, industrial actions involve at times strikes, slowdowns, boycotts, picketing, occupations and etc. The preceding actions are used, when a labor contract relation is still in existence, in which the collective employees temporarily refuse to supply services.1

       A labor union starts a striking movement because of a labor dispute, which means the labor union calls in accordance with the laws an industrial action to collectively stop supplying services in hopes of pursuing some economic benefits or pursuing changes to maintain or alter the labor conditions. During the strike duration, the employer can avoid the obligation of paying wages to the striking employees, but can’t exempt other obligations, such as employee’s insurance affairs and accumulating job tenure during the strike period.  The labor relationship during the strike period continues to exist.2

       The active Act for Settlement of Labor-Management Dispute (hereafter known as the Act) defined “strike” and “industrial actions” in the Chapter “Industrial Actions” as follows:
  1. Definition of “strike” and “industrial actions”
       Article 5 of the Act stipulates that the industrial action means that people who are involved in a labor-management dispute do the strike action or other confrontational action to impede normal business operations for the purpose of accomplishing their objectives. The term “strike” means the action that employees temporarily refuse to provide their services. The types of industrial actions are various. The industrial actions done by the labor sides at times include strikes, slowdowns, boycotts, intentional disassembly, occupying a plant and etc. The management side at times uses the strategies of lockouts, continuing business and setting up a blacklist of the employees involved in the industrial action.
  1. In terms of the “rights disputes” , the industrial action cannot be undertaken in the labor-management dispute, but there are these exceptions.
       The second half of Paragraph 1 of Article 53 defined clearly that the strike is not allowed for the rights disputes of the labor-management dispute. But Paragraph 2 states exceptions, in which a labor union may conduct an industrial action in accordance with the Act when the central competent authority rules that an employer or an employer organization is in violation of Article 35 of the Labor Union Act or Paragraph 1 of Article 6 of the Collective Agreement Act. It is used to protect the labor side in conducting the “collective three labor rights”. If an employer is in violation of the “unfair labor practice” and is verified and decided by the Unfair Labor Practice Committee of the Ministry of Labor, the labor side can still undertake the industrial action. Even though the dispute belongs to the rights disputes, which is different from the impeding of private rights, the labor side can still undertake an industrial action.
  1. To simplify the strike procedure
       Paragraph 1 of Article 54 of the Act stipulates that a labor union shall not call a strike and set up a picketing line unless the strike has been approved or agreed upon by no less than one half of the members in total through direct and secret balloting. The deletion of the requirement in the old regulation “a strike resolution shall be made by convening the members of the general assembly “ has made the strike procedure more streamlined for a labor union. Only direct and secret balloting, and its approval by one half of the labor union members is required, for the ballot for going on a strike.
  1. Prohibited and limited industrial actions for special fields
       Paragraph 2 of Article 54 of the Act stipulates that teachers and workers employed by the Department of Defense and its affiliated agencies or schools cannot undertake a strike. Paragraph 3 of Article 54 of the Act stipulates that institutions such as Water supply businesses, Power and fuel supply businesses, Hospitals and Financial information service businesses, can only call a strike by a labor union before the labor-management sides have reached an agreement about the essential service clause. The term “essential service” refers to getting the business that is related to the public life and security or public benefits to maintain basic business’ operations and services. The essential service level and scope are distinguished from one field to another. Up until today it seems that there have not been any examples of agreements about the “essential service clause” made by labor-management sides for our references.
  1. Civil immunity or criminal immunity for lawful industrial actions
       Conducting the lawful and just industrial actions is the basic rights of people. Article 55 of the Law explains the protective scope of the civil or criminal immunity for a lawful industrial action pursued by a labor union and its members.

       In views of undertaking an industrial action, a labor union and its members shall be in accordance with the principles of “honesty and credibility” and “prohibition of abusing rights”. It means that the subject, purpose, manner and procedures should all be just and legal.
From the above regulations, we can see that the Law grants a legal basis for a strike and picketing lines for an industrial action. There are also the applications of the civil or criminal immunity to protect the employees who are using their rights, under the scope permitted by laws, to undertake an industrial action. The strike and industrial actions are also protected by our Constitution. It is a strategy to raise the labor and economic conditions of the employees. As long as it is not a violent action, a necessary progressive action is allowed to be taken by a labor union, in addition to refusing to supply services.3 During the strike, even impeding the business from normal operations is permitted, which is clearly defined by the Law (see Article 5 of the Law). Only in this way, can it bring the management side some pressure, in hopes of forcing them to re-initiate an opportunity for bargaining with the labor union.

       Finally, although the Law does not concretely explain what to do about the picketing lines, the strike movement is not only for putting the work aside and going home to make tea, sleep and watch TV. On the contrary, a labor union is supposed to take the aggressive protesting action to assure that the strike by the labor union affects pressure, in hopes of forcing the employer to negotiate and compromise with the labor union. Therefore, for ensuring labor union members to comply with the labor union’s resolution of going on a strike, as well as for ensuring a lawful strike to be valid, after calling a strike the labor union will gather and discipline a group of picketers, who stand at the entrance of the company or its principal gate for the purpose of persuading others not to work, persuading the customers not to consume over there, or impeding the management side from delivering goods. Even the persuading or protesting strategies which include a defensive wall by people, a sit-in and a demonstration are used to hinder non-labor union members and substitutes for work, in hopes of forcing the management side to bargain with the labor union. On the other side, the company usually hires temporary workers or offers strikebreakers a subsidy during the strike duration to maintain the business and to help it keep going. Those who are threatened by the management side and those who are concerned for the personal livelihood that decides to continuously work disregarding the labor union’s resolution are called the “strikebreakers”.

       The concept of a picketing line during strikes has been prevailing for many years in other countries. It’s regarded as being lawful in most of the advanced countries. Picketing is used as a way of effectively putting pressure on the employee and increasing the success rate of a strike. The most important thing is that the government is not expected to suppress a strike as long as the strike is lawful and just and as long as the strike is not undertaken with violence and menace.
Moreover, in regards to the police power, it shall take whatever measures may be reasonably considered proportional, to ensure that the Law is followed and the industrial actions are not impeded or ignored as well.4
 
References
  1. (89) Lao-Shang Zi Ti No.17 Civil verdict by the Taiwan High Court (in Chinese)
  2. Huang,Cheng-guan(2009) Labor Law. Taipei: New Xue Lin, at p.B-23 (in Chinese)
  3. Huang,Cheng-guan(1996) Labor Law. Taipei: National Open University Press, at pp257 (in Chinese)
  4. Yang, Tong-shuan(2007) Collective Labor Laws-Theories and Practices. Taipei: Wu-Nan Book Inc., at pp325 (in Chinese)