Five questions concerning industrial actions

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The current Government Programme includes several employment reforms that the Finnish Government plans to implement in legislation. These reforms are related to increasing local collective bargaining, implementing an export-driven labour market model, improving industrial peace, increasing the threshold for applying the Act on Co-operation within Undertakings, lowering the protection against unjustified dismissal, and making the first day of sick leave unpaid, among other things. 

The left-wing parties and trade unions in particular have strongly criticised the Government’s planned reforms and have called for tripartite negotiations to discuss them. Despite the criticism, the Government has continued to pursue the legislative reforms, some of which are intended to enter into force already in 2024.

As the Government has not budged, trade unions have initiated several different political industrial actions. The participating trade unions have included the Industrial Union, the Finnish Transport Workers’ Union AKT and the Trade Union for the Public and Welfare Sectors JHL. Industrial actions will likely continue during this spring unless the Government agrees to change its plans.

Industrial actions have caused major disruptions to society. Employers have suffered large-scale economic losses, and many factories have had to run down their production in good time before the actual industrial actions have commenced. Employees, on the other hand, have had to take care of their children during working days due to striking daycare employees, or they have had trouble getting to work as public transport employees have initiated industrial actions.

During these industrial actions, employers have weighed various solutions and options to limit the damage. In this blog, Mikko Hanni and Outi Tähtinen will answer some of the employers’ most frequently asked questions.

1. Can the employer ask whether an employee will come to work during industrial action?

If the question is based on organising work during industrial action, the employer is entitled to ask it. The employer has the right to plan its operations during industrial action as well. It is important for the employer to know whether it can keep all its locations open during industrial action, for example.

However, the employee generally has the right to cancel their announcement and instead participate in industrial action, and the employer cannot take any action against the employee due to the cancellation. The situation can be assessed differently, for example, if the employee cancels just before their shift with the sole purpose of causing as much damage to the employer as possible.

2. Can the employer unilaterally restrict industrial action?

The employer can strive to restrict industrial action only in very exceptional circumstances. As a general rule, this is only possible when the industrial action is unlawful, i.e. it directly, concretely and seriously compromises the exercise of other fundamental rights, such as the protection of life and health or the environment. In some cases, employers have sought to restrict industrial action by applying to the court for a precautionary measure, whereby the court could order the trade union to stop the industrial action in so far as it is unlawful.

However, courts have taken a very reserved position on restricting industrial actions. A recent example is the precedent KKO:2023:95. In its application for a precautionary measure, the employer had requested to end the strike at the factories’ district heating power plants and sewage treatment plants in so far as the industrial actions concerned the work specified in the application, the omission of which, in the employer’s view, would endanger life, health and/or the environment.

The Supreme Court ruled that even though industrial action can be unlawful due to the concrete and serious risk to life, health or the environment, it is the applicant’s duty to prove that such compromise is likely. Based on the precedent, the employer must provide substantial evidence of a concrete and serious risk in order to obtain a precautionary measure.

3. Can the employer require the performance of emergency work during a strike?

The employer can request the performance of emergency work during industrial action within the narrow confines of the Working Time Act. Some trade unions, such as the Industrial Union, may have excluded emergency work from the scope of industrial action in their industrial action notice.

Requesting the performance of emergency work during industrial action is possible if an unforeseeable event interrupts or seriously threatens to interrupt regular operations or to put life, health, property or the environment at risk. The employer must notify the occupational safety and health authority of the emergency work and provide the employee representative with an opportunity to attach an opinion to the notification. The occupational safety and health authority may either leave the matter as it stands notified or take action to limit or discontinue the emergency work.

Based on the statements of the occupational safety and health authority, there are generally no grounds referred to in the Working Time Act for requesting the performance of emergency work during industrial action. In the authority’s view, emergency work during industrial action can only be allowed in exceptional circumstances, in which situations that are predictable in themselves coincide in an unusual way – for example, if a strike, a wave of sick leaves, a refusal to perform protection work and other similar factors occur at the same time.

4. Can industrial peace be extended with a local agreement or by applying for a special permission from the trade union?

Based on case law (e.g. Labour Court decision TT 2019:71) and legal literature, an employer and a registered employee association can, as a general rule, extend their statutory obligation for industrial peace with an agreement that can be deemed a local collective agreement. As an example, the agreement can establish that employees working in specific functions cannot participate in political industrial actions with the other employees of the employer.

Some trade unions have established special strike committees that can exclude some critical activities from industrial action based on the employer’s application. Strike committees may grant such special permissions if the employer is able to provide credible justifications.

5. Is an employee entitled to be absent if they cannot get to work due to industrial action by public transport employees?

The means of getting to work are the employee’s responsibility also during a public transport strike, and the employer is not obligated to arrange for alternative means of transportation for its employees. While many employees have worked remotely during the public transport employees’ industrial action, some work cannot be performed remotely.

The employer is not obligated to pay the employee for the days the employee cannot get to work during industrial action. In such a case, the employer may be entitled to take other employment law action against the employee, although the employer should still evaluate the situation on a case-by-case basis, account for all the special circumstances and explore any voluntary arrangements concerning working hours or taking time off.