The workers' and employer's right of collective action, what does it mean?
In various news reports, such as "Audi Brussels gets no new model; unions: 'This means plant closure'", "Conflict at Audi Brussels: unions return 303 'hostage' keys", "Audi Brussels closes plant until staff is ready to return to work: 'Management seeks direct confrontation with workers'", emerges that Audi Brussels employees recently decided on a special collective action. But the employer is also responding.
Audi Brussels employees were faced with news that the Volkswagen Group will not assign a new model to the plant. In response, they refused to start work Wednesday, Sept. 4, after a period of economic unemployment. They blocked the road to the factory and "confiscated" the keys to 200 manufactured cars as a means of pressure. Thereupon the management threatened to file a criminal complaint. Sunday evening, September 8, management announced that the factory gates will remain closed until the staff is prepared to go to work normally. Workers will be forced to stay home without pay. Unions will consider whether unemployment benefits can be obtained for temporary unemployment due to force majeure and whether the lockout can be legally challenged by the employer.
The events surrounding Audi Brussels illustrate a broader trend: social conflicts are increasing throughout Europe. It is then appropriate to outline more precisely the contours of the right of collective action of the employees and of employer Audi, in particular the legality of the removal of the car keys and the legality of exclusion or lockout by employer Audi.
Workers' and employers' right of collective action.
The fundamental right to collective action of workers and employers, specifically the most common forms of action of strike and lockout, have a solid legal basis found in Article 6(4) of the Revised European Social Charter (ESC) and Article 11 of the ECHR on trade union freedom. Both treaties were concluded in the lap of the Council of Europe. The right to strike is part of the general legal principles of the European Union (judgment Laval, ov. 91).
The limitations of the right of collective action
The question is not what the foundation is, but rather what the limitations may be on the right of collective action. Those limitations flow grossly executes from two sources of law: the collective bargaining agreement and the law necessary in a democratic society to protect the rights & freedoms of others, the protection of public order or public health (Art. 6 ESH and Art. 11 ECHR).
The collective bargaining agreement
Agreements on maintaining social peace regarding the content of the collective bargaining agreement, e.g., on the minimum wages to be paid, and advance notice of strikes, are made in collective bargaining agreements. Moreover, the granting of a union premium in a collective agreement is often dependent on the maintenance of social peace in the sector or company.
Legal restrictions? Extortion? Theft.
The right to strike is not absolute. The limitations on the right of collective action of workers with respect to purely political strikes, public sector strikes such as prison and railroad strikes, peacetime public interest law performance, nor the restrictions arising from the free movement of services and freedom of establishment within the European Union for cross-border actions are not discussed here.
When collective action involves acts punishable under the Criminal Code or a special criminal law, for example, the right to strike may be limited. Indeed, such criminal provisions have the objective of protecting public order (supra no. 3). A well-known example is the punishment of striking activists who, in violation of Article 406 of the Penal Code, maliciously block public roads, railroads, or inland waterways (see the Supreme Court judgment of January 7, 2020, P. 19.0804.N).
The temporary removal of the keys of a few hundred manufactured Audi cars, owned by Audi, by employees or by union officials against the owner's will in order to exert pressure in the context of a collective conflict can also be considered a criminal offense and, more specifically, a theft, even if the removal is only temporary in nature. This crime is punishable under
of Article 461 Criminal Code. If it is one or more employees who appropriate the keys, it is a form of home theft, which is punishable under Article 464 of the Criminal Code. The union itself, due to the absence of legal personality, will escape the criminal dance. If the keys are quickly returned to the Audi management, the chances of an effective criminal prosecution are admittedly slim, given that a return would remedy the situation and a remediated situation may constitute grounds for dismissal.
There may not have been criminal extortion within the meaning of Article 470 of the Criminal Code involved because the pressure, "threat" that the activists wanted to exert with the theft, namely the loss of hundreds of cars, did not lead to signing concessions by Audi. Moreover, the keys have apparently since been returned.
And the lockout by Audi?
In order to ensure the unfettered exercise of the right to collective bargaining, Article 6(4) of the ESC, which has direct effect, also explicitly recognizes the right of employers to take collective action in cases of conflicts of interest, subject to obligations under collective bargaining agreements already concluded. What is meant is the right to the lockout by the employer, whereby employees are not allowed to work and are not entitled to wages. Again, the law may limit the right to lockout.
Lockouts are unusual in Belgium, unlike e.g. in Germany. On the face of it, Audi, a German company, is perfectly entitled to proceed with a lockout. Not only was a large part of the employees on strike, which unmistakably shows a conflict of interest. But also, taking away the car keys of the finished Audi's is an "act of war" rather than a strike. The outrage at the Audi management is understandable. Finally, it was likely that there would have been too few willing workers to resume production, so the employer faced a force majeure situation.
Finally, this. A poorly reasoned Supreme Court judgment of May 7, 1984, which imposed far-reaching restrictions on the exercise of the right to lockout, has become obsolete because it is inconsistent with the broad recognition of the right to lockout in Article 6(4) ESC, the treaty provision of which was later found to have direct effect and therefore to take precedence over the provisions of the 1948 Peacetime Public Interest Performance Act as interpreted in said Supreme Court judgment.
Conclusion.
It is not for outsiders to judge the appropriateness of the workers' or employer's right of collective action. The industry in Belgium, and the auto (bus) industry in particular, have long been in dire straits. Before taking drastic action, perhaps the outcome of the legal information and consultation procedure in the event of a proposed collective redundancy or closure of the company can be awaited. And then negotiations can begin on a social plan.
