Concept and legal classification of strikes
The term “strike” refers in labor law to a collective, organized work stoppage by a large number of employees to enforce common interests against an employer or an employers’ association. As a rule, it is a central means of collective labor disputes within the framework of collective bargaining autonomy. The strike holds an outstanding position in the system of labor dispute law and is particularly relevant in the context of collective bargaining law. While the term is understood in various ways internationally, the legal conditions and limits of strikes are precisely regulated and clarified by case law in Germany and Europe.
Historical development of the right to strike
The development of strike law is closely tied to the emergence of trade unions and the pursuit of influence in labor relations. While strikes were often prohibited or even punishable in the 19th century, the Weimar Constitution recognized the constitutional right to freedom of association. In the Federal Republic of Germany, this right is enshrined in Article 9 (3) of the Basic Law (GG), which guarantees the right to form associations to safeguard and promote working and economic conditions.
Legal foundations of strikes
Constitutional protection
The right to strike is recognized in Germany under Article 9 (3) of the Basic Law as part of the collective measures protected by freedom of association. The Federal Constitutional Court has clarified that the right to strike is an indispensable component of effective collective bargaining autonomy. Restrictions are only permitted under strict conditions and for the protection of other constitutionally protected legal interests.
Ordinary statutory regulations
There are no explicit statutory provisions on strikes in German law. However, the right to strike is shaped by numerous labor and collective law regulations as well as by supreme court case law.
Scope of protection
The scope of protection for the right to strike generally covers all workers organized in unions. In certain cases, non-organized employees may also participate in strikes. Civil servants are subject to constitutional and statutory restrictions and, according to established case law, may not strike.
Permissibility and limits of a lawful strike
Objective and purpose of strikes
A lawful strike must aim at concluding, amending, or maintaining a collective agreement. Strike actions pursuing political goals or which are outside the collective bargaining system are generally not permitted (so-called political strikes).
Bearer of the strike
Only entities capable of collective bargaining, usually trade unions, are entitled to call for and carry out a strike. Wildcat strikes (strike actions not supported by a union) are considered unlawful and may have consequences for participating employees.
Course and forms of strikes
Strikes may be in the form of a full strike (shutdown of the entire business), partial strike, warning strike, or selective strike. Warning strikes, in particular, are recognized as legitimate bargaining tools within the peace obligation period, provided they take place after a collective agreement has expired.
Requirements for a lawful strike
As a rule, a lawful strike requires the following conditions:
- The strike is backed by a union with collective bargaining capacity
- The strike pursues goals that can be regulated by collective agreement
- The peace obligation has expired or has been lifted
- The principle of proportionality is observed
The proportionality of a strike is reviewed with regard to its duration, scope, appropriateness, and objectives.
Peace obligation
During the term of a collective agreement, there is a relative or absolute peace obligation. During this time, strikes concerning the matters regulated by the collective agreement are not permitted.
Legal consequences of a strike
A lawful strike does not terminate, but rather suspends, the principal duties arising from the employment contract for the duration of the work stoppage. The employment relationship remains in effect. The employer is not obliged to pay wages for work not performed due to the strike (the so-called “No Work, No Pay” rule). To compensate for this, employees usually receive strike pay from their union.
Lockout as a countermeasure
The strike is met by the employer’s countermeasure of lockout. Its lawfulness and proportionality are also subject to strict requirements. A lockout is only permitted under similar conditions as a strike.
Unlawful and illegal strikes
Strike actions not backed by a trade union (“wildcat strikes”) or not aimed at union objectives within the collective bargaining context are considered unlawful. Participation in such a strike may lead to employment law sanctions—particularly a warning or even summary dismissal.
For civil servants, a comprehensive ban on strikes applies under Article 33 (5) of the Basic Law. Breaching this duty can result in disciplinary action up to removal from service.
Strike in the European and international context
The right to strike is also protected in European labor law by the European Social Charter. The case law of the European Court of Human Rights regards the right to strike to a large extent as an essential component of freedom of association. However, there are still significant differences in national implementation.
In many countries, there are specific legal requirements for certain sectors (e.g., public sector, critical infrastructure, or transport). International agreements, such as the standards of the International Labour Organization (ILO), influence national legislation and case law on the right to strike.
Effects and significance of strikes
Strikes have a direct impact on the relationship between employees and employers. They serve as a bargaining tool in labor disputes and have considerable economic and social significance. A functioning right to strike is considered a crucial prerequisite for fair negotiation processes in working life.
Protection against discrimination
Striking employees enjoy comprehensive protection against discrimination and disadvantage by the employer. Retaliatory measures are not permitted as long as the strike is lawful.
Involvement of third parties
So-called ‘sympathy strikes’ (solidarity strikes in favor of other employee groups) are permissible under strict conditions, provided they meet collective bargaining requirements and maintain the proportionality of industrial action.
Summary
The strike is the central means of collective disputes between employees and the employer side in labor law. The right to strike is constitutionally protected in Germany, but specific conditions must be met regarding objective, sponsorship, course, and proportionality. Internationally, the right to strike is also recognized but is subject to different frameworks. Compliance with the legal framework is crucial for both employees and employers, as violations can have significant employment and civil service law consequences.
Frequently asked questions
What legal requirements must be met for a lawful strike?
A strike is only lawful if it meets certain legal requirements. In Germany, a strike is a means of collective representation of interests protected by the Basic Law (Art. 9 para. 3 GG) and is a fundamental part of freedom of association. Legally, a strike is only permissible if it is organized by a union with collective bargaining capacity, with the aim of reaching or enforcing a collective agreement. Another prerequisite is that the peace obligation has been observed—meaning labor actions are not allowed during the term of an existing collective agreement. Additionally, the strike must be proportionate, i.e., not disproportionate to the intended goal, and must be an appropriate and necessary means to achieve that goal. According to the principle of ultima ratio, a strike is only permissible when negotiations have failed and all less drastic measures have been exhausted. Often, a ballot of union members is also legally required, with the details regulated internally by the union.
Are all employees permitted to participate in a strike?
Not all employees may participate in a strike without restriction. Civil servants and judges in Germany are fully excluded from strikes due to their special status and duty of loyalty to the state. Employees in essential public services (e.g., transport or health care) may only strike subject to strict requirements and must comply with emergency service agreements to ensure that essential public services are not endangered. In principle, participation is possible for all members of the striking union. Non-unionized employees may also join a lawful strike and then enjoy the same labor law protection as union members. Special regulations apply to senior executives, as they may have particular employer-related obligations.
What labor law consequences does participation in a strike have?
If a strike is lawful, employees participating in the strike should generally not face any labor law disadvantages as a result. This means that dismissal or other sanctions solely based on participation in the strike are not permitted. However, during the strike period, the employment relationship is suspended: employees are exempt from the duty to work, and the employer does not have to pay wages for this time (the so-called ‘No Work, No Pay’ rule). Union members may receive strike pay under certain conditions. However, participation in a so-called ‘wildcat strike’, i.e., one not organized by a union or unlawful, may have employment law consequences up to dismissal.
To what extent may the employer respond during a strike?
During a lawful strike, the employer has the right to carry out a so-called ‘lockout’. This allows them to take protective measures by excluding employees—usually from the striking workforce or even the entire company—from the workplace and withholding pay. However, strict requirements apply to the lockout: it must be proportionate as a countermeasure and may only occur in response to a legally permissible strike. Furthermore, the employer is permitted to continue business operations during the strike and is not obliged to yield to the union’s demands. The use of agency workers or so-called ‘strikebreakers’ is only permitted to a limited extent, and particularly in cases of emergency services may be legally restricted.
How is legal protection provided in connection with strikes?
Legal protection in the strike context in Germany is provided by the labor courts. Employers can in particular apply for preliminary injunctions to prevent unlawful strikes. The courts examine whether the legal requirements for the strike have been met. If a court finds a strike to be unlawful, the union or striking employees may face injunctive relief claims and claims for damages. Conversely, employees who are disadvantaged due to their participation in a lawful strike may seek labor law protection—such as claims for continued employment or reinstatement—through the courts. The legality of lockout measures can also be reviewed by the labor courts.
What limits does the law set on strike conduct?
The statutory right to strike is always limited by the need to protect public interests and the general public. Strikes that violate the constitution or laws, or that endanger public safety or order, are not permitted. For strikes in vital sectors (hospitals, fire services, energy supply, etc.), emergency services must be organized so that urgent or essential work can continue. Anyone who resorts to violence or coercion during a strike or excessively blocks company operations exceeds the legal limits and risks criminal and civil consequences. Blockades and occupations are also only permissible under strict conditions. Observing these legal limits is crucial for the lawfulness of a strike.
Can replacement workers be employed during a strike?
The use of replacement workers during a strike is tightly regulated by law. Generally, employers are prohibited from using temporary agency workers as strikebreakers if this would undermine the effect of the strike (§ 11 (5) German Temporary Employment Act – AÜG). Own non-striking employees or external personnel may be used under certain conditions, provided no legal or collective bargaining provisions are violated. The use of fixed-term employees as strikebreakers is also permitted if minimum employment law standards are met. Violations of protective regulations may, however, result in labor law and, if applicable, unfair competition consequences for the employer.
